                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-1142
                         ___________________________

                                   Leah Findlator

                                       Plaintiff - Appellant

                                          v.

                                Allina Health Clinics

                                      Defendant - Appellee
                                   ____________

                     Appeal from United States District Court
                          for the District of Minnesota
                                  ____________

                             Submitted: March 11, 2020
                               Filed: May 27, 2020
                                  ____________

Before ERICKSON, GRASZ, and KOBES, Circuit Judges.
                           ____________

ERICKSON, Circuit Judge.

      Leah Findlator sued Allina Health Clinics (“Allina”), her former employer, for
race and national origin discrimination as well as intentional infliction of emotional
distress. The district court1 granted summary judgment in favor of Allina on all
claims. Findlator appeals from the grant of summary judgment as to the
discrimination claims only. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I.    Background

       Leah Findlator and Leah Baruch worked as lab technicians for Allina.
Findlator is a black woman from the United Kingdom who was employed by Allina
from August 2012 until her termination on December 6, 2016. While Findlator had
a positive performance history at Allina, she had interpersonal problems with Baruch,
who is white. Findlator complained to supervisors about difficulties with Baruch and
alleges Baruch made a comment about Findlator being in a gang.

       On December 2, 2016, Findlator and Baruch got into a heated argument that
spilled out of the lab and into an occupied patient waiting room. As the argument
escalated, Baruch took off her lab coat and twice threw it in Findlator’s direction.
Findlator then approached Baruch, put her hands on Baruch’s shoulders, and pushed
her.

       After human resources completed its investigation of the incident, Allina issued
corrective action notices to both Findlator and Baruch. Baruch was cited for violating
the Respectful Workplace and Commitment to Care policies and issued a suspension
and a final warning. At the time of its decision, Allina believed Baruch’s lab coat did




      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.

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not hit Findlator.2 Findlator was cited for violating the same two policies and also the
Violence-Free Workplace policy. Findlator was terminated.

      Findlator filed a grievance through her union because she received a more
severe punishment than Baruch. An arbitrator determined Findlator’s termination
was unwarranted. Allina offered to reinstate Findlator, but Findlator refused and
instead filed suit in the district court. Findlator appeals the grant of summary
judgment as to her discrimination claims brought under Title VII, 42 U.S.C. § 2000e-
2, and the Minnesota Human Rights Act, Minn. Stat. § 363A.08.

II.   Discussion

       “We review de novo the district court’s grant of summary judgment, viewing
the evidence in the light most favorable to the nonmoving party and drawing all
reasonable inferences in that party’s favor.” Meyer v. McKenzie Elec. Coop., Inc.,
947 F.3d 506, 508 (8th Cir. 2020). An employer is entitled to summary judgment on
an employee’s discrimination claim unless the employee (1) presents direct evidence
of discrimination, or (2) creates a sufficient inference of discrimination under the
McDonnell Douglas framework. Guimaraes v. SuperValu, Inc., 674 F.3d 962,
972–73 (8th Cir. 2012). Direct evidence consists of a specific link between a
challenged decision and discriminatory animus. Griffith v. City of Des Moines, 387
F.3d 733, 736 (8th Cir. 2004).

      Findlator alleges she presented direct evidence of discrimination, which
included: (1) Allina’s consideration of Findlator’s race during its investigation to
ensure that no discriminatory animus impacted its decision; (2) Baruch’s comment


      2
        During Allina’s investigation, Findlator did not assert the coat hit her. During
arbitration, she claimed that it did. The parties do not dispute that when Allina issued
its corrective actions it believed that Baruch’s lab coat did not hit Findlator.

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that Findlator was in a gang; and (3) Allina’s failure to cite Baruch for violating the
Violence-Free Workplace policy. None of Findlator’s proposed direct evidence
establishes a specific link between her termination and a discriminatory animus.

