                        United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                  ___________

                                 No. 96-3792
                                  ___________
James Moschetti,                        *
                                        *
           Appellant,                   *
                                        *   Appeal from the United States
     v.                                 *   District Court for the
                                        *   District of Northern Iowa.
Chicago, Central & Pacific              *
Railroad Company,                       *
                                        *
           Appellee.                    *

                                  ___________

                          Submitted: June 11, 1997
                          Filed: July 11, 1997
                                 ___________

Before MURPHY, HEANEY, and JOHN R. GIBSON, Circuit Judges.
                               ___________

MURPHY, Circuit Judge.

      James Moschetti sued his former employer, Chicago, Central & Pacific
Railroad Co. (CCP), for retaliatory dismissal in violation of Title VII,
42 U.S.C. § 2000e et seq. (1997), and the Iowa Human Rights Act, Iowa Code
§ 216, et seq. (1997), for his support of an African American employee.
The district court granted summary judgment to CCP because it accepted the
company's articulated non-discriminatory business reason for his
termination without squarely considering whether it was the real reason
or a pretextual explanation for intentional discrimination. We reverse and
remand.
      In December 1992, Moschetti was working as CCP's Chief Mechanical
Officer when he hired Emmitt Forte, an African American, to work under him
as a manager. Subsequently Moschetti complained to his direct supervisors
on numerous occasions about what he perceived to be unfair and racially
motivated treatment of Forte. For example, Moschetti told his supervisors
he did not think they adequately handled incidents near Forte's office
involving a fake bomb and racially derogatory graffiti. Moschetti also
repeatedly sided with Forte when he had disputes with other employees.
When Moschetti demoted a white worker named Jay Claus in May 1993, one
supervisor told him that he could not believe he had demoted Claus while
retaining that "black bastard."

      Shortly after this last incident, in June of 1993, Moschetti's
responsibilities were substantially curtailed. CCP states this demotion
was because Moschetti failed to adhere to departmental budgets, traveled
excessively, made decisions which led to labor difficulties, and was not
completely candid about his interest in a job opening with another
employer. Moschetti alleges his demotion was part of the retaliation he
suffered for his support of Forte.

      Forte was dismissed in August of 1993 and later filed a race
discrimination claim against CCP.1 After Forte was dismissed, Moschetti
wrote a positive letter of




      1
       CCP asked Moschetti to provide a sworn statement as part of its own internal
investigation of Forte's claim. Moschetti said in his statement that he believed Forte
was a good employee and that racial discrimination had nothing to do with his
discharge; he also denied ever hearing his supervisor make a racially derogatory
statement.

      In his deposition in this case Moschetti claimed that he had lied in his CCP
statement because he was concerned at the time about keeping his job. He now says
that CCP discriminated against Forte, that Forte's dismissal was based on race, and that
he was terminated because of his support for Forte.

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recommendation for him. Moschetti claims that his supervisors expressed
their displeasure to him when they learned of this letter.

      In 1990-92 and again in 1994, CCP was responsible for the improper
release of oil from two of its railyards. The clean up costs for CCP were
approximately $35,000.      CCP contends that Moschetti was primarily
responsible for monitoring the systems that failed in each spill, that he
did not fulfill this responsibility adequately, and that he failed to
communicate with engineering staff to determine if the systems were
functioning properly. CCP states that Moschetti was not disciplined for
the first spill, but that the second spill (known as the Virden Creek
spill), combined with the earlier problems which had led to his demotion,
resulted in his discharge in October 1994.

      Moschetti contends that his discharge was based on his support of
Forte. He disputes whether his department was primarily responsible for
the Virden Creek spill and the extent of his knowledge about the systems
that failed. He also argues that he took appropriate steps to monitor the
oil systems and that other employees had not been terminated after even
more egregious accidents.

