## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1110

___________ Michael Lynn, *
* Appellant, *
*
v. * Appeal from the United States
* District Court for the Deaconess Medical Center-West * Eastern District of Missouri. Campus, also known as Deaconess * West Hospital, *
* Appellee. *

___________ Submitted: September 21, 1998
Filed: November 17, 1998

___________ Befo re RICHARD S. ARNOLD, BEAM, and MORRIS SHEPPARD ARNOLD , Circuit Judges.

___________ BEAM, Circuit Judge.
Mic hael Lynn appeals from the district court's entry of summary judgment i n favor of his former employer, Deacone ss Medical Center-West Campus (Deaconess). Lynn alleges that Deaconess terminated him on the basis of his gender in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e to 2000e-17 and the M issouri Human Rights Act (MHRA), Mo. Ann. Stat. §§ 213.010-213.137. For the reasons discussed below, we reverse and remand for further proceedings.-2-

I. BACKGROUND

Vi ewed in the light most favorable to Lynn, the record reveals the followin g facts. Lynn began working for Deaconess as a registered nurse in the Acut e Rehabilitation Unit (R ehab Unit) on March 19, 1992. He initially held the position of charge nurse, and performed supervisory duties such as quality ass urance, patient care, evaluation, and scheduling staff nurses and patient care technicians. His supervisor at this time was Cyndi Murphy. In March 1993, Jackie McClanahan replaced Murphy

as directo r of the Rehab Unit. During this time period, no performance deficiencie s were noted nor were any disciplinary actions taken against Lynn.

In April 1994, Patricia Shanks replaced McClanahan as director of the Rehab Unit. The hospital was also interviewing applicants for the position o f Assistant Patient Care Manager i n that unit. Lynn interviewed with Shanks for the position but he was

re jected. Lynn had both a bachelor's and a master's degree in nursing and had bee n working for over two years as a charge nurse in the Rehab Unit. Instead, Shanks hired Jan ene Ford. Ford had only an associate nursing degree, no postgraduate nursin g education, a nd had only been employed with Deaconess for four months as a staf f

nurse . After Ford assumed her position, Lynn reported directly to Ford instead of to Shanks. Shortly thereafter, Shanks decided that because the Rehab Unit was so small there wa s no need to employ both an Assistant Patient Care Manager and a charg e nurse. She then demoted Lynn from charge nurse to staff nurse on July 17, 1994.
According to the record, complaints regarding Lynn's work performance began while he was still reporting to Shanks. On June 3, 199 4, Shanks received a report that Lynn had lain on a couch and watched televis ion during his shift. After confirming the report with another worker, Shanks verbally counseled Lynn. Lynn explained t o Shanks that he was re sting because he had not been feeling well. Shortly before Ford assumed her new position, Shanks told her about a family member's complaint thatDeac oness has a long-standing policy of progressive discipline. When a 1 problem first occurs, an employee receives verbal counseling. If the proble m continues, the employee receives written counseling called a "Letter of Understanding." If the prob lem persists, a further Letter of Understanding or a Recommendation o f Discharge is issued. Deaconess's policy was that only physicians were to diagnose patients. 2
-3- Lynn h ad not taken care of a patient after the patient had urinated in bed. For d investigatedthe incident and concluded that there had been no wrongdoing by Lynn.

The r ecord shows that in November and December of 1994, Lynn receive d verbal counselin g from Ford on various issues such as allegedly arriving late to work, failing to comply with time-clocking policies, exhibiting a lack of productivity, an d compla ints about his lack of compassion towards staff and patients. Finding tha t Lynn's performance was not improving, Ford and Shanks issued two Letters o f Under standing to Lynn on January 13, 1995. The first Letter of Understandin g 1 (Lette r) stated that Lynn had been late for work by about five minutes on differen t occasions and that he f

ailed to have his timecard signed when he clocked in late. The second Letter addressed three are as of concern: (1) incomplete documentation; (2) an attitude of disrespect and lack of compassion towards others; and (3) an ongoing failure to meet productivity standards. Lynn responded to these Letters with a writte n st atement which explained that his time clocking and documentation procedures ha d been the result of confusion with earlier policies and not the result of willful neglect. Lynn denied the other charges.
According to his supervisors, Lynn showed improve ment after he received these Letters, but after January 30, 1995, he again began to exhibit performance problems. On February 20, 1995, Lynn was issued a third Letter for allegedly diagnosing a patient. However, Ford's annual evaluation of Lynn's work performan ce in April 1995,

