                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-2140
                                  ___________

Michael Williams,                      *
                                       *
            Appellant,                 *
                                       *
                                       *
      v.                               * Appeal from the United States
                                       * District Court, Western District
Saint Luke's - Shawnee                 * of Missouri.
Mission Health System, Inc.,           *
                                       *
            Appellee.                  *
                                  ___________

                            Submitted: December 10, 2001

                                 Filed: January 18, 2002
                                  ___________

Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

     Michael Williams appeals the decision of the district court1 granting summary
judgment against him in his Title VII case. We affirm.




      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
                                           I.
       Mr. Williams was hired by Crittenton Behavioral Health, a member of the Saint
Luke's - Shawnee Mission Health Systems, Inc., as a “behavioral health technician”
(BHT) and assigned to work with troubled adolescent girls. These girls were
involuntarily committed to Crittenton, in most cases because of “sexual issues,”
including sexual abuse and promiscuity. Two years after Mr. Williams began work,
a patient alleged, among other things, that the plaintiff had made sexually suggestive
comments to her, had asked her inappropriate personal questions, and had hit her hard
while roughhousing. Another patient alleged that Mr. Williams rubbed against her
from behind and whispered suggestively in her ear. Crittenton began an internal
investigation and reported the matter to state officials.

       During the internal investigation, Crittenton officials were told that
Mr. Williams gave his phone number to a patient’s mother and insinuated that he
wished to have a relationship with her, that he received manicures and head rubs from
patients, and that he frequently engaged in horseplay with patients. Such activities,
including contact with patients’ families, are prohibited by company policy, and the
company informs employees that they may be fired if they engage in them.
Mr. Williams denied some of the allegations, but admitted engaging in horseplay and
providing his phone number to another family member (not the mother) of the patient.
When Crittenton terminated his employment, Mr. Williams, who is black, brought
this action claiming that he was fired because of his race in violation of Title VII of
the Civil Rights Act of 1964, see 42 U.S.C. § 2000e through § 2000e-17. The district
court granted Crittenton's motion for summary judgment.

                                           II.
       We review a decision granting a motion for summary judgment de novo. See
Rose-Maston v. NME Hospitals, Inc., 133 F.3d 1104, 1107 (8th Cir. 1998). A moving
party is entitled to summary judgment “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that

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there is no genuine issue as to any material fact and that the moving party is entitled
to summary judgment as a matter of law.” Fed. R. Civ. P. 56(c).

       To survive summary judgment in a discriminatory discharge case such as this,
where the plaintiff lacks direct evidence of discrimination, he or she must first
establish a prima facie case by offering proof that he or she is a member of a protected
class, was qualified for the position, and was terminated despite being qualified. See
Rose-Maston, 133 F.3d at 1108. Once the plaintiff makes out a prima facie case, the
burden of production shifts to the defendant, who must provide proof of a
“ 'legitimate, nondiscriminatory reason' ” for the termination. See Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000), (quoting Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)). If the case reaches that
stage, the plaintiff then assumes the burden of producing evidence that the proffered
reason was merely a pretext for discrimination. See Reeves, 530 U.S. at 143-44;
Rose-Maston, 133 F.3d at 1107.

       We conclude, as the district court did, that Mr. Williams established a prima
facie case because he is a member of a protected group and was fired from a position
that he apparently was qualified to hold. The district court further determined, and
we agree, that Crittenton offered a legitimate, non-discriminatory reason for
Mr. William’s termination, namely, that Mr. Williams violated company policy. The
only remaining question, then, is whether Mr. Williams produced evidence that could
lead a reasonable jury to believe that his termination was not really due to the
violations of company policy, as Crittenton asserts, but was instead due to racial
animus. Since this is a motion for summary judgment, all the evidence must of course
be construed in the light most favorable to Mr. Williams. See Prosser v. Ross, 70
F.3d 1005, 1009 (8th Cir. 1995).

      As evidence of racial animus, Mr. Williams suggests that he was treated more
harshly than two white employees who committed similar infractions, and that a

                                          -3-
reasonable jury could infer that that differential treatment was due to his race. Both
of the instances that he points to, however, are unavailing to him. In one of them, a
white BHT was accused by a single patient of "inappropriate conduct," but the BHT
was later exonerated. He admitted that he was in a patient’s room with the door
closed, in violation of Crittenton policy, but said the door closed by itself. He was
moved to a position in which he did not have direct contact with patients and, after
internal and state investigations were completed, he was offered the choice to return
to his former position. The other white Crittenton employee to whom Mr. Williams
wishes to be compared was the subject of complaints from female co-workers
regarding sexual harassment. He was referred to Crittenton’s employee assistance
program for counseling, but was not disciplined.

       We believe that the cases identified by Mr. Williams vary from his own
sufficiently to make them legally distinguishable. In the first incident, the employee,
unlike Mr. Williams, did not admit any inappropriate behavior and ultimately was
cleared of the single accusation against him; in the other incident, the relevant
employee, at most, acted inappropriately toward adult co-workers, but not toward
minor patients under his care. Neither employee was found to have had improper
physical contact with minor patients or inappropriate conversations with any patients,
nor did either give his phone number to a patient or family member.

       While instances of disparate treatment may support an inference of pretext,
Mr. Williams had the burden of proving that he and the white employees to whom he
is comparing his situation "were similarly situated in all relevant respects," Ricks v.
Riverwood Int'l Corp., 38 F.3d 1016, 1019 (8th Cir. 1994), including showing that
the other employees' offenses were the same or of " 'comparable seriousness.' "
Scroggins v. University of Minnesota, 221 F.3d 1042, 1044 (8th Cir. 2000) (quoting
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973)). Even when we
construe the evidence in the light most favorable to Mr. Williams, as we must, we are
left with the unavoidable conclusion that the offenses of those other employees were

                                         -4-
not of comparable seriousness to the ones that Mr. Williams was accused of
committing. It is also significant that the number of accusations against Mr. Williams
was greater than the number made against those other employees.

       Since neither of the two men was similarly situated in all relevant respects to
Mr. Williams, Mr. Williams has failed in his effort to show that the proffered reason
for his termination was pretextual. We hold therefore that no reasonable jury could,
on the basis of the record before the district court, infer that Mr. Williams was fired
because of his race.

                                     III.
    For the foregoing reasons, we affirm the order of the district court granting
summary judgment.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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