1

The Honorable G. Thomas Eisele, United States District Judge for the Eastern

District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-4055/05-4270

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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. *

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Submitted: September 29, 2006

Filed: December 8, 2006 

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

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SMITH, Circuit Judge.

Brenda Arnold sued her employer, Nursing and Rehabilitation Center at Good

Shepherd ("Good Shepherd"), alleging employment discrimination in violation of 42

U.S.C. § 1981. The district court1

 granted summary judgment in favor of Good

Shepherd but denied Good Shepherd's motion 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.
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I. Background

Good Shepherd, a long-term-care-residential facility, employed Brenda Arnold,

an African American, as a licensed practical nurse. A resident accused Arnold of

verbal abuse. Good Shepherd conducted an investigation into the allegation of abuse,

substantiated the claim, and fired Arnold. After Arnold's termination, the Arkansas

Office of Long Term Care conducted an independent investigation and concluded the

allegation was unfounded. 

Arnold's complaint alleged race discrimination 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 performed 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 judgment, 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. Therefore, we employ the familiar burden-shifting analysis

prescribed by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See
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The district court did not determine whether Arnold presented sufficient

evidence to establish that her discharge occurred in circumstances giving rise to an

inference of unlawful discrimination. We assume, without deciding, that Arnold

satisfied this burden. 

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St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). To establish a prima facie

case of race discrimination under § 1981, Arnold must show that: (1) she belongs to

a protected class; (2) she was qualified for her position; (3) she was discharged; and

(4) her discharge occurred in circumstances giving rise to an inference of unlawful

discrimination.2

 Johnson v. AT&T Corp., 422 F.3d 756, 761 (8th Cir. 2005).

The district court, in granting Good Shepherd's summary judgment motion,

determined that Arnold failed to establish a prima facie case. The court found "no

reasonable jury could infer that [Good Shepherd] 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 not performing her duties satisfactorily."

Arnold argues that the district court erred 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 the 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 nurse for 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.
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B. Pretext

The establishment of a prima facie case 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 burden 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 discrimination, Good Shepherd relied upon its

substantiation of an allegation that Arnold verbally abused a resident. Arnold then

became obligated to show this reason was 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 Shepherd was a pretext for discrimination.

On appeal, Arnold disputes the district court's finding and contends she offered

sufficient evidence that the verbal allegations were fabricated and that similarlysituated white employees were punished differently. Although Arnold is correct that

she made these arguments, the record evidence does not support a jury finding that

Good Shepherd's reasons were pretextual. 

A plaintiff may make a sufficient showing 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 changes 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).
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Even assuming that Good Shepherd did 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). We have 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, Arnold 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-situated white-male employee was not terminated

after he actually caused the death of a resident. However, Arnold failed to show that

she and the white-male employee 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 employee involved in an accident with a resident,

though fatal, is not similarly 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 district court's denial of its motion seeking

attorneys' fees and costs. The district court found that the case presented close

questions of fact and law and that an award of attorneys' fees would 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.
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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 defendant 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 discriminated 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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