                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-3924
                                  ___________

Willie Johnson,                       *
                                      *
           Appellant,                 *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Nebraska.
Ready Mixed Concrete Co., a           *
Nebraska Corporation and division     *
of Lyman-Richey Corporation, a        *
Delaware Corporation,                 *
                                      *
           Appellee.                  *
                                 ___________

                            Submitted: June 24, 2005
                               Filed: September 26, 2005
                                ___________

Before ARNOLD, McMILLIAN, and COLLOTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       Willie Johnson appeals from the district court’s1 grant of summary judgment
in favor of Ready Mixed Concrete (“Ready Mixed”) in his suit under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. We affirm.



      1
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
                                          I.

      Johnson, an African-American, was employed as a truck driver by Ready
Mixed from 1994 until 2002. He drove a cement mixing truck for the company and
was based out of its plant in Omaha, Nebraska. On June 13, 2002, Ready Mixed fired
Johnson, citing dishonesty as the reason for his termination.

       Johnson’s alleged dishonesty occurred in connection with an incident in which
his truck was damaged by acid while he was washing it. All truck drivers at Ready
Mixed were required periodically to clean their trucks. The drivers cleaned their
truck cabs using soap and water, but cleaned the drums of the trucks with a solution
of diluted acid. The parties do not dispute that on Friday, June 7, Johnson was told
to clean his truck before leaving for the day, and that he reported acid damage to his
truck on the following Wednesday, June 12. They dispute, however, when and how
the acid damage occurred.

        Johnson asserts that the acid damage occurred on Friday, June 7. According
to his deposition testimony, Johnson washed his truck out quickly that day after being
asked to do so, because he “was excited to get off early to enjoy the weekend.” (J.A.
at 94). Johnson pulled up next to the water hose and filled his bucket up with water
and soap. Leaving his broom in the bucket, he went to use the restroom, came back,
and started washing. Johnson began by washing one passenger door and the hood.
While walking back to the water hose to rinse off the door and hood, he noticed that
his truck “was changing colors.” He knew from the discoloration that “it must have
been acid in that bucket.” Johnson testified later that he thought the acid had been
added to his bucket either by a fellow employee seeking to conserve acid or as a
result of “sabotage.” (J.A. at 88, 108)

      Johnson’s supervisors testified that they did not believe that the acid damage
occurred to his truck on Friday, June 7, but rather that it must have occurred on

                                         -2-
Tuesday, June 11, the day before Johnson reported the damage. They also testified
that they did not believe Johnson’s assertion that the acid was added to his bucket by
a fellow employee. When Johnson brought the damage to the attention of John
Stueve, the plant superintendent, on June 12, Stueve examined the truck and then
contacted William Herschlag, who was the acting general superintendent of Ready
Mixed’s concrete plants. Either Stueve or Herschlag asked Johnson to fill out a
company damage report, known as a “Form 5.” On the Form 5, Johnson drew a scene
of the “accident” and reported that the acid damage had occurred on June 7. He
recounted the incident as described above and concluded that “I bel[ie]ve someone
had to pour a[ci]d in my Bucket when I went to Restroom. Sab[o]tage.” (J.A. at
209).

       After receiving Johnson’s report, Stueve and Herschlag investigated the acid
incident. Stueve was skeptical that the damage had occurred on June 7, maintaining
that he “[a]bsolutely” would have noticed any acid damage to Johnson’s truck
occurring prior to June 11. He testified in his deposition that he “would have
observed” Johnson’s truck “numerous times” between June 7 and June 12, either from
his office or while performing duties near where it was parked. Stueve and Herschlag
reviewed Johnson’s time record from Friday, June 7, which indicated that Johnson
had clocked out twenty minutes after being told to wash his truck. According to
Stueve, he did not believe that Johnson could have washed his truck, gone to the
restroom, and, as required by company procedure, refueled his truck in twenty
minutes. Herschlag testified that he did not think Johnson had sufficient time to
“clean the truck, as he had stated.” (J.A. at 515).

       Stueve, moreover, did not believe Johnson’s suggestion that another employee
put acid in Johnson’s bucket, reasoning that he did not “have employees at [the plant]
that would purposely do that.” (J.A. at 422). Herschlag likewise testified that he and
Stueve “did not believe” that Johnson had been sabotaged, (J.A. at 522), and that



                                         -3-
Johnson’s accusation that “somebody else pour[ed] acid into his bucket,” in his view,
was “false.” (J.A. at 541).

       Stueve also testified that three employees approached him on June 12 with
information about the acid damage. These employees each wrote out statements
saying that they saw Johnson washing his truck on June 11. One of them testified
expressly that Johnson “put[] acid into a five gallon bucket,” and “proceeded to clean
his truck with the acid.”

