                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 11-1142
                                    ___________

Nidal Othman,                            *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
City of Country Club Hills,              *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: December 15, 2011
                                 Filed: March 1, 2012
                                  ___________

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
                        ___________

WOLLMAN, Circuit Judge.

       The City of Country Club Hills (the City) did not hire part-time police officer
Nidal Othman for full-time positions that became available in April and October
2008. Othman, who was born in Jordan, later filed suit, alleging that the City
discriminated against him based on his national origin, in violation of Title VII of the
Civil Rights Act, 42 U.S.C. § 2000e et seq. The magistrate judge1 granted summary
judgment in favor of the City. We affirm.

      1
        The Honorable Mary Ann L. Medler, United States Magistrate Judge for the
Eastern District of Missouri, to whom the case was submitted by consent of the
parties pursuant to 28 U.S.C. § 636.
                                         I.

      In January 2008, Othman applied for a police officer position with the City.
His application indicated that he was born in Amman, Jordan, and that he had
attended school there.

      Captain Michael Adler conducted a background investigation of Othman and
wrote a report on his findings. The report disclosed that Othman was born and raised
in Jordan and that he had become a citizen of the United States in 2002. In the
summary, Adler indicated that Othman would proceed in the application process,
taking a written test and later interviewing with the chief of police and the police
commissioners board. Police Chief Clifton Ware interviewed Othman, reviewed the
background investigation report, and recommended to the mayor and the board of
aldermen that Othman be hired. The board followed the recommendation, and
Othman began working as a part-time police officer in February 2008.

      At that time, Othman owned two gas stations. Othman testified that he told
Ware that he would prefer to work the morning or afternoon shift, but that he was
available to work the night shift if necessary.

      In March 2008, a citizen complained to Adler and a police lieutenant about
Othman. According to Adler’s report, the citizen alleged that Othman completed a
U-turn to initiate a traffic stop and that Othman had called the citizen a “lying
weasel.” J.A. 40. Othman admitted to both the U-turn and the name calling. He was
admonished to remain professional. The report “strongly suggested that P.O. Othman
be closely monitored as red flags are starting to emerge.” Id. 42.

       In April 2008, a full-time officer position became available. Othman testified
that he told Ware that he was interested in the full-time position. Ware, however,

                                         -2-
recommended officer Jimmy Qualls for the position. Qualls was then a part-time
officer who had been hired a month after Othman. Ware believed that Qualls had
more experience and had demonstrated better performance than Othman. He also
believed that Othman was unable to work rotating shifts due to the demands of his
gas station business. According to Ware, full-time officers must be able to work
rotating shifts.

        Othman traveled to Jordan from May 10, 2008, to June 10, 2008, and from July
29, 2008, to September 4, 2008. Ware granted his leave requests, and Othman
testified that no one from the City gave him a “hard time” about his travels. J.A. 106.
Othman testified that after he returned, Adler began making comments about
Hezbollah and asked Othman if he was sending money overseas. Othman testified
that Adler would say things like, “Do you know Osama Bin Laden? Do you know
where he’s at?” Id. 78. Othman further testified that Adler told him repeatedly,
“[t]hat’s not how we do it in the U.S.” Id. 78. In an affidavit, Officer Kevin Burgdorf
stated that Adler said that Othman was part of “Jihad” and that Othman was
“probably working for them in the Middle East.” Id. 195-96. Othman and Burgdorf
complained to Ware about Adler’s comments.

       A second full-time position became available in October 2008. Othman
submitted a written memorandum to Ware, stating that he would like to be considered
for the position. Othman testified that he had told Ware that he was available for all
shifts, but that he preferred the morning or afternoon shift. According to Ware,
Othman indicated that he was unable to work the rotating schedule. Ware decided
to exclude Othman from consideration. Laquitta Cleveland, an officer from outside
the department with more than six years’ experience, was hired to fill the position.
The record does not indicate the extent of Adler’s involvement in the April or
October 2008 hirings. In January 2009, Othman resigned from his position. He later
filed suit.



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       Ware testified that Adler assisted in hiring police officers. Adler conducted
background investigations and provided recommendations to the chief, who would
usually accept Adler’s recommendations. Ware testified, “I would review all the
material from whatever the circumstance happened to be along with [Adler’s]
recommendation or his findings in . . . any particular investigation, and then I’d come
to a conclusion of my own.” J.A. 135. When asked whether Ware gave significant
weight to Adler’s findings, the chief responded, “Yes.” Id. There is no evidence in
the record that explains Adler’s role in the City’s decision to hire Qualls and
Cleveland.

