                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-3637
                                    ___________

Daniel Luciano,                          *
                                         *
                  Appellant,             *
                                         * Appeal from the United States
              v.                         * District Court for the
                                         * District of Nebraska.
Monfort, Inc., a foreign corporation     *
registered to do business in Nebraska, *
                                         *
                  Appellee.              *
                                    ___________

                              Submitted: June 13, 2001

                                   Filed: August 1, 2001
                                    ___________

Before MURPHY, HEANEY and BEAM, Circuit Judges.
                          ___________

HEANEY, Circuit Judge.

      Daniel Luciano appeals from an order of the district court granting summary
judgment in favor of Monfort, Inc., and denying Luciano's retaliation claim under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e)-2000(e)-17. The district
court1 determined that Luciano had not provided any evidence indicating that the non-
discriminatory reasons given for his termination were pretextual. We affirm.

                                  I. BACKGROUND

       Luciano, a Native American, was employed by Monfort from January 1998
through May 12, 1992. After Luciano's employment with Monfort was terminated, he
filed a charge of national origin discrimination on May 20, 1992, with the Nebraska
Equal Opportunity Commission and the Equal Employment Opportunity Commission.
The discrimination charge was settled out of court for $50,000.

        On December 15, 1996, Luciano was hired by Excel Corp., a meat packing
facility. As an employee of Excel, Luciano held the position of "cattle pusher" and was
responsible for releasing cattle from the pens to the kill floor for slaughter. The United
States Department of Agriculture (USDA) directs that cattle must be inspected by a
veterinarian before they are slaughtered. Employees working as cattle pushers are
given a "lineup card" that assists them in determining which cattle have been properly
inspected and can be released to the kill floor. In the event that the wrong cattle reach
the kill floor, the USDA can shut down the production line and impose federal criminal
penalties.

        On March 4, 1997, Luciano was issued a written warning by Excel's general
foreman after Luciano released cattle onto the kill floor that had not been inspected and
were not listed on the lineup card. The written warning stated that any further incidents
would result in disciplinary action "up to and including discharge." On March 12,
1997, while training a new employee, Luciano again released the wrong cattle onto the
kill floor. As a result, the USDA shut down Excel's production line causing the


      1
       The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.

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company to lose approximately $15,000. After this second incident, Excel terminated
Luciano for failing to discharge the duties of his job properly.

       A few weeks prior to Luciano's March 12, 1997 termination from Excel, several
Monfort employees visited the Excel plant to view the operations in the recently
renovated kill floor. Hoot "Harley" Thomas, the superintendent of Monfort's slaughter
division, was one of the Monfort employees that attended the tour.

       Rick Luebbe, a former Monfort employee, testified in his deposition that he
toured the Excel plant with Thomas. Luebbe testified that while at Excel, "Hoot
mentioned to me that [Luciano] screwed over Monfort and he was going to see what
he could do to make sure that didn't happen here." At the end of the tour, Thomas told
Luebbe and the other Monfort employees to wait in the lunchroom while he went to
talk some Excel employees. Thomas and Excel employees, however, deny that
comments about Luciano were made or that Luciano's name was ever mentioned in
their conversations.

       Afer his termination, Luciano filed charges against Monfort for unlawful
retaliation under Title VII, alleging that he was terminated from Excel as a result of
comments Thomas made to Excel employees at the conclusion Monfort's tour of Excel.
The district court granted summary judgment in favor of Monfort, concluding that
Luciano failed to demonstrate a submissible issue of fact existed with respect to his
termination and that only through engaging in speculation and conjecture could a jury
possibly find, based upon the evidence presented, that the reason given by Excel was
pretextual. Luciano now appeals the district court's ruling.

                                 II. DISCUSSION

      We review the district court's order granting summary judgment de novo,
viewing the evidence and the inferences drawn from the evidence in the light most

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favorable to the nonmoving party, to ensure "that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c); see Smith v. Ashland, Inc., 250 F.3d 1167, 1171 (8th Cir. 2001).
In reviewing this case, we bear in mind that summary judgment should be used
sparingly in employment discrimination cases. See Chock v. Northwest Airlines, Inc.,
113 F.3d 861, 862 (8th Cir. 1997).

       On appeal, Luciano argues that the district court applied the wrong standard of
proof to the facts of the case, incorrectly shifting the burden back to him. In addition,
the appellant argues that the district court erred in finding that no genuine issue of
material fact existed with regard to the issue of pretext.

