                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 06-1689
                               ________________


Diana F. Wells,                        *
                                       *
      Appellant,                       *
                                       *      Appeal from the United States
      v.                               *      District Court for the
                                       *      Western District of Missouri.
SCI Management, L.P.; SCI              *
Missouri Funeral Services, Inc.,       *
d/b/a Mount Moriah Funeral             *
Home,                                  *
                                       *
      Appellees.                       *
                                ________________

                           Submitted: October 19, 2006
                               Filed: December 1, 2006
                              ________________

Before WOLLMAN, RILEY and GRUENDER, Circuit Judges.
                        ________________


GRUENDER, Circuit Judge.

      Diana F. Wells appeals an adverse grant of summary judgment on her claims
of gender discrimination and retaliation under Title VII of the Civil Rights Act and
the Missouri Human Rights Act. The district court1 held that Wells failed to establish
a prima facie case for either claim. We affirm.

I.    BACKGROUND

      SCI Missouri Funeral Services, Inc., a subsidiary of Service Corporation
International,2 operates numerous funeral homes in Missouri. In 1981, Diana Wells
began working as an apprentice funeral director and embalmer for an SCI subsidiary
in Houston, Texas, and eventually advanced to the position of funeral director. In
1990, Wells began working as a funeral director in a Saint Louis SCI funeral home.
She was promoted to Regional Vice President of Revenue Services in 1995. Two
years later, Wells was assigned the same position for a different region, which
necessitated a move to Kansas City. In 1999, Wells’s position was eliminated, and
she was given a position as funeral director at Mount Moriah, an SCI funeral home in
Kansas City. Her immediate supervisor at Mount Moriah was Matt Roening.

       Wells’s employment at Mount Moriah was marked by complaints from both
customers and co-workers. In 1999, a representative from the Kansas City Star
contacted SCI and complained that Wells was rude and yelled at the newspaper staff
in regards to the way the newspaper had planned to word a particular obituary. In
1999 and 2000, SCI received complaints about Wells from families who had funerals
arranged by Mount Moriah. The McMillan family complained that Wells had been
argumentative, untruthful and lacking in compassion. To investigate the complaint,
two SCI Area Managers spoke with the McMillan family and then discussed their
complaints, as well as the complaints of at least three other families, with Wells.


      1
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
      2
      SCI Management is no longer a party to this litigation. The remaining
defendant will be referred to simply as “SCI.”

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Wells was issued a written warning about her conduct. Subsequently, the Miller and
Edmond families, other Mount Moriah customers, also complained about Wells’s
behavior. The Dahl family also lodged a complaint against Wells, describing her
conduct as “at best abrasive in tone and manner.”

       In 2001, three Mount Moriah employees complained to its General Manager,
Jerry Griffin, that Wells was rude, unprofessional and disruptive. Griffin interviewed
other employees to determine how pervasive the sentiment was and discovered three
additional employees whose sentiments echoed the original complaints. Griffin
reported the complaints of the employees, and those of the McMillan and Dahl
families, to SCI’s Regional Vice President, Mark McGilley, who suspended Wells for
five days and warned her that future problems would result in her termination. Wells
filed a complaint with the Missouri Human Rights Commission and Equal
Employment Opportunity Commission (collectively, “EEOC”) alleging her
suspension was based on her gender. The EEOC declined to take action, and Wells
did not pursue the matter further.

      In 2003, a co-worker complained to SCI’s “CareLine,” a toll-free ombudsman
service, that Wells harassed and belittled him. During that same time, another family,
the Boones, complained that Wells had been argumentative during their interaction
with Wells in her capacity as funeral director.

       SCI received customer complaints about other employees as well. Rodney
Heinsohn, a primary arranger at Mount Moriah, received a complaint from a family
alleging he was “abrupt, rude and pushy.” Forrest Walker, a funeral director at Mount
Moriah, received several complaints from customers, all of which were determined
to be unsubstantiated. The record is unclear as to the identity of Heinsohn’s and
Walker’s supervisor. Though not in response to a customer complaint, John Gattshall
and George Salyer, whose supervisor was Michael Shannon, received written
disciplinary notices for expressing contempt for management policies.



                                         -3-
      Wells also presented evidence that she endured sexist comments from co-
workers. Leon Emas, a marketing employee at Mount Moriah, called Wells two
sexually explicit and offensive names. Walker also told Wells that she “was not in the
good old boys’ club and [she] never would be” and expressed his belief that “women
should be barefoot and pregnant.”