      Othman did not believe that Ware harbored discriminatory animus against him.
According to Othman, Ware “never told me anything about my national origin. . . .
I don’t think he’s that type of guy.” J.A. 100. Ware also stated that Othman’s
national origin was not a factor in his hiring decisions.

                                          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. Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Summary judgment is
appropriate if there are no genuine disputes of material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A dispute is genuine
if the evidence is such that it could cause a reasonable jury to return a verdict for
either party; a fact is material if its resolution affects the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

       Othman alleges that the City discriminated against him based on his national
origin. Title VII provides that it is an unlawful employment practice for an employer
to fail or refuse to hire any individual “because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Othman may avoid

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summary judgment by presenting direct evidence of discrimination or by relying on
indirect proof of discrimination and “creating the requisite inference of unlawful
discrimination through the McDonnell Douglas analysis, including sufficient
evidence of pretext.” Torgerson, 643 F.3d at 1044.

                                           A.

        Othman argues that the magistrate judge’s order was flawed because it applied
only the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Othman contends that he presented direct evidence that an
illegitimate motive had infected the City’s decision to forego hiring him for a full-
time officer position. See Price Waterhouse v. Hopkins, 490 U.S. 228, 276 (1989)
(O’Connor, J., concurring in judgment); Griffith v. City of Des Moines, 387 F.3d 733,
736 (8th Cir. 2004). Direct evidence of discrimination “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.” Torgerson, 643 F.3d at 1044
(quoting Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997)).
“Stray remarks,” “statements by nondecisionmakers,” or “statements by
decisionmakers unrelated to the decisional process” do not constitute direct evidence.
Price Waterhouse, 490 U.S. at 277 (O’Connor, J., concurring in judgment).

       Othman contends that the district court failed to consider whether Adler was
part of the decisionmaking process. If it had, Othman argues, it would have
determined that Adler was a decisionmaker because Ware accepted Adler’s
recommendations when hiring and disciplining officers. Othman further contends
that Adler’s statement—“that’s not how we do it in the U.S.”—constitutes direct
evidence of discriminatory intent. He argues that “[t]his statement constitutes the
specific link between the discriminatory animus shown by the multitude of comments



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made with respect to Othman’s national origin and the challenged decision not to hire
him for a full time position.” Appellant’s Br. 11.

       Othman, however, has failed to establish that Adler was a decisionmaker and
thus has not presented direct evidence of discrimination. Ware’s affidavit states that
it was he who made the decisions (1) “to pass Officer Qualls’ name to the Board of
Aldermen for hire instead of Officer Othman’s” and (2) “to exclude Othman from
consideration for the opening that developed in the fall of 2008.” J.A. 33, 34. As set
forth more fully below, there is no genuine dispute of material fact that Ware, who
harbored no discriminatory animus, was the one who decided to not hire Othman for
the full-time positions.

       Othman argues that “the Chief of Police rarely deviated from adopting all of
Adler’s recommendations” and that Ware “rubber stamp[ed] Adler’s wishes into force
and effect.” Appellant’s Br. 23, 5. But there is no evidence that Adler recommended
that Qualls or Cleveland be hired or that Adler had any influence on Ware’s decision
to exclude Othman from consideration for the October 2008 opening. Ware’s
deposition testimony describes the role Adler typically played in hiring officers.
Ware testified that Adler “was also part of the hiring process . . . [a]s an interviewer,
as a background investigator—pre-employment background investigator.” J.A. 135.

      Q:     And in regards to those investigations, would he provide
             recommendations?
      A:     Yes.
      ...
      Q:     And in working with him, would you usually go along with his
             recommendations in regards to hiring?
      A:     Yes.

Id. The only example of Adler’s involvement in the hiring process is Othman’s
background investigation report, wherein Adler recommended that Othman advance


                                          -6-
to further testing and interviews. Othman testified that he did not meet Adler until
he began working for the City. A fair inference from this record is that after Adler
completed the background investigation, candidates were required to take a written
test and participate in an interview before Ware decided whether to recommend the
candidate to the board. Adler’s recommendation that a candidate proceed in the
hiring process does not equate to making the hiring decision. Given the paucity of
evidence regarding Adler’s role in the decisions to hire Qualls or Cleveland and the
record evidence regarding Adler’s typical role in the hiring process and his role in
hiring Othman, the record does not support the inference that any animus on Adler’s
part influenced Ware’s decision to not hire Othman for the full-time positions that
became available in April and October 2008.

