                    United States Court of Appeals
                                For the Eighth Circuit
                            ___________________________

                                    No. 19-1316
                            ___________________________

                                       Teresa Yearns

                           lllllllllllllllllllllPlaintiff - Appellant

                                              v.

                               Koss Construction Company

                           lllllllllllllllllllllDefendant - Appellee
                                          ____________

                        Appeal from United States District Court
                  for the Western District of Missouri - Jefferson City
                                    ____________

                                Submitted: March 12, 2020
                                   Filed: July 1, 2020
                                     ____________

Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
                       ____________

SHEPHERD, Circuit Judge.

       Teresa Yearns1 brought this lawsuit against her former employer, Koss
Construction Company (Koss), alleging that Koss terminated her employment in
retaliation for her complaints about pay discrimination based on sex in violation of


      1
          Appellant is referred to as both Teresa Yearns and Teresa Miller in the record.
the Equal Pay Act (EPA). The district court2 granted summary judgment in favor of
Koss. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

                                         I.

       In May 2013, Koss, a construction company that specializes in paving
highways and airplane landing strips, hired Yearns as a general laborer and traffic
controller. During her employment, she became a Quality Control trainee at Koss
through the Kansas Department of Transportation training program. Quality Control
employees sample and conduct quality control tests on natural materials used to
create the paving materials. As a trainee, Yearns assisted Quality Control
Technicians (QCTs), including Steven Tackett, in these duties. Despite completing
the training program in 2014, Yearns was not promoted from the trainee position to
the salaried QCT position.

       In June 2015, while working at a job site in Pratt, Kansas (Pratt Project),
Yearns asked Koss’s Loss Prevention and Compliance Officer, Rebecca Harmon, why
she had not been promoted to the salaried QCT position even though she had
completed the training program. Yearns explained that she was frustrated because
she believed she was doing the same job as her male peers but receiving less pay.
Harmon explained to Yearns that she was not promoted because there were no QCT
positions available in her division but that Yearns would be considered for the
position when one became available. In July or August of 2015, Harmon and another
company executive, George Payne, called Yearns to follow up on her verbal
complaint. After the phone call, Harmon and Payne called Yearns’s division
manager, David Vestal, to share with him Yearns’s complaint. At some point shortly


      2
      The Honorable Willie J. Epps, Jr., United States Magistrate Judge for the
Western District of Missouri, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).

                                        -2-
after learning of Yearns’s complaint, Vestal remarked to Harmon: “If we didn’t have
these women, we wouldn’t have all these problems.”

      In August 2015, Koss asserts that the Pratt Project began to “wind down” and
that Koss’s overall work volume in Kansas began to decrease. Koss asserts that
because of the Pratt Project wind-down and changes in state funding for highway
projects, Yearns’s division did not have sufficient work to continue employing all its
employees in their existing roles. As a result, Vestal offered Yearns, as well as other
employees at the Pratt Project, an opportunity to transfer to a different job site.
Yearns declined Vestal’s offer to transfer. On August 20, 2015, Yearns sent an email
to Vestal in which she complained about not being paid for hours she had worked.
Two days later, on August 22, 2015, Vestal terminated Yearns’s employment. At the
time she was terminated, Yearns told Vestal that unemployment benefits would not
be enough for her. Yearns obtained new employment as a paraprofessional for a
Missouri school district in September 2015. On September 15, 2015, Vestal
completed the Separation Notice for Yearns, which stated she had been “[l]aid off for
lack of work and found other employment. Unemployment not enough.” The
Separation Notice also marked Yearns as not “eligible for rehire.”

       Two years later, Yearns filed a lawsuit against Koss, alleging Koss had
terminated her employment in retaliation for her complaints about pay discrimination
based on sex in violation of the EPA. The district court granted summary judgment
in favor of Koss, finding that Yearns failed to present a genuine issue of material fact
that Yearns engaged in protected conduct that caused the termination decision.
Yearns now appeals.

