                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3453
                                   ___________

William M. McGinnis,                   *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Nebraska.
Union Pacific Railroad,                *
                                       *
            Appellee.                  *
                                   __________

                             Submitted: March 15, 2007
                                Filed: August 3, 2007
                                 ___________

Before RILEY, BOWMAN, and ARNOLD, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

       After being terminated from his employment with Union Pacific Railroad
(Union Pacific), William M. McGinnis (McGinnis) filed a lawsuit against Union
Pacific claiming sex discrimination under Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e to 2000e-17, and age discrimination under the Age Discrimination
in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621 to 634. Union Pacific filed
a motion for summary judgment, and the district court granted the motion. McGinnis
appeals the district court’s ruling. We affirm.
I.     BACKGROUND
       McGinnis worked for Southern Pacific Railroad (Southern Pacific) from 1974
until 1996, when Southern Pacific merged with Union Pacific. After the merger,
McGinnis continued to work for Union Pacific as a train dispatcher until he was
terminated in December 2002.

       While working for Union Pacific, McGinnis worked at the Harriman Dispatch
Center in Omaha, Nebraska, under the supervision of the Corridor Managers.
Managers of Train Dispatchers also worked at the Harriman Dispatch Center
providing lateral operations support to train dispatchers, but the Managers of Train
Dispatchers could not hire, fire, or discipline train dispatchers. Dennis Faircloth
(Faircloth) was the Senior Manager of Train Dispatchers when McGinnis was
terminated. Joseph Fortner (Fortner), the General Director of Operations Support,
made the final decisions to hire, fire, or discipline train dispatchers like McGinnis.
Fortner, however, would seek and rely upon Faircloth’s input regarding disciplinary
decisions concerning train dispatchers.

       Train dispatchers are governed by train dispatcher rules. Rule 1.3.1 of these
rules requires dispatchers to “ask their supervisor for an explanation of any rule,
regulation, or instruction they are unsure of.”

       Between 1998 and 2002, McGinnis received the following six citations for
violating train dispatcher rules:

      (1)     In July 1998, for violating a rule providing that once a train dispatcher
      has given a signal to a train and aligned the train down the main railroad track,
      a train dispatcher may not change that signal.

      (2) In August 1998, for failing to correct a train engineer’s mistake of
      repeating the incorrect train engine number.

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      (3)     In June 1999, for violating a rule requiring dispatchers to issue track
      bulletins regarding the limits on the speed at which a train should travel on
      particular tracks–McGinnis issued a bulletin authorizing a train to exceed the
      speed limit.

      (4) In April 2000, for violating a rule requiring dispatchers to communicate
      a speed restriction accurately to an Amtrak train.

      (5) In December 2000, for violating a rule prohibiting a freight train from
      passing between an Amtrak train and the passenger platform while passengers
      are disembarking from the Amtrak train.

      (6) In November 2002, for violating a rule requiring dispatchers to inform
      a train that a switch was lined against it.

McGinnis’s last citation revealed McGinnis admittedly did not fully understand a part
of the train dispatcher system (DigiCom). Thus, Fortner required McGinnis to enroll
in a one-month apprentice training course. At the end of training, McGinnis took a
written and proficiency examination. McGinnis passed the written examination, but
McGinnis failed the proficiency examination and did not score high enough to qualify
to retake the examination.

       In December 2002, citing “poor performance ratings, rules violations, and [the]
failure to qualify on the proficiency test,” Union Pacific terminated McGinnis, who
at the time was 49 years old. Union Pacific replaced McGinnis with a 53-year-old
male. Claiming sex and age discrimination,1 McGinnis filed a lawsuit against Union

      1
       McGinnis also asserted claims of sex and age discrimination under Nebraska
law. We analyze these state law claims within the same framework as those brought
under federal law. See Riesen v. Irwin Indus. Tool Co., 717 N.W.2d 907, 913-14
(Neb. 2006) (noting Nebraska employment discrimination laws mirror federal
                                         -3-
Pacific. This appeal followed the district court’s summary judgment in Union
Pacific’s favor.

