## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-3453

___________ William M. McGinnis, *
* Appellant, * * Appeal from the United States v. * District Court for the * District of Nebraska. Union Pacific Railroad, *
* Appellee. *

__________ Submitted: March 15, 2007 Filed: August 3, 2007

___________ Before RILEY, BOWMAN, and ARNOLD, Circuit Judges.

___________ RILEY, Circuit Judge.
After being terminated from his employment with Union Pacific Railroad (Union Pacific), William M. McGinnis (McG innis) filed a lawsuit against Union Pacific claiming sex discrimination under T itle VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C . §§ 621 to 634. Union Pacific filed a motion for summary judgment, and the district court granted the motion. McGinnis appeals the district court’s ruling. We affirm.-2- I. BACKGROUND McGinnis worked for Southern Pacific Railroad (Southern Pacific) from 1974 until 1996, when Southern Pacific merged w ith Union Pacific. After the merger, McGinnis continued to work for Union Paci fic as a train dispatcher until he was terminated in December 2002.

While working for Union Pacific, McGi nnis worked at the Harriman Dispatch Center in Omaha, Nebraska, under the s upervision of the Corridor Managers. Managers of Train Dispatchers also wo rked at the Harriman Dispatch Center providing lateral operations support to train dispatchers, but the Managers of Train Dispatchers could not hire, fire, or discipline train dispatchers. Dennis Faircloth (Faircloth) was the Senior Manager of Train Dispatchers when McGinnis was terminated. Joseph Fortner (Fortner), the General Director of Operations Support, made the final decisions to hire, fire, ordiscipline train dispatchers like McGinnis. Fortner, however, would seek and rely upon Faircloth’s i nput regarding disciplinary decisions concerning train dispatchers.

Train dispatchers are governed by train disp atcher rules. Rule 1.3.1 of these rules requires dispatchers to “ask their s upervisor for an explanation of any rule, regulation, or instruction they are unsure of.”

Between 1998 and 2002, McGinnis receive d the following six citations for violating train dispatcher rules:

(1) In July 1998, for violating a rule providing that once a train dispatcher has given a signal to a trai n and aligned the train down the main railroad track, a train dispatcher may not change that signal.

(2) In August 1998, for failing to correct a train engineer’s mistake of repeating the incorrect train engine number.1 McGinnis also asserted claims of se x and age discrimination under Nebraska law. We analyze these stat e law claims within the same framework as those brought under federal law. See Riesen v. Irwin Indus. Tool Co. , 717 N.W.2d 907, 913-14 (Neb. 2006) (noting Nebraska employmen t discrimination laws mirror federal
-3- (3) In June 1999, for viol ating a rule requiring dispatchers to issue track bulletins regarding the limits on the speed at which a train should travel on particular tracks–McGinnis issued a bulle tin authorizing a train to exceed the speed limit.

(4) In April 2000, for violating a rule requiring dispatchers to communicate a speed restriction accurate ly to an Amtrak train.

(5) In December 2000, for violating a rule prohibiting a freight train from passing between an Amtrak train and the passenger platform while passengers are disembarking from the Amtrak train.

(6) In November 2002, for violating a rule requiring dispatchers to inform a train that a switch was lined against it.

McGinnis’s last citation revealed McGinni s admittedly did not fully understand a part of the train dispatcher system (DigiCom). Thus, Fortner required McGinnis to enroll in a one-month apprentice training course

. At the end of training, McGinnis took a written and proficiency examination. Mc Ginnis passed the written examination, but McGinnis failed the proficie ncy examination and did not score high enough to qualify to retake the examination.

In December 2002, citing “poor performance ratings, rules violations, and [the] failure to qualify on the proficiency test,” Union Pacific terminated McGinnis, who at the time was 49 years old. Union P acific replaced McGinnis with a 53-year-old male. Claiming sex and age discrimination, 1 McGinnis filed a lawsuit against Unionlegislation, thus, Nebraska looks to federa l law in analyzing these claims); Helvering v. Union Pac. R. R. Co. , 703 N.W.2d 134, 146-47 (Neb. Ct. App. 2005) (same). In addition, McGinnis asserted a claim for re ligious discrimination under Title VII, and a claim for a violation of the New YorkDock conditions, pursuant to 49 U.S.C. § 11705, but McGinnis does not appeal the district court’s grant of summary judgment on these two claims.

-4- Pacific. This appeal followed the district court’s summary judgment in Union Pacific’s favor.

II. DISCUSSION We review de novo a district court’s d ecision to grant summary judgment. See Bowen v. Mo. Dep’t of Soc. Servs. , 311 F.3d 878, 880 (8th Cir. 2002). Summary judgment is proper when, viewing the fact s in the light mostfavorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Reasonover v. St. Louis County, Mo. , 447 F.3d 569, 578 (8th Cir. 2006). We may affirm summary judgment for any reason supported by the record, “even if it differs from the rationale of the district court.” Reasonover , 447 F.3d at 578-79.

