United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3456

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Mary Bearden, *

*

Plaintiff - Appellant, * Appeal from the United States 

* District Court for the Eastern

v. * District of Arkansas.

*

International Paper Company, *

*

Defendant - Appellee. *

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Submitted: May 16, 2008

 Filed: June 26, 2008

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Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.

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MURPHY, Circuit Judge.

Mary Bearden brought this action against her former employer International

Paper Company (International Paper), alleging she was wrongfully discharged

because of her sex and age, in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C.

§ 621 et seq. She also alleged violation of the Equal Pay Act (EPA), 29 U.S.C. §

206(d)(1), and defamation under Arkansas law. International Paper moved for
1

The Honorable Susan Webber Wright, United States District Judge for the

Eastern District of Arkansas.

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summary judgment on all of Bearden's claims. The district court1

 granted the motion,

and Bearden appeals. We affirm. 

Bearden, who was born in 1949, was discharged from International Paper in

September 2005 after 32 years of employment, most recently as a purchasing

supervisor. Her responsibilities included negotiating contracts with suppliers and

purchasing items not maintained in stock. Bearden's termination occurred following

her alteration of a purchase requisition without apparent authorization. 

Both Bearden and her husband worked at International Paper's mill in Pine

Bluff, Arkansas. Bearden's husband worked as a maintenance mechanic and used a

bicycle to get around the plant and to transport materials and tools. After it was

damaged beyond repair in an accident, he requested approval for a replacement from

the operations manager of the department in which the bicycle had been damaged.

The manager told him he would try to get the bicycle replaced but that his supervisor

would first need to authorize the purchase; both of the requisitions he submitted to his

supervisor were denied. Mrs. Bearden claims that she also spoke to the operations

manager who told her about his difficulty in getting a requisition for the bicycle and

advised her to purchase one with her corporate credit card. Instead Bearden decided

to proceed without authorization to alter an already approved requisition form for a

bicycle purchase. She changed the number on the bicycle requisition form to two,

procuring an additional $563 bicycle and charging it to the wrong cost center.

International Paper's customary approval process for purchase requisitions calls

for signatures by the appropriate department supervisor or manager. The requisitions

are then deposited with the Purchasing Department, which verifies approval by the

proper authority and submits them for review and signatures at a requisition review
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meeting. After two managers noticed that Bearden's husband was riding on a new

bicycle and found that its purchase had not been approved, Bearden admitted that she

had added the bicycle to another approved requisition. She apologized and said she

would not do it again. Her modification of the requisition was discussed at a meeting

which Bearden and numerous management and human resources personnel attended.

While Bearden stated that she believed she had authority to change requisitions,

managers disagreed. They pointed out that she had known that her husband's request

for the bicycle purchase had been denied and that her action was unauthorized.

During a subsequent meeting, International Paper informed Bearden that she had acted

in a deceitful manner and had breached the company's trust. Soon thereafter she was

terminated for altering the requisition form without authorization and after

management had denied the request for a new bicycle for her husband. 

Bearden then brought this case against International Paper alleging a number

of causes of action. The district court granted the company's motion for summary

judgment on all of her claims. Summary judgment is appropriate when there are no

genuine issues of material fact, and the moving party is entitled to a judgment as a

matter of law. Fed. R. Civ. P. 56(c). We review the district court's grant of summary

judgment de novo and view the evidence in the light most favorable to the nonmoving

party. Skare v. Extendicare Health Serv., Inc., 515 F.3d 836, 840 (8th Cir. 2008).

 

An employee may establish unlawful employment discrimination through direct

or indirect evidence. See Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1045 (8th

Cir. 2005). Since Bearden has offered no credible claim of direct evidence of

discrimination on the basis of gender or age, we apply the framework laid out in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to determine whether she

has established a prima facie case. Accordingly, Bearden must show that (1) she was

a member of the protected group; (2) she was qualified to perform the job; (3) she

suffered an adverse employment action; and (4) circumstances permit an inference of

discrimination. See Clegg v. Arkansas Dept. of Corr., 496 F.3d 922, 926 (8th Cir.

2007). A prima facie case creates a presumption of unlawful discrimination, shifting
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the burden of proof to the employer to present evidence of a legitimate,

nondiscriminatory reason for its adverse employment action. See Brannum v.

Missouri Dept. of Corr., 518 F.3d 542, 548 (8th Cir. 2008). If the employer can

articulate a nondiscriminatory reason, the burden returns to the employee to prove that

the proffered reason is pretextual. Id. In light of her lengthy employment history we

assume that Bearden was qualified to perform her job. It is not disputed that her

termination was an adverse employment action. Our focus thus centers on whether

the circumstances of her termination allow an inference of discrimination.

First addressing Bearden's gender discrimination claim, we conclude that the

district court did not err in dismissing it. Bearden has not shown that she was treated

differently from similarly situated male employees to give rise to an inference of

gender discrimination. See Wells v. SCI Mgmt., L.P., 469 F.3d 697, 701 (8th Cir.

2006). The male employees whom Bearden identified as having suffered less severe

consequences for violating company procedures were not similarly situated since they

did not engage in the same or similar conduct for which she was terminated. Cf. id.,

Shaffer v. Potter, 499 F.3d 900, 905 (8th Cir. 2007) (plaintiff failed to present

evidence of a similarly situated male with same conduct but not terminated). None

of the alleged infractions by other employees related to an unauthorized modification

of an already approved requisition. See Walker v. AT&T Techs, 995 F.2d 846, 849

(8th Cir. 1993) (employer may exercise business judgment in personnel decisions).