       The record demonstrates that Allina considered Findlator’s race only to ensure
that any corrective action was not based on racial discrimination. Baruch’s comment
about Findlator belonging to a gang is insufficient because Baruch was a coworker
with no authority over the decision to terminate Findlator. See Massey-Diez v. Univ.
of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149, 1160 (8th Cir. 2016) (citing
Doucette v. Morrison Cty., Minn., 763 F.3d 978, 986 (8th Cir. 2014)) (noting bias
must be from a decision maker and relate to the decisional process). And Allina’s
failure to note a Violence-Free Workplace policy violation on Baruch’s corrective
action notice, standing alone, does not evidence a discriminatory animus. The
Violence-Free Workplace policy is a “zero tolerance” policy pertaining to violent
behavior or threats of violence. An Allina human resources director testified that
Baruch would not have been terminated based on her misconduct even if she had
been cited for violating the Violence-Free Workplace policy. The failure to cite
Baruch under the Violence-Free Workplace policy does not show a specific link to
a discriminatory animus.

       Without direct evidence of discrimination, we turn to the familiar burden
shifting McDonnell Douglas analysis. Under this framework, a plaintiff must first
state a prima facie case of discrimination, which shifts the burden to the defendant to
proffer a legitimate non-discriminatory reason for the challenged action. Putman v.
Unity Health Sys., 348 F.3d 732, 735 (8th Cir. 2003) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802–04 (1973)). If the defendant presents a non-
discriminatory reason, the burden shifts back to the plaintiff to demonstrate that the
alleged reason was pretext for discrimination. Gibson v. Am. Greetings Corp., 670
F.3d 844, 854 (8th Cir. 2012).



                                          -4-
       Like the district court, we assume Findlator established a prima facie case and
consider whether Findlator demonstrated Allina’s stated reason for terminating her
was pretext. A party can show pretext by presenting evidence that an employer failed
to follow its own policies or treated similarly-situated employees in a disparate
manner. Gibson, 670 F.3d at 854. Failure to follow policy is relevant evidence of
pretext, but is not necessarily dispositive in every case. See Edwards v. Hiland
Roberts Dairy, Co., 860 F.3d 1121, 1126–27 (8th Cir. 2017). Similarly-situated
employees must be “similarly situated in all relevant respects,” which requires
violations to be of “comparable seriousness.” Ebersole v. Novo Nordisk, Inc., 758
F.3d 917, 925 (8th Cir. 2014) (quotation marks omitted). In other words, the
employees being compared must have committed “the same conduct without any
mitigating or distinguishing circumstances.” Johnson v. Securitas Sec. Servs. USA,
Inc., 769 F.3d 605, 613 (8th Cir. 2014) (en banc) (quotation marks omitted).

       Allina’s Violence-Free Workplace policy states that violators “will be subject
to corrective action.” It lists examples of impermissible behavior but does not
prescribe a particular corrective action. When determining the appropriate corrective
action for the misconduct under consideration, the policy gives Allina the discretion
to distinguish different acts of violence and to distinguish acts of violence from
threats of violence. Allina’s response to Findlator’s grievance and the deposition of
an Allina human resources director make clear that Allina believed that pushing a co-
worker was more severe than throwing a lab coat at a co-worker and that Findlator’s
behavior justified a more severe punishment. Nothing in Allina’s Violence-Free
Workplace policy or other policies prohibit Allina from treating some offenses as
more severe than others and selecting a corrective action that it believes is
proportional to the level of severity for the violation.

     Because Findlator and Baruch engaged in different types of misconduct and
were not similarly situated, omission of the Violence-Free Workplace policy on
Baruch’s corrective action notice does not show disparate treatment. Allina’s

                                         -5-
rationale for terminating Findlator and suspending Baruch would apply with the same
force regardless of whether Baruch’s notice included a violation of the Violence-Free
Workplace policy. Findlator did not present sufficient evidence of pretext and the
district court did not err in granting summary judgment for Allina.

III.   Conclusion

       For the foregoing reasons, we affirm.
                       ______________________________




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