                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-1354
                         ___________________________

                                    Oren H. Jones

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                             Evergreen Packaging, Inc.

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                      Appeal from United States District Court
                  for the Eastern District of Arkansas - Pine Bluff
                                   ____________

                           Submitted: September 4, 2013
                             Filed: October 28, 2013
                                  [Unpublished]
                                 ____________

Before SMITH, BOWMAN, and SHEPHERD, Circuit Judges.
                          ____________

PER CURIAM.

       Oren Jones appeals the district court’s adverse grant of summary judgment in
his action claiming that his employer, Evergreen Packaging, Inc. (EPI), violated Title
VII of the Civil Rights Act and Title VII of the Arkansas Civil Rights Act. Having
carefully reviewed the record, viewing the evidence in the light most favorable to
Jones, see Evance v. Trumann Health Servs., LLC, 719 F.3d 673, 677 (8th Cir. 2013)
(de novo review), we conclude that EPI was not entitled to summary judgment.

        Jones, an African-American, began working for EPI’s predecessor company in
1973. In 2008 EPI promoted him to Operator of the Groundwood Pulp Mill,
supervising five employees, all Caucasian. On two occasions one of the employees
Jones supervised, Jeff Conner, took actions which caused Jones to be sprayed with
water, but Conner claimed these incidents were accidental; on the second occasion
both men received written counseling, and Conner was not otherwise disciplined on
either occasion. On May 8, 2010, Conner’s grinder jammed, and Jones asked him to
fix it. Conner approached Jones while holding a wood hook (a long wooden pole
with a metal hook attached to it), and stopped about eight feet from Jones, moving the
wood hook as if he were going to hit Jones with it. Jones reported the incident, and
both men received another written counseling. No other discipline occurred, and
EPI’s investigation ultimately concluded that Conner did not threaten Jones’s life.

       On May 10, Jones was speaking with two other employees he supervised about
a meeting he was to attend with Conner and their human resource representative.
According to Jones, one of the other employees stated that if Conner got Jones fired,
Jones “might go postal.” According to the other employees, Jones stated that if he
were fired he would “just walk up to people and go bang” (as he mimed pulling a
trigger); and according to one of the employees, Jones also said he would “just go
postal.” Jones denied making any threats, but he was placed on leave without pay or
benefits, and he could not return to work until he had completed workplace anger
classes and signed a last-chance agreement. While suspended, Jones was evaluated
by a doctor, who determined that he did not present a threat of workplace violence.
Jones was reinstated after he complied with the conditions.




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      The district court found that, assuming Jones had shown a prima facie case of
discrimination, EPI had proffered a legitimate reason for disciplining Jones, and he
could not establish that the given reason was a pretext for discrimination.

       We hold that Jones established a prima facie case of discrimination, as he is a
member of a protected class, nothing indicates he was not qualified, EPI suspended
him without pay or benefits, and EPI’s more favorable treatment of Conner could give
rise to an inference of discrimination. See Lake v. Yellow Transp., Inc., 596 F.3d
871, 874 (8th Cir. 2010) (requirements for prima facie case). We agree with the court
that EPI proffered a legitimate, nondiscriminatory reason for suspending Jones,
namely, that it determined he made a violent threat in the workplace. See Clark v.
Runyon, 218 F.3d 915, 919 (8th Cir. 2000) (“Both actual violence against fellow
employees and threats of violence are legitimate reasons for terminating an
employee.”).

       We find, however, that material issues of fact existed as to whether EPI’s
proffered reason was pretextual. First, a reasonable jury could find that Jones was
similarly situated to Conner, as it appears Jones had no disciplinary authority over
Conner, both men were subject to the same workplace-violence policy, and they had
the same foreman and human resource representative. See Floyd-Gimon v. Univ. of
Ark. for Med. Scis. ex rel. Bd. of Trs. of Univ. of Ark., 716 F.3d 1141, 1150 (8th Cir.
2013) (at pretext stage, plaintiff must show she was similarly situated to other
employee in all relevant respects); George v. Leavitt, 407 F.3d 405, 414 (D.C. Cir.
2005) (“similarly situated” issue is ordinarily question of fact for jury). Second, their
conduct was of comparable seriousness to provide evidence of pretext: Conner
physically threatened Jones with a potentially deadly tool, and Jones allegedly made
a comment to other employees about “going postal” if he were fired. See Ridout v.
JBS USA, LLC, 716 F.3d 1079, 1085 (8th Cir. 2013) (no employee is “precise clone”
of another; plaintiff need only show he was treated differently than employees whose
violations were of comparable seriousness). Third, EPI did not treat Conner and

                                          -3-
Jones the same in terms of investigations and punishments: each time Jones
complained about Conner’s misconduct, Conner was given an opportunity to explain
himself, and either he was not disciplined or both men were given a written
counseling; in contrast, Jones was suspended without pay, and the record indicates
EPI had decided to discipline him before hearing his side of the story. See id. (where
evidence demonstrates different treatment for acts of comparable seriousness,
factfinder may decide whether differential treatment is attributable to discrimination);
Pye v. Nu Aire, Inc., 641 F.3d 1011, 1021 (8th Cir. 2011) (at pretext stage, ultimate
question is whether prohibited reason, and not proffered reason, motivated
employer’s action).

      Accordingly, we reverse the grant of summary judgment and remand for further
proceedings consistent with this opinion.
                      ______________________________




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