II.    DISCUSSION
       We review de novo a district court’s decision to grant summary judgment. See
Bowen v. Mo. Dep’t of Soc. Servs., 311 F.3d 878, 880 (8th Cir. 2002). Summary
judgment is proper when, viewing the facts in the light most favorable to the
nonmoving party, 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); Reasonover v. St. Louis
County, Mo., 447 F.3d 569, 578 (8th Cir. 2006). We may affirm summary judgment
for any reason supported by the record, “even if it differs from the rationale of the
district court.” Reasonover, 447 F.3d at 578-79.

       In sex and age discrimination cases, a plaintiff may survive a defendant’s
motion for summary judgment in one of two ways. The plaintiff may present “direct
evidence of discrimination, that is, evidence showing a specific link between the
alleged discriminatory animus and the challenged decision, sufficient to support a
finding by a reasonable fact finder that an illegitimate criterion actually motivated the
adverse employment action.” Russell v. City of Kan. City, Mo., 414 F.3d 863, 866
(8th Cir. 2005) (internal quotation marks omitted). Alternatively, if the plaintiff lacks
direct evidence of discrimination, the plaintiff may survive the defendant’s motion for
summary judgment by creating an inference of unlawful discrimination under the
burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Russell, 414 F.3d at 866-67. Under this framework, the plaintiff


legislation, thus, Nebraska looks to federal law in analyzing these claims); Helvering
v. Union Pac. R. R. Co., 703 N.W.2d 134, 146-47 (Neb. Ct. App. 2005) (same). In
addition, McGinnis asserted a claim for religious discrimination under Title VII, and
a claim for a violation of the New York Dock conditions, pursuant to 49 U.S.C.
§ 11705, but McGinnis does not appeal the district court’s grant of summary judgment
on these two claims.
                                           -4-
bears the burden of establishing a prima facie case of discrimination. See Tex. Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). The Supreme Court
explained the plaintiff’s burden “is not onerous.” Id. at 253. The establishment of a
prima facie case creates a presumption of unlawful discrimination, which in turn
requires a defendant to come forward with evidence of a legitimate, nondiscriminatory
reason for the defendant’s actions. Id. If the defendant articulates such a reason, the
burden returns to the plaintiff to show the defendant’s proffered reason is pretextual.
Id.

       A.     Sex Discrimination
       McGinnis’s sex discrimination claim is based on his contention that sexual
favoritism was widespread within Union Pacific. In arguing this point, McGinnis
generally claims Union Pacific provided young women with better job opportunities
and treated young women more favorably than men. McGinnis specifically alleges
Faircloth had a sexual affair with Lori Buseman (Buseman), another Union Pacific
employee, and took adverse action against McGinnis in an attempt to give McGinnis’s
job to Buseman. McGinnis also states schedulers gave heavier workloads to less
attractive females. McGinnis asserts Faircloth protected attractive female dispatchers
who violated rules and gave them preference for daytime shifts. McGinnis contends
these allegations constitute direct evidence of sexual favoritism.

       However, McGinnis’s allegations, even if true, do not indicate direct evidence
of widespread sexual favoritism. McGinnis’s concrete allegations are only directed
at Faircloth and his alleged affair with Buseman. “[W]here an employee engages in
consensual sexual conduct with a supervisor and an employment decision is based on
this conduct, Title VII is not implicated because any benefits of the relationship are
due to the sexual conduct, rather than the gender, of the employee.” Tenge v. Phillips
Modern Ag Co., 446 F.3d 903, 909 (8th Cir. 2006). Furthermore, Faircloth was
neither McGinnis’s supervisor nor the decisionmaker who fired McGinnis. Fortner
was the decisionmaker who terminated McGinnis, and no allegations of sex

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discrimination or sexual favoritism were made against Fortner. A single allegation
against Faircloth cannot constitute widespread sexual favoritism.

