                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-1426
                         ___________________________

                                    Marion Carter

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

                      Pulaski County Special School District

                        lllllllllllllllllllllDefendant - Appellee
                                       ____________

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

                            Submitted: January 17, 2020
                               Filed: April 24, 2020
                                  ____________

Before BENTON, GRASZ, and STRAS, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

      Marion L. Carter sued the Pulaski County Special School District for race
discrimination under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000(e)),
the Equal Protection Clause of the Fourteenth Amendment (as enforced by 42 U.S.C.
§ 1983) and the Arkansas Civil Rights Act of 1993 (Ark. Code Ann. § 16-123-107).
The district court1 granted summary judgment for the District, dismissing all of
Carter’s claims. See Carter v. Pulaski Cty. Special Sch. Dist., 2019 WL 386173, at
*4 (E.D. Ark. Jan. 30, 2019). She appeals. Having jurisdiction under 28 U.S.C. §
1291, this court affirms.

                                         I.

       Carter (an African-American woman) is a teacher at Joe T. Robinson High
School in the Pulaski County Special School District. She also coached the cheer and
dance teams, receiving $2,670 annual pay for each team. In March 2017, Principal
Mary Carolyn Bailey (a Caucasian woman) recommended to District Superintendent
Dr. Jerry Guess (a Caucasian man) that Carter’s cheer and dance duties be non-
renewed for the 2017-2018 school year and that she be offered a teaching contract
only. Principal Bailey gave three reasons: (1) lack of student participation in the
cheer and dance programs the last two years; (2) inappropriate cheer routines at
sporting events; and (3) inappropriate behavior of cheerleaders during out-of-town
travel. Based on these recommendations, Dr. Guess sent Carter a non-renewal letter
in April 2017. It stated the “reason for this action is ‘conduct unbecoming a
professional employee,’” listing the following examples:

      1. There has been a lack of participation on the cheerleading squad and
      dance teams at Robinson High for the last two years. For the 2015-2016
      school year, thirteen (13) students tried out for the cheerleading squad
      and fourteen (14) students tried out for Dance Team. For the 2016-2017
      school year, eleven (11) students tried out for the cheerleading squad
      and nine (9) students tried out for Dance Team. Try-outs for the
      201[7]-2018 school year have not been held yet, but several girls have
      indicated they will not be trying out.


      1
       The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.

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      2. Parents have complained about you allowing the cheerleaders to
      perform what they consider to be an inappropriate cheer routine at
      sporting events.

      3. Last year, Ms. Bailey received phone calls from witnesses alleging
      that the cheerleaders were very disorderly and combative to the staff at
      Chicken Express in Conway during travel for an out of town game. The
      witnesses also stated you did nothing to calm them down.

       Carter requested a hearing before the District’s School Board pursuant to the
Arkansas Teacher Fair Dismissal Act. After a hearing, the Board accepted Dr.
Guess’s recommendation to non-renew Carter’s cheer and dance contract. The
District filled the cheer coach position with an African-American woman; it
eliminated all dance teams district-wide.

       Carter sued the District for race discrimination. The District moved for
summary judgment, claiming that “[t]he non-renewal of Carter’s cheerleading and
dance team supplemental contract had nothing to do with her race, but was based on
the legitimate and nondiscriminatory reasons outlined in the notice letter she received
on April 18, 2017.” The district court granted the motion. Carter appeals.

                                          II.

       This court reviews a grant of summary judgment de novo, viewing the evidence
most favorably to the non-moving party. Gallagher v. Magner, 619 F.3d 823, 830
(8th Cir. 2010). “A grant of summary judgment is proper ‘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.’” Macklin v. FMC Transp., Inc., 815 F.3d 425, 427
(8th Cir. 2016), quoting Fed. R. Civ. P. 56(a). “To survive a motion for summary
judgment on a race discrimination claim, a plaintiff must either present admissible
evidence directly indicating unlawful discrimination, or create an inference of


                                         -3-
unlawful discrimination under the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Id. (cleaned up).

       Carter did not provide direct evidence of unlawful discrimination, so this court
analyzes under McDonnell Douglas. Under this framework, “a presumption of
discrimination arises when the plaintiff establishes a prima facie case of
discrimination.” Id. “To establish a prima facie case for race discrimination,” a
plaintiff must show: (1) she “is a member of a protected class,” (2) she met her
“employer’s legitimate expectations,” (3) she “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).” Id. “If a plaintiff establishes [a] prima facie case, the burden shifts to
the defendant to show a nondiscriminatory reason for the adverse action.” Id. “If the
defendant does so, the burden shifts back to the plaintiff to establish that the proffered
non-discriminatory reason is pretextual.” Id. at 427-28.

       There is no dispute that Carter is a member of a protected class and suffered an
adverse employment action. However, the parties dispute whether the circumstances
give rise to an inference of discrimination. Carter alleges they do because a similarly
situated Caucasian cheerleading coach, Amber Populis, was treated differently.
According to Carter, Populis allowed her cheer team to perform “a vulgar routine”
during the 2012-2013 school year. Carter complained about the routine to Principal
Bailey (then interim principal), but Bailey did nothing. Principal Bailey testified that
she did not recall the complaints against Populis. Populis resigned at the end of the
2012-2013 school year.

       Employees are similarly situated only when they are “similarly situated in all
relevant respects” and “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). Carter was removed from her cheer and dance duties, in part due to

                                           -4-
multiple complaints about the routines being inappropriate. At best, there is evidence
of only one complaint against Populis’s routines, and that was from Carter. See
Tolan v. Cotton, 572 U.S. 650, 651 (2014) (“[I]n ruling on a motion for summary
judgment, ‘[t]he evidence of the nonmovant is to be believed, and all justifiable
inferences are to be drawn in his favor.’”), quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986); Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact
cannot be or is genuinely disputed must support the assertion by: citing to particular
parts of materials in the record, including depositions.”) But Carter was removed
from her duties based on two other reasons—low participation rates and team
misconduct while traveling. There is no evidence that Populis had similar issues.
Thus, Populis was not similarly situated in all relevant respects.

       Carter disagrees, maintaining that she and Populis were similarly situated
because the two other reasons—low participation rates and team misconduct while
traveling—were not true reasons for her nonrenewal. See Lake v. Yellow Transp.
Inc., 596 F.3d 871, 874 (8th Cir. 2010) (“Evidence of pretext, normally considered
at step three of the McDonnell Douglas analysis, can satisfy the
inference-of-discrimination element of the prima facie case.”). Specifically, she
claims the District did not produce additional evidence of the low participation rates
during discovery and “did not consider the incident at Chicken Express to be serious
enough” to warrant termination because it subsequently renewed her contract. This
is not enough to create a genuine factual dispute over whether the District’s reasons
are “[]worthy of credence,” however, because there is an uncontested “basis in fact”
for each. Torgerson v. City of Rochester, 643 F.3d 1031, 1047 (8th Cir. 2011) (en
banc).

       At the termination hearing, Principal Bailey testified to the decline in
participation on the cheer and dance teams, and the District provided some
documentation supporting her testimony. Carter does not contest this decline. The
District’s lack of additional evidence does not create a genuine issue of material fact

                                          -5-
about pretext. See id. at 1051 (“In this case, a reasonable jury could not infer pretext
from the absence of evidence.”).

       As for the last reason, Carter acknowledged the team misconduct while
traveling to a basketball tournament, conceding that the students were loud at a
Chicken Express, the situation was “very tense,” and the District received complaints
about it. It is undisputed that the cheerleaders were prohibited from participating in
the remainder of the tournament until Principal Bailey “could complete an
investigation.” After the investigation, Principal Bailey concluded that “the behavior
of the cheerleading squad was completely and totally unacceptable.” Carter’s
different conclusion that the incident was not serious enough to warrant
termination—even in conjunction with other reasons—does not create a genuine issue
of material fact about pretext. See Edmund v. MidAmerican Energy Co., 299 F.3d
679, 685-86 (8th Cir. 2002) (“Federal courts do not sit as super personnel
departments reviewing the wisdom or fairness of the business judgments made by
employers, except to the extent that those judgments involve intentional
discrimination.” (internal quotation marks omitted)).

       As the district court found, Carter’s allegations are insufficient to defeat
summary judgment. “The nonmoving party may not rely on allegations or denials,”
but rather “must substantiate [her] allegations with sufficient probative evidence that
would permit a finding in [her] favor on more than mere speculation or conjecture.”
Ball v. City of Lincoln, Nebraska, 870 F.3d 722, 727 (8th Cir. 2017) (cleaned up).
Because Populis was not similarly situated, Carter cannot show an inference of
discrimination. See id. (“Even if some factual dispute exists, the movant is entitled
to summary judgment if the evidence, taken as a whole, is so one-sided that a
fair-minded trier of fact could not find for the nonmoving party.”), citing Anderson,
477 U.S. at 252. See also Torgerson, 643 F.3d at 1042 (“Where the record taken as
a whole could not lead a rational trier of fact to find for the nonmoving party, there


                                          -6-
is no genuine issue for trial.”), quoting Ricci v. DeStefano, 557 U.S. 557, 586 (2009).
The district court did not err in granting summary judgment to the District.

                                    *******

      The judgment is affirmed.
                     ______________________________




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