                                          II.

      “We review the district court’s grant of summary judgment de novo, viewing
the evidence and drawing all reasonable inferences in the light most favorable to

                                          -3-
[Yearns], the nonmoving party.” Kirkeberg v. Canadian Pac. Ry., 619 F.3d 898, 903
(8th Cir. 2010). “We will affirm if ‘there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.’” Lindeman v. St. Luke’s
Hosp. of Kan. City, 899 F.3d 603, 605 (8th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)).
Yearns argues the district court erred in granting Koss’s motion for summary
judgment because she offered evidence creating a genuine issue of material fact as to
whether: she engaged in activity protected under the EPA; there was a causal link
between this protected activity and her termination; and Koss’s proffered reason for
her termination is mere pretext for retaliation.

       The EPA, which is codified as part of the Fair Labor Standards Act (FLSA),
prohibits pay discrimination based on sex. 29 U.S.C. § 206(d). It further protects
employees from retaliatory discharge because that “employee has filed any complaint
or instituted or caused to be instituted any proceeding under or related to” her activity
protected under the EPA. 29 U.S.C. § 215(a)(3); see also Hutchins v. Int’l Bhd. of
Teamsters, 177 F.3d 1076, 1082 (8th Cir. 1999) (applying FLSA anti-retaliation
provision in analyzing EPA retaliation claim). “To survive a motion for summary
judgment on a retaliation claim, [Yearns] either must offer direct evidence of
retaliation or create an inference of retaliation under the McDonnell Douglas [Corp.
v. Green, 411 U.S. 792 (1973)] burden-shifting framework.” Hutton v. Maynard, 812
F.3d 679, 683 (8th Cir. 2016). Because Yearns has not produced any direct evidence,
“[w]e apply the familiar McDonnell Douglas . . . burden-shifting framework to
[Yearns’s] retaliatory discharge claim.” Grey v. City of Oak Grove, 396 F.3d 1031,
1034 (8th Cir. 2005); see also Broadus v. O.K. Indus., Inc., 238 F.3d 990, 991 (8th
Cir. 2001) (applying McDonnell Douglas framework to EPA retaliation claim).

       At step one of the McDonnell Douglas framework, the employee must first
establish a prima facie case of retaliation, which requires the employee to show that
“[s]he participated in statutorily protected activity, that [the employer] took an
adverse employment action against h[er], and that there was a causal connection

                                          -4-
between them.” Grey, 396 F.3d at 1034-35. At step two, the burden shifts to the
employer to articulate legitimate, non-retaliatory reasons for the discharge. See id.
at 1035. Finally, at step three, the burden shifts back to the employee to show that the
“legitimate, nonretaliatory reasons articulated by [the employer] were not the true
reasons for discharge, but merely a pretext for retaliation.” Id. For purposes of this
analysis, we will assume that Yearns has met her prima facie burden at step one. We
also conclude Koss has satisfied its burden at step two by presenting evidence that
Vestal, the decisionmaker,3 terminated Yearns because the work at the Pratt Project,
as well as Koss business in Kansas overall, was winding down, and Yearns refused
the offer of a transfer to another job site. Accordingly, only step three remains:
whether Yearns has presented sufficient evidence to create a genuine issue of material
fact that Koss’s proffered reason is mere pretext for retaliation.

       In the retaliation context, there are “at least two routes for demonstrating a
material question of fact as to pretext: first, a plaintiff may succeed indirectly by
showing the proffered explanation has no basis in fact; or, second, a plaintiff can
directly persuade the court that a prohibited reason more likely motivated the
employer.” Gibson v. Geithner, 776 F.3d 536, 540 (8th Cir. 2015). Creating a
genuine issue of material fact regarding pretext “requires more substantial evidence
than it takes to make a prima facie case because unlike evidence establishing a prima
facie case, 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 omitted) (internal quotation marks omitted). For instance, “timing alone
is not enough to establish pretext, even if it can ‘create an inference of retaliation’ at
step one.” Couch v. Am. Bottling Co., 955 F.3d 1106, 1109 (8th Cir. 2020) (citations


      3
       Yearns does not make it clear who she alleges was the final decisionmaker in
her termination decision. However, because, in her opening brief, she identifies
Vestal as the person who terminated her, and Vestal filled out her Separation Notice,
we will assume Vestal was the final decisionmaker for purposes of this appeal.