                             A. Direct Evidence Analysis

      We first address the question of whether the district court erred in applying the
burden shifting scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
rather than a direct evidence analysis under Price Waterhouse v. Hopkins, 490 U.S.
228 (1989).

      To be entitled to a direct evidence analysis, the plaintiff must present
      evidence of conduct or statements by persons involved in the decision-
      making process that may be viewed as directly reflecting the alleged
      discriminatory attitude sufficient to permit the factfinder to infer that that
      attitude was more likely that not a motivating factor in the employer's
      decision.

Rivers-Frison v. Southeast Missouri Community Treatment Ctr., 133 F.3d 616, 619 (8th
Cir. 1998) (internal quotation omitted).

     Luciano argues that the remarks allegedly made by Thomas, combined with
Thomas' subsequent closed door meeting with Excel employees, constitutes evidence

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that retaliation was a motivating factor in terminating Luciano from Excel, entitling him
to a direct evidence analysis. Thomas, however, had no decision-making authority at
Excel. This court has "carefully distinguished between comments which demonstrate
a discriminatory animus in the decisional process or those uttered by individuals closely
involved in employment decisions, from stray remarks in the work place, statements
by nondecisionmakers, or statements by decisionmakers unrelated to the decisional
process." Id. (internal quotations omitted). Without any evidence indicating that
Thomas was a decisionmaker and involved in the decisional process that resulted in
Luciano's termination, his statements are insufficient to form the basis for a direct
evidence analysis. Therefore, the district court properly applied McDonnell Douglas
rather than a direct evidence analysis.



                            B. Indirect Evidence Analysis

       We now turn to the question of whether the district court erred in granting
summary judgment to Monfort on the basis that Luciano had failed to produce any
evidence of pretext. To establish a prima facie case of retaliatory discrimination under
Title VII, Luciano must show (1) he engaged in statutorily protected activity, (2) an
adverse employment action was taken against him, and (3) a causal connection between
the two events. See Basset v. City of Minneapolis, 211 F.3d 1097, 1104-05 (8th Cir.
2000). The district court determined that Luciano established a prima facie case, based
on Luciano's discrimination charge against Monfort and the fact that he was terminated
from Excel. We agree with the district court that Luciano established a prima facie
case of retaliation. Under the McDonnell Douglas analysis,

      once the plaintiff establishes a prima facie case of retaliation, the burden
      shifts to the employer to produce some legitimate, non-discriminatory
      reason for the adverse action. If the employer satisfies this burden, the
      plaintiff must prove the proffered reason is a pretext for retaliation.


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      Ultimately, the plaintiff must establish the employer's adverse action was
      based on intentional discrimination.

Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707, 714 (8th Cir. 2000).

        There is undisputed evidence that Excel had good reason for discharging
Luciano. Luciano was responsible for the wrong cattle being released onto the kill
floor twice within a matter of eight days. These incidents were serious violations of the
USDA's policies on slaughtering of cattle. Violations of the USDA's regulations can
result in a plant being shutdown and substantial fines. Following the second incident
for which Luciano was responsible, the meat packing plant was shut down for a period
of time, resulting in a $15,000 loss in production time.

       In order to explain his lapses in job performance on these two occasions,
Luciano argues that he was part of a "set-up" by Excel. Luciano asserts that on March
4, he was given the wrong lineup card for his shift, which made it impossible for him
to release the correct cattle onto the kill floor, and that on March 12 he was told by his
supervisors not to give the employee he was training a lineup card, which resulted in
the trainee releasing the wrong cattle. Both of these incidents, he argues, were part of
the set-up and were designed to provide Excel with a non-discriminatory basis to
terminate him. "We have described general statements in affidavits and deposition
testimony similar to [Luciano's claims] as conclusory and have determined that such
statements, standing alone, are insufficient to withstand a properly-supported motion
for summary judgment." Helfter v. United Parcel Service, Inc., 115 F.3d 613, 616 (8th
Cir. 1997). The claims by Luciano are conclusory and supported by no probative
evidence. Only through intense speculation and conjecture could a jury find Luciano's
account credible.




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                                   III. Conclusion

       For the forgoing reasons, we affirm the district court's summary judgment in
favor of Monfort.

      A true copy.

             Attest.

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




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