       In the fall of 2003, SCI determined that, in light of decreasing revenues and
high operating expenses, it needed to restructure and that a reduction-in-force (“RIF”)
was necessary. McGilley’s position as Regional Vice President was eliminated, and
he accepted a position as Marketing Director for the Kansas City and Wichita areas,
in which he was tasked with implementing the RIF. In this capacity, McGilley
determined Mount Moriah was operating below expectations based on financial
conditions such as low operating margins and high salary expenses. McGilley’s
analysis also persuaded him that SCI had five more funeral directors than it needed
in the Kansas City area. As a result, he terminated the employment of five funeral
directors, three men and two women. In selecting Wells as one of the five, McGilley
considered her personnel record as well as the fact that she was the highest paid
funeral director at Mount Moriah. In total, McGilley eliminated nine positions during
the RIF, four men and five women.

       After her position was eliminated, Wells filed another charge with the EEOC.
After exhausting her administrative remedies, Wells filed a complaint in district court
alleging gender discrimination and unlawful retaliation. SCI moved for and received
summary judgment on both counts. The district court concluded that Wells’s evidence
was devoid of facts that would permit an inference that gender played a role in the
adverse employment action to support her discrimination claim. As for the retaliation
claim, the district court concluded that Wells failed to establish a causal connection
between her complaint to the EEOC and the elimination of her position during the
RIF. Wells appeals the grant of summary judgment.




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II.   DISCUSSION

       We review a grant of summary judgment de novo, viewing the facts in the light
most favorable to the non-moving party. Cottrill v. MFA, Inc., 443 F.3d 629, 635 (8th
Cir. 2006). Summary judgment is appropriate “if the pleadings, depositions, answers
to interrogatories, and admissions on file . . . show 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).

      A.     Gender Discrimination

        Because Wells concedes that she does not have direct evidence to support her
claim of discrimination, we analyze her claim under the McDonnell Douglas
burden-shifting framework. Griffith v. City of Des Moines, 387 F.3d 733, 736-37 (8th
Cir. 2004). To survive the motion for summary judgment, Wells must present a prima
facie case of gender discrimination, which requires proof in the record that: (1) she
was a member of a protected class; (2) she was qualified for her job; (3) she suffered
an adverse employment action; and (4) there are facts that give rise to an inference of
unlawful gender discrimination. Rorie v. United Parcel Serv., Inc., 151 F.3d 757,
760-61 (8th Cir. 1998). Wells attempts to satisfy the fourth element by showing that
she was treated differently from similarly situated males, which is a typical means of
proof for the fourth element in a gender discrimination case. E.g., Turner v. Gonzales,
421 F.3d 688, 694 (8th Cir. 2005). Once the employee establishes a prima facie case,
the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason
for its actions. McDonnell Douglas v. Green, 411 U.S. 792, 804 (1973). Upon such
a showing, the burden shifts back to the employee to show that the employer’s reason
was pretextual. McDonnell Douglas, 411 U.S. at 804. The parties do not dispute that
Wells satisfies elements (1), (2) and (3) of the prima facie case for gender
discrimination. The district court held that Wells failed to present any evidence that
would permit an inference that her gender was a factor in her termination, and we
agree.

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      Wells failed to establish the fourth element of the prima facie case because she
did not show that she was treated differently from similarly situated males. Wells
received complaints from four customers in 1999, one customer in 2000, three
employees in 2001, and one customer and one employee in 2003. SCI managers gave
her a warning about her conduct in 1999 and suspended her in 2001.

       Wells presented evidence that four males, Heinsohn, Gattshall, Salyer and
Walker, also received complaints and argues that, unlike her, they were not
disciplined. Wells has the burden of demonstrating that she and the allegedly
disparately treated men were “similarly situated in all respects.” Clark v. Runyon, 218
F.3d 915, 918 (8th Cir. 2000). We believe the relevant respects in this case include
the number of complaints each employee received, the employee’s position and the
employee’s supervisor. See id. The record reveals that Heinsohn received only one
customer complaint as compared to Wells’s six. Gatshall and Salyer did not receive
complaints from customers and were, in fact, disciplined for expressing contempt for
management. Additionally, they were not funeral directors, had different supervisors
from Wells and worked at different locations from Wells. Walker received fewer
complaints than Wells and, unlike the complaints lodged against Wells, those against
Walker were determined to be unsubstantiated. Given this undisputed evidence, we
agree with the district court that these four men were not similarly situated in all
relevant respects to Wells.

       Wells also failed to show that she was treated differently from similarly situated
males during the RIF. Wells presented no evidence that similarly situated males were
not terminated pursuant to the RIF. Rather, the record is clear that for the Kansas City
area, McGilley eliminated five funeral director positions, three men and two women.
In total, McGilley eliminated nine positions, including, in addition to funeral directors,
administrative and driver positions. Of the nine people terminated under the RIF, four
were men. This evidence, even viewed in a light most favorable to Wells, does not
give rise to an inference that gender played a role in her termination. See Hesse v.
Avis Rent-a-Car Sys., Inc., 394 F.3d 624, 631–32 (8th Cir. 2005) (holding that

                                           -6-
evidence that plaintiff was the only female out of 14 employees terminated pursuant
to a RIF was not sufficient to show she was treated differently from similarly situated
males because job classifications were different).

       Wells also presented evidence that she endured sexist comments made by some
of her male co-workers at Mount Moriah. We decline to address this argument to the
extent that Wells frames it as evidence of the “environment” at Mount Moriah because
she did not allege a hostile work environment claim. As to the gender discrimination
claim, we believe the statements are immaterial because they were made by non-
decisionmakers and were unrelated to the decisional process itself. See Rivers-Frison
v. Southeast Mo. Cmty. Treatment Ctr., 133 F.3d 616, 619 (8th Cir. 1998).
Furthermore, to the extent that Wells offers as evidence that would permit an
inference of discrimination the fact that her position subsequently was assumed by a
male, we disagree. Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1167 (8th Cir. 1985)
(“The fact alone that [Plaintiff]’s duties were assumed by a younger person . . . itself
is insufficient evidence to establish a prima facie case.”). We therefore agree with the
district court that Wells failed to prove a prima facie case of gender discrimination.

       Having determined that Wells failed to present a prima facie case of
discrimination, we need not analyze SCI’s proffered legitimate, nondiscriminatory
reason for the discharge, although we note a RIF certainly constitutes such a reason.
See Wittenburg v. Am. Express Fin. Advisors, Inc., 464 F.3d 831, 836 (8th Cir. 2006);
Hardin v. Hussman, 45 F.3d 262, 265 (8th Cir. 1995); Holley, 771 F.2d at 1168.
Wells’s remaining evidence—that a male funeral director assumed her duties and that
SCI changed its proffered explanation for her termination—amounts to a challenge
to the legitimacy of the RIF, which is only relevant to the pretext portion of the
McDonnell Douglas test. See Grabovac v. Allstate Ins. Co. 426 F.3d 951, 956 (8th
Cir. 2005) (evaluating replacement by someone of opposite gender at the pretext stage
of gender discrimination analysis); Kobrin v. Univ. of Minn., 34 F.3d 698, 703 (8th
Cir. 1994) (explaining that changes in proffered reason for termination are relevant
to a finding of pretext). Because she has not made a prima facie case, we need not

                                          -7-
address these arguments. Accordingly, we affirm the district court’s grant of
summary judgment on Wells’s gender discrimination claim.

      B.     Retaliation

       To survive summary judgment, Wells must make a prima facie case of unlawful
retaliation by demonstrating that: (1) she engaged in statutorily protected conduct; (2)
she suffered an adverse employment action; and (3) a causal connection exists
between the two. Cheshewalla v. Rand & Son Constr. Co., 415 F.3d 847, 851 (8th
Cir. 2005). The district court held that Wells satisfied the first two elements but failed
to satisfy the third. We agree.

       Wells filed her initial charge of discrimination with the EEOC in January 2001
and was fired in November 2003, creating a 34-month gap between the charge and the
termination. “A gap in time between the protected activity and the adverse
employment action weakens an inference of retaliatory motive.” Hesse, 394 F.3d at
633. Additionally, the Supreme Court has held that an adverse employment action
taken 20 months after the employee filed an EEOC complaint “suggests, by itself, no
causality at all.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 274 (2001) (per
curiam). Here, the lack of a causal connection is reinforced by the undisputed
evidence of the various customer and co-worker complaints lodged against Wells.
“Filing a complaint [of discrimination] does not clothe [Wells] with immunity for past
and present inadequacies.” Calder v. TCI Cablevision of Mo., 298 F.3d 723, 731 (8th
Cir. 2002) (internal quotations omitted).

       Wells asserts that the same evidence that supports her claim of discrimination
supports her claim of retaliation. We have addressed those arguments, and based upon
our review of the record we find Wells’s claim too attenuated to withstand summary
judgment, for there is a notable absence of any causal connection between her report
of discrimination to the EEOC and the termination of her employment pursuant to the
RIF. Because Wells failed to establish a prima facie case for unlawful retaliation, we

                                           -8-
are not required to address her argument that the RIF was pretextual. Turner, 421
F.3d at 696.

III.   CONCLUSION

       For the foregoing reasons, we affirm the judgment of the district court.




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