                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-4045
                                   ___________

 Earl Mitchell,                         *
                                        *    Appeal from the United States
            Plaintiff - Appellant,      *    District Court for the
                                        *    Eastern District of Arkansas
      v.                                *
                                        *     [UNPUBLISHED]
 City of Dumas, Arkansas,               *
                                        *
            Defendant - Appellee.       *
                                   ___________

                             Submitted: June 16, 2006
                                 Filed: July 11, 2006
                                 ___________

Before ARNOLD and BEAM, Circuit Judges, and DOTY,1 District Judge
                            ___________

DOTY, District Judge.

       Earl Mitchell sued the City of Dumas (the “City”) alleging that he suffered a
hostile work environment and that his employment was unlawfully terminated based
on race. The district court2 granted summary judgment in favor of the City. Mitchell
appeals and we affirm.

      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
      2
        The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas.
I.    BACKGROUND


       Mitchell, a black male, worked as an at-will employee for the City from March
1, 1996, until his termination on August 19, 2003. From 1996 to September of 2001,
he worked in the street department under the supervision of Kenneth Smallwood.
Thereafter, he worked in the water/sewer department under the supervision of Wayne
Freeman. On numerous occasions during his employment in the street department,
Mitchell complained to Smallwood and City Mayor Clay Oldner about alleged pay
disparities between black and white employees. Although he may have received a pay
raise in response to one or more of his complaints, he alleges that race-based pay
discrepancies remained.


       In 1998 and 2002, Smallwood accused Mitchell of stealing City property. On
both occasions, Mitchell provided an explanation and did not receive a reprimand or
other disciplinary action. Mitchell alleges that Smallwood began spying on him
sometime before 2001 and throughout the remainder of his employment with the City.
He complained to Oldner, but the spying continued. He also alleges that Smallwood
and Oldner called him “Bubba” on several occasions, which he understood to mean
“nigger.” He told them that he did not like being called “Bubba.” Smallwood stopped
using the term, but Oldner did not.


      Before July 3, 2003, employees in the street and water/sewer departments were
allowed to borrow City equipment without prior approval. However, on July 3 the
City changed its policy to require permission from a supervisor before borrowing
equipment. The new policy was posted in three locations visible to employees, but
Mitchell alleges that he did not become aware of it. On August 15, 2003, Mitchell
borrowed a City trailer and mower without permission from his supervisor.
Smallwood discovered the incident and terminated Mitchell's employment with the
City on August 19, 2003, for violating the new policy. Mitchell unsuccessfully filed

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grievances with Oldner, the City's Personnel Policy Committee and the City Council.
On October 20, 2003, he filed a charge of discrimination with the Equal Employment
Opportunity Commission.


       On December 18, 2003, Mitchell brought this lawsuit alleging a hostile work
environment and termination based on race. The district court granted summary
judgment in favor of the City. On appeal, Mitchell contends that he has alleged
sufficient facts to support his claims of racial harassment and discrimination.


II.   DISCUSSION


      We review de novo the district court's grant of summary judgment in favor of
defendant. Mayer v. Nextel W. Corp., 318 F.3d 803, 806 (8th Cir.), cert. denied, 540
U.S. 823 (2003).

                                    A dispute is genuine if the evidence is such that it
could cause a reasonable jury to return a verdict for either party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986). We view all evidence and inferences in a light
most favorable to the nonmoving party. See id. at 255. The nonmoving party,
however, may not rest upon mere denials or allegations in the pleadings, but must set
forth specific facts sufficient to raise a genuine issue for trial. See Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).


      A.     Hostile Work Environment


     Mitchell claims that he suffered racial harassment while working for the City.
An employee experiences a hostile work environment when “the workplace is
permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently

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severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)). To succeed
on a hostile work environment claim, a plaintiff must show that (1) he belongs to a
protected group, (2) he was subject to unwelcome harassment, (3) a causal nexus
exists between the harassment and the protected group status, (4) the harassment
affected a term, condition, or privilege of his employment and (5) the employer knew
or should have known of the harassment and failed to properly respond. Tademe v.
St. Cloud State Univ., 328 F.3d 982, 991 (8th Cir. 2003).


