                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1735
                                   ___________

George D. Philip,                       *
                                        *
            Plaintiff - Appellant,      *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota
                                        *
Ford Motor Company,                     *
a Delaware Corporation,                 *
                                        *
            Defendant - Appellee.       *
                                   ___________

                          Submitted: February 17, 2005
                              Filed: July 7, 2005
                                 ___________

Before BYE, HEANEY, and MELLOY, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

       George D. Philip appeals the district court’s1 grant of summary judgment in
favor of Ford Motor Company (Ford) on his claims of race discrimination arising out
of Ford’s removal of Philip from a “25 mile driver-inspector” job in 1998. We affirm.

      1
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
       This Court set forth the underlying facts of the case in its opinion, Philip v.
Ford Motor Company, 328 F.3d 1020, 1022-23 (8th Cir. 2003). Philip, an African-
American, worked for Ford at its Twin Cities Assembly Plant from April 1988 until
February 1998, when he was placed on “no work available status.” Philip filed suit
in 1999 claiming he was disabled and was the victim of disability discrimination. He
also claimed discrimination on the basis of his race and religious beliefs. Further,
Philip alleged that he had been the subject of retaliation.

       On June 13, 2001, the district court granted summary judgment, effectively
dismissing Philip’s federal and state claims for racial discrimination regarding events
that occurred prior to 1997. The June 13, 2001 order was never appealed. On March
8, 2002, the district court entered a second summary judgment order that dismissed
the remainder of Philip’s claims. Philip appealed this order. On May 21, 2003, this
Court affirmed the dismissal as to the disability discrimination, but reversed the order
with respect to Philp’s post-1997 race discrimination claim. In that claim, Philip
alleged that Ford refused to place him in a permanent position because of racial
motivations and that Ford grandfathered two similarly situated, white employees into
the same positions, despite their lack of seniority. Philip, 328 F.3d at 1026.

       In October 2003, Ford moved for summary judgment on the remaining claims,
arguing that Philip could not present sufficient evidence that similarly situated
employees who were not members of Philip’s protected class were disparately treated,
as required to sustain his remaining race claims. On February 12, 2004, the district
court granted Ford’s motion for summary judgment, rejecting Philip’s remaining race
discrimination claims. Philip now appeals that decision.

       We review de novo the district court’s grant of summary judgment. Wheeler
v. Aventis Pharm., 360 F.3d 853, 857 (8th Cir. 2004). We review “the record in the
light most favorable to the nonmoving party.” Gilmore v. AT&T, 319 F.3d 1042,
1046 (8th Cir. 2003). Summary judgment is appropriate if there is “no genuine issue

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as to any material fact and the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). Accordingly, to survive summary judgment Philip must
present facts adequate to permit an inference of racial discrimination. Craik v.
Minnesota State Univ. Bd., 731 F.2d 465, 469 (8th Cir. 1984).

       To make a prima facie showing of discrimination, Philip must prove that: (1)
he is a member of a protected class; (2) he met the legitimate expectations of his
employer; (3) he suffered an adverse employment action; and (4) similarly situated
employees that were not members of the protected class were treated differently.
Gilmore, 319 F.3d at 1046. In the present case, the first three prongs of this test are
not in dispute. Under the fourth prong, Philip bears the burden to proffer “specific,
tangible evidence” that employees who were “similarly situated in all respects” to him
received different treatment from Ford. Rose-Maston v. NME Hosp., Inc., 133 F.3d
1104, 1109 n.4 (8th Cir. 1998) (first quote); Gilmore, 319 F.3d at 1046 (second
quote). If Philip establishes the prima facie case, the burden shifts to Ford to
articulate a legitimate, non-discriminatory reason for the adverse employment action.
Williams v. Ford Motor Co., 14 F.3d 1305, 1309 (8th Cir. 1994).

       Philip argues that the district court applied the incorrect standard regarding the
“similarly situated” prong of the test. The district court stated that to satisfy the final
prong, Philip was required to identify individuals who “have dealt with the same
supervisor, have been subject to the same standards, and engaged in the same
conduct.” Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000). He suggests, citing
this Court’s decision in Wheeler, that this standard was too stringent and that we
should apply the Wheeler articulation. Wheeler, 360 F.3d at 857 (stating the standard
to be “whether the employees are involved in . . . the same or similar conduct and are
disciplined in different ways.”). Even if we assume that Clark is a more stringent
statement of the “similarly situated” standard than Wheeler, as Philip alleges, Philip
has not met his burden to produce tangible evidence, even under his articulation of
a less burdensome Wheeler standard.