The district court's ruling in favor of International Paper on Bearden's age

discrimination claim was also not erroneous. The Age Discrimination in Employment

Act forbids an employer from discharging or intentionally discriminating against an

employee because of that individual's age. 29 U.S.C. § 623(a)(1). As there is no

direct evidence of age discrimination in this case, we again apply the McDonnell

Douglas framework. Bearden thus had the burden to establish a prima facie case by

demonstrating that she, a member of the protected class of employees over the age of

40 and qualified to perform her job, was replaced by a sufficiently younger person to

permit an inference of age discrimination. See Hammer v. Ashcroft, 383 F.3d 722,
2

Since this is not a disparate impact case, International Paper did not have the

burden under 29 U.S.C. § 623(f) of showing that its action was based on a reasonable

factor other than age. Cf. Meacham v. Knolls Atomic Power Lab., Inc., No. 06–1505,

554 U.S. __ (June 19, 2008). 

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726 (8th Cir. 2004). Bearden merely asserted her belief that she was replaced by a

younger employee, which International Paper refuted by evidence that her duties were

subsequently performed by a person who is eight years older than her. See Marquez

v. Bridgestone/Firestone, Inc., 353 F.3d 1037, 1038 (8th Cir. 2004) (per curiam)

(plaintiff must offer more than speculation, conjecture, or fantasy in support of claims

at summary judgment stage). 

Even if we assumed that Bearden established prima facie cases of gender and

age discrimination, she did not overcome International Paper's proffered legitimate

nondiscriminatory reason for her termination – that she violated company procedures

by modifying an approved requisition contrary to a management decision.2

 Bearden

has not shown that her firing was pretextual. See, e.g., Rodgers v. U.S. Bank, N.A.,

417 F.3d 845, 853-55 (8th Cir. 2005). The record includes no examples of other

employees altering requisitions without authorization. International Paper's

imposition of different sanctions on employees with different job duties who failed

to comply with rules of varying levels of seriousness does not permit an inference that

Bearden's termination was merely a pretext for a discriminatory motive. See Wheeler

v. Aventis Pharm., 360 F.3d 853, 857 (8th Cir. 2004) (test whether employees are

similarly situated is rigorous at pretext stage); Johnson v. Ready Mixed Concrete Co.,

424 F.3d 806, 811 (8th Cir. 2005) ("Violations of different company policies do not

necessarily support an inference that employees are similarly situated, particularly

where one violation is considered more serious than the other.").

Bearden also argues that International Paper discriminated against her in

violation of the EPA, 29 U.S.C. § 206(d)(1). To succeed under the EPA, a plaintiff

must prove that the employer discriminated on the basis of sex by paying different
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wages to men and women performing equal work under similar conditions. Brown

v. Fred's, Inc., 494 F.3d 736, 740 (8th Cir. 2007). Whether different employees are

performing equal work does not necessarily depend on job titles, but rather on the

actual requirements of the job. See Holland v. Sam's Club, 487 F.3d 641, 645 (8th

Cir. 2007). Once an employee has established a prima facie case, the burden shifts to

the employer to prove any of four statutory affirmative defenses. Taylor v. White, 321

F.3d 710, 715 (8th Cir. 2003). 

Bearden seeks to base her EPA claim on a comparison between her salary at

International Paper to that of former colleagues. The district court examined the

factual record in detail and concluded that the positions of former colleagues whom

Bearden cited as examples in support of her EPA claim were not substantially equal

because the jobs entailed different skill, effort, and responsibility and were not

performed under similar conditions. See Tenkku v. Normandy Bank, 348 F.3d 737,

740 (8th Cir. 2003). For example, while Bearden's function was essentially confined

to negotiating contracts with suppliers and purchasing items, her former colleague

Barney Burns bore responsibility for managing and safeguarding the mill's

$17,000,000 inventory and supervised a crew of eleven hourly employees. The

district court did not err in granting summary judgment on Bearden's EPA claim in

light of her failure to provide evidence that she was paid differently for equal work.

Finally, Bearden asserts a state law defamation of character claim. She alleges

that in front of two employees a company manager called her conduct dishonest and

stealing. She also asserts that another manager untruthfully announced to his staff that

Bearden had been terminated for a gross violation of policy. International Paper

argues that managerial conversations were subject to qualified privilege under

Arkansas law since their purpose was to discuss the reasons for termination of an

employee responsible for making purchases with the company's financial resources.

See Freeman v. Bechtel Const. Co., 87 F.3d 1029, 1031 (8th Cir. 1996). The district

court concluded that it was not clear whether the manager in question actually stated

that Bearden's conduct was dishonest and an act of stealing. Yet even if he used such
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words, communications between supervisory employees pertaining to matters

affecting the business are protected by the qualified privilege since Bearden has

presented insufficient evidence of excessive or malicious publication. See Farris v.

Tvedten, 274 Ark. 185, 186 (1981). The alleged characterization by another manager

of Bearden's actions as a gross violation of policy is similarly protected by the same

qualified privilege. We therefore assign no error to the district court's dismissal of

Bearden's state defamation claim. 

Accordingly, we affirm the judgment of the district court. 

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