                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1300
                         ___________________________

                                  Herman L. Hutton

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

 Danny Maynard, Sr., Mayor, Individually and as Mayor of the City of England,
  Arkansas; Lenny Abrams; Peggy Baker; Rick Douglas; Dearl Frizzell; Mary
Givens; Bill Newton; Jeremy Nutz; Dudley Webb, Jr.; City of England, Arkansas

                       lllllllllllllllllllll Defendants - Appellees
                                        ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                           Submitted: September 23, 2015
                              Filed: February 3, 2016
                                  ____________

Before WOLLMAN, COLLOTON, and KELLY, Circuit Judges.
                       ____________

KELLY, Circuit Judge.

       Herman Hutton brought claims pursuant to Title VII of the Civil Rights Act,
42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act (ADEA), 29
U.S.C. § 621 et seq., and 42 U.S.C. §§ 1981, 1983, and pursuant to state law, alleging
that he was terminated as Chief of Police of England, Arkansas, in retaliation for his
desire to promote an African American staff member at the police department, in
retaliation for his preaching off-duty as an ordained Baptist minister, and because the
City wanted to replace him with someone younger. The district court1 granted
summary judgment in favor of the defendants on all of Hutton’s federal claims and
dismissed his state law claim of wrongful discharge without prejudice. On appeal,
Hutton challenges only the dismissal of the retaliation claim2 based on his desire to
promote an African American staff member.3 We have jurisdiction pursuant to 28
U.S.C. § 1291 and, finding no error, we affirm.

                                       I. Background

      Hutton, a white man, began working as the Chief of Police for the City of
England, Arkansas, on August 6, 2007. In 2009, Hutton began preaching as a Baptist
minister on his days off. In 2012, local residents complained about a community
meeting Hutton led that they thought had too much religious emphasis and felt like
a church service. The Mayor of England, Danny Maynard, asked Hutton to focus on
city matters during community meetings and when on-duty.



      1
       The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
      2
        In his statement of the case, Hutton states that he also appeals the dismissal of
his state law wrongful discharge claim, but he offers no argument in support of
reversal and therefore we do not address this issue. See BLB Aviation S.C., LLC v.
Jet Linx Aviation, LLC, 748 F.3d 829, 838 n.4 (8th Cir. 2014).
      3
        It is unclear whether Hutton also attempted to assert a claim of associational
race discrimination separate and distinct from his claim that he was terminated in
retaliation for seeking to promote an African American staff member. Even if he did,
our analysis would not change. Hutton’s desire to promote an African American is
the only “association” he asserts and is the only purported statutorily protected
activity at issue.

                                          -2-
       Hutton also experienced conflict with the City over certain firearms
certifications. Hutton was responsible for ensuring the certification of his officers.
As of September 19, 2012, the date on which Hutton was terminated, Hutton’s
officers were not up-to-date on their firearms certifications and had not been firearms-
certified for over two years, from June 2010 to September 2012. According to
Hutton, this was due to a shortage of ammunition. The City countered that, had
Hutton brought the issue to the City Council’s attention, the Council would have
provided the necessary extra funds for ammunition.

       Concerned community members also sent other complaints to Maynard about
Hutton and his department’s performance. For example, the Director of the Housing
Authority complained that no officer had responded to a crime that occurred at the
Housing Authority. A local businessman also complained that Hutton’s officers
targeted one of his employees to give him a ticket. According to Hutton, the ticket
was for a legitimate traffic stop.

       At some point, Hutton also became aware of a dent in the fender of his new
department-issued Tahoe. Maynard asked him to repair it, but he failed to do so.
Hutton also exceeded the City’s budget when purchasing dashboard video cameras
pursuant to a federal grant, and he did not return one camera to the vendor as
instructed. After Hutton had been asked five times whether the camera had been sent
back and he had still failed to return it, the issue, according to Maynard, became “the
straw that broke the camel’s back” and Maynard decided to terminate Hutton.

      The day before Hutton was terminated, he informed Maynard that he wanted
to promote Brenda Parks, an African American staff member. Maynard told Hutton,
“You do whatever you think is right, Chief.” While Parks did not receive the
promotion immediately because the city eliminated the intended job, she was not fired
and she remained in her previous position. The intended position was then



                                          -3-
consolidated with another position within the department, and Parks was promoted
to the new position. She is currently the department’s head dispatcher.

       Hutton alleged that Maynard and Maynard’s friends,4 including a City Council
member, openly displayed racially discriminatory animus towards African American
citizens of the city. Hutton said that they referred to African American citizens with
terms such as “those people,” “them people,” and “the people from the other side of
the tracks.” One of Maynard’s friends used the “n-word” and, according to Hutton,
Maynard took no offense at the use of the term.

       After he was terminated, Hutton appealed the decision to the City Council,
requesting reinstatement. At the City Council meeting, no one, including Hutton,
mentioned Hutton’s attempt to promote Parks or his religious activities. The
Council’s process is unclear, but in any case the Council had an executive session at
which they voted to not reinstate Hutton. At the session, Maynard provided the
members with information about at least two terminable offenses—the firearms
certification and camera issues—as well as his view that Hutton had neglected some
of his job duties.

