                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-1137
                                  ___________

Myron Canady,                          *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Missouri.
Wal-Mart Stores, Inc.,                 *
                                       *
            Appellee.                  *
                                  ___________

                            Submitted: December 15, 2005
                               Filed: March 17, 2006 (Corrected: 3/30/06)
                                ___________

Before WOLLMAN, LAY, and RILEY, Circuit Judges.
                           ___________

WOLLMAN, Circuit Judge.

      Myron Canady appeals from the district court’s1 grant of summary judgment
to Wal-Mart Stores, Inc. (Wal-Mart) on his race-based employment discrimination
and hostile work environment claims. We affirm.

                                      I.
       Canady, an African American, worked at the Springfield, Missouri, Wal-Mart
as a produce associate from June 2001 until he was terminated in December 2001.

      1
        The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
Canady’s duties included stocking, cleaning, and maintaining the floors. Paul Smith
was Canady’s direct supervisor, and Smith reported to Marlan Kirch, a co-manager.
Rick Risenhoover was the general manager of the Springfield Wal-Mart.

       Shortly after being introduced to Canady, Smith referred to himself as a “slave
driver” when describing his reputation as a manager within the store. Approximately
one week after Canady reported the comment to Kirch, Smith met with Canady to
discuss the matter and apologize for the comment. Later that summer, Smith,
mimicking the actors in the film Rush Hour, asked Canady, “What’s up, my nigga?”
This occurred in the break room, and Canady did not complain at the time of the
incident. In his affidavit, Canady alleges that Smith also referred to him as a “lawn
jockey,” stated that all African Americans look alike, and remarked that Canady’s skin
color seemed to wipe off onto towels.

       On September 23, 2001, Canady and two other Wal-Mart associates were
scheduled to work in the produce department. One of the associates left without
permission, and Dennis Brown, the manager on duty, excused the other for a family
emergency. When Brown explained to Canady that he would be the only associate in
the produce department that night, Canady became upset. Brown asked Canady to
write down his complaints so that management could address the situation. Canady
submitted a letter to Brown later that night, stating that the day shift was not fulfilling
its responsibilities. The next day, Risenhoover, Kirch, Smith, and Canady attended
a meeting to discuss Canady’s complaints. At the meeting, Canady mentioned the
“What’s up, my nigga?” comment, and Smith apologized. Following that meeting,
Smith did not use that phrase again.

      On December 17, 2001, Canady was eating an orange in the food preparation
area. Wal-Mart’s policy prohibits eating in that area, and inspectors had recently cited
the Springfield store for having an aluminum can in the food preparation area. When
Brown asked Canady to stop eating, Canady began arguing loudly with him. In

                                           -2-
response to Brown’s call, Kirch came to the produce department. Canady continued
to yell in front of customers and other associates, whereupon Kirch suspended him for
the remainder of the day.

      Kirch investigated the incident and spoke with the district manager and
personnel in the loss prevention department. He then obtained approval from Wal-
Mart’s corporate office to terminate Canady. After conferring with Kirch,
Risenhoover decided to terminate Canady for gross misconduct and insubordination.
On December 18, 2001, Kirch informed Canady of Risenhoover’s decision.

                                          II.
       We review de novo the district court’s grant of summary judgment, viewing the
evidence in the light most favorable to the nonmoving party. Zhuang v. Datacard
Corp., 414 F.3d 849, 854 (8th Cir. 2005). We conclude that summary judgment is
proper only where 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); Zhuang, 414 F.3d at
854.

                                            A.
       Canady contends that the district court erred in granting summary judgment on
his employment discrimination claim because Smith’s comments constituted direct
evidence of unlawful race discrimination. We disagree. To present direct evidence
of discrimination, Canady must establish evidence “sufficient to permit the factfinder
to find that [the discriminatory] attitude was more likely than not a motivating factor
in the employer’s decision.” Simmons v. Océ-USA, Inc., 174 F.3d 913, 915 (8th Cir.
1999). Smith’s use of the term “slave driver” and the phrase “What’s up, my nigga?”
could well be considered racially offensive. Smith, however, was not involved in
Risenhoover’s decision to terminate Canady. It was Kirch’s decision to suspend
Canady and Risenhoover’s decision to terminate him. Absent a causal link between
the racial comments and the adverse employment action, Smith’s comments are best

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classified as, “statements by a decisionmaker unrelated to the decisional process.” Id.
at 916 (internal citations and quotations omitted).

      Canady also failed to establish indirect evidence of unlawful race
discrimination. To survive summary judgment under the burden-shifting approach of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the plaintiff must establish
a prima facie case of employment discrimination. Id. at 802. If established, the
employer may advance a legitimate, nondiscriminatory reason for the employee’s
discharge. Id. The burden of production then returns to the plaintiff to show that the
employer’s reason is a pretext for racial discrimination. Id. at 804.