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       After careful review of the record in this case, we conclude that Philip failed
to establish a prima facie case of racial discrimination because he did not prove that
employees similarly situated to him were treated differently. Philip cites the
affidavits by the plant physician, Dr. Zubieda Kahn, and by a Committeeperson for
the United Auto Workers at the Twin Cities Assembly plant from 1996 through 1999,
Nancy Schillinger, as evidence that employees received disparate treatment. It is
unnecessary to reach any conclusions regarding the admissibility of these affidavits
because, even if they are admissible, they only show that disparate treatment may
have occurred at the plant. They do not demonstrate that individuals who received
disparate treatment were similarly situated to Philip.

       Kahn testified as to a number of instances of possible disparate treatment by
Ford. For example, Kahn testified that Human Resources Manager Jack Halverson
would interfere with the medical placement of black employees and that the workers’
compensation representative used derogatory language towards a black employee.
Kahn also testified that Ford personnel failed to follow her medical recommendations
regarding the placement of black employees. However, Kahn’s affidavit does not
provide any evidence as to whether those who were treated differently were similarly
situated. It does not connect what Kahn observed to Philip’s situation.

       Ms. Schillinger’s affidavit also suggests that black employees were treated
differently. For example, she testified that two Caucasian employees were treated
differently based on race when they sought reclassification to driver-inspector
positions. The district court correctly concluded, however, that Schillinger’s affidavit
offers no proof regarding the “comparability of the positions” into which the two
Caucasians were place. It also did not offer proof regarding the comparability of the
qualifications or seniority of the two Caucasians who received driver-inspector
positions. Schillinger’s affidavit does not show how the grandfathering of the two
Caucasians and the treatment of Philip by Ford are connected.



                                          -4-
       Although the Schillinger and Kahn affidavits may offer evidence of disparate
treatment, they do not, on their face, establish the requisite showing of sufficient
specific, tangible evidence that employees who were “similarly situated in all
respects” to Philip received disparate treatment from Ford to sustain Philip’s claim.
Gilmore, 319 F.3d at 1046. Accordingly, Philip failed to meet his burden, thus
summary judgment was appropriately granted.

      For the foregoing reasons, we affirm.

HEANEY, Circuit Judge, dissenting.

      I respectfully dissent. After reviewing the record, I conclude that Philip has
presented sufficient evidence showing that Ford treated similarly situated white
employees more favorably than Philip.

       Our cases require a plaintiff to show that he or she is similarly situated to
employees offered for comparison in all relevant respects to meet the prima facie
burden. Cronquist v. City of Minneapolis, 237 F.3d 920, 928 (8th Cir. 2001); see also
McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001) (explaining that a
plaintiff need not show disparate treatment with an identically situated employee but
only sufficient similarity to support the minimal inference that the differences in
treatment “may be attributable to discrimination”); Radue v. Kimberly-Clark Corp.,
219 F.3d 612, 619 (7th Cir. 2000) (requiring that comparable employees share the
“common features essential to a meaningful comparison”). The set of relevant factors
is not fixed; rather, courts must determine which factors are relevant to each case.
See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998).
While factors such as the supervisor, and the conduct engaged in, are relevant when
a plaintiff alleges differences in disciplinary treatment, see, e.g., Clark v. Runyon,
218 F.3d 915, 918 (8th Cir. 2000), they are not necessarily relevant to cases arising
under other circumstances.

                                         -5-
       Philip contends that Ford’s failure to allow him to remain in the twenty-five
mile driver position after it was reclassified was discriminatory because other
employees whose jobs were reclassified were permitted to remain in their positions.
In opposition to summary judgment, he offered the affidavit of Nancy Schillinger,
claiming that two white male employees were “grandfathered” into positions after
they were reclassified. (Appellant’s App. at 34.) The affidavit clarifies that
“grandfathering” refers to the practice of allowing an employee to remain in a job
after reclassification rather than placing the job up for bid. (Id.)

       Philip’s claim is not based on disciplinary action and there is no allegation that
his performance was inadequate. Rather, Philip alleges that a portion of the
company-wide collective bargaining agreement was applied to remove him from his
position and was not applied to white employees whose jobs were reclassified in a
similar fashion. Unlike disciplinary decisions, which may be made by an immediate
supervisor, a policy dictated by a collective bargaining agreement will be
implemented with some degree of uniformity. Applying the requirements of Runyon
to non-disciplinary claims like Philip’s places an inappropriate burden on plaintiffs
to show similarities irrelevant to their claims. The positions of Philip and the white
employees offered for comparison were reclassified, and should have been opened
for bid and awarded on the basis of seniority. These employees are therefore
similarly situated in all relevant respects. Applying the requirements of Runyon to
non-disciplinary claims like Philip’s places an inappropriate burden on plaintiffs to
show similarities irrelevant to their claims. Accordingly, I would reverse the
judgment of the district court and remand this case for further proceedings.
                         ______________________________




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