      Only one Council member voted to reinstate Hutton, and she did so because
Maynard failed to offer any documentation to support his allegations about Hutton’s
shortcomings. Later, a second Council member said she felt somewhat misled by
Maynard about the extent of Hutton’s problems on the job. All Council members
who were asked agreed, however, that the subject of Hutton’s desire to promote Parks
was never raised or discussed during the executive meeting. Moreover, none of the
Council members disputed that there were complaints about Hutton’s job
performance, that Hutton had failed to ensure his officers were firearms-certified, or


      4
     Affidavits and the parties’ briefings repeatedly refer to the speakers as
“Maynard’s friends” with little additional specificity or clarification.

                                         -4-
that Hutton had failed to return a camera and get his department-issued vehicle
repaired as instructed.

                                      II. Discussion

       We review the district court’s grant of summary judgment de novo, viewing the
facts in the light most favorable to Hutton, the non-moving party. Sprenger v. Fed.
Home Loan Bank of Des Moines, 253 F.3d 1106, 1110 (8th Cir. 2001).

      A.     Exhaustion

       “Title VII requires that before a plaintiff can bring suit in court to allege
unlawful discrimination, [he] must file a timely charge with the EEOC or a state or
local agency with authority to seek relief” on his behalf. Richter v. Advance Auto
Parts, Inc., 686 F.3d 847, 850 (8th Cir. 2012); see 42 U.S.C. § 2000e-5(e)(1). The
charge must be filed with the EEOC or other agency within 180 days “after the
alleged unlawful employment practice occurred,” and give notice to the employer of
the circumstances of “the alleged unlawful employment practice.” 42 U.S.C. §
2000e-5(e)(1). The district court noted that Hutton failed to exhaust his
administrative remedies as to his Title VII retaliation claim, but proceeded to decide
the claim on the merits because the City failed to “address the issue of exhaustion.”

       On appeal, the City asserts that Hutton’s claim should be dismissed because he
failed to exhaust his administrative remedies. Hutton concedes that he failed to
exhaust his claim, but asserts that the City has waived this defense. The City notes
that it raised this defense in its answer to the complaint, and argues it was not
required to raise it again in its motion for summary judgment. Because we can
resolve this appeal on other grounds, we leave for another day whether a defense
based on a failure to exhaust administrative remedies may effectively be waived.



                                         -5-
Like the district court, we conclude that the better approach in this case is to address
the merits of Hutton’s claim.

      B.     Retaliation Claim

        To survive a motion for summary judgment on a retaliation claim, Hutton either
must offer direct evidence of retaliation or create an inference of retaliation under the
McDonnell Douglas burden-shifting framework. Lors v. Dean, 746 F.3d 857, 865
(8th Cir. 2014) (citing Young-Losee v. Graphic Packaging Int’l, Inc., 631 F.3d 909,
912 (8th Cir. 2011)). Direct evidence of discrimination must show “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 adverse employment action.” Russell v. City of Kansas City, 414 F.3d
863, 866 (8th Cir. 2005). Direct evidence encompasses comments or statements
indicating discriminatory intent, where those comments are made by people with
decision-making authority. See Moody v. Vozel, 771 F.3d 1093, 1096 (8th Cir.
2014). “By ‘direct’ evidence, we mean ‘the causal strength of the proof, not whether
it is “circumstantial” evidence.’” Lors, 746 F.3d at 865 (quoting Griffith v. City of
Des Moines, 387 F.3d 733, 736 (8th Cir. 2004)). Strong circumstantial evidence may
also constitute direct evidence. Griffith, 387 F.3d at 736. If there is no direct
evidence and an inference is required, the familiar three-step burden-shifting analysis
from McDonnell Douglas applies. See Ellis v. Houston, 742 F.3d 307, 319 (8th Cir.
2014) (retaliation claims “analyzed under the same McDonnell Douglas burden
shifting framework as Title VII claims”).

       The district court determined that evidence of Maynard and his friends
referring to African American people with derogatory language did not constitute
direct evidence of a racially discriminatory animus because Hutton provided no
context or time-frame in which the remarks were allegedly made. Moreover, Hutton
did not demonstrate any specific link between the alleged remarks and his

                                          -6-
termination. On appeal, Hutton does not point to any additional direct evidence.
Instead, he relies in large part on Beshears v. Asbill, in which a decision-maker
commented that older employees had problems with adaptation and flexibility, and
the comments were “made during the decisional process by individuals responsible
for the very employment in controversy.” 930 F.2d 1348, 1354 (8th Cir. 1991).
Hutton offers no such employment-related statements by a decision-maker here. We
therefore agree with the district court that Hutton has failed to establish direct
evidence of retaliation.

