1 The Honorable G. Thomas Eisele, United St ates District Judge for the Eastern District of Arkansas. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-4055/05-4270

___________ Brenda Arnold, * * Appellant/Cross-Appellee, * * Appeals from the United States v. * District Court for the * Eastern District of Arkansas. Nursing and Rehabilitation Center * at Good Shepherd, LLC, * * Appellee/Cross-Appellant. *

___________ Submitted: September 29, 2006 Filed: December 8, 2006

___________ Before LOKEN, Chief Judge, SMITH, and GRUENDER, Circuit Judges.

___________ SMITH, Circuit Judge. Brenda Arnold sued her employer, Nu rsing and Rehabilitation Center at Good Shepherd ("Good Shepherd"), alleging empl oyment discrimination in violation of 42 U.S.C. § 1981. The district court 1 granted summary judgment in favor of Good Shepherd but denied Good Shepherd's moti on for attorneys' fees and costs. Arnold appeals the grant of summary judgment. Good Shepherd cross-appeals the court's denial of its motion for attorneys' fees and costs. We affirm both judgments.-2- I. Background Good Shepherd, a long-term-care-reside ntial facility, employed Brenda Arnold, an African American, as a licensed prac tical nurse. A resident accused Arnold of verbal abuse. Good Shepherd conducted an investigation in to the allegation of abuse, substantiated the claim, and fired Arnold. After Arnold's termination, the Arkansas Office of Long Term Care conducted an inde pendent investigati on and concluded the allegation was unfounded.

Arnold's complaint alleged race discrimi nation in violation of 42 U.S.C. § 1981. Good Shepherd moved for summary judgment and the district court, based upon two independent grounds, granted the motion. First, the district court found that Arnold presented no evidence showing that she pe rformed her duties satisfactorily. Second, the court found that Arnold failed to show Good Shepherd's reason for termination was a mere pretext for racial discrimination.

II. Discussion "We review de novo a grant of summary j udgment, considering the facts in the light most favorable to the nonmoving party. Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law." Nat'l Am. Ins. Co. v. W & G, Inc., 439 F.3d 943, 945 (8th Cir. 2006) (internal citations omitted). "Although summary judgment is to be used sparingly in employment discrimination cases, it is appropriate where one party has failed to present evidence sufficient to create a jury question as to an essential element of its claim." Whitley v. Peer Review Sys., Inc., 221 F.3d 1053, 1055 (8th Cir. 2000) (internal citations omitted).

A. Qualification To make her race discrimination claim, Arnold adduces circumstantial rather than direct evidence. Ther efore, we employ the familiar burden-shifting analysis prescribed by McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973). See2 The district court did not determine whether Arnold presented sufficient evidence to establish that her discharge o ccurred in circumstances giving rise to an inference of unlawful discrimination. Weassume, without deciding, that Arnold satisfied this burden.
-3- St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 506 (1993). To establish a prima facie case of race discrimination under § 1981, Arnol d must show that: (1) she belongs to a protected class; (2) she was qualified fo r her position; (3) she was discharged; and (4) her discharge occurred in circumstances giving rise to an in ference of unlawful discrimination. 2Johnson v. AT&T Corp., 422 F.3d 756, 761 (8th Cir. 2005).

The district court, in granting G ood Shepherd's summary judgment motion, determined that Arnold failed to establis h a prima facie case. The court found "no reasonable jury could infer that [Good She pherd] discriminated against [Arnold] on account of her race when there exists no evidence that [Good Shepherd] did not have a good faith belief that [Arnold] was notperforming her duties satisfactorily."

Arnold argues that the district court e rred by requiring her to show that she performed her job satisfactorily instead of merely requiring her to show that she was qualified. We agree. By requiring Arnold to prove that she executed her duties satisfactorily, the district court "raised th e standard set by the Supreme Court for what suffices to show qualification." Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2nd Cir. 2001), cert. denied , 534 U.S. 951 (2001).

It is undisputed that Arnold was qualified to serve as a licensed practical nurse. Arnold had served as a licensed practical nursefor nearly a year before her discharge. Accordingly, we hold that the district court erred by requiring Arnold to show that she was performing her job satisfactorily.-4- B. Pretext The establishment of a prima facie cas e creates a rebuttable presumption of discrimination. McCullough v. Real Foods, Inc ., 140 F.3d 1123, 1126 (8th Cir. 1998). The employer may rebut this presumption by articulating one or more nondiscriminatory reasons for the employment decision. Id. A district court may not second-guess an employer's valid, non-discriminatory employment decisions. Moschetti v. Chi., Cent. & Pac. R.R. Co. , 119 F.3d 707, 710 (8th Cir. 1997). Once an employer offers such an explanation, the bur den then shifts back to the plaintiff to show that the employer's explanation is a pretext for discrimination. Yates v. Rexton, Inc. , 267 F.3d 793, 798 (8th Cir. 2001).