      The Equal Employment Opportunity Commission (EEOC) also reached the
same conclusion. In a policy guidance issued in 1990, the EEOC stated widespread
sexual favoritism occurs when “a message is implicitly conveyed that the managers
view women as ‘sexual playthings,’ thereby creating an atmosphere that is demeaning
to women.” EEOC Policy Statement No. N-915-048 § C. Here, nothing in
McGinnis’s charges establishes that Union Pacific managers viewed women as
“sexual playthings.” McGinnis lacks any direct evidence of sex discrimination.

        McGinnis also is unable to establish a claim of sex discrimination under the
McDonnell Douglas framework. Under this framework, McGinnis initially must
establish a prima facie case, which consists of showing he (1) is within the protected
class, (2) was qualified to perform his job, (3) suffered an adverse employment action,
and (4) has facts that give rise to an inference of sex discrimination. Holland v. Sam’s
Club, 487 F.3d 641, 644 (8th Cir. 2007).2


      2
        The district court misapplied the second element of the prima facie case for
McGinnis’s sex and age discrimination claims. The district court stated, “the evidence
shows [McGinnis] received a number of rule violations which would cause him to not
be qualified for his job.” Under the qualification prong, a “plaintiff must show only
that he possesses the basic skills necessary for performance of the job,” not that he
was doing it satisfactorily. Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92
(2d Cir. 2001) (alteration omitted). The district court incorrectly applied a higher
standard than required to establish a prima facie case. Arnold v. Nursing &
Rehabilitation Ctr. at Good Shepherd, LLC, 471 F.3d 843, 846 (8th Cir. 2006) (citing
Slattery, 248 F.3d at 91). “[W]here discharge is at issue and the employer has already
hired the employee, the inference of minimal qualification is not difficult to draw.”
Slattery, 248 F.3d at 92. McGinnis was employed for twenty-eight years before his
discharge and did not receive any citations for violating work rules in his first twenty-
three years of employment. McGinnis clearly met the minimal qualification standard.


                                           -6-
        To establish the first prong of his prima facie case, McGinnis must show Union
Pacific is the unusual employer who discriminates against the majority because
McGinnis is a man. See Duffy v. Wolle, 123 F.3d 1026, 1036 (8th Cir. 1997). This
is difficult to establish because, at the time McGinnis was terminated, Union Pacific
had approximately 401 train dispatchers working at the Harriman Dispatch Center,
and approximately 329 of the 401 train dispatchers, or 82%, were men. However,
even assuming McGinnis establishes this and all the other prongs of his prima facie
case, McGinnis’s sex discrimination claim nevertheless must fail because Union
Pacific has offered legitimate, nondiscriminatory reasons for McGinnis’s termination:
his six rules violations and his failure to pass the proficiency examination of the
apprentice training course. McGinnis has not offered any evidence to support a claim
Union Pacific’s reasons were pretextual. In fact, on each occasion he was cited for
violating work rules, McGinnis did not challenge the citations. Thus, McGinnis’s sex
discrimination claim under the McDonnell Douglas framework must also fail.

       B.    Age Discrimination
       Because McGinnis does not purport to have direct evidence to establish age
discrimination, he must rely on the McDonnell Douglas framework. McGinnis must
establish a prima facie case by showing he (1) belonged to the protected class, i.e.,

