1 The Honorable Richard H. Kyle, United St ates District Judge for the District of Minnesota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-2544

___________ Taron Colenburg, *
* Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. STARCON International, Inc., *
* Appellee. *

___________ Submitted: May 12, 2010 Filed: August 31, 2010

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

___________ WOLLMAN, Circuit Judge. Taron Colenburg appeals from the district court’s 1 grant of summary judgment to STARCON International, Inc. (Starcon) on his claims of race-based employment discrimination, reprisal, and hostile work environment under the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363A. 01, and on Starcon’s counterclaim for repayment of an advance for re location expenses. We affirm.-2- I.

Because this is an appeal of a grant of summary judgment for Starcon, we state the facts in the light most favorable to the non-moving party, Colenburg.

Colenburg, who is African-American, wo rked at Starcon from November 2005 to April 2008. Starcon is based in Illi nois and performs contract maintenance work at oil refineries, including Marathon Ashland Petroleum Company’s refinery in St. Paul, Minnesota, where Colenburg worked as a mechanic apprentice and scaffold builder.

In July 2006, Colenburg entered into a relocation agreement with Starcon, under the terms of which Colenburg receive d $12,000 for relocation and job-transition expenses. The agreement also provided th at Colenburg would be liable to repay the $12,000 advance if he did not re main with Starcon for at least two years after signing the agreement. This obligation to repay wa s subject only to two exceptions: if either the employee was discharged because of a “reduction in force” or the employee quit because the pay for their position was cut, th ey would not have to repay the advance.

During his time at Starcon, Colenburg ge nerally received favorable reviews and steady promotions. While Colenburg was empl oyed at the St. Paul site, his supervisor was Clayton Holznagel. Initially, Co lenburg’s foreman was Brandon Wallheimer. Wallheimer resigned in August 2007 and was replaced as foreman by Cesar Huerta, who in turn was replaced as foreman by Kristian Olsen in January 2008.

Colenburg testified regardi ng several racial comments that were made during his employment. In March 2006, Wallheime r spoke with Colenburg about a job that Colenburg had just finished. Wallheimer fe lt that Colenburg had taken too much time to complete the job, laughed and said, “You were dragging like that man down in Texas whose head was getting drug—a nd his body is getting drug and his head-3- popped off.” Appellant’s Appx. at 71. Colenburg understood Wallheimer to be referencing the lynching of James Byrd, during which Byrd wa s dragged behind a pickup truck until he was decapitated. Appellant’s Br. at 8 n.3. Colenburg expressed his displeasure at the remark and Wallhei mer apologized for making it. In May 2006,Colenburg asked Wallheimer about why he and James Andrews, another AfricanAmerican employee, were not receiving raises and promotions. According to Colenburg, Wallheimer replied, “Do you know any, you know, black leadmen?” Appellant’s Appx. at 71. According to Colenburg, on another occasion Wallheimer said to him, “[Y]ou black guys up North, you guys speak boldly, but down South you don’t act that way; down South, it’s differently [sic].” Id. at 72.

Jesus Narro was Colenburg’s co-worker from November 2005 to March 2007 at the work site. After Narro’s employm ent ended, he brought a claim of racial discrimination against Starcon. After Narro’s claim was filed, Wallheimer told a group of employees, including Colenburg, that he thought Narro’s claim “was some BS” and asked the employees whether any of them agreed with the claim. Colenburg later stated that he thought that Wallheime r was trying to intimidate the employees by declaring in their presence that Narro’s claim was “BS.” Id. at 102. According to Colenburg, Wallheimer assigned the more difficult and dangerous jobs to AfricanAmerican and Hispanic workers.

