                             No. 96-1862



Isiah Thomas,                             *
                                     *
          Plaintiff -                     *
          Appellant,                      *
                                          *
                                          *   Appeal from the United
     v.                                   *   States District Court for the
                                          *   Eastern District of Missouri
                                          *
Marvin T. Runyon, Jr.,                    *
Postmaster General,                       *
U.S. Postal Service,                      *
                                          *
          Defendant -                     *
          Appellee.                       *




                        Submitted:       November 22, 1996

                        Filed: March 18, 1997



Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and SACHS,*
      District Judge.




SACHS, District Judge


     Isiah Thomas filed this action against his former employer, the
United States Postal Service, alleging race discrimination in violation of
Title VII, 42 U.S.C. § 2000e et seq.          The district




     *
      The Honorable Howard F. Sachs, United States District
     Judge for the Western District of Missouri, sitting by
     designation.
court1 granted summary judgment for the Postal Service and Thomas appeals.
Because     Thomas     failed     to    show       that    the     defendant's      legitimate,
nondiscriminatory reasons for its adverse employment actions against him
were pretextual, we affirm.


                                                  I.
     Isiah Thomas, an African-American male, was employed by the Postal
Service as a Supervisor in the Postal Service's Maintenance Department at
the St. Louis Bulk Mail Center.                  From 1980 to December 1991, Thomas was
assigned to supervise the Tour 3 shift mechanics.                         In December 1991,
plaintiff was temporarily reassigned to supervise custodians on the Tour 3
shift and was ultimately transferred to Tour 1, the night shift.                        Neither
the reassignment nor transfer was disciplinary in purpose.


     Thomas'     transfer       was    the    result      of   a   longstanding     personality
conflict     between    himself       and    Michael      Carmen,    a   mechanic    under   his
supervision.    Carmen was a white male and a member of the American Postal
Workers Union.         Thomas, as a supervisor, was not a bargaining unit
employee.    On December 2, 1991, plaintiff's supervisor assigned him to the
custodial shift in order to separate the two men.                    On December 9, 1991, a
labor-management meeting was held to discuss a recent verbal dispute
between     Thomas   and   Carmen.          At    this    meeting    plaintiff    admitted    to
management officials that, in response to Carmen's threat to damage his
car, Thomas told Carmen, "If anything happens to my car, I'm going to fuck
you up."


     Following the meeting Dennis Apprill, Director of Plant Maintenance,
determined that further safeguards were needed to avoid future altercations
between the two men.       Apprill and Clarence Knight, the General Manager of
the Bulk Mail Center and an African-American, decided that it was "in the
best interest of the




     1
      The Honorable Jean C. Hamilton, Chief District Judge for
the Eastern District of Missouri.

                                                  2
Postal Service" to reassign plaintiff to Tour 1.          Ron Treece, a white male,
was transferred to plaintiff's former position as Tour 3 Supervisor.
Management took no disciplinary action against either Carmen or Thomas.2


        Plaintiff    filed   an   Equal   Employment   Opportunity   Complaint   with
defendant on February 3, 1992.        On March 25, 1994, an administrative judge
issued a recommended decision concluding that, based on the record,
defendant had discriminated against Thomas.                Defendant rejected the
administrative judge's decision in its Final Agency Decision issued June 3,
1994.       Thomas then filed this lawsuit.      On February 12, 1996, the district
court, on essentially the same record as that before the administrative
judge, granted summary judgment for the Postal Service.


                                           II.
        We review a grant of summary judgment de novo.        Stevens v. St. Louis
University Medical Center, 97 F.3d 268, 270 (8th Cir. 1996).                Summary
judgment is appropriate when the record, viewed in the light most favorable
to the nonmoving party, reveals that there is no genuine issue of material
fact and that the movant is entitled to judgment as a matter of law.             Roxas
v. Presentation College, 90 F.3d 310, 315 (8th Cir. 1996); Fed. R. Civ. P.
56(c).      While a party moving for summary judgment has the burden of showing
that there is no genuine issue of fact for trial, a nonmoving party seeking
to avoid having summary judgment entered against it may not rest on mere
allegations or denials, but must set forth specific facts sufficient to
raise a genuine material issue for trial.          Ruby v. Springfield R-12 Public
School District, 76 F.3d 909, 911 (8th Cir. 1996).




        2
      The Postal Service tacitly concedes, however, that the
unwanted transfer to the night shift was sufficiently adverse to
give plaintiff standing to complain, and we agree.