      On June 13, in response to Stueve’s skepticism of Johnson’s claim that the acid
damage had occurred on June 7, Johnson submitted another statement explaining his
actions on June 11. He claimed that the acid he had been seen with was “to help
clean the hopper and drum,” and that on June 11, he “washed only the D[ru]m &
hopper.”

       Still disbelieving Johnson’s account, Stueve faxed the Form 5, along with the
three employee statements and a statement of his own, to Kevin Schmidt, Executive
Vice President and Chief Operating Officer of Ready Mixed. Schmidt then approved
Johnson’s dismissal “due to dishonesty and falsification of company documents.”
(J.A. at 553). Herschlag informed Johnson of his termination on June 13, 2002.
Schmidt asserts that he spoke to Johnson shortly after he was fired, and that Johnson
claimed that two fellow truck drivers could support his version of events. The two
truck drivers gave statements saying that they had not seen Johnson washing out his
truck on June 7. One of them stated that he had seen Johnson washing his truck’s
hopper with acid on June 11, and the other stated that he had been away from work
on June 11. On June 19, Schmidt told Johnson that neither driver corroborated his
story, and Johnson identified three other employees as potential witnesses.
Statements were obtained from all of these employees, none of whom reported seeing
Johnson washing his truck on June 7.



                                         -4-
      Johnson sought unemployment benefits, but Ready Mixed denied his petition.
Johnson filed a charge of discrimination with the Nebraska Equal Opportunity
Commission (“NEOC”), which ultimately notified him of his right to sue under Title
VII. Johnson then filed suit on October 10, 2003, alleging that the termination of his
employment violated the statute’s prohibition on race discrimination.

       The district court granted Ready Mixed’s motion for summary judgment,
reasoning that although Johnson had stated a prima facie case of discrimination, he
had not demonstrated a genuine dispute for trial over whether Ready Mixed’s
proffered reason for dismissing him – his dishonesty regarding the acid damage to
his truck – was merely pretext for race discrimination. The district court also refused
to draw a negative inference from Ready Mixed’s failure to produce photographs of
the damage to Johnson’s truck.

                                          II.

       Summary judgment is appropriate when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). We review a district court’s grant of summary judgment de novo, drawing all
reasonable inferences, without resort to speculation, in favor of the non-moving party.
See Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir. 2004).

       Title VII of the Civil Rights Act of 1964 makes it an unlawful employment
practice for an employer to “discharge any individual . . . because of such individual’s
race, color, religion, or national origin.” 42 U.S.C. § 2000e-2(a). The parties agree
that the burden-shifting framework promulgated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), should be applied to determine whether Ready Mixed
was entitled to summary judgment. Under the McDonnell Douglas framework, a
plaintiff must establish a prima facie case by showing that he (1) is a member of a
protected class, (2) was qualified for his position, and (3) suffered an adverse

                                          -5-
employment action under circumstances permitting an inference that the action was
the result of unlawful discrimination. See Habib v. Nationsbank, 279 F.3d 563, 566
(8th Cir. 2001). The burden of production then shifts to the employer to articulate a
legitimate, non-discriminatory reason for firing the plaintiff. Id. If the employer can
satisfy this burden, the plaintiff must show that the employer’s reason is a pretext for
intentional discrimination. Id. Because the record was fully developed in connection
with the motion for summary judgment, we need not analyze each step of the burden-
shifting framework on appeal, but instead may turn directly to whether there is a
genuine issue for trial on the question of race discrimination vel non. See United
States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983); George v.
Leavitt, 407 F.3d 405, 411-12 (D.C. Cir. 2005).

       Johnson’s principal argument is that two white truck drivers, Kenneth
Schroeder and Carl Spencer, were involved in conduct similar to his alleged
misconduct, but were not fired. Schroeder and Spencer both had acid-damaged trucks
but did not voluntarily report the damage. Johnson asserts that the two drivers
“concealed” the damage from the company. He argues that the conduct of Schroeder
and Spencer was thus dishonest, just as his conduct was believed to be dishonest, and
that the differential treatment by Ready Mixed supports an inference that Johnson was
discharged because of his race. We disagree that Schroeder and Spencer were
similarly situated to Johnson in all relevant respects, as required to demonstrate race
discrimination based on disparate treatment of fellow employees. E.g., Harvey v.
Anheuser-Busch, Inc., 38 F.3d 968, 972-73 (8th Cir. 1994). We thus conclude that
an inference of race discrimination is not supported.

       The evidence does not bear out Johnson’s suggestion that Ready Mixed must
have viewed the conduct of Schroeder and Spencer as “dishonest,” but treated them
differently than Johnson. Johnson identifies no evidence that Ready Mixed believed
that Schroeder or Spencer violated any duty to the company requiring disclosure of
acid damage, or that management considered their conduct to be dishonest.