In sex and age discrimination cases, a plaintiff may survive a defendant’s motion for summary judgment in one of two ways. The plaintiff may present “direct evidence of discrimination, that is, ev idence 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.” Russell v. City of Kan. City, Mo. , 414 F.3d 863, 866 (8th Cir. 2005) (internal quotation marks omitted) . Alternatively, if the plaintiff lacks direct evidence of discrimination, the plai ntiff may survive the defendant’s motion for summary judgment by creating an inferen ce of unlawful discrimination under the burden-shifting framework established in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). See Russell , 414 F.3d at 866-67. Under this framework, the plaintiff-5- bears the burden of establishing a prim a facie case of discrimination. See Tex. Dep’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 252-53 (1981). The Supreme Court explained the plaintiff’s bur den “is not onerous.” Id. at 253. The establishment of a prima facie case creates a pr esumption of unlawful disc rimination, which in turn requires a defendant to come forward with evidence of a legitimat e, nondiscriminatory reason for the defendant’s actions. Id. If the defendant articul ates such a reason, the burden returns to the plaintiff to show the defendant’s proffered reason is pretextual. Id.

A. Sex Discrimination McGinnis’s sex discrimination claim is based on his contention that sexual favoritism was widespread within Union P acific. In arguing this point, McGinnis generally claims Union Pacific provide d young women with better job opportunities and treated young women more favorably thanmen. McGinnis specifically alleges Faircloth had a sexual affair with Lori Buseman (Buseman), another Union Pacific employee, and took adverse action against Mc Ginnis in an attempt to give McGinnis’s job to Buseman. McGinnis also states schedulers gave heavier workloads to less attractive females. McGinnis asserts Faircloth protected attractive female dispatchers who violated rules and gave them prefer ence for daytime shifts. McGinnis contends these allegations constitute direct evidence of sexual favoritism.

However, McGinnis’s allegations, even if true, do not indicate direct evidence of widespread sexual favoritism. McGinnis’ s concrete allegations are only directed at Faircloth and his alleged affair with Buseman. “[W] here an employee engages in consensual sexual conduct witha supervisor and an employment decision is based on this conduct, Title VII is not implicated b ecause any benefits of the relationship are due to the sexual conduct, rather than the gender, of the employee.” Tenge v. Phillips Modern Ag Co. , 446 F.3d 903, 909 (8th Cir. 2006). Furthermore, Faircloth was neither McGinnis’s supervisor nor the deci sionmaker who fired McGinnis. Fortner was the decisionmaker who terminated McGinnis, and no allegations of sex2 The district court misapplied the secondelement of the prima facie case for McGinnis’s sex and age discrimination claims. The district court stated, “the evidence shows [McGinnis] received a number of rule violations which would cause him to not be qualified for his job.” Under the qualif ication prong, a “plaintiff must show only that he possesses the basic skills necessary for performance of the job,” not that he was doing it satisfactorily. Slatte ry v. Swiss Reinsurance Am. Corp ., 248 F.3d 87, 92 (2d Cir. 2001) (alteration omitted). The district court incorrectly applied a higher standard than required to establish a prima facie case. Arnold v. Nursing & Rehabilitation Ctr. at Good Shepherd, LLC , 471 F.3d 843, 846 (8th Cir. 2006) (citing Slattery , 248 F.3d at 91). “[W]here discharge is at issue and the employer has already hired the employee, the inference of mini mal qualification is not difficult to draw.” Slattery , 248 F.3d at 92. McGinnis was employed for twenty-eight years before his discharge and did not receive any citations fo r violating work rules in his first twentythree years of employment. McGinnis clearly met the minimal qualification standard.

-6- discrimination or sexual favoritis m were made against Fortner. A single allegation against Faircloth cannot constitute widespread sexual favoritism.

The Equal Employment Opportunity Co mmission (EEOC) also reached the same conclusion. In a policy guidance i ssued in 1990, the EEOC stated widespread sexual favoritism occurs when “a message is implicitly conveyed that the managers view women as ‘sexual playthings,’ thereby creating an atmosphere that is demeaning to women.” EEOC Policy Statemen t No. N-915-048 § C. Here, nothing in McGinnis’s charges establishes that Un ion Pacific managers viewed women as “sexual playthings.” McGinnis lacks any direct evidence of sex discrimination.

McGinnis also is unable to establish a claim of sex discrimination under the McDonnell Douglas framework. Under this framework, McGinnis initially must establish a prima facie case, which consists of showing he (1) is within the protected class, (2) was qualified to pe rform his job, (3) suffered an adverse employment action, and (4) has facts that give ri se to an inference of sex di scrimination. Holland v. Sam’s Club , 487 F.3d 641, 644 (8th Cir. 2007). 2With respect to the fourth prong, the district court erre d when it required McGinnis to show he was replaced by some one from the opposite sex to establish a prima facie case. Although proof McGinnis was replaced by a female would have bolstered his case, “[n]o such per se re quirement has traditionally been imposed in cases brought under Title VII.” Williams v. Ford Motor Co ., 14 F.3d 1305, 1308 (8th Cir. 1994). “Rather, Title VII has been inte rpreted to require only that, in addition to the first three elements of the McDonnell Douglas test, a plaintiff show that his or her discharge occurred under circumstances which create an inference of unlawful discrimination.” Id. “In the context of a sex di scrimination claim brought under Title VII, . . . it is entirely plausible that a woman discharged and replaced by another woman will be able to establish that she was the object of impermissible discrimination based on gender.” Id. The sex of the repl acement employee “pertains to the weight of the evidence as oppos ed to its legal sufficiency.” Id.

-7- To establish the first prong of his prim a facie case, McGinnis must show Union Pacific is the unusual employer who discriminates against the majority because McGinnis is a man. See Duffy v. Wolle , 123 F.3d 1026, 1036 (8th Cir. 1997). This is difficult to establish b ecause, at the time McGinnis was terminated, Union Pacific had approximately 401 train dispatchers wo rking at the Harriman Dispatch Center, and approximately 329 of the 401 train disp atchers, or 82%, were men. However, even assuming McGinnis establishes this a nd all the other prongs of his prima facie case, McGinnis’s sex discrimination clai m nevertheless must fail because Union Pacific has offered legitimate, nondiscriminatory reasons for McGinnis’s termination: his six rules violations and his failure to pass the proficiency examination of the apprentice training course. McGinnis has not offered any evidence to support a claim Union Pacific’s reasons were pretextual. In fact, on each occasion he was cited for violating work rules, McGinnis did not cha llenge the citations. Thus, McGinnis’s sex discrimination claim under the McDonnell Douglas framework must also fail.

B. Age Discrimination Because McGinnis does not purport to havedirect evidence to establish age discrimination, he must rely on the McDonnell Douglas framework. McGinnis must establish a prima facie case by showing he (1 ) belonged to the protected class, i.e.,3 Here again the district court incorrec tly applied the prima facie case standard by requiring a heightened standard for McGi nnis to establish he was qualified for the position. The district court stated, “the court has already determined that the numerous safety violations are sufficient to show that [McGinnis] did not meet the qualifications for his job.” As previ ously indicated, McGinnis was employed for twenty-eight years before his discharge and did not receive any citations for violating work rules in his first twenty-three years of employment. As to the qualification prong, the district court’s approach, in a sense, required McGinnis to disprove the reasons given for his discharge rather than requiring him to establish a prima facie case–short-circuiting the anal ysis under the McDonnell Douglas framework. Slattery , 248 F.3d at 92 (“The qualification prong must not . . . be interpreted in such a way as to shift onto the plaintiff an obligation to anticipate and disprove, in his prima facie case, the employer’s proffer of a legitimate, non-discriminatory basis for its decision.”).

4 The district court also erred by stati ng McGinnis needed pr oof “age was the factor in the defendant’s decision to termin ate him.” This incr eased proof is needed only in reduction in force cases when a co mpany lays off protected individuals while retaining younger employees in similar positions. See Hutson v. McDonnell Douglas Corp. , 63 F.3d 771, 776 (8th Cir. 1995).
-8- was at least 40 years old; (2) was qualified to perform his job; 3 (3) was terminated; and (4) was replaced by another person “sufficiently younge r to permit the inference of age discrimination.” 4 Hammer v. Ashcroft , 383 F.3d 722, 726 (8th Cir. 2004) (citations omitted).

Although McGinnis is over forty years old, was qualified for the job (he worked for Southern Pacific/Union Pacific for approximately twenty-eight years), and was terminated, McGinnis has not provided any evidence he was replaced by another person “sufficiently younger to permit the in ference of age discrimination.” Id. At the time of his termination, McGinnis was forty-nine years old and his replacement was a fifty-three-year-old male. See O’Connor v. Consol. Coin Caterers Corp. , 517 U.S. 308, 312 (1996) (noting “the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination”). But, even if we-9- concluded McGinnis established a prima faci e case of age discrimination, McGinnis’s age discrimination claim fails, because McGinnis has not offered any evidence indicating the reasons Union Pacific proffered for terminating him were pretextual.

As a last attempt to survive Union Pacific’s motion for summary judgment, McGinnis now disputes the validity of his c itations for violating dispatcher’s rules. However, as previously mentioned, McGi nnis never challenged th e citations when he received them. McGinnis also claims othe r employees who violated rules were not fired and that he was “set up to fail” th e apprentice training course. McGinnis does not cite to any specific exam ples of employees, similarly situated in all relevant respects, who received more favorable treatment. SeeCronquist v. City of Minneapolis , 237 F.3d 920, 928 (8th Cir. 2001) (“Th e test for whether employees are similarly situated to warrant a comparison to the plaintiff is rigorous.” (internal quotation marks omitted)). Furthermore, McGinnis was not the only person who failed the training course examination. Other individuals, including men and women younger than McGinnis, failed the examination. McGinnis’s belate d challenges to the validity of his work citations and to the apprentice course proficiency examination are meritless.

III. CONCLUSION Based on the foregoing, we affirm the district court’s grant of summary judgment in favor of Union Pacific.

______________________________