       To proceed under the indirect method of proof, Hutton must initially show that
he engaged in statutorily protected conduct, that he suffered an adverse employment
action, and that a causal connection exists between the two. Fiero v. CSG Sys., Inc.,
759 F.3d 874, 880 (8th Cir. 2014). The district court assumed that Hutton had
engaged in statutorily-protected conduct by associating with and seeking to promote
an African American staff member. The court also concluded that Hutton’s
termination constituted an adverse employment action. The court ruled, however, that
Hutton had failed to identify any causal connection between his desire to promote an
African American staff member and his termination, and had therefore failed to
establish a prima facie case of retaliation. The court concluded alternatively that
Hutton failed to demonstrate that the reasons given for his termination were
pretextual. See id. at 880 (once prima facie case established and nondiscriminatory
reason offered, burden shifts back to plaintiff to establish pretext and a reasonable
inference of retaliation).

       Because the district court proceeded to an analysis of pretext on the motion for
summary judgment, we conclude it is unnecessary to address whether Hutton
established a prima facie case under the McDonnell Douglas framework. See
Johnson v. Ready Mixed Concrete Co., 424 F.3d 806, 810 (8th Cir. 2005) (citing U.S.
Postal Serv. Bd. of Governors v. Aiken, 460 U.S. 711, 715 (1983)). Hutton does not
dispute that defendants offered a legitimate, non-discriminatory reason for his

                                         -7-
termination. We therefore turn directly to pretext to determine whether there is a
genuine issue of fact for trial on the question of retaliation.

       In order to succeed, Hutton must both discredit defendants’ asserted reasons
for his termination and show that the circumstances permit drawing a reasonable
inference that the real reason for his termination was retaliation. Gilbert v. Des
Moines Area Cmty. Coll., 495 F.3d 906, 918 (8th Cir. 2007). Evidence of pretext and
retaliation “is viewed in light of the employer’s justification.” Logan v. Liberty
Healthcare Corp., 416 F.3d 877, 881 (8th Cir. 2005) (alterations in original).

       Hutton claims his termination was a direct result of his desire to promote Parks
and that the temporal proximity of the two events shows causation. Temporal
proximity alone is insufficient to show that an employer’s proffered reason for action
was a pretext for discrimination, Gibson v. Geithner, 776 F.3d 536, 541 (8th Cir.
2015), but Hutton offers several arguments, in addition to temporal proximity, to
support his assertion that defendants’ rationale for his termination was pretextual.
First, Hutton asserts that Maynard’s reasons for his firing shifted over time. See
Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 995 (8th Cir. 2011) (“Substantial
changes over time in the employer’s proffered reason for its employment decision
support a finding of pretext.”) (quoting Smith, 302 F.3d at 835). He points to the
Council member who felt Maynard may have misled her regarding the extent of
Hutton’s problems as Chief of Police. But Hutton does not allege that Maynard
offered different reasons to the City Council for the termination than he provided to
any other person at any other time; and the Council member at issue did not dispute
that the Council was presented with information about the firearms certification, the
dashboard cameras, and a general statement that Hutton was neglecting some of his
job duties. Indeed, Hutton himself agrees that the firearms certification and camera
issues—two key reasons Maynard provided for terminating Hutton—could have
“shake[n] [his] boss’ faith” in him and led to his firing. While Hutton had an
explanation for the firearms certification problem, he admits that it was his

                                         -8-
responsibility to make sure officers were certified, that the officers were not up-to-
date on their firearms certifications, and that those problems, unresolved, could “open
[the police department] to lawsuits.” He also concedes that community members
made complaints to Maynard about his job performance. Hutton may have disagreed
with Maynard’s reasons for firing him, but there is no evidence that those reasons
changed or shifted over time.

       Second, Hutton attempted to provide comparator evidence of individuals
similarly situated to him. See Ebersole v. Novo Nordisk, Inc., 758 F.3d 917, 925 (8th
Cir. 2014) (explaining that one of multiple ways to prove pretext is to show “that
similarly situated employees who did not engage in the protected activity were treated
more leniently”) (quoting Phillips v. Mathews, 547 F.3d 905, 913 (8th Cir. 2008)).
Yet, as the district court noted, Hutton offered nothing more than names, providing
no explanation as to why or how the named individuals were in any way similarly
situated such that they should be considered valid comparators. Id. (holding that
“comparators” must be “similarly situated in all relevant respects”) (quoting Burton
v. Ark. Sec’y of State, 737 F.3d 1219, 1229 (8th Cir. 2013)). Such skeletal assertions
are insufficient to prove pretext.

       Finally, Hutton asserts that Maynard’s use of and tolerance for racist language
reflects a bigoted attitude that is sufficient to prove pretext. Perhaps a decision-
maker’s general discriminatory attitude toward a particular race or group of people
as evidenced by derogatory comments or the expression of bigoted views would,
under some circumstances, be sufficient to defeat a motion for summary judgment at
the pretext stage. But Hutton does not allege that the offensive statements in this case
were made in connection with any part of his employment, or in connection with city
business of any kind. Nor is it alleged that these statements were made near the time
of Hutton’s decision to promote Parks or the time of his termination. Free-standing
racist comments are deplorable in their own right. But in this case, the comments
Maynard and his friends made to one another, untethered as they were from the

                                          -9-
adverse employment action at issue, do not prove that the reasons for Hutton’s
termination as Chief of Police were pretextual.

                               III. Conclusion

      We affirm the judgment of the district court.
                      ______________________________




                                     -10-