In October 2006, Colenburg complained to Jeff Sutton, the human resources manager for maintenance, and Reggie Williams, Vice President, that he was being subjected to racial discrimination. Cole nburg told Williams thathe was being passed over for raises while his “white co -workers had gotten raises.” Id. at 92. Williams responded that it sounded like “blatant racism ” to him, told Colenburg not to “worry about it,” and said that he would sp eak to Sutton about the matter. Id. Sutton was based in Chicago, but he traveled to the work site to interview Colenburg. The two had lunch and Sutton took a full report of Colenburg’s complaints. Sutton said that he would look at the matter and respond. Sutton and Colenburg have not-4- communicated since the lunch meeting. Co lenburg stated that he was unaware of what action was taken in res ponse, but that he had learne d that the company spoke to Wallheimer about the complaint. In D ecember 2006, Colenburg complained to Marc Daigle, superintendent, about the promo tion of a recently hired white mechanic. Colenburg told Daigle, “This is blatant r acism. You haven’t reached out to anyone who is a minority.” Daigle responded that it was not racism, that he did not have to explain the situation to Colenburg, and thatthe promoted worker had “been working hard.” Id. at 85.

In January 2008, Huerta was unable to wo rk for one week because of a family emergency. Holznagel temporarily promoted Olsen, a recent hire who was white, to replace Huerta. Colenburg became upset and confronted Holznagel about the promotion in the presence of other employees. Holznagel stated that Colenburg became very aggressive, waved his arms, and yelled. Id. at 125. In response, Holznagel suspended Colenburg for one day without pay “for his inappropriate behavior and abusive outburst towards the Project Manager, his supervisor and his fellow Team Members.” Id. at 182. Holznagel warnedColenburg that any further violations of Starcon’s polices would resu lt “in further disciplinary action up to, and including, termination of employment.”

Holznagel contacted Starcon’s human resources department for assistance in permanently filling the vacancy left by Huerta. In his email to human resources on January 16, 2008, Holznagel said that he had a few candidates in mind, but thought it best to post the vacancy so that it would not appear as if he was “playing favorites.” The following morning, Holznagel promoted Olsen on a permanent basis without posting the position. Id. at 127. Holznagel stated th at he felt Olse n was qualified in light of his military leadership experien ce and his recent performance as Huerta’s replacement, despite Olsen’s admitted fear of heights and the challenge that it posed when working on high scaffolding. Id. at 79-80, 147. Holznagel also stated that he believed that Colenburg wanted to be a planner, rather than a foreman. After the-5- decision to promote Olsen was announced, Co lenburg spoke with the safety manager, Rick Boxford. Boxford told Colenburg th at he thought the promotion of Olsen was “blatant” discrimination and gave him a card for a lawyer.

In April 2008, Colenburg had a dispute w ith Chris Mishkee, the maintenance foreman at the time. By radio, Colenbur g requested a laminated copy of the safety manual. Colenburg later stated that the pape r copies deteriorated , and he felt that he needed a laminated copy to assist with the training of a new employee. In a loud and aggressive manner, Mishk ee responded that Colenburg al ready had an unlaminated copy of the manual and that he should “get to work.” Id. at 97. Colenburg felt that Mishkee’s response was disrespectful and in sulting; Colenburg reacted by raising his voice over the radio. Id. Mishkee replied that Colenburg should leave the job site and come back to the shop; Colenburg responde d that Mishkee should come out and meet him at the job site. Id.

Shortly thereafter, Colenburg was su mmoned to the shop and was met by Mishkee, Olsen, Holznagel, Boxford, a nd Stoney Strickland, another supervisor. Holznagel and Boxford stated that they had heard the altercation on the radio. Colenburg began to explain that he was under stress, but Olsen cut the conversation short and said, “You’re fire d.” Colenburg shook hands withhis supervisors and left.

II.

“We review a district court’s grant of summary judgment de novo, reading the record in a light most favorable to the nonmoving party and giving the nonmoving party the benefit of all r easonable inferences drawn from the record.” Turner v. Honeywell Fed. Mfg. & Tech., LLC , 336 F.3d 716, 719-20 (8th Cir. 2003). “Summary judgment is granted appropriately in cases in which one party has failed to present evidence sufficient to create a jury question as to an essential element of its-6- claim.” Id. at 720. As our court has previously cautioned, summary judgment, however, should be used sparingly in employment discrimination cases. Id.

