                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-1110
                                   ___________

Michael Lynn,                        *
                                     *
            Appellant,               *
                                     *
     v.                              * Appeal from the United States
                                     * District Court for the
Deaconess Medical Center-West        * Eastern District of Missouri.
Campus, also known as Deaconess      *
West Hospital,                       *
                                     *
            Appellee.                *
                                ___________

                             Submitted: September 21, 1998

                                  Filed: November 17, 1998
                                   ___________

Before RICHARD S. ARNOLD, BEAM, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                          ___________

BEAM, Circuit Judge.

       Michael Lynn appeals from the district court's entry of summary judgment in
favor of his former employer, Deaconess Medical Center-West Campus (Deaconess).
Lynn alleges that Deaconess terminated him on the basis of his gender in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e to 2000e-17
and the Missouri Human Rights Act (MHRA), Mo. Ann. Stat. §§ 213.010-213.137.
For the reasons discussed below, we reverse and remand for further proceedings.
I.    BACKGROUND

       Viewed in the light most favorable to Lynn, the record reveals the following
facts. Lynn began working for Deaconess as a registered nurse in the Acute
Rehabilitation Unit (Rehab Unit) on March 19, 1992. He initially held the position of
charge nurse, and performed supervisory duties such as quality assurance, patient care,
evaluation, and scheduling staff nurses and patient care technicians. His supervisor at
this time was Cyndi Murphy. In March 1993, Jackie McClanahan replaced Murphy
as director of the Rehab Unit. During this time period, no performance deficiencies
were noted nor were any disciplinary actions taken against Lynn.

       In April 1994, Patricia Shanks replaced McClanahan as director of the Rehab
Unit. The hospital was also interviewing applicants for the position of Assistant Patient
Care Manager in that unit. Lynn interviewed with Shanks for the position but he was
rejected. Lynn had both a bachelor's and a master's degree in nursing and had been
working for over two years as a charge nurse in the Rehab Unit. Instead, Shanks hired
Janene Ford. Ford had only an associate nursing degree, no postgraduate nursing
education, and had only been employed with Deaconess for four months as a staff
nurse. After Ford assumed her position, Lynn reported directly to Ford instead of to
Shanks. Shortly thereafter, Shanks decided that because the Rehab Unit was so small
there was no need to employ both an Assistant Patient Care Manager and a charge
nurse. She then demoted Lynn from charge nurse to staff nurse on July 17, 1994.

      According to the record, complaints regarding Lynn's work performance began
while he was still reporting to Shanks. On June 3, 1994, Shanks received a report that
Lynn had lain on a couch and watched television during his shift. After confirming the
report with another worker, Shanks verbally counseled Lynn. Lynn explained to
Shanks that he was resting because he had not been feeling well. Shortly before Ford
assumed her new position, Shanks told her about a family member's complaint that


                                          -2-
Lynn had not taken care of a patient after the patient had urinated in bed. Ford
investigated the incident and concluded that there had been no wrongdoing by Lynn.

       The record shows that in November and December of 1994, Lynn received
verbal counseling from Ford on various issues such as allegedly arriving late to work,
failing to comply with time-clocking policies, exhibiting a lack of productivity, and
complaints about his lack of compassion towards staff and patients. Finding that
Lynn's performance was not improving, Ford and Shanks issued two Letters of
Understanding to Lynn on January 13, 1995.1 The first Letter of Understanding
(Letter) stated that Lynn had been late for work by about five minutes on different
occasions and that he failed to have his timecard signed when he clocked in late. The
second Letter addressed three areas of concern: (1) incomplete documentation; (2) an
attitude of disrespect and lack of compassion towards others; and (3) an ongoing failure
to meet productivity standards. Lynn responded to these Letters with a written
statement which explained that his time clocking and documentation procedures had
been the result of confusion with earlier policies and not the result of willful neglect.
Lynn denied the other charges.

