                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3091
                                   ___________

Robert Riggs,                           *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri
Kansas City Missouri Public             *
School District,                        *
                                        *
             Appellee.                  *
                                   ___________

                              Submitted: May 10, 2004
                                 Filed: October 20, 2004
                                  ___________

Before MORRIS SHEPPARD ARNOLD, McMILLIAN and MELLOY,
      Circuit Judges.
                         ___________

McMILLIAN, Circuit Judge.

       Robert Riggs appeals from a final judgment entered in the District Court for
the Western District of Missouri1 in favor of the Kansas City, Missouri, Public School
District (District) on his employment discrimination claims. Riggs argues that the
district court erred in granting summary judgment in favor of the District on his



      1
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
discriminatory discharge claim and erred in failing to grant his motion for a new trial
on his discriminatory promotion claim. We affirm.

       Riggs, an Asian-American, worked for the District from 1991 until his
discharge in December 2001. From 1991 to 1998, he recruited students for magnet
programs and in worked in public relations. In 1998, Riggs became a staffing
specialist in the human resources department. In August 2000, Cynthia Clegg,
executive director of the human resources department, appointed Riggs to the
position of director of recruiting and staffing in the department.

       In April 2001, the District had lost state accreditation and then-Superintendent
Benjamin Demps and several members of his staff, including Clegg, resigned. On
April 23, 2001, the school board appointed Dr. Bernard Taylor, an African-American,
as interim superintendent. Taylor had worked for the District since August 2000 as
executive director for school leadership. In that position, he worked with Brenda
Thomas, an African-American employee relations manager, and was impressed with
her work. Believing he had to fill staff positions as quickly as possible, on April 24,
2001, Taylor appointed Thomas as interim executive director of the human resources
department. Because the job was an interim position and because of his positive prior
working relationship with Thomas, Taylor did not consider anyone else for the
position.

       In July 2001, the District advertised for a permanent executive director of the
human resources department, stating, among other things, that a bachelor of arts
degree (BA) in human resources, public or business administration, or a related field
was required. Riggs, who had a BA in business administration, and Thomas, who had
a BA in English, both applied. A week later, Taylor decided not to fill the permanent
position and allowed Thomas to remain as interim director. As interim director,
Thomas was Riggs’s supervisor. She began receiving complaints about his
performance and was concerned that Riggs was not following her directives. On

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August 17, 2001, Thomas gave Riggs a written warning. Thomas noted that in May
2001 she had spoken with him about the necessity of producing a staffing and
recruitment procedures manual, and that despite her repeated requests for the manual,
Riggs had failed to produce one and had improperly delegated the assignment to a
subordinate. Thomas warned that failure to correct the problem would result in
further disciplinary action.

       After the warning, Thomas continued to receive complaints about Riggs. A
staffing coordinator complained that Riggs lacked leadership skills. Two employees
reported that Riggs had discussed Thomas’s academic record with them, opining that
she was not qualified for her position. Co-workers complained that Riggs had
improperly shared personal information about them with other employees. A
consultant for a new teacher project complained that Riggs failed to cooperate with
her. On December 31, 2001, Thomas terminated Riggs for, among other things,
failure to follow directives, failure to comply with the written warning, and
unwillingness to provide assistance or direction to his staff.

      In February 2002, Riggs filed a complaint in the district court, alleging that he
was not promoted to the position of executive director of human resources and was
discharged because he was Asian, in violation of Title VII, 42 U.S.C. § 2000e et seq.,
42 U.S.C. § 1981, and state law. The District filed a motion for summary judgment
on both claims. The district court granted the District’s motion on the discharge
claim. The district court held that Riggs had failed to establish a prima facie case
and, in any event, had failed to produce evidence that the District’s reasons for
discharging him were a pretext for race discrimination.

      The district court, however, denied the District’s motion as to the promotion
claim. At trial, the district court offered Riggs the opportunity to present a mixed-
motive jury instruction, but Riggs declined. With no objection, the district court gave
Riggs’s proffered instruction, which instructed the jury to find for Riggs if it found

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that race was a “determining factor” in the District’s decision not to promote Riggs.
The jury found in favor of the District. After the verdict, the Supreme Court, in
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (Desert Palace), held that a Title VII
plaintiff need not present direct evidence in order to obtain a mixed-motive jury
instruction. Relying on Desert Palace, Riggs moved for a new trial. The district court
denied the motion, noting it had offered Riggs the opportunity to submit a mixed-
motive instruction, but that he had declined.