Under the burden shifting framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-03 (1973), the plaintiff has the initial burden of establishing a prima facie case of discrimination based upon race. Rose-Maston v. NME Hosps., Inc. , 133 F.3d 1104, 1107 (8th Cir. 1998). If he can establish such a case, then the burden shifts to the defendant to articulat e a legitimate, nondiscriminatory reason for the adverse employment action. Id. “Once the employer articul ates such a reason, the presumption of discrimination disappears entirely and the plaintiff bears the burden of proving that the employer’s proffered reason is merely a pretext for discriminatory animus.” Id.

A. Failure to Promote

To succeed on his failure to promot e claim under the MHRA, Colenburg may either present direct or circumstantial evidence of discrimination, adjudged through the McDonnell Douglas framework. Diez v. Minnesota Mining and Mfg. , 564 N.W.2d 575, 579 (Minn. Ct. App. 1997). Colenburg lacks direct evidence that Starcon’s failure to promote him was due to racial discrimination. To establish a prima facie case with circumstantial evidence under McDonnell Douglas , Colenburg must show that (1) he was a member of a protected class, (2 ) he was meeting his employer’s legitimate job expectations, (3) he suffered an adverse employment action, and (4) he was treated differently than similarly situated employees that were not class members. Norman v. Union Pac. R.R. Co. , 606 F.3d 455, 461 (8th Cir. 2010).

Colenburg made a prima facie showing, and thus the bur den shifted to Starcon to articulate a legitimate, non-discriminatory reason for promoting Olsen. Starcon met this burden: Olsen had managerial e xperience and had performed well in his temporary assignment to the position. Thus , the burden shifted back to Colenburg to-7- show that this reason was merely a pretext for racial discrimination. This Colenburg cannot do. He lacks evidence suggesting th at Holznagel’s decision to promote Olsen was based upon race; he cannot establish that Holznagel was motivated or inclined to engage in racial discrimination. Although it might have been be tter to post the job, a prompt decision was needed to fill the une xpected vacancy. Olsen, despite his stated fear of heights, was able to perform th e job, as he had recently demonstrated.

Colenburg cites Stallings v. Hussmann Corp. , 447 F.3d 1041, 1052 (8th Cir. 2006), for the proposition that he may estab lish that Holznagel’s stated reason for promoting Olsen was pretext for racial di scrimination by “either directly persuading the court that a discriminatory reas on [more] likely motivated the employer or indirectly showing that the employer’s proffered explanation is unworthy of credence.” Appellant’s Reply Br. at 22. We are neither persuaded that a discriminatory reason more likely motivat ed the promotion decision, nor are we convinced that Starcon’s proffered expl anation is unworthy of credence. While Colenburg had more experience at the job site than Olsen, the evidence does not suggest that Olsen was not a reasonable ca ndidate for the promotion. Accordingly, Colenburg has not presented sufficient evidence suggesting that Starcon’s stated reason for its failure to promote him was pret ext for racial discrimination; and thus he has failed to establish a material question of fact for a jury.

B. Termination

To succeed on his termination claim under the MHRA, Colenburg may either present direct or circumstantial evidence of discrimination. He lacks direct evidence of racial discrimination, and thus he mu st show that (1) he was a member of a protected class, (2) he was qualified for his position, (3) he was fi red, and (4) he was replaced by a non-class member or similarly situated non-class members were not fired for equivalent conduct. Deerson v. Metal-Matic, Inc. , 423 N.W.2d 393, 396 (Minn. Ct. App. 1988).-8- Like the district court, we conc lude that Colenburg cannot make a prima facie showing because he has failed to show that a similarly situated non-class member was not fired for equivalent con duct. While Colenburg asserts that some white workers were drunk on the job, used profanity a nd yelled at times, none of these employees were reported to have engaged in altercations with thei r supervisors in front of other employees in the manner that Colenburg did. Colenburg had been previously warned about such behavior and suspended for one day. He can show no other non-class members that were not fired for doing the same things, and thus his claim must fail at the outset.