        With respect to the fourth prong, the district court erred when it required
McGinnis to show he was replaced by someone from the opposite sex to establish a
prima facie case. Although proof McGinnis was replaced by a female would have
bolstered his case, “[n]o such per se requirement has traditionally been imposed in
cases brought under Title VII.” Williams v. Ford Motor Co., 14 F.3d 1305, 1308 (8th
Cir. 1994). “Rather, Title VII has been interpreted to require only that, in addition to
the first three elements of the McDonnell Douglas test, a plaintiff show that his or her
discharge occurred under circumstances which create an inference of unlawful
discrimination.” Id. “In the context of a sex discrimination claim brought under Title
VII, . . . it is entirely plausible that a woman discharged and replaced by another
woman will be able to establish that she was the object of impermissible
discrimination based on gender.” Id. The sex of the replacement employee “pertains
to the weight of the evidence as opposed to its legal sufficiency.” Id.
                                          -7-
was at least 40 years old; (2) was qualified to perform his job;3 (3) was terminated;
and (4) was replaced by another person “sufficiently younger to permit the inference
of age discrimination.”4 Hammer v. Ashcroft, 383 F.3d 722, 726 (8th Cir. 2004)
(citations omitted).

       Although McGinnis is over forty years old, was qualified for the job (he worked
for Southern Pacific/Union Pacific for approximately twenty-eight years), and was
terminated, McGinnis has not provided any evidence he was replaced by another
person “sufficiently younger to permit the inference of age discrimination.” Id. At
the time of his termination, McGinnis was forty-nine years old and his replacement
was a fifty-three-year-old male. See O’Connor v. Consol. Coin Caterers Corp., 517
U.S. 308, 312 (1996) (noting “the fact that a replacement is substantially younger than
the plaintiff is a far more reliable indicator of age discrimination”). But, even if we


      3
        Here again the district court incorrectly applied the prima facie case standard
by requiring a heightened standard for McGinnis to establish he was qualified for the
position. The district court stated, “the court has already determined that the
numerous safety violations are sufficient to show that [McGinnis] did not meet the
qualifications for his job.” As previously indicated, McGinnis was employed for
twenty-eight years before his discharge and did not receive any citations for violating
work rules in his first twenty-three years of employment. As to the qualification
prong, the district court’s approach, in a sense, required McGinnis to disprove the
reasons given for his discharge rather than requiring him to establish a prima facie
case–short-circuiting the analysis under the McDonnell Douglas framework. Slattery,
248 F.3d at 92 (“The qualification prong must not . . . be interpreted in such a way as
to shift onto the plaintiff an obligation to anticipate and disprove, in his prima facie
case, the employer’s proffer of a legitimate, non-discriminatory basis for its
decision.”).
      4
        The district court also erred by stating McGinnis needed proof “age was the
factor in the defendant’s decision to terminate him.” This increased proof is needed
only in reduction in force cases when a company lays off protected individuals while
retaining younger employees in similar positions. See Hutson v. McDonnell Douglas
Corp., 63 F.3d 771, 776 (8th Cir. 1995).
                                          -8-
concluded McGinnis established a prima facie case of age discrimination, McGinnis’s
age discrimination claim fails, because McGinnis has not offered any evidence
indicating the reasons Union Pacific proffered for terminating him were pretextual.

       As a last attempt to survive Union Pacific’s motion for summary judgment,
McGinnis now disputes the validity of his citations for violating dispatcher’s rules.
However, as previously mentioned, McGinnis never challenged the citations when he
received them. McGinnis also claims other employees who violated rules were not
fired and that he was “set up to fail” the apprentice training course. McGinnis does
not cite to any specific examples of employees, similarly situated in all relevant
respects, who received more favorable treatment. See Cronquist v. City of
Minneapolis, 237 F.3d 920, 928 (8th Cir. 2001) (“The test for whether employees are
similarly situated to warrant a comparison to the plaintiff is rigorous.” (internal
quotation marks omitted)). Furthermore, McGinnis was not the only person who
failed the training course examination. Other individuals, including men and women
younger than McGinnis, failed the examination. McGinnis’s belated challenges to the
validity of his work citations and to the apprentice course proficiency examination are
meritless.

III. CONCLUSION
     Based on the foregoing, we affirm the district court’s grant of summary
judgment in favor of Union Pacific.
                      ______________________________




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