2-4-

described Lynn as "frequently exceed[ing] standards" in four of the twenty-fou r categories and as "meeting standards" in the other twenty categories.
Finally, two incidents occurred which resulted in Lynn's ev entual discharge. On August 1, 1995, Lynn reportedly failed to assist a family member in attaching certain therapeut ic equipment to her mother. On August 2, he allegedly failed to correctl y prepare essential documents for a Patient Conference Team Meeting. On August 7 , 1995, Ford and Shanks issued Lynn a Recommendation for Discharge on the ground that Lynn's work per

formance thus far reflected "a serious lack of appropriate nursing judgment" and they gave him th e option of resigning. Lynn chose to resign on August 7, 1995.
Lynn then initiated the present action, alleging that Deaconess had discriminated against hi m on the basis of his gender in violation of Title VII and the MHRA. Th e district court entered summary judgment in favor of Deaconess, a nd Lynn now appeals.

II. DISCUSSION
We review a grant of summary judgment de novo, using the same standards as applied by the district court. See Hill v. St. Louis Univ. , 123 F.3d 1114, 1118 (8th Cir. 1997). Summary judgment is proper if the eviden ce, viewed in the light most favorable to the nonmoving par

ty, demonstrates that there is no genuine issue as to any material fact and that the moving par ty is entitled to judgment as a matter of law. See id. ; Fed. R. Civ. P. 5 6(c). The moving party bears the burden of showing the absence of a ge nuine issue of material fact. See Webb v. Lawrence County , 144 F.3d 1131, 1134 (8th Cir. 1998). In reviewi ng employment discrimination claims, we keep in mind the caution t hat summary judgment should seldom be used in discrimination cases. Se e Crawford v. Runyon , 37 F.3d 1338, 1341 (8th Cir. 1994). Because such cases often depend on inferences rather than on direct evidence, summary judgment should not beThe McDonnell-Douglas analysis also applies to claims under the MHRA. See 3 Hossaini v. Western Missouri Med. Ctr. , 97 F.3d 1085, 1088 (8th Cir. 1996).
-5- gra ntedunless the evidence could not support any reasonable inference for th e nonmovant. See id.

Title VII and the MHRA declare it unlawful for an employer to discharge "o r otherwis e to discriminate against any individual with respect to his compensation , terms, condit

ions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1); see also Mo. Ann. Stat. § 213.055(1)(1)(a). Because Lynn has not put forth direct evidence of discrimi nation, his Title VII and MHRA claims are analyze d under the three-stage burden-shifting framework set forth in McDonnel l Douglas Corp. v. Green , 411 U.S. 792 (1973), and applied in countless other cases. 3 See, e.g. , St. M ary's Honor Ctr. v. Hicks , 509 U.S. 502, 506-08 (1993); Rothmeier v. Inv. Advisers, Inc. , 85 F.3d 1328, 1332 (8th Cir. 1996).
Under this framework, Lynn bears the initial burden of estab lishing a prima facie

case of discrimination. See Rothmeier , 85 F.3d at 1332. Once a prima facie case is est ablished, a rebuttable presumption of discrimination arises and the burden o f production shifts to De aconess to articulate a legitimate, nondiscriminatory reason for discharg ing him. See id. If Deaconess produces such a reason, the presumptio n disappears and Lynn be ars the burden of proving that the proffered reason is merely a pretext for discrimination. See id. Lynn retains at all times the ultimate burden o f persu ading the trier of fact that the adverse employment action was motivated b y intentional discrimination. See id.

Deac oness concedes that the first two stages of the McDonnell-Dougla s fram ework

have been met, i.e., that Lynn has established a prima facie case o f discrimination and that Deaconess has sufficiently articulated a nondiscriminatoryLynn a lso points to Deaconess's favorable treatment of other female nurse s 4 despite their various forms of misconduct. Because we find that the facts regardin g Karen Mohr constitute sufficient evidence to allow Lynn to prevail on the issue o f pretext, we accordingly limit our discussion of the facts to her case.
-6- reason for discharging him. It argues , however, that Lynn has not produced sufficient evidence to meet his burden of establishing pretext.