Colenburg points to a supposed comment made by Olsen immediately after Colenburg’s termination. According to Co lenburg, Robert Duffy, a co-worker, told him that Olsen had pointed at James, an African-American employ ee, and said, “That nigger is next,” suggesting that Olsen wa s intent on reducing the number of non-white workers at the job site. The district c ourt did not consider the comment because it held that although Olsen’s st atement could be admitted as an admission of a party opponent, Duffy’s constituted inadmissible hearsay. D. Ct. Op. at 22 n.11. We agree. Olsen’s statement was nonhearsay, because it wa s offered not to prove the truth of the matter asserted—that James wa s actually next to be fired—but rather to show that racial animus existed in the workplace. In contrast, Duffy’s statement was hearsay, offered to prove that Olsen had actually said that James was next to be fired, not subject to any exception allowing admission. Accordingly, the district court properly disregarded the statement when consider ing Starcon’s motion for summary judgment. SeeMays v. Rhodes , 255 F.3d 644, 648 (8th Cir. 2001) (court looks only to evidence that will be admissible at trial when considering motion for summary judgment); Bersch v. Rgnonti & Assocs., Inc. , 584 N.W.2d 783, 788 (Minn. Ct. App. 1998) (“The district court must disregard inadmissi ble hearsay evidence on a motion for summary judgment.”).-9- C. Reprisal

Colenburg asserts that there is a genuine issue of material fact as to whether Starcon retaliated against him for complain ing about discriminatory treatment. To establish a prima facie case of reprisal under the MHR A, an employee must show that (1) he engaged in protected activity, (2) the defendant t ook adverse action against him, and (3) that there is a connection betw een the two. Hoover v. Norwest Private Mortgage Banking , 632 N.W.2d 534, 548 (Minn. 2001); see also Macias Soto v. CoreMark Intern., Inc. , 521 F.3d 837, 841 (8th Cir. 2008). “A reprisal claim is analyzed under the McDonnell Douglas burden-shifting test.” Hoover , 632 N.W.2d at 548.

At the outset, Colenburg cannot establish a prima facie case of reprisal. Despite his stated suspicions, he cannot show that there was a connection between his complaints and the adverse actions take n against him, which included failure to promote and eventual termination. Colenburg has failed to produce evidence suggesting that his complaints about disc riminatory treatment were a factor in Holznagel’s decision to promote Olsen. Ho lznagel’s stated justification was based upon Olsen’s qualifications and Colenburg’s s upposed desire for another job. There is no evidence that Holznagel acted base d upon Colenburg’s complaints. Likewise, Colenburg has not established that his discharge on the grounds of insubordination was related to his complaints. Accordingl y, Colenburg’s claim fails because he has failed to present facts that could make a prima facie showing of reprisal. The district court did not err in granting summary judgment to Starcon on this issue.-10- D. Hostile Work Environment

To survive summary judgment on a hostile work environment claim under the MHRA, the plaintiff must show that (1) he is a member of a protected group, (2) he was subjected to unwelcome harassment, (3) the harassment stemmed from his membership in a protected group, (4) the harassment affected a term, condition, or privilege of his employment, and (5) th at his employer knew or should have known about the harassment and failed to take appropriate remedi al action. Goins v. West Group , 635 N.W.2d 717, 725 (Minn. 2001). To be actionable, the harassment in question must be so severe or pervasive as to alter the conditi ons of the plaintiff’s work environment such that a reasonable pe rson would find it hostile or abusive. Id. Moreover, the plaintiff must perceive the e nvironment as being hostile or abusive. Id. To determine whether an environment is hostile or abusive to support a claim, the court looks to the totality of the circum stances, including the frequency and duration of the conduct at issue, the severity of the conduct, whether it was physically threatening, and whether it unreasonably interfered with the plaintiff’s work performance. Id.

