1

The Honorable Russell G. Clark, United States District Judge

for the Western District of Missouri.

___________

No. 95-2001

___________

Monte C. Ruby, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Springfield R-12 Public School *

District, *

* 

Appellee. *

___________

 Submitted: December 14, 1995

 Filed: February 16, 1996 ___________

Before MAGILL, BRIGHT, and MURPHY, Circuit Judges.

___________

MAGILL, Circuit Judge.

Monte Ruby appeals the district court's1 grant of summary

judgment to his former employer, Missouri's Springfield R-12 Public

School District (Springfield), in Ruby's Title VII employment

discrimination suit. Because Ruby failed to show that

Springfield's legitimate, nondiscriminatory reasons for its adverse

employment actions against him were pretextual, we affirm the

district court's grant of summary judgment.

I.

Springfield employed Ruby, an African-American, as a public
 2

Don Deckard, the white employee who attended the conference,

was Springfield's liaison to the Greene County Juvenile Office.

 3The co-worker complained that Ruby "gave her an intense,

menacing stare, reminiscent of the 'stare down prevalent among gang

members which often results in violence.'" Appellee's Br. at 4.

We reject Ruby's contention that this statement, on its face,

demonstrates racial animus.

 4Springfield contends that during a meeting regarding his

mileage reimbursement reports, Ruby changed his story four times,

and admitted lying to Springfield. While Ruby denies that he made

such admissions, and we accept his version of the meeting for

purposes of summary judgment, Ruby acknowledged that Springfield

"asked me about how many times I would like be in the building, and

I gave a response, and I later changed that to maybe half the time

. . . ." Ruby Dep., Appellant's App. at 73. These inconsistencies

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safety officer from August 2, 1976 until March 15, 1993. Ruby

alleges that Springfield took three adverse actions against him

during his last year of employment because of his race and in

retaliation for his filing charges of discrimination. First,

Springfield sent a white employee to a seminar on gang problems in

April 1992, although Ruby had requested to attend. Springfield

claims that it made this decision because it could afford to send

only one employee to the seminar, due to the elimination of its

$38,000 travel budget, and the seminar was more directly related to

the other employee's job duties.2 Springfield further showed that

it had denied a white employee the opportunity to attend a seminar

due to lack of funds, and that Ruby was offered an opportunity

later in the year to attend a seminar on satanism, but he declined

to attend. Second, Springfield suspended Ruby on September 30,

1992, for three days without pay for making sarcastic comments

directed at a white female co-worker, and for glaring hostilely at

her,3

 which violated Springfield's policy of maintaining a work

environment free from harassment. Third, Springfield terminated

Ruby on March 15, 1993, for filing false mileage reimbursement

reports for work-related travel, which Springfield had confirmed by

monitoring buildings that Ruby claimed to have visited, but had

not.4 
lend no support to Ruby's claim that Springfield did not terminate

him for dishonesty.

 5Ruby filed complaints with the EEOC in June 1992, October

1992, and March 1993 regarding the denial of his request to attend

a seminar, his suspension, and his termination.

 6In his opposition to summary judgment and accompanying

affidavit, Ruby asserted that Springfield's statement of undisputed

facts in its summary judgment motion was not accurate, but he

failed to provide "a concise listing of material facts as to which

the party contends a genuine issue exists," W.D. Mo. Local Rule

13(g), or adequate references to the record, id. Ruby's mere

allegations that issues remained in dispute, see Appellant's App.

at 101-13, were insufficient to meet the requirements of Local Rule

13(g), see Lidge-Myrtil v. Deere & Co., 857 F. Supp. 666, 668 (W.D.

Mo. 1994), aff'd, 49 F.3d 1308 (8th Cir. 1995), and he is deemed to

have admitted all facts which were not specifically controverted.

See W.D. Mo. Local Rule 13(g).

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After filing a series of complaints with the Equal Employment

Opportunity Commission (EEOC),5 Ruby brought two suits in district

court against Springfield under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e-2000e-5, and the Civil Rights Act of

1866, 42 U.S.C. § 1981, alleging employment discrimination and

retaliation, which were consolidated by the district court. The

district court granted Springfield's summary judgment motion,

concluding that, even if Ruby had made a prima facie case of

discrimination, Springfield had provided nondiscriminatory reasons

for its adverse actions against Ruby, and that Ruby had failed to

come forward with any evidence to support a finding that

Springfield's reasons were pretextual.6

II.

We review a grant of summary judgment de novo. Tindle v.

Caudell, 56 F.3d 966, 969 (8th Cir. 1995). A grant of summary

judgment is proper if, taking all facts and reasonable inferences

from facts in the light most favorable to the nonmoving party,

there is no genuine issue of material fact, and the movant is

entitled to judgment as a matter of law. Id.; see Fed. R. Civ. P.
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56(c). While a defendant who moves for summary judgment has the

burden of showing that there is no genuine issue of fact for trial,

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), a

nonmoving party may not rest upon mere denials or allegations in

the pleadings, but must set forth specific facts sufficient to

raise a genuine issue for trial. Tindle, 56 F.3d at 969 (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

Ruby's racial discrimination claims are analyzed under the

framework of McDonnell Douglas v. Green, 411 U.S. 792 (1973). A

plaintiff must present a prima facie case of racial discrimination:

that he was a member of a protected class, that he was qualified

for the position, and that despite his qualification he was

displaced from the position. See McLaughlin v. Esselte Pendaflex

Corp., 50 F.3d 507, 510 (8th Cir. 1995) (applying McDonnell

Douglas). The defendant may rebut plaintiff's prima facie case by

demonstrating a legitimate, nondiscriminatory reason for adverse

action against plaintiff. Id. Finally, plaintiff may prove that

defendant's proffered reasons are a pretext for illegal

discrimination. Id. Ruby's retaliation claims are also analyzed

under this shifting burden framework; see Womack v. Munson, 619

F.2d 1292, 1296 (8th Cir. 1980), cert. denied, 450 U.S. 979 (1981).

 

Assuming that Ruby presented a prima facie case for racial

discrimination and retaliation, Springfield has presented

legitimate, nondiscriminatory and nonretaliatory reasons for all of

its adverse employment actions against him: that Ruby was not the

most qualified person to attend a seminar, that he harassed a coworker, and that he submitted false mileage reimbursement reports.

Ruby argues that, because the district court did not specifically

state that Springfield's nondiscriminatory reasons were also

"legitimate," it applied the wrong standard at this stage of the

McDonnell Douglas analysis. This argument is meritless. At the

second stage of the analysis, Springfield had the burden of

presenting legitimate, that is, nondiscriminatory, reasons for its
 7

We note that "our inquiry is limited to whether the employer

gave an honest explanation of its behavior," Krenik v. County of

LeSueur, 47 F.3d 953, 960 (8th Cir. 1995) (quotations omitted),

rather than to weigh the wisdom of any particular employment

decision; Title VII does not authorize federal courts to "sit as a

super-personnel department that reexamines an entity's business

decisions." Id. (quotations omitted).

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adverse actions. In doing so, it rebutted the presumption of

discrimination raised by Ruby's prima facie case. Ruby then had

the burden of presenting evidence to the district court which could

support a finding that Springfield's reasons were pretextual. We

remind Ruby that he, as plaintiff, had the burden of proving that

Springfield illegally discriminated against him. See St. Mary's

Honor Center v. Hicks, 113 S. Ct. 2742, 2747-48 (1993). Ruby

simply failed to meet this burden.7

 

Ruby also alleged that Dennis Lewis and Glenn Pace,

supervisory employees of Springfield's, called Ruby "boy," and that

Lewis allegedly complained about the NAACP, stated that AfricanAmericans commit more crimes than whites, and, referring to Ruby's

clothes, joked that Ruby was "dressed as if he's going to a karate

tournament." Ruby Dep., Appellant's App. at 51. The district

court construed these allegations as a claim for a racially hostile

workplace, and concluded that Ruby had not exhausted his

administrative remedies by failing to bring this claim before the

EEOC; see Satz v. ITT Fin. Corp., 619 F.2d 738, 741 (8th Cir. 1980)

(exhaustion of administrative remedies). Ruby now argues that the

district court erred in refusing to consider these allegations

because they were not a separate claim, but rather were evidence to

support a finding of pretext and discriminatory intent. Our de

novo review of these allegations solely as evidence of pretext,

however, convinces us that any error by the district court was

harmless. While, under certain circumstances, "discriminatory

statements made by supervisors may be evidence of discriminatory

intent," McLaughlin, 50 F.3d at 512, we conclude that no reasonable

fact finder could, merely on these comments, find that
 8

Ruby also argues that the affidavits used by Springfield to

support its summary judgment motion are conclusory and do not

otherwise meet the requirements of Federal Rule of Civil Procedure

56(e), and that various documents submitted had inadequate

foundation or contained hearsay. Ruby failed to make these

objections before the district court, and we will review only for

plain error. See Williams v. Evangelical Retirement Homes, 594

F.2d 701, 703 (8th Cir. 1979) (per curiam) ("The general rule is

that defects in the form of the affidavits are waived if not

objected to at the trial court level. Absent a motion to strike or

other timely objection, the trial court may consider a document

which fails to conform to the formal requirements of Rule 56(e).");