       We agree with the district court that Canady did not establish a prima facie case
of race-based employment discrimination. To establish a prima facie case, a plaintiff
must show the following: (1) he was a member of a protected group, (2) he was
meeting the legitimate expectations of his employer, (3) he suffered an adverse
employment action, and (4) there are facts that permit an inference of discrimination.
Zhuang, 414 F.3d at 854. The parties agree that Canady is a member of a protected
group and that he suffered an adverse employment action when Wal-Mart terminated
him. The parties dispute whether Canady was meeting the legitimate expectations of
Wal-Mart, but even if he was, Canady has not shown that there are facts that permit
an inference of discrimination. Canady merely stated his belief that he was treated
differently than similarly situated Caucasian employees. Canady presented no
evidence that Wal-Mart treated other insubordinate employees differently, and Wal-
Mart has presented evidence of several Caucasian employees who were terminated for
conduct that was less egregious than Canady’s.

       Even if Canady had established a prima facie case, Wal-Mart has articulated a
legitimate, nondiscriminatory reason for its actions. Wal-Mart terminated Canady
because he was insubordinate. He refused to comply with a manager’s reasonable
request, and he yelled at the manager in front of other associates and customers. Most

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importantly, Canady has not presented any probative evidence that Wal-Mart’s
decision to terminate him was a pretext for unlawful discrimination. Smith’s remarks
were made outside of the decision making process. Without more, the comments are
“not enough to create a trialworthy issue of pretext.” Simmons, 174 F.3d at 916
(internal citations and quotations omitted).

                                            B.
        Canady also contends that the district court erred in granting summary
judgment on Canady’s race-based hostile work environment claim. “To satisfy the
high threshold of actionable harm, [Canady must show that] his workplace was
permeated with discriminatory intimidation, ridicule, and insult.” Elmahdi v. Marriot
Hotel Servs., Inc., 339 F.3d 645, 653 (8th Cir. 2003) (internal citations and quotations
omitted). “[M]ere utterance of an . . . epithet that engenders offensive feelings in a[n]
employee . . . does not sufficiently affect the conditions of employment” to give rise
to a triable hostile work environment claim. Id. (quoting Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993)). Taking Canady’s allegations as true, Smith’s comments
were offensive, but insufficient to meet the threshold of actionable harm.

        In so holding, we of course recognize, as cited by Judge Lay in his dissent, the
Supreme Court’s recent decision in Ash v. Tyson Foods, Inc., 2006 WL 386343 (per
curiam), in which the Court held that the Eleventh Circuit had erred in holding that
modifiers are necessary in all instances to render the word “boy” probative of bias.
Id. at *2. The Court went on to hold that, although the use of the word “boy” will not
always be evidence of racial animus, the word must be considered in context.
Similarly, in certain contexts, the term “slave driver” could be considered evidence
of racial animus. There is nothing in the context of this case, however, to suggest that
the term was probative of bias, for Smith used “slave driver” to describe his reputation
as a manager. Smith apologized after Canady complained, and he did not use the term
again. Likewise, as set forth above, when Canady mentioned during the September
24 meeting the “What’s up, my nigga?” remark, Smith apologized for having made

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the comment and thereafter did not repeat it. In light of these facts, then, we conclude
that, however ill-chosen Smith’s comments, including his other earlier-described
racially tinged statements, and however ill-advised his attempts at racial humor,
Smith’s conduct did not give rise to an actionable claim of racial hostility.

      The judgment is affirmed.

LAY, Circuit Judge, dissenting.

       I respectfully dissent. The majority opinion sets a new and dangerous precedent
for this circuit. It should be overruled. The majority overlooks that summary
judgment is a disfavored standard which “should seldom be utilized” in employment
discrimination cases. Pope v. ESA Servs., Inc., 406 F.3d 1001, 1006 (8th Cir. 2005).
As long as a reasonable jury could find that Canady was the victim of a racially hostile
work environment and was terminated under circumstances that create an inference
of unlawful discrimination, we are obligated to allow both his claims to be submitted
to a jury. Id. In this case, there is more than ample evidence to submit both claims
to a jury.

       Regarding Canady’s hostile work environment claim, this is not a case where
a singular, isolated comment is the source of plaintiff’s action. The facts show that
Canady’s immediate supervisor, Assistant Manager Paul Smith, a Caucasian,
repeatedly called Canady a “lawn jockey” and used the word “nigger” in front of
Canady and other employees. The term “lawn jockey” is especially offensive and,
given Smith’s “repeated” use of this term, coupled with his use of the word “nigger,”
there is enough evidence to demonstrate Canady was the victim of a hostile work
environment. See Delph v. Dr. Pepper Bottling Co., 130 F.3d 349, 357 (8th Cir.
1997). Smith also engaged in further racially inappropriate behavior. On one
occasion, Smith greeted Canady with the phrase, “What’s up my nigga?” in an
apparent attempt to make a joke by quoting a movie line. During his initial meeting

                                          -6-
with Canady, Smith described his management style as that of a “slave driver.” Smith
also told Canady and another African-American employee that a black man’s skin
color rubs off on a towel when he sweats. Finally, Smith remarked to another
African-American employee that “African-Americans all look alike.”2 Although this
statement was made outside Canady’s presence, hostile work environment claims are
assessed based on the totality of the circumstances, taking into consideration the
nature of the workplace environment as a whole. Therefore, “evidence of harassment
directed at other co-workers can be relevant to an employee’s own claim of hostile
work environment discrimination.” Leibovitz v. New York City Transit Auth., 252
F.3d 179, 190 (2d Cir. 2001).