                                          -6-
Schroeder and Spencer both testified the acid damage to their trucks was observed by
supervisors, thus suggesting that it could not have been intentionally “concealed” as
Johnson asserts. Spencer testified specifically that he was not told that he should
have reported the damage, (J.A. at 664), and Schroeder was not even asked in his
deposition about a reporting requirement. Neither supervisor, Stueve or Herschlag,
testified that Schroeder or Spencer violated any policy relating to reporting of
damage. And most importantly, there is no showing that Schroeder or Spencer
misrepresented any facts to Ready Mixed or falsified reporting documents, as the
company believed that Johnson had done. Violations of different company policies
do not necessarily support an inference that employees are similarly situated,
particularly where one violation is considered more serious than the other. See Tolen
v. Ashcroft, 377 F.3d 879, 882-83 (8th Cir. 2004); Malone v. Eaton Corp., 187 F.3d
960, 962 (8th Cir. 1999); Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173, 175 (8th
Cir. 1992). In short, the record does not support an inference that these two drivers
were similarly situated to Johnson in all relevant respects, but treated differently.

       Johnson next contends that contrary to Ready Mixed’s conclusion, the time
card information from June 7 shows that Johnson had sufficient time to wash his
truck on that date, and that the company’s conclusion that Johnson lied about the date
of the damage is therefore flawed. One difficulty with this argument is that Johnson
must show not only that the employer may have been incorrect in its conclusion about
the events of June 7, but that the employer did not really believe that Johnson was
dishonest. Scroggins v. Univ. of Minn., 221 F.3d 1042, 1045 (8th Cir. 2000). If the
employer was motivated by a good faith belief that Johnson was dishonest, then it
was not motivated by his race, even if the conclusion about timing was erroneous.
Absent other evidence to show that the employer was actually motivated by race,
moreover, proof that it reached an unfounded conclusion about Johnson’s dishonesty
is insufficient to prove the claim.




                                         -7-
      Johnson also asserts that the district court erred by refusing to draw a negative
inference from Ready Mixed’s failure to produce pictures of the damage to his truck.
He argues that the pictures would have shown that the acid damage to his truck was
similar to the damage to the trucks of Schroeder and Spencer, who were not fired.
We review for abuse of discretion the district court’s decision whether to draw an
adverse inference based on destruction of evidence. Stevenson v. Union Pac. R.R.
Co., 354 F.3d 739, 745 (8th Cir. 2003). An adverse inference is appropriate only
when, among other things, the party seeking the inference can show that once-extant
records were destroyed “to suppress the truth,” and that the records would have
favored its case. Groves v. Cost Planning & Mgmt. Int’l, Inc., 372 F.3d 1008, 1010
(8th Cir. 2004); see also Koons v. Aventis Pharms., Inc., 367 F.3d 768, 780 (8th Cir.
2004).

       Although there is some evidence in the record suggesting that pictures should
have been taken of Johnson’s truck, and that Ready Mixed typically took pictures of
truck damage, Johnson has not shown that any pictures actually were taken of his
truck. None of the witnesses who were deposed recalls seeing any such pictures, or
seeing them taken. More importantly, even if the pictures did exist, Johnson has
proffered no evidence that they were intentionally destroyed to suppress the truth or
that they would have helped his case. The relative severity of the damage to the three
trucks is not relevant to Johnson’s claim. The stated basis for termination was
Johnson’s perceived dishonesty, not the severity of damage to his truck. Even if the
acid damage to Johnson’s truck was as severe or less severe than the damage to the
trucks of Schroeder and Spencer, therefore, it would not demonstrate that Schroeder
and Spencer were similarly situated in a relevant respect. The district court did not
abuse its discretion in determining that an adverse inference from the absence of
pictures was unwarranted.

      In one of our most oft-quoted passages, we said in 1994 that “[f]ederal courts
do not sit as a super-personnel department that reexamines an entity’s business

                                         -8-
decisions.” Harvey v. Anheuser Busch, Inc., 38 F.3d 968, 973 (8th Cir. 1994)
(internal quotations omitted). One reason we emphasize this point is that a number
of plaintiffs present a sympathetic situation in which the employer’s judgment in
imposing discipline may appear poor or erroneous to outsiders. It is tempting to think
that the role of the federal courts is to offer a remedy in that sort of case. Whether we
might believe that Ready Mixed was unduly harsh in its treatment of Mr. Johnson,
however, is not a matter to be considered in deciding this appeal. Our authority is to
determine only whether there is a genuine issue for trial on the question whether
Ready Mixed discharged Johnson because of his race. For the reasons set forth
above, we agree with the district court that the record developed by Johnson is not
sufficient to support a finding of intentional race discrimination, and that summary
judgment was appropriate.

     For the foregoing reasons, the judgment of the district court is affirmed. Ready
Mixed’s motion to supplement the record on appeal is denied as moot.
                     ______________________________




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