The evidence of improper conduct am ounted to three comments made to Colenburg and one comment made to a group of workers. The first comment that Wallheimer made in 2006 analogized Colenburg’ s pace of work to the speed at which an African-American man in Texas had been dragged to death behind truck. Colenburg expressed his disapproval of this comment and Wallheimer apologized. The second comment contrasted the dem eanor of African-Americans from the north and south, offensively suggesting that th e behavior of African-Americans could be generalized about in such a way and ascribing boldness to the former and relative docility to the latter. The third commentsuggested that Colenburg had not been promoted because African-Americans were not in leadership positions at that job site. The last comment was made by Wallheimer to a group of employees, dismissing Narro’s discrimination claim as “BS.”-11- The three comments should not have been made. The last comment made to the group of employees regarding Narro’s suit wa s unfortunate, but not patently racially offensive. All of the comments, howev er, were made briefly by an individual employed for only a portion of Colenburg’s tenure. None of the comments were repeated. There is no ev idence that they interfe red with Colenburg’s work performance or were physically threatening. While Colenburg points out that other workers reported racial epithets being saidto them, Colenburg admits that none were addressed to him. However deplorable, the conduct at issue wa s not so severe or pervasive that it could be held to support a hostile work environment claim. Thus, the district court did not err in granting Starcon summary judgment on this issue.

E. Counterclaim for Repayment of Moving Expenses

Under the terms of the relocation agr eement, Colenburg was liable to repay Starcon the $12,000 advance that he receivedif he did not complete two years of employment after signing the agreement, subject to two exceptions which do not apply. He signed the agreement in Ju ly 2006 and left the company in April 2008. Colenburg’s only defense to enforcement of th e contract is that he “was terminated in retaliation for complaining about law viol ations.” As discussed above, we reject this interpretation of Colenburg’s te rmination. Colenburg was fired for insubordination after he shouted at a superv isor over the radio, having been previously warned about similar behavior. There is no genuine issue of material fact as to Colenburg’s liability under the relocation agreem ent. Accordingly, the district court did not err in granting Starcon summary judgment on its counterclaim.

III.

The judgment is affirmed.-12- SMITH, Circuit Judge, dissenting.

I would hold that Colenburg made a submissible case on his failure to promote claim under the MHRA and therefore respectfully dissent.

The majority concludes that Colenburg made a prima facie showing by circumstantial evidence that Starcon discri minated against him. I agree. I would go further and also hold that he supplied sufficient evidence to make the issue of Starcon's possible pretext a question for th e jury. Starcon posited Olsen's managerial experience as its nondiscriminatory reason for promoting him instead of Colenburg. Thus, Colenburg was obligatedto produce evidence that Starcon's reason, Olsen's experience, was not its true reas on but a pretext for discrimination. Dixon v. Pulaski County Special Sch. Dist. , 578 F.3d 862, 868 (8th Cir. 2009).

Colenburg can meet this obligation by showing Starcon's explanation lacked credibility or by showing Starcon was more likely motivated by a prohibited reason. Id . at 869. Here, Holznagel promoted Olse n from laborer to foreman after only four months on the job based on generic leadersh ip experience. Colenburg had been on the job for more than two years, received training, gotten specific leadership experience and positive performance reviews in the job ar ea at issue. The Starcon decision-maker, Holznagel, did not post the position to give Colenburg an opportunity to seek it.

Also, Holznagel made a statement in an email which raises concern about the objectivity of his hiring decision and the pr ocess used. The day before the decision he stated, "By having HR's involvement it w ould not look like [I am] playing favorites, yet I would be involved in the process." (App. 185). This statement is at best ambiguous and is susceptible to an interpre tation less than favorable to Starcon. To be sure, Colenburg's case lacks indisputable direct evidence of discrimination. But such is not required. Griffith v. City of Des Moines , 387 F.3d 733, 736 (8th Cir. 2004). Together with the evidence put forth in his prima facie case, Colenburg's additional-13- evidence on possible pretext, wh en reviewed with favorableinferences as it must be on summary judgment, is sufficient to warrant a trial. Because I would reverse on this issue, I also would reverse on Starcon's counterclaim.

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