       In Ross v. Douglas County, 234 F.3d 391 (8th Cir. 2000), this court upheld a
jury’s hostile work environment finding where, during the final two years of
plaintiff’s seven-year employment tenure, his supervisor repeatedly addressed him as
“nigger” and “black boy.” Id. at 396-97; see also Ways v. City of Lincoln, 871 F.2d
750, 755 (8th Cir. 1989). Similarly, Canady was repeatedly called a racially
humiliating epithet by his supervisor. Harassment by a supervisor “has a greater
power to alter the environment” than similar actions of mere co-workers. Hocevar
v. Purdue Frederick Co., 223 F.3d 721, 728 (8th Cir. 2000). In contrast to the plaintiff
in Ross, Canady was the victim of Smith’s racial harassment from the very onset of
his short employment with Wal-Mart, when Smith first described himself to Canady
as a “slave-driver.” Although this comment, by itself, may be innocuous, Smith’s
subsequent statements suggest this remark may well have been tinged with a racial
animus. Finally, Smith’s harassment was concentrated over a seven-month period.

      I take issue with the majority’s conclusion that Smith’s apology to Canady for
saying “What’s up, my nigga?” in some way absolves Smith for making this improper


      2
       The instances of misconduct cited in this dissent involve either specific
instances of Smith’s misconduct or a corroborated pattern of misconduct by Smith.

                                          -7-
remark. Although apologies, to be sure, must be factored into the hostile work
environment calculus, they are by no means a panacea for harassment that has already
occurred. Moreover, the significance of Smith’s apology in this instance is minimal.
In addition to this statement, the record indicates, and I have already highlighted, how
Smith repeatedly made reference to Canady using highly inappropriate and offensive
racial remarks. Yet at no time did Smith apologize for these statements. Therefore,
I respectfully disagree with the majority. Smith’s apology, in this instance, does little
to change the severity or pervasiveness of the racial harassment Canady was forced
to endure.

       Regarding Canady’s racial termination claim, the above-mentioned facts
provide enough evidence to make out both a prima facie case of discrimination and
to show that Wal-Mart’s proffered legitimate, non-discriminatory reason for Canady’s
termination is merely pretextual. The “burden of establishing a prima facie case of
disparate treatment is not onerous.” Texas Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981). The majority assumes Canady has failed to demonstrate a
prima facie case because he did not show that similarly situated white employees were
treated differently than he. However, “evidence of disparate treatment is not the
exclusive means by which a plaintiff may establish an inference of discrimination.”
Allen v. Interior Constr. Servs., 214 F.3d 978, 982 (8th Cir. 2000). Instead, this court
may properly consider “any credible evidence tending to establish that an employer
acted adversely to an individual ‘on account of’ his disability.” Id. Here, the
allegations detailing Smith’s racially discriminatory conduct provide enough evidence
from which a reasonable jury could infer that Canady was terminated under
circumstances giving rise to an inference of unlawful discrimination.

      There is also enough evidence to show that Wal-Mart’s allegedly legitimate
reason for Canady’s termination was pretextual. Canady may “rely on the same
evidence to prove both pretext and discrimination.” Brandt v. Shop’n Save
Warehouse Foods, Inc., 108 F.3d 935, 939 (8th Cir. 1997). The nature, frequency,

                                          -8-
and gravity of the facts alleged are sufficient, in my opinion, from which a reasonable
jury could infer pretext. The majority’s decision also runs contrary to a recent
unanimous opinion by the United States Supreme Court, where the Court held that a
supervisor’s use of the word “boy,” given the proper context, inflection, and tone of
voice used, could be offered as evidence to infer pretext even though the word was not
used with any accompanying modifiers or qualifications. Ash v. Tyson Foods, Inc.,
546 U.S. ___, ___ (2006) (slip op., at 2). Here, the record is replete with evidence of
racially malign terms uttered towards Canady that are significantly more serious than
those used to show pretext in Ash. The majority also errs by concluding that Canady
fails to demonstrate pretext because Smith was not involved in the decision to
terminate Canady. A reasonable jury could infer, however, that Smith, as a supervisor
and member of management at Wal-Mart was, in some capacity, involved in the
decision to terminate Canady. For example, according to Canady, he requested that
Wal-Mart relocate him to another department due to Smith’s behavior. Canady
frequently asked the store manager, Marlan Kirch, about the status of his transfer
request. Mr. Kirch was the manager who ultimately fired Canady for the “orange
incident.” Finally, the factual underpinnings of the “orange incident,” upon which the
majority relies to show that Wal-Mart’s termination of Canady was legitimate, are
disputed in Canady’s affidavit. Canady denies disrespecting any member of Wal-Mart
management. He also denies knowingly engaging in any form of insubordination.
Such denials are sufficient to create genuine issues of material fact, the resolution of
which lies within the exclusive domain of a jury.

      I respectfully dissent.
                         _____________________________




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