                                           -5-
omitted) (quoting Wright v. St. Vincent Health Sys., 730 F.3d 732, 738 (8th Cir.
2013)).

       Yearns argues she has presented sufficient evidence to defeat summary
judgment on the issue of pretext via both routes: that Koss’s proffered reason has no
basis in fact and that a retaliatory reason more likely motivated Vestal’s termination
decision. For the reasons that follow, we conclude Yearns has failed to satisfy her
burden at step three of the McDonnell Douglas framework, and thus the district court
did not err in granting Koss’s motion for summary judgment on Yearns’s EPA
retaliation claim.

                                         A.

       Yearns argues she has presented evidence to show that Koss’s proffered reason
for the termination—lack of work at the Pratt Project—has no basis in fact. While
Yearns concedes that she was offered, and she refused, a transfer to another project
with a different crew,4 she argues she has presented evidence that demonstrates the
Pratt Project was not winding down.5 Specifically, she notes that another QCT
employee, Tackett, was brought to the Pratt Project immediately after she was
terminated, indicating there was no lack of quality control work for her to perform at
the Pratt Project. While immediately replacing a former employee may serve to rebut
an employer’s proffered reason that there was a lack of work for the former employee,

      4
       While Yearns initially appears to deny that there is evidence showing that she
refused a transfer, she concedes that Vestal “proposed another position to her.”
Opening Br. 19; see also R. Doc. 69-2.
      5
        Yearns also questions Koss’s description of the wind-down as part of the
“winter shutdown,” which she alleges is dubious since Koss terminated her in August.
However, a Koss employee clarified that “winter shutdown” is a term used to
generally describe seasonal shutdowns within the construction business that can occur
at any time, including August. R. Doc. 69-6, at 13.

                                         -6-
see Donathan v. Oakley Grain, Inc., 861 F.3d 735, 742 (8th Cir. 2017), Yearns has
failed to present evidence creating a genuine issue of material fact as to whether
Tackett replaced Yearns on the Pratt Project.

       The record shows that Tackett worked on the Pratt Project in July and August
while Yearns was still employed at the Pratt Project. R. Doc. 75-3, at 4, 6. Even if
Tackett had started at the Pratt Project after Yearns’s termination, Yearns has not
provided evidence that she served in the same role as Tackett. Unlike Yearns,
Tackett was a salaried QCT and had at least 17 more certifications than Yearns. R.
Doc. 63-1, at 3-4. Further, it is undisputed that the number of employees and
employee hours at the Pratt Project drastically declined in the Fall of 2015. Indeed,
the time report shows there were 68 employees working on the project in August but
only 33 in September and only two employees by November. R. Doc. 75-3, at 6-7.
Thus, because Tackett performed a more advanced QCT function than Yearns and the
number of employees necessary at the Pratt Project declined in the Fall of 2015,
Tackett’s arrival on the Pratt Project does not undermine Koss’s claim that there was
no longer any work available for Yearns at the Pratt Project.

       Accordingly, we conclude Yearns has not presented sufficient evidence to
create a genuine issue of material fact on the question of whether there was no basis
in fact for Koss’s proffered reason for her termination.

                                         B.

      Yearns also argues she has presented evidence to show that a retaliatory reason
more likely motivated Vestal’s decision to terminate Yearns. Specifically, she points
to Vestal’s animus against female employees who lodge complaints and the
Separation Notice’s designation marking Yearns as not “eligible for rehire.”