We dis agree. As proof of pretext, Lynn presented evidence that Deacones s disciplinedfemale nurses in the Rehab Unit less severely than he was disciplined for conduct that was more egregious than his. Primarily, Lynn points to his supervisors' favorab le treatment of another registered nurse in the Rehab Unit, Karen Mohr. 4 Instances of disparate treatment can support a claim of pretext, but Lynn has the burden of proving that he and the di sparately treated female nurses were "similarly situated in all relev ant respects." Harvey v. Anheuser-Busch, Inc. , 38 F.3d 968, 972 (8th Cir

. 1994) (quotations omitted).

The record shows that beginning on February 3, 1995, Ford started receivin g reports that Karen Mohr slept while on duty. Gail Washington, a patient car e technician, reported to Ford that on one shift she had seen Mohr go into an empty patient's room, and take three 45-minute naps with the television on. Another patient

care technician, Angie Washington, reported to Ford that during these naps Moh r would be sound asleep and difficult to arouse. It was only after Ford had received four reports of Mohr's sleeping that Ford finally talked to Mohr on May 24, 199 5. For a few

mon ths following that counseling, Mohr performed adequately, but reports of he r sleeping on the job began to surface again in November of that same year. It was not until Ford had receive d at least five reports in November and December about Mohr's sleeping on duty that Ford and Shanks issued her a Letter of Understanding o n December 6, 1995.T he district court and Deaconess rely on Ward v. Procter & Gamble Pape r 5 Prod s. Co. , 111 F.3d 558 (8th Cir. 1997), as stating the standard that employees ar e similarly situated only when they engage in the same offense. In Wa rd , the court stated tha t instances of disparate treatment can support a claim of pretext if the plaintiff can prove that she and the other employe es are "similarly situated in all relevant respects." Id. at 560. It went on to acknowledge that employee s are similarly situated when they
are "involved in or accused of the same offense." Id. The court then rejected th e plaintif f's argument that she and another employee who were involved in a fight were engaged in the same offense because it found that the fight involve d two separate levels of escala tion. See id. at 561. There is no language in Ward which suggests tha t em ployees are "similarly situated" only when they engage in the same offense. I f anyt hing, the reasoning of the Ward opinion supports our view that the inquiry int o whe ther employees are similarly situated requires looking beyond the labels attached to the employees' misconduct.
-7- The distr ict court found that Lynn and Mohr were not similarly situated fo r purposes of proving pretext because: (1) Unlike Mohr, Lynn was not disciplined for the offense of sleeping; and (2) Lynn and Mohr had different disciplinary histories. We think that the district court applied the "similarly situated" concept to o narrowly when it stated t

hat because Lynn had not engaged in the offense of sleeping, Deaconess's treatment of Mohr was not relevant to th e issue of whether Lynn had been discriminatedagainst. To show that employees are similarly situated, a plaintiff need only establish that he or she was treated differently than other employees whos e violations were of "comparable seriousness." See Ricks v. Riverwood Int'l Corp. , 38 F.3d 1016, 1019 (8th Cir. 1994); see also Mc Alester v. United Airlines, Inc. , 851 F.2d 1249, 1261 (1 0th Cir. 1988) (stating that in a disparate treatment case the fact tha t other employees did not commit the exact same offense as the plaintiff does no t prohibit consideration of their testimony as long as their acts were of comparabl e seri ousness). To require that employees always have to engage in the exact sam e

5 offense as a prerequisi te for finding them similarly situated would result in a scenario where evidence of favorable tre atment of an employee who has committed a different but more serious, perhaps even criminal offense, could never be relevant to prove-8-

discrimination. Common sense as well as our case law dictate that we reject such an approach. We think that Mohr's sleeping on the job was at least comparable to, if not much more serious than, the misconduct alleged against Lynn. Under th e circumstances, we find that Lynn and Mohr were similarly situated.

