## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ Nos. 97-3068/3399

___________ Elois Willis, * * Appellant/Cross-Appellee, * * Appeals from the United States v. * District Court for the Southern * District of Iowa. Scott County Iowa; * * [UNPUBLISHED] Appellee, * * Board of Supervisors, County * Board of Supervisors; * * Appellee/Cross-Appellant, * * Scott County Commission * on Veterans Affairs, * * Appellee. *

___________ Submitted: March 12, 1998 Filed: October 19, 1998

___________The HONORABLE JOHN F. NANGLE, Senior United States District Judg e 1 for the Eastern District of Missouri, sitting by designation. The HONORABLE RONALD E. LONGSTAFF, United States District Judge 2 for the Southern District of Iowa. The alleged discriminatory conduct of which Willis complained included a lack 3 of support and a lack of communication between Willis and the Community Services -2- Befor e MORRIS SHEPPARD ARNOLD and FLOYD R. GIBSON, Circuit Judges , and NANGLE, District Judge. 1

___________ PER CURIAM. Elois Wi llis appeals from the order of the district court granting summar y 2 jud gment to Scott County Iowa (County), Board of Supervisors (Board), and Scot t Count y Commission on Veterans Affairs (Commission) in Willis's race-base d employment discrimination and retaliation action. The Board cross-appeals the district court's refusal to award it a ttorneys' fees as a prevailing party. After careful review of the record, we affirm the district court on both appeals.
I. BACKGROUND
The following facts are either not disputed or are presented in the light mos t fa vorable to appellant, as the non-moving party. See Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). Elois Willis, a n African-American female, was hired on March 31, 1983, by the County and Board for the entry level position of Case Aide. On February 4, 1985, Willis was promoted to the position of Case Aide/Veterans Specialist. On March 1 0, 1992, the Board changed the name of Willis's position to Ve terans Affairs Director. On March 31, 1994, Willis filed an i nternal complaint of discrimination, alleging differential treatment due to her race by the Community Service Director. The complaint proceeded through the 3Director, low merit-based pay increases and an excessive workload. -3- appr opriate procedural steps and by June, 1994, the County and the Board had eac h determinedthat no evidence of racial discrimination existed. The County and Board at tributedthe problems raised in Willis's complaint to a personality conflict betwee n Wi llis and the Community Services Director. Willis did not receive her annua l performance evaluation in Augus t of 1994. On October 24, 1994, the County notified all department heads that the Veteran's Affairs Office had been remo ved from under the auspices of the Community Services Department. On February 20, 1995, Willis filed a second internal discrimination complaint, alleging differential treatment due to her race by the Community Services Director and other County officials and Board members. In t his complaint, Willis cited the past due performance evaluation, her exclusi on from department head meetings, a cramped and po tentially unsafe work environment, a lack of clerical support, and denial of acces s to the building as evidence of her differential treatment by the County. The Boar d addressed the issues raised by Willis's second discrimination complaint in a letter dated March 17, 199 5. The Board admitted that many of the issues raised by Willis wer e oversigh ts which were attributable to the recent separation of the Veteran's Affair s Office from the Community Services Department.
The Commiss ion issued Willis a written reprimand on April 17, 1995. Th e reprimandstated that Willis: 1) was unprepared for the Commission meeting held on March 13, 1995 and had acted unprofessionally by raising her voice and throwin g paper and a pen; 2) tied up a Commission member's fax machine for one and one-half hours; 3) called an unauthori zed press conference; and 4) spoke inappropriately to the Chai rmanof the Commission. On April 27, 1995, Willis filed a grievance on th e written reprimand. As a result Willis's grievance, the Scott County Administrato r rescinded the written reprimand on June 6, 1995, issuing a cautionary notice instead. Three days later, in response to Willis's inquiry regarding the propriety of the-4-

cautionary notice, the County Administrator c larified that the written reprimand for the first three charges had been rescinded. The Co unty Administrator informed Willis that the cautionary notice related to the fourth charge in the original complaint and wa s justified due to Willis's treatment of the Commission Chairman.
On July 18, 1995, the Commission held a meeting at which Willis was given a No tice of Impending Dismissal. The Notice cited Willis's performance during a Commission meeting hel d on July 13, 1995, as the basis of her dismissal. The Notice characterized Wi llis's preparation of an agenda packet as incompetent, inefficient and wasteful. The Commission complied with the applicable personnel policy an d informed Willis of her right to respond to the charges in writing. Willis responded to the charges and a mediation session fo llowed. Although the parties reached a tentative settlement during the mediation session, the Commission decided to terminate Willis by forma l written notice of termination on August 2, 1995. On August 8, 1995, Willis also filed a complaint with the Davenpor t Civil Rights Commissio n

which was cross-filed with the EEOC and the Iowa Civil Right s Commission(ICRC). On August 10, 1995, Willis filed a grievance with the Count y Administrator, challenging her termination. On October 19, 1995, the Board uphel d Willis's ter

mination. The ICRC closed Willis's case on January 18, 1996, stating that "[i] t does not appear that race can be shown to be a factor in Ms. Willis' treatment or dismi ssal." J.A. at 82. The EEOC, relying on the ICRC's findings, issued Willis a Right to Sue letter but concluded th at "there is not reasonable cause to believe that the charge is true." J.A. at 83. Willis initiated this action agai nst the County, Board, and Commission claiming race-based discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2,3 (1994). Willis also brought three causes of actionWillis alleged she had been deprived of her Fourteenth Amendment rights t o 4 substantive and procedural due process a nd equal protection and her First Amendment right to free speech. -5- based on 42 U.S.C. § 1983 (1994). The County, Board and Commission moved fo r 4 summary judgment, which the district court granted. Willis appeals this order.
Fol lowing the court's grant of summary judgment, the County, Board an d Commission filed a motion for an award of attor neys' fees as prevailing parties. See 42 U.S .C. §§ 1988, 2000e-5(k) (1994). The district court denied this motion, and th e Board appeals the court's order.