       According to his supervisors, Lynn showed improvement after he received these
Letters, but after January 30, 1995, he again began to exhibit performance problems.
On February 20, 1995, Lynn was issued a third Letter for allegedly diagnosing a
patient.2 However, Ford's annual evaluation of Lynn's work performance in April 1995,




      1
        Deaconess has a long-standing policy of progressive discipline. When a
problem first occurs, an employee receives verbal counseling. If the problem
continues, the employee receives written counseling called a "Letter of Understanding."
If the problem persists, a further Letter of Understanding or a Recommendation of
Discharge is issued.
      2
       Deaconess's policy was that only physicians were to diagnose patients.
                                          -3-
described Lynn as "frequently exceed[ing] standards" in four of the twenty-four
categories and as "meeting standards" in the other twenty categories.

       Finally, two incidents occurred which resulted in Lynn's eventual discharge. On
August 1, 1995, Lynn reportedly failed to assist a family member in attaching certain
therapeutic equipment to her mother. On August 2, he allegedly failed to correctly
prepare essential documents for a Patient Conference Team Meeting. On August 7,
1995, Ford and Shanks issued Lynn a Recommendation for Discharge on the ground
that Lynn's work performance thus far reflected "a serious lack of appropriate nursing
judgment" and they gave him the option of resigning. Lynn chose to resign on August
7, 1995.

        Lynn then initiated the present action, alleging that Deaconess had discriminated
against him on the basis of his gender in violation of Title VII and the MHRA. The
district court entered summary judgment in favor of Deaconess, and Lynn now appeals.

II.   DISCUSSION

        We review a grant of summary judgment de novo, using the same standards as
applied by the district court. See Hill v. St. Louis Univ., 123 F.3d 1114, 1118 (8th Cir.
1997). Summary judgment is proper if the evidence, viewed in the light most favorable
to the nonmoving party, demonstrates that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law. See id.; Fed.
R. Civ. P. 56(c). The moving party bears the burden of showing the absence of a
genuine issue of material fact. See Webb v. Lawrence County, 144 F.3d 1131, 1134
(8th Cir. 1998). In reviewing employment discrimination claims, we keep in mind the
caution that summary judgment should seldom be used in discrimination cases. See
Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994). Because such cases often
depend on inferences rather than on direct evidence, summary judgment should not be


                                          -4-
granted unless the evidence could not support any reasonable inference for the
nonmovant. See id.

       Title VII and the MHRA declare it unlawful for an employer to discharge "or
otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual's . . . sex."
42 U.S.C. § 2000e-2(a)(1); see also Mo. Ann. Stat. § 213.055(1)(1)(a). Because Lynn
has not put forth direct evidence of discrimination, his Title VII and MHRA claims are
analyzed under the three-stage burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), and applied in countless other cases.3
See, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-08 (1993); Rothmeier v.
Inv. Advisers, Inc., 85 F.3d 1328, 1332 (8th Cir. 1996).

       Under this framework, Lynn bears the initial burden of establishing a prima facie
case of discrimination. See Rothmeier, 85 F.3d at 1332. Once a prima facie case is
established, a rebuttable presumption of discrimination arises and the burden of
production shifts to Deaconess to articulate a legitimate, nondiscriminatory reason for
discharging him. See id. If Deaconess produces such a reason, the presumption
disappears and Lynn bears the burden of proving that the proffered reason is merely a
pretext for discrimination. See id. Lynn retains at all times the ultimate burden of
persuading the trier of fact that the adverse employment action was motivated by
intentional discrimination. See id.

       Deaconess concedes that the first two stages of the McDonnell-Douglas
framework have been met, i.e., that Lynn has established a prima facie case of
discrimination and that Deaconess has sufficiently articulated a nondiscriminatory



      3
      The McDonnell-Douglas analysis also applies to claims under the MHRA. See
Hossaini v. Western Missouri Med. Ctr., 97 F.3d 1085, 1088 (8th Cir. 1996).

                                          -5-
reason for discharging him. It argues, however, that Lynn has not produced sufficient
evidence to meet his burden of establishing pretext.

        We disagree. As proof of pretext, Lynn presented evidence that Deaconess
disciplined female nurses in the Rehab Unit less severely than he was disciplined for
conduct that was more egregious than his. Primarily, Lynn points to his supervisors'
favorable treatment of another registered nurse in the Rehab Unit, Karen Mohr.4
Instances of disparate treatment can support a claim of pretext, but Lynn has the burden
of proving that he and the disparately treated female nurses were "similarly situated in
all relevant respects." Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir.
1994) (quotations omitted).

       The record shows that beginning on February 3, 1995, Ford started receiving
reports that Karen Mohr slept while on duty. Gail Washington, a patient care
technician, reported to Ford that on one shift she had seen Mohr go into an empty
patient's room, and take three 45-minute naps with the television on. Another patient
care technician, Angie Washington, reported to Ford that during these naps Mohr
would be sound asleep and difficult to arouse. It was only after Ford had received four
reports of Mohr's sleeping that Ford finally talked to Mohr on May 24, 1995. For a few
months following that counseling, Mohr performed adequately, but reports of her
sleeping on the job began to surface again in November of that same year. It was not
until Ford had received at least five reports in November and December about Mohr's
sleeping on duty that Ford and Shanks issued her a Letter of Understanding on
December 6, 1995.




      4
        Lynn also points to Deaconess's favorable treatment of other female nurses
despite their various forms of misconduct. Because we find that the facts regarding
Karen Mohr constitute sufficient evidence to allow Lynn to prevail on the issue of
pretext, we accordingly limit our discussion of the facts to her case.

                                          -6-
        The district court found that Lynn and Mohr were not similarly situated for
purposes of proving pretext because: (1) Unlike Mohr, Lynn was not disciplined for
the offense of sleeping; and (2) Lynn and Mohr had different disciplinary histories.
        We think that the district court applied the "similarly situated" concept too
narrowly when it stated that because Lynn had not engaged in the offense of sleeping,
Deaconess's treatment of Mohr was not relevant to the issue of whether Lynn had been
discriminated against. To show that employees are similarly situated, a plaintiff need
only establish that he or she was treated differently than other employees whose
violations were of "comparable seriousness." See Ricks v. Riverwood Int'l Corp., 38
F.3d 1016, 1019 (8th Cir. 1994); see also McAlester v. United Airlines, Inc., 851 F.2d
1249, 1261 (10th Cir. 1988) (stating that in a disparate treatment case the fact that
other employees did not commit the exact same offense as the plaintiff does not
prohibit consideration of their testimony as long as their acts were of comparable
seriousness).5 To require that employees always have to engage in the exact same
offense as a prerequisite for finding them similarly situated would result in a scenario
where evidence of favorable treatment of an employee who has committed a different
but more serious, perhaps even criminal offense, could never be relevant to prove


      5
         The district court and Deaconess rely on Ward v. Procter & Gamble Paper
Prods. Co., 111 F.3d 558 (8th Cir. 1997), as stating the standard that employees are
similarly situated only when they engage in the same offense. In Ward, the court stated
that instances of disparate treatment can support a claim of pretext if the plaintiff can
prove that she and the other employees are "similarly situated in all relevant respects."
Id. at 560. It went on to acknowledge that employees are similarly situated when they
are "involved in or accused of the same offense." Id. The court then rejected the
plaintiff's argument that she and another employee who were involved in a fight were
engaged in the same offense because it found that the fight involved two separate levels
of escalation. See id. at 561. There is no language in Ward which suggests that
employees are "similarly situated" only when they engage in the same offense. If
anything, the reasoning of the Ward opinion supports our view that the inquiry into
whether employees are similarly situated requires looking beyond the labels attached
to the employees' misconduct.

                                          -7-
discrimination. Common sense as well as our case law dictate that we reject such an
approach. We think that Mohr's sleeping on the job was at least comparable to, if not
much more serious than, the misconduct alleged against Lynn. Under the
circumstances, we find that Lynn and Mohr were similarly situated.

       The district court also incorrectly concluded that Mohr and Lynn were not
similarly situated because Lynn had an extensive record of disciplinary problems and
received three Letters while Mohr had had only one Letter issued to her. We think
Lynn has produced sufficient evidence to at least create a factual dispute as to whether
the differences in Mohr's disciplinary history and his were due to gender discrimination.
The record shows that Lynn had no reports of work performance deficiencies in the time
period prior to when Shanks and Ford became his supervisors. Lynn received his third
Letter without any prior verbal counseling or discussion about what had happened.
Following Lynn's receipt of these Letters of Understanding, there is no written
documentation that these deficiencies recurred. In fact, in her annual evaluation of
Lynn in April 1995, Ford noted improvement in some of the very areas for which Lynn
had been reprimanded in the Letters. In her testimony, Ford claims that just because she
did not document any serious deficiencies in Lynn's performance from the time of the
April evaluation to his discharge in August does not mean that they did not occur. We
find this explanation disingenuous, especially since the record shows that Ford
documented numerous incidents prior to this period and continued after the April
evaluation to document minor incidents such as Lynn not wearing a lab coat.

      The record also shows that although Ford and Shanks were quick to verbally
counsel Lynn and to issue him Letters of Understanding, it took numerous reports and
several months before Mohr was verbally counseled about her sleeping problem. It
took more than eleven months of repeated reports of sleeping on the job before Mohr
was issued a single Letter of Understanding. Sleeping on the job appears to us to be
particularly egregious misconduct for a nurse on duty. The gravity of Mohr's infraction
is further exacerbated by the fact that sometimes Mohr would be the only nurse present.


                                          -8-
In fact, one of the physicians on staff expressed his concern that if a nurse slept she
might not be able to hear a Code Blue called over the intercom. Certainly Mohr's
actions seem at the least to constitute the same kind of "serious lack of appropriate
nursing judgment" that resulted in Lynn's discharge.6 Thus, we find sufficient evidence
to create a genuine fact issue as to whether the reason proffered by Deaconess was
pretext.

       Nevertheless, evidence of pretext, standing alone, does not invariably preclude
summary judgment. See Ryther v. KARE 11, 108 F.3d 832, 838 n.5 (8th Cir. 1997) (en
banc), cert. denied, 117 S. Ct. 2510 (1997). The legal standard to be applied is set out
in Maschka v. Genuine Parts Co., 122 F.3d 566, 571 (8th Cir. 1997):

      We recently considered the precise contours of [the legal standard to be
      applied] in our en banc decision, Ryther v. KARE 11, 108 F.3d 832 (8th
      Cir.), cert. denied, ___U.S.___, 117 S. Ct. 2510, 138 L. Ed.2d 1013
      (1997). The holding of that case may be summarized as follows: if a
      prima facie case is made, and if the plaintiff offers evidence tending to
      show that the defendant's proffered reasons for its decision were not the
      real reason, then the jury may decide the case, unless the "evidence of
      pretext . . . is, standing alone, inconsistent with a reasonable inference of
      age discrimination." Id. at 837; see also Johnson v. Baptist Med. Ctr., 114
      F.3d 789, 789 (8th Cir. 1997) ("We held [in Ryther] that the plaintiff's
      evidence must tend to make out a prima facie case and support a finding
      that the defendant's proffered reasons for the decision complained of were
      pretextual."), amending on denial of suggestion for rehearing en banc 97
      F.3d 1070 (8th Cir. 1996).

      Lynn has met these requirements by establishing a prima facie case and offering
evidence from which a jury could conclude that the reasons offered by the employer for




      6
      Also, on August 2, 1995, the same family member that had complained about
Lynn a day earlier, lodged a similar complaint against Mohr.

                                          -9-
discharging him were pretextual. Furthermore, the evidence Lynn presented was not
inconsistent with the finding of age discrimination; rather, it tended to show that
Deaconess's proffered reasons were flimsy, and thus susceptible of disbelief. Once a
gender-discrimination plaintiff has done as much as Lynn, a jury may (but need not) find
for him. See Hicks, 509 U.S. at 511 ("[R]ejection of the defendant's proffered reasons
will permit the trier of fact to infer the ultimate fact of intentional discrimination, and
. . . '[n]o additional proof of discrimination is required.'" (footnote and citation
omitted)).

       Thus, we conclude that Lynn presented evidence sufficient to create a reasonable
inference that Deaconess's proffered reasons for discharging him were mere pretext for
intentional discrimination. Under the McDonnell-Douglas framework, this is enough
to survive a motion for summary judgment. Although Deaconess may ultimately be
able to offer a plausible explanation for its treatment of Lynn and its other nurses, these
are matters to be decided at trial and not by summary judgment.

III.   CONCLUSION

       The judgment is reversed, and the case is remanded to the district court for
further proceedings consistent with this opinion.



       A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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