      Under Title VII an employer is prohibited from discriminating against
an employee who has "opposed any practice made an unlawful employment
practice" by the statute, or who has "made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing"
under the statute.2     42 U.S.C. § 2000e-3(a) (1997).       The order and
allocation of the burden of proof in this type of case is laid out in
McDonnell Douglas Corp v. Green, 411 U.S. 792 (1981).
      At the first stage, the plaintiff bears the initial burden of
      establishing a prima




      2
       The analysis for both the federal and state claims is the same under Iowa law.
See Iowa Code § 216.6 (1997); see e.g., Hulme v. Barrett, 480 N.W.2d 40, 42 (Iowa
1992); Naylor v. Georgia-Pacific Corp., 875 F.Supp. 564 (N.D. Iowa 1995).

                                         -3-
     facie case of discrimination. The prima facie case, in the absence
     of an explanation from the employer, creates a presumption that the
     employer unlawfully discriminated against the employee.        If the
     plaintiff establishes a prima facie case, the burden of production
     shifts at the second stage to the defendant, who must articulate some
     legitimate, nondiscriminatory reason for the adverse employment
     action.   If the defendant carries this burden of production, the
     presumption raised by the prima facie case is rebutted and drops from
     the case. The burden then shifts back at the third and final stage
     to the plaintiff, who is given the opportunity to show that the
     employer's proffered reason was merely a pretext for discrimination.
     The plaintiff retains at all times the ultimate burden of persuading
     the trier of fact that the adverse employment action was motivated
     by intentional discrimination.

Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1332 (8th Cir. 1996)
(citations omitted); see also, Ryther v. KARE 11, 108 F.3d 832, 836 (8th
Cir.)(en banc), cert. denied, 1997 WL 181004 (1997). The key inquiry is
whether Moschetti has presented evidence sufficient to create a genuine
issue of fact as to whether his employer intentionally discriminated
against him in violation of Title VII. Rothmeier, 85 F.3d at 1337. Our
review of a summary judgment is de novo. Michalski v. Bank of Am. Ariz.,
66 F.3d 993, 995 (8th Cir. 1995).
      After the district court concluded Moschetti had presented sufficient
evidence of a prima facie case, it considered whether CCP had articulated
a legitimate, non-discriminatory reason for its decision to fire Moschetti.
The reason given by CCP was that Moschetti had been fired for his
involvement in the Virden Creek oil spill and for other instances of poor
performance. In response the court stated that "courts will not second
guess employer's business decisions when determining whether the reason
given for the termination was a pretext for discrimination," citing Hutson
v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995). It declined
to "second guess" the articulated neutral business reason and granted
summary judgment to the employer.
      Hutson should not be read to mean that once an employer has
articulated a




                                    -4-
legitimate and non-discriminatory reason for its actions, that reason must
be accepted without question. The third stage of the McDonnell Douglas
burden shifting scheme requires consideration of whether the proffered
reason was in fact the real reason the employer acted or if it was really
a pretextual explanation for intentional discrimination. See Gaworski v.
ITT Comm. Fin. Corp., 17 F.3d 1104, 1110 (8th Cir. 1994)(materially
conflicting evidence raises question of fact about the believability, not
the propriety, of the proffered explanation). The district court erred in
not completing the required analysis.

      Although the district court recognized that Moschetti had presented
evidence of pretext, it did not complete the analysis required by the third
stage of the McDonnell Douglas burden shifting scheme. Rather, it went on
to say:

     The Court will not second guess CCP's business decision to retain or
     terminate employees responsible for property damage or environmental
     disasters. Whether the Virden Creek spill was as damaging to CCP as
     the other incidents and whether Plaintiff's involvement in two spills
     is justification for his termination are issues for CCP to determine,
     not the Court.

      We agree with the district court that the question at this stage is
not whether the employer's explanation was a good or bad business reason.
The reason proffered by CCP was non-discriminatory on its face, satisfying
its burden of production under the second stage of McDonnell Douglas. The
question at this stage is whether Moschetti presented enough evidence to
allow a reasonable fact finder to infer that intentional discrimination,
rather than the proffered explanation, was the real reason for his
termination. Rothmeier, 85 F.3d at 1336-37; see also, Ryther, 108 F.3d at
836-38. The district court did not squarely reach the question of whether
Moschetti has met this burden so it erred in granting summary judgment to
CCP.

      The judgment is reversed, and the case is remanded for further
proceedings.




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A true copy.

     Attest:

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




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