       Othman contends that even if Adler was not a decisionmaker, his case should
survive summary judgment under the cat’s paw theory of employer liability. The term
cat’s paw refers to “a situation in which a biased subordinate, who lacks
decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate
scheme to trigger a discriminatory employment action.” Qamhiyah v. Iowa State
Univ. of Science & Tech., 566 F.3d 733, 742 (8th Cir. 2009) (quotation and citation
omitted). “Animus and responsibility for the adverse action can both be attributed to
the earlier agent . . . if the adverse action is the intended consequence of that agent’s
discriminatory conduct.” Staub v. Proctor Hosp., 131 S. Ct. 1186, 1192 (2011); see
also Diaz v. Tyson Fresh Meats, Inc., 643 F.3d 1149, 1151-52 (8th Cir. 2011). For
the same reasons as those set forth above, the record fails to support an inference that
Adler’s discriminatory animus was a proximate cause of Ware’s decision to forego
hiring Othman for a full-time position.

                                           B.

      Othman’s final argument is that he produced sufficient indirect evidence to
survive summary judgment under the McDonnell Douglas burden-shifting analysis.

                                          -7-
Under this framework, Othman must first establish a prima facie case of
discrimination based upon his national origin. Torgerson, 643 F.3d at 1046. To do
so, Othman must show that he is in a protected class, that he was qualified for an open
position, that he was denied that position, and that the employer filled the position
with a person not in the same protected class. Id. The burden then shifts to the City
to articulate a legitimate, nondiscriminatory reason for not hiring him. Id. Once the
City proffers such a reason, the burden then shifts back to Othman to show that “the
legitimate reasons offered by [the City] were not its true reasons, but were a pretext
for discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000) (quotations and citation omitted). “Although intermediate evidentiary burdens
shift back and forth under this framework, the ultimate burden of persuading the trier
of fact that the defendant intentionally discriminated against the plaintiff remains at
all times with the plaintiff.” Id. (quotations and citation omitted).

       Othman has set forth a prima facie case of discrimination, and the City has
articulated legitimate, nondiscriminatory reasons for not hiring Othman. According
to Ware, he decided to recommend Qualls for the April 2008 full-time position
because he thought Qualls was a better candidate with more experience, there had
been a citizen complaint against Othman, and he believed that Othman was unable
to work rotating shifts. Ware stated that he decided to exclude Othman from
consideration for the October 2008 position for similar reasons. Othman claims that
Ware’s reasons were false. A plaintiff may show that the employer’s stated reason
is pretext for discrimination by showing “that the employer’s explanation is
‘unworthy of credence because it has no basis in fact.’” Torgerson, 643 F.3d at 1047
(quoting Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006))
(alterations omitted).

      Othman first argues that the City’s discriminatory animus is shown by the fact
that he was better qualified for the full-time officer positions than Qualls or
Cleveland. As evidence of his superior qualifications, Othman points to the facts that

                                         -8-
he had been working for the City longer than Qualls, that he graduated from police
academy earlier than Cleveland, and that he had experience in a narcotics and gang
task force. For its part, the City presented evidence that Qualls and Cleveland had
more police experience than Othman. Viewed in the light most favorable to Othman,
the record reflects that all three officers were qualified for the full time positions.
“Similar qualifications do not raise an inference of discrimination.” Torgerson, 643
F.3d at 1049 (quotations and citation omitted). To support a finding of pretext,
Othman was required to show that the City hired a less qualified candidate. See
Kincaid v. City of Omaha, 378 F.3d 799, 805 (8th Cir. 2004). This he has failed to
do.

        Othman does not dispute that a citizen complained about this behavior to Adler
and another officer. Rather, he notes that the complaint was informal, that it included
allegations that he did not admit, and that he was not reprimanded. It is also
undisputed that Othman advised Ware that he would prefer to not work the night
shift, despite evidence of a need for full-time officers to work rotating shifts. Given
this state of the record, Ware’s explanation has some basis in fact and thus does not
support an inference of pretext.

                                         III.

      The judgment is affirmed.
                     ______________________________




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