The dist rict court also incorrectly concluded that Mohr and Lynn were no t similarly situated because Lynn had an extensive record of disciplinary problems and received three Letters while Mohr had had only one Letter issued to her. We thin k Lynn has produced sufficient e vidence to at least create a factual dispute as to whether the differences in Mohr's disciplinary history and his were due to gend er discrimination. The record shows that Lynn had no reports of work performance deficiencie s in the time period prior to when Shanks and Ford became his s upervisors. Lynn received his third Letter without any prior verbal counseling or discussion about what had happened

. Following Lynn's receipt of these Letters of Understanding, there is no writte n document ationthat these deficiencies recurred. In fact, in her annual evaluation o f Lynn in April 1995, Ford noted imp rovement in some of the very areas for which Lynn had been reprimanded in the Letters. In her testimony, Ford claims that j ust because she didnot document any serious deficiencies in Lynn's performance from the time of the April evaluation to his di scharge in August does not mean that they did not occur. We find thi s explanation disingenuous, especially since the record shows that For d docu mentednumerous incidents prior to this period and continued after the Apri l evaluation to document minor incidents such as Lynn not wearing a lab coat.

The rec ord also shows that although Ford and Shanks were quick to verball y counsel Lynn and to issue him Letters of Understanding, it took numerous reports and several months before Mohr was verbally counseled about her sleeping problem. I t took more t

han eleven months of repeated reports of sleeping on the job before Mohr

was issued a single Letter of Understanding. Sleeping on the job appears to us to b e particularly egregious misconduct for a nurse on duty. The gravity of Mohr's infraction is further exacerbated by the fact that sometimes Mohr woul d be the only nurse present.Also, on August 2, 1995, the same family member that had complained about 6 Lynn a day earlier, lodged a similar complaint against Mohr.
-9- In fact, one o f the physicians on staff expressed his concern that if a nurse slept sh e might not be able to hear a Code Blue called over the intercom. Certainly Mohr' s acti ons seem at the least to constitute the same kind of "serious lack of appropriat e nursing judgment" that resulted in Lynn's discharge. Thus, we find sufficient evidence 6
to create a g enuine fact issue as to whether the reason proffered by Deaconess wa s pretext.

Nevertheless, evidence of pretext, standing alone, does not invariably preclude summary judgment. See Ryther v. KARE 11 , 108 F.3d 832, 838 n.5 (8 th Cir. 1997) (en banc), cert. denied , 117 S. Ct. 2510 (1997). The legal standard to be applied is set out in Maschka v. Genuine Parts Co. , 122 F.3d 566, 571 (8th Cir. 1997):

We recently considered the precise contours of [the legal standard to b e appl ied] in our en banc decision, Ryther v. KARE 11 , 108 F.3d 832 (8th Cir .), cert. denied , ___U.S.___, 117 S. Ct. 2510, 138 L. Ed.2d 101 3 (1997). Th e holding of that case may be summarized as follows: if a primafaci e case is made, and if the plaintiff offers evidence tending t o show that the defendant's proffered reasons for its decision were not the real reason, then the jury may decide the case, unless the "evidence o f pretext . . . is, standing alone, inconsistent with a reasonable inference of age discrimination." Id. at 837; see also Johnson v. Bapt ist Med. Ctr. , 114 F.3 d 789, 789 (8th Cir. 1997) ("We held [in Ryther ] that the plaintiff' s evidence must tend to make out a prima facie case and support a finding that the defendant's proffered reasons for the decision complained of were pretextual."), amending on denial of suggestion for rehearing en banc 97 F.3d 1070 (8th Cir. 1996).
Lynn has met these requir

ements by establishing a prima facie case and offering evidence from which a jury could conclude that the reasons offered by the employer for-10-

disc harging him were pretextual. Furthermore, the evidence Lynn presented was no t inc onsistent

with the finding of age discrimination; rather, it tended to show that Deaconess's proffered reasons were flimsy, and thus susceptible of disbelief. Once a gender-discrimination plaintiff has done as much as Lynn, a jury may (but need not) find for him. See Hicks , 509 U.S . at 511 ("[R]ejection of the defendant's proffered reasons will permit

the trier of fact to infer the ultimate fact of intentional discrimination, and

. . . '[n]o additional proof of discrimination is required .'" (footnote and citatio n omitted)).
Thus, we conclude that Lynn presented evidence suffici ent to create a reasonable inference that Deaconess's proffered reasons for discharging him were mere pretext for intentional discrimination. Under the McDonnell-Douglas framework, this is enough to survive a motion for summary judgment. Although Deaconess may ultimately be able to offer a plausible explanation for its treatment of Lynn and its other nurses, these are matters to be decided at trial and not by summary judgment.

III. CONCLUSION

The judgment is reversed, and the case is remanded to the district court fo r further proceedings consistent with this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.