DISCUSSION

      Riggs first argues that the district court erred in granting summary judgment
on his discharge claim. We review the grant the district court’s grant of summary
judgment de novo. Trammel v. Simmons First Bank, 345 F.3d 611, 612 (8th Cir.
2003) (Trammel). We agree with the district court that under the McDonnell Douglas
Corp. v. Green, 411U.S. 792 (1973) (McDonnell Douglas), burden-shifting analysis,
Riggs failed to present a prima facie case of discrimination on his discharge claim.
Among other things, he did not present facts that he was “meeting the legitimate
expectations of [his] employer.” Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 478
(8th Cir. 2004). Riggs does not dispute that his subordinates had complained about
him, that he discussed Thomas’s academic record with employees, or that he failed
to provide Thomas with the procedures manual that she had requested.

       Even if Riggs had presented a prima facie case, he failed to present evidence
that the District’s proffered reasons for his termination were a pretext for
discrimination.2 He did not show that “the proffered explanation had no basis in
fact[,]” that similarly situated African-American employees “received more favorable

      2
        We have observed that “[i]n many cases the employer’s proffered reason is
that the employee was not performing the job satisfactorily, which is simply the
negative of one of the elements of the prima facie case.” Erickson v. Farmland Indus.,
Inc., 271 F.3d 718, 726 (8th Cir. 2001).

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treatment[,]” or that it was “unlikely that [the District] would have acted on the basis
of the proffered reason” in the absence of discrimination. Erickson v. Farmland
Indus., Inc., 271 F.3d 718, 727 (8th Cir. 2001) (internal quotation omitted).

        Riggs argues that he presented sufficient “[e]vidence of a discriminatory
attitude in the workplace to show that the [District’s] proffered explanation for the
action was not the true reason for the discharge.” Id. We disagree. Riggs notes he
presented evidence that during former superintendent Demps’s tenure, Demps, the
school board and a community activist had expressed preferences that African-
Americans be appointed to “top spots.” Although in his opening brief he asserts that
Taylor was aware of the District’s “unwritten rules,” he offers no evidentiary support
for the proposition. In any event, Thomas, not Taylor, made the decision to terminate
Riggs. In addition, even if the previous administration had expressed a preference to
appoint African-Americans to prominent positions, such evidence would not raise an
inference that the District’s legitimate reason for discharging Riggs from a less
prominent position was a pretext for race discrimination. We also note that Riggs
presented evidence of the District’s alleged preference for appointing African-
Americans to “top spots” to the jury in his promotion claim, but that the jury found
against him.

       Riggs also argues that Thomas discharged him to eliminate him as competition
for the position of executive director of the human resources department, asserting,
as he did in his promotion claim, that he was the better qualified candidate. His
argument is without merit. Even if Thomas had discharged Riggs to eliminate him
from competition, such action would not show that she discharged him because of
race. In addition, as the district court noted, Riggs’s argument makes little sense. If,
as he argues, the District would only appoint an African-American to fill the
executive director of human resources position, Thomas would not have needed to
discharge Riggs, since he was not an African-American. Nor, in the facts of this
discharge case, did the timing of his discharge, which he notes was four and one-half

                                          -5-
months after he applied for the position, raise an inference that he was fired on
account of his race. Cf. Kiel v. Select Artifiacts, Inc., 169 F.3d 1131, 1136 (8th Cir.)
(en banc) (in retaliation claim, “[g]enerally, more than a temporal connection between
the protected conduct and the adverse employment action is required to present a
genuine factual issue on retaliation”), cert. denied, 528 U.S. 818 (1999).

       We also reject Riggs’s argument that this court should reverse the district
court’s grant of summary judgment in light of Desert Palace. As previously noted,
in that case, the Supreme Court held that a plaintiff need not present direct evidence
in order to receive a mixed-motive instruction. 539 U.S. at 101. In this case, we need
not decide whether Desert Palace has altered the burden-shifting analysis of
McDonnell Douglas. As to his discharge claim, Riggs “has provided no evidence,
direct or circumstantial, from which a reasonable jury could logically infer that [race]
was a motivating factor in [his] termination.” Allen v. City of Pocahontas, 340 F.3d
551, 557 n.5 (8th Cir. 2003), cert. denied, 124 S. Ct. 1420 (2004); see also Trammel,
345 F.3d at 615 ((Desert Palace did not help plaintiff “because he has presented
insufficient evidence to support a finding that age was a ‘motivating factor’ in the
decision to discharge him”).

        Nor, as Riggs argues, did the district court err in denying his motion for a new
trial on his promotion claim in light of Desert Palace. As the district court held,
Riggs waived review of the issue. Cf. Daggit v. United Food & Commercial Workers
Int’l., Union 304A, 245 F.3d 981, 985 (8th Cir. 2001) (where party waives objection
to instruction, reversal warranted only in exceptional case "where error seriously
affected fairness, integrity, or public reputation of judicial proceedings") (internal
quotation omitted). At the instruction conference, Riggs’s counsel expressly declined
the district court’s offer to give a mixed-motive factor. Contrary to Riggs’s argument,
this is not an exceptional case warranting reversal.

      Accordingly, we affirm the judgment of the district court.
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