       To determine whether a plaintiff has demonstrated that the harassment affected
a term, condition or privilege of his employment, we look at all the circumstances,
including “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Woodland v. Joseph
T. Ryerson & Son, Inc., 302 F.3d 839, 843 (8th Cir. 2002) (citing Harris, 510 U.S. at
21-23). However, we must avoid imposing “a code of workplace civility.” Id. at 843.
“More than a few isolated incidents are required,” and the harassment must be so
intimidating, offensive, or hostile that it “poisoned the work environment.” Scusa v.
Nestle U.S.A. Co., 181 F.3d 958, 967 (8th Cir. 1999) (citations omitted). The “mere
utterance of an ethnic or racial epithet which engenders offensive feelings in an
employee” does not rise to an actionable level. Meritor Sav. Bank, 477 U.S. at 67.


      The district court concluded that Mitchell failed to allege sufficient facts to
show that any harassment of him was a result of his race or was severe or pervasive
enough to affect a term, condition or privilege of his employment. As to severity and
pervasiveness in particular, the isolated actions and comments by Smallwood and
Oldner were at most unpleasant or rude, but not hostile. See Willis v. Henderson, 262
F.3d 801, 809 (8th Cir. 2001) (unpleasant conduct and rude comments do not rise to

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level of Title VII violation). In these circumstances, the district court properly granted
summary judgment on Mitchell's hostile work environment claim.


      B.     Disparate Treatment


       The district court granted summary judgment in favor of the City on Mitchell's
claims that the City unlawfully discriminated against him by paying him less than
white employees and terminating his employment based on his race. Mitchell appeals
the summary judgment ruling only as to the alleged unlawful termination. We
examine his claim under the burden-shifting analysis first set forth in McDonnell
Douglas v. Green, 411 U.S. 792 (1973). See Wheeler v. Aventis Pharms., 360 F.3d
853, 857 (8th Cir. 2004). The analysis proceeds in three steps. See Wenzel v. Mo.-
Am. Water Co., 404 F.3d 1038, 1040 (8th Cir. 2005). First, a plaintiff must establish
a prima facie case of discrimination. See id. If successful, the burden of production
shifts to the defendant to articulate a legitimate, non-discriminatory reason for its
conduct. See id. If the defendant offers such a reason, the plaintiff must then
demonstrate that the reason is really a pretext for unlawful discrimination. See id.


       To establish a prima facie case of race discrimination, a plaintiff must show that
(1) he is a member of a protected class, (2) he was qualified for his position, (3) he
suffered an adverse employment action and (4) circumstances exist which give rise
to an inference of discrimination. See Wheeler, 360 F.3d at 857. A party may prove
the fourth element by showing that “similarly situated employees, who are not black,
were treated differently.” Id. We consider “whether the employees are involved in
or accused of the same or similar conduct and are disciplined in different ways.” Id.
Alternatively, a plaintiff can satisfy the fourth element by providing other evidence
that the employer terminated him because of his race. See Landon v. Northwest
Airlines, Inc., 72 F.3d 620, 624 (8th Cir. 1995) (plaintiff established fourth prong by


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providing evidence that supervisor was racist and that employer’s proffered reason for
terminating him was pretextual).


       The district court determined that Mitchell failed to meet his prima facie burden
because he did not show that similarly situated employees were treated differently or
otherwise present any evidence that raises an inference of discrimination. On appeal,
Mitchell argues that the actions of Smallwood and Oldner demonstrate that his
termination was motivated by race. He also points to testimony that his supervisor in
the sewer/water department did not agree with the decision to terminate him. Contrary
to Mitchell's argument, none of the facts alleged raise an inference that his termination
was race-based. We conclude that the district court properly granted summary
judgment in favor of the City on Mitchell's employment discrimination claim.


III.   CONCLUSION


       For the reasons stated, we affirm the district court's grant of summary judgment
in favor of defendant.
                        ______________________________




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