To rebut the presumption of discri mination, Good Shepherd relied upon its substantiation of an allegation that Arnol d verbally abused a resident. Arnold then became obligated to show this reason wa s pretextual for Good Shepherd's actual purpose of racial discrimination. The district court found that Arnold offered no proof that the explanation offered by Good She pherd was a pretext for discrimination.

On appeal, Arnold disputes the district court's finding and c ontends she offered sufficient evidence that the verbal allegati ons were fabricated and that similarlysituated white employees were punished differently. Although Arnold is correct that she made these arguments, the record ev idence does not support a jury finding that Good Shepherd's reasons were pretextual.

A plaintiff may make a sufficient s howing of pretext by different means, including showing that an employer: (1 ) failed to follow its own policies, Ledbetter v. Alltel Corporate Servs., Inc. 437 F.3d 717 (8th Cir. 2006); (2) treated similarlysituated employees in a disparate manner, Putman v. Unity Health Sys. , 348 F.3d 732 (8th Cir. 2003); and (3) made substantial ch anges over time in its proffered reason for an employment decision, Kobrin v. Univ. of Minn. , 34 F.3d 698 (8th Cir. 1994), cert. denied , 522 U.S. 1113 (1998).-5- Even assuming that Good Shepherd di d terminate Arnold's employment based upon a false complaint, Arnold's claim still does not survive summary judgment. Regardless of the method employed to prove pretext, a plaintiff "must demonstrate that a discriminatory animus lies behind the defendants' neutral explanations." Roxas v. Presentation Coll., 90 F.3d 310, 316 (8th Cir. 1996). Wehave held that even if an employer fires an employee based upon a mistaken belief, the employee still must offer some evidence that racial animus was at the root of the termination. Johnson, 422 F.3d at 763. In the instant case, Arnol d fails to offer any evidence suggesting racial animus lies behind Good Shepherd 's neutral explanation of employee misconduct.

Arnold also argues that she showed pretext by proof of disparate treatment. Arnold contends that a similarly-situat ed white-male employe e was not terminated after he actually caused the death of a resi dent. However, Arnold failed to show that she and the white-male employ ee were similarly situated. Independent investigations by Good Shepherd, the State of Arkansas, and the local police each concluded the resident's death was an accident. An employ ee involved in an accident with a resident, though fatal, is not si milarly situated with an employee who intentionally verbally abuses a resident. These situations simply are not sufficiently analogous to support an inference of disparate treatment among similarly-situated employees.

Accordingly, the district court did not err by granting Good Shepherd's motion for summary judgment.

III. Cross-Appeal Good Shepherd cross-appeals the districtcourt's denial of its motion seeking attorneys' fees and costs. The districtcourt found that the case presented close questions of fact and law and that an award of attorneys' fees w ould be inappropriate. The court also found that Arnold had not acted in bad faith or brought a frivolous action. The district court was correct, and we affirm.-6- A district court's denial of an award for costs is reviewed for an abuse of discretion. Missouri Pac. R.R. Co. v. Star City Gravel Co. , 592 F.2d 455, 459–460 (8th Cir. 1979). A district court's denial of an award for attorneys' fees is also reviewed for an abuse of discretion. Warner v. Indep. Sch. Dist. No. 625 , 134 F.3d 1333, 1336 (8th Cir.1998), cert. denied 525 U.S. 823 (1998). We do not grant lightly a defendant's request for attorneys' fees. "[S] o long as the plaintiff has 'some basis' for the discrimination claim, a prevailing defe ndant may not recover attorneys' fees." E.E.O.C. v. Kenneth Balk & Assoc., Inc ., 813 F.2d 197, 198 (8th Cir. 1987).

Although Arnold failed to show she was di scriminated against, she brought her claim in good faith and it was not frivolous or unreasonable. Accordingly, we find that the court did not abuse its discretion in denying attorneys' fees and costs to Good Shepherd.

For the reasons stated, we affirm both judgments of the district court.

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