II. DISCUSSION
A. Willis's Appeal
We review a grant of summary judgment de novo and will affirm the judgment only if no genuine issue of material fact e xists from which a reasonable juror could find in favor of the non-moving party. See Fed.R.Civ.P. 56(c); Rothmeier v. Investmen t Advisers, Inc. , 85 F.3d 1328, 1331 (8th Cir. 1996). Willis, as the non-moving party , is entitled to the benefit of all reasonable inferences to be drawn from the facts but may not rest merely upon the allegations contained in her pleadings. Willis mus t affirmatively set forth spe cific facts, by affidavits or otherwise, showing that a genuine issue for tri al exists. See Ghane v. West , 148 F.3d 979, 981 (8th Cir. 1998) (citations omitted). As Willis has presented no direct evidence of discrimination, the familiar burdensh ifting scheme developed by the Supreme Court in McDonnell Douglas Corp. v

. Green , 411 U.S. 792, 802 (1973 ), for cases relying on circumstantial evidence applies-6-

to this case. This three-step analysis first requires that the plaintiff present a prima facie case of dis crimination. The burden of production then shifts to the employer t o articulate a legitimate non-discriminatory reason for the adverse employment action

. If the employer arti culates a reason, the burden shifts back to the plaintiff to show that the p roffered reason is pretextual and that the employer intentionally discriminate d against the plaintiff. See Rothmeier , 85 F.3d at 1332.
The district court assumed withou t deciding that Willis established a prima facie case of race discrimination but held t hat Willis had failed to present sufficient evidence showing that Scott County's proffered rea sons for her termination were pretextual. See slip op . at 7-11. The Commission articulated two overriding rationales for Willis' s termi nation: incompetency and insubordination. Willis claims that the decision t o terminat e her was sudden, that the Commission offered shifting reasons for he r termination, and that she was treated differently than the previous department head, a Ca ucasian female. Willis asserts that these allegations create a basis for a reasonable juror to find in her favor. We disagree. Although suddenness may, under certain circumstances, be evidence of pretext, see Hardin v. Hussmann Corp. , 45 F.3d 262, 265 (8th Cir. 1995) (employer decided to terminate employee

following a thirty minute discussion), the facts of this case do not create a reasonable inference that Willis's termination was sudden. Willis had bee n disciplined three months prior to her termination, and relations between Willis and other members of the Commis sion and County had been strained for nearly a year. The fact that Willis may feel as though he r termination occurred suddenly is not enough to meet her burden of producing evidence of pretext.
Willis claims that the Commission offered shifting reasons for her termination

. Significant changes over

time in an employer's explanation for its adverse employment decision ma y give rise to an inference of pretext. See Kobrin v. University o f Minnesota , 34 F.3d 698, 703 (8th Cir. 1994) (university offered different rationalesWillis claims that the previous department head was not required to provide the 5 Commis sion with an advance copy of meeting agendas or to personally delive r documents to Commission members as Willis was required, and allegedly failed, to do. -7- regarding the qualifications and background desired for position of professor). We have reviewed the record

and find no inconsistencies between the reasons given for Willis's reprimand and termination. Semantics aside, the Commission's proffered reasons fo r its decisio n to discipline Willis, incompetency and insubordination, have not changed significantly. Finally, while it is a

lso true that pretext may be shown by disparate treatment of the plaintiff and other similarly situated employees, Willis has not shown that she and the previous depar

tment head were "similarly situated in all relevant aspects." Hutson v. McDonnell Douglas Corp. , 63 F.3d 771, 777 (8th Cir. 1995) (citations omitted). We agree with the distric t court that the differential treatment alleged by Willis creates no 5 reasonable inference of pretext.
Willi s also claims that the district court did not consider her retaliation claim in its order granting summary judg ment. However, the district court held that "the record fails t o provide any indication that Willis was fired in retaliation for opposin g discri minationor filing discrimination complaints." Slip op. at 10-11. After carefu l re view of the record, we find no error with the district court's disposition of Willis' s retaliation claim.
Insum, we agree with the district court's careful analysis and conclusion tha t Willis has failed to produce evidence to demonstrate that the non-disc riminatory reasons for her termin ation offered by the Commission are pretextual. We find no evidence in the record that supports Willis's charges of racial discrimination or retaliation.-8-

Additi onally, Willis also appeals the adverse grant of summary judgment to the ap pellees of her §1983 claims. After review of the record, we find those claims to be without merit. As such, the district court's grant of summary judgment is affirmed.
B. The Board's Cross-Appeal
We now turn briefly to the Board's cross-appeal of the district court's denial of its motion fo r attorneys' fees. This Circuit follows the rule articulated by the Supreme Court in Christians burg Garment Co. v. EEOC , 434 U.S. 412 (1978), for the award of attorneys' fees to prev ailing defendants. We will uphold an award of attorneys' fees to aprevailing Title VII defendant only if the "court finds that [the plaintiff's] claim was frivolous, unreasonable, or groundl ess." Marquart v. Lodge 837 , 26 F.3d 842, 849 (8th Cir. 1994) (quoting Christiansburg , 434 U.S. at 422). In its order denying the Board's motion for attorneys' fees, the district court applied th e correct standard and specifically fou nd that Willis's claims were not "so frivolous or unfounded as to warrant an award of attorneys' fees." Order at 3. We find no error in the district court's ruling and , therefore, affirm its denial of attorneys' fees.
III. CONCLUSION
For the reasons set forth in this opinion, we affirm the district court's judgment in all respects.
Affirmed. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.