                                         -7-
        First, Yearns argues that evidence of Vestal’s animus against female employees
who complain demonstrates that retaliation for Yearns’s pay-discrimination
complaints motivated his termination decision. In support of this contention, Yearns
relies on Harmon’s declaration in which Harmon averred that when she had relayed
Yearns’s complaint to Vestal, Vestal said: “If we didn’t have these women, we
wouldn’t have all these problems.” R. Doc. 69-4, at 2. While, under some
circumstances, this statement could support the claim that retaliation against Yearns
for her pay-discrimination complaints motivated Vestal’s decision, the fact that, after
making this statement, Vestal offered Yearns an opportunity to transfer to another job
site as the Pratt Project began to wind down undercuts this argument. Indeed, Vestal
allegedly made this statement around the time when Yearns first asked Harmon when
she would be promoted to a salaried QCT position in June 2015, R. Doc. 69-3, at 9,
and Vestal offered Yearns the opportunity to transfer in August 2015.

       Harmon also averred that it was clear that Yearns had “ruffled feathers” by
complaining about pay discrimination and that there were two other instances in
which female employees were terminated or had been reassigned after filing
complaints. R. Doc. 69-4, at 2-4. However, Harmon provided no factual basis for
these conclusory assertions, and “[c]onclusory affidavits, standing alone, cannot
create a genuine issue of material fact precluding summary judgment.” Rose-Maston
v. NME Hosps., Inc., 133 F.3d 1104, 1109 (8th Cir. 1998). Further, Harmon did not
provide any date for those instances in which female employees were terminated or
reassigned and did not aver that the decisionmaker involved in those instances was
Vestal. See Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008) (“The
question whether evidence of discrimination by other supervisors is relevant in an
individual ADEA case is fact based and depends on many factors, including how
closely related the evidence is to the plaintiff’s circumstances and theory of the
case.”).




                                         -8-
       Second, Yearns argues the not “eligible for rehire” designation on her
Separation Notice is evidence that retaliation motivated Vestal because the
designation prevents her from being rehired by Koss, and Koss’s termination policy
does not allow a decisionmaker to mark a former employee as not eligible for rehire
merely because they obtained new employment. Koss argues the plain language of
the termination policy did allow Vestal to designate her as not eligible for rehire in
light of her new employment as a paraprofessional for a Missouri school district,
explaining that many Koss employees who are laid off during periods of low business
volume draw unemployment benefits for those periods, and Koss rehires them when
the work picks up again. Koss argues that because Yearns had obtained new
employment and indicated to Vestal that unemployment benefits would not be
sufficient, Yearns would not have been available for rehire when the Koss work
resumed, and thus the designation was appropriate.

        While it would be improper for us to weigh these competing arguments at the
summary judgment stage, we conclude that Yearns has not provided evidence that
Vestal, or any other Koss decisionmaker, has treated any other former employee
differently with regard to this designation in the Separation Notice. For example,
Yearns has not identified any Separation Notice in which a Koss decisionmaker
marked as eligible for rehire any former employee that obtained new employment.
See Smith v. Allen Health Sys., Inc., 302 F.3d 827, 835 (8th Cir. 2002) (finding that
since plaintiff “pointed to no other employees who were treated differently under the
progressive discipline policy, [defendant’s] failure to give written warning does not
tend to prove that the reason given for [plaintiff’s] firing was pretextual”). And while
Harmon stated in her declaration that obtaining new employment has never been a
reason for marking a former employee as not eligible for rehire, R. Doc. 69-4, at 3,
this is another assertion unsupported by evidence in the record. See Rose-Maston,
133 F.3d at 1109.




                                          -9-
       Accordingly, we conclude Yearns has not presented sufficient evidence to
create a genuine issue of material fact on the question of whether a retaliatory reason
more likely motivated Vestal’s decision to terminate Yearns.

                                         III.

      For the foregoing reasons, we affirm.
                      ______________________________




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