                                            3
       Thomas' discrimination claims are analyzed under the framework set
forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973).                  The plaintiff
has the initial burden of establishing a prima facie case of racial
discrimination:    that (1) he is a member of a protected class, (2) he is
qualified for the position, (3) adverse action was taken against him, and
(4) that action occurred in circumstances giving rise to an inference of
discriminatory motivation.       Landon v. Northwest Airlines, Inc., 72 F.3d
620, 624 (8th Cir. 1995).     Once the plaintiff makes a prima facie case, the
burden shifts to the employer to articulate a legitimate, nondiscriminatory
reason for the adverse employment action.           McDonnell Douglas, 411 U.S. at
802.    If the defendant advances such a nondiscriminatory reason, the
plaintiff must prove that defendant's proffered reasons are a pretext for
illegal discrimination.       Ruby, 76 F.3d at 911.


                                         III.
       Assuming    Thomas    presented     a      prima    facie   case      of    racial
discrimination,     the     Postal   Service       has    presented    a    legitimate,
nondiscriminatory    reason    for   its       adverse    employment   action:       that
separating Thomas and Carmen was in the Postal Service's interest, to avoid
the potential for further disruptive personality conflict and a risk of a
violent confrontation, and it was economically advantageous to transfer
Thomas instead of Carmen.     Because Thomas was a non-union supervisor, there
was little cost associated with transferring him to another shift, while
Carmen, if he were involuntarily transferred, would be entitled to premium
pay (150% of his salary) for the duration of the reassignment.                    Although
the Postal Service did not initially present its motivation as skillfully
as might have been hoped, the cost-motivation argument was not a lawyer's
afterthought.     The relative costs of transferring Thomas and Carmen were
explicitly referred to by one




                                           4
postal manager in a 1992 affidavit.3                     Thus, although Apprill did not
explicitly describe such motivation for his decision to reassign Thomas,
we may assume that the relative costs of transfer were well known to
management,       and    would     obviously   be    a    consideration,       as   claimed    in
litigation.       We agree with the district court that the Postal Service has
carried its burden of demonstrating a legitimate business reason for
reassigning the plaintiff.


      The Postal Service having advanced a nondiscriminatory reason for its
actions, the burden shifts back to Thomas to present evidence which could
support     a    finding    that     the   proffered      reason      was   pretextual.       Our
determination       is     limited    to    whether      the    employer     gave   an    honest
nondiscriminatory explanation for its actions, rather than to weigh the
wisdom of any particular employment decision.                      See Krenik v. County of
LeSueur, 47 F.3d 953, 960 (8th Cir. 1995) (quotations omitted).                           At all
times the burden of demonstrating a genuine issue of fact as to whether the
employer intentionally discriminated against him because of race remains
with plaintiff.         See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511
(1993).     Thomas has failed to meet this burden.


      First, Thomas asserts that management engaged in racial stereotyping
by concluding that he had a belligerent attitude and was predisposed to
violence.       Plaintiff argues that this finding was not factually supported
and   rests on the stereotype that African-American men are prone to
violence.       We disagree.      Apprill inferred the possibility of violence after
learning what Thomas said to Carmen.             Plaintiff's language, without racial
stereotyping       of    its     significance,      shows      that   the   relationship      had
deteriorated to the level of physical threats, even if there were little
actual danger that Thomas would act on his words.                      It was objectively




      3
      The affiant, Adell Allen, believed, however, that "standing
up to the union," which allegedly was the source of Carmen's
hostility toward Thomas, was worth the cost.

                                               5
reasonable, quite apart from race, for Apprill to conclude that a physical
altercation was possible if the two men were not separated.


     Thomas also contends that his transfer was the result of harassment
on the part of the union.     He alleges that Michael Patrick and Don Foley,
two white maintenance mechanics and union representatives, and Carmen
conspired to undermine his supervisory authority and to have him removed
from Tour 3.   It appears that Foley and Patrick, who had been under Thomas'
direct supervision, resented Thomas' enforcement of a management policy
regarding on-the-clock timing of union activities.                  Some postal officials
expressed a belief that Foley and Patrick induced Carmen to create trouble
with Thomas.      The union representatives had apparently long sought a
transfer of Thomas to another shift, and the management decision in
December 1991 achieved their alleged goal.             Even if plaintiff could argue
that the complaint about the expense of transferring Carmen rather than
Thomas was in some sense pretextual, therefor, the alternate reason
suggested by the record for transferring Thomas is unrelated to racial
discrimination.   Under such circumstances, summary judgment for a defendant
employer is appropriate.      See n. 4 in Ryther v. KARE 11, No. 94-3622 (8th
Cir. en banc, March 6, 1997), citing Rothmeier v. Investment Advisers.
Inc., 85 F.3d 1328, 1337 (8th Cir. 1996).


     Thomas    does   argue   on   appeal       that   there   is    evidence   of   racial
hostility because Ron Dunlop, a white supervisor on the same shift, had
also attempted to restrict on-duty union activities but had not




                                            6
been   harassed.4    We   could   arguably   rule   that   Thomas   has   failed    to
demonstrate that the union's treatment of him was racially motivated.              The
administrative judge pointed out that there was "essentially a dispute
between management and the American Postal Workers Union concerning the
usage of on-the-clock hours for union activities."         Appendix of Defendant-
Appellee, p. 48.    She also compared Thomas with Dunlop to determine if the
union was targeting a black supervisor as such.        Foley and Patrick worked
directly under Thomas while the record does not indicate a comparable close
supervisory relationship between Dunlop, Foley and Patrick that would
antagonize Foley and Patrick to the same extent they were antagonized by
Thomas.5    It is noteworthy that Adell Allen, a black supervisor, does not
infer any racial problem, but only a union-management dispute where
management, essentially, buckled to the union.


       The issue of racial bias exhibited by union members was not, however,
presented to Chief Judge Hamilton in the Thomas brief resisting summary
judgment.    It was not an issue decided by her.     Under the circumstances we
choose to make no ruling on the adequacy of the record to establish a
submissible issue of union bias.       We conclude that Thomas cannot present
the issue to us because he did not present it to the district judge.




       4
      We give plaintiff the benefit of the doubt in framing this
issue. Before us and before the district court plaintiff
contended that direct management bias was the issue rather than
action motivated by union bias. There is, however, a possible
issue of responsibility for acting in a manner that adopts the
bias of others. Compare Williams v. TWA, 660 F.2d 1263, 1270
(8th Cir. 1981) (limited as to damages by Muldrew v. Anheuser-
Busch, Inc., 728 F.2d 989 (8th Cir. 1984)) (racial discrimination
of employer shown by action taken in reliance on passenger's
unverified accusations containing strong racial overtones).
       5
      The statement of supervisor Harry A. Logan also contains a
comment that the union leaders "knew that they couldn't go after
[Dunlop] the way they went after Ike." This is highly ambiguous,
but apparently is not a racial reference; otherwise it likely
would have been developed as part of the investigation.

                                        7
     Thomas    further    argues      that    no     white    supervisor     had      ever   been
transferred to an undesired shift under comparable circumstances.                              No
similarly situated individuals have been cited, however, and, absent a
comparable situation, the failure to reassign a white supervisor has no
probative value.


     Thomas'    replacement      by    a     white    supervisor     might       be   the    most
vulnerable part of the Postal Service's case, but Apprill, the deciding
official, successfully clears himself of allegations of race bias in his
unchallenged affidavit.         Apprill stated that he had hoped to transfer
another African-American supervisor to Tour 3, but was informed that this
individual was not interested in reassignment.                He even stated a preference
for a black supervisor, in order to maintain racial diversity in the work
force.    He ultimately decided, however, to move Ron Treece to the position.


     We    recognize     that   Apprill's          sworn     statements    can     perhaps     be
characterized as self-serving, but they are plausible, unchallenged and not
circumstantially rebutted.       If plaintiff was not content with the record,
he could have taken Apprill's deposition or otherwise sought to develop
inconsistencies or clear issues of credibility.                There is substantial case-
law in the Circuit sustaining summary judgment where this is not done.
E.g., Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 260 (8th Cir. 1996);
Matter of Citizens Loan & Savings Company, 621 F.2d 911, 913 (8th Cir.
1980) (sworn denial by family members of consultation about company's
solvency).     In order to defeat the motion, plaintiff must develop some
evidence or argument going beyond possible self-interest of the witness;
this he has not done.


     Thomas has failed to carry his burden of proving pretext because he
has put forward inadequate evidence to prove that his transfer was racially
motivated.   The present record does support a possible factfinder inference
of management's yielding to the union, but not a submissible issue of race
discrimination.    This




                                              8
case is thus distinguishable from the current decision of the Court en
banc, holding that a reasonable jury could infer prohibited discrimination
from the trial record, and that judicial resolution of the controversy
would be inappropriate.   Ryther v. KARE 11, supra.   Although the question
of whether summary judgment should be used in these circumstances is not
without difficulty, we are satisfied that the result reached by the
district court was sound.6


     Accordingly, we affirm the judgment of the district court.


     Affirmed.


     A true copy.

          ATTEST:

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




     6
      The administrative judge's approach is not fully
persuasive, in our judgment, because it relies excessively on the
prima facie case and fails to consider appropriately the
essentially undisputed factual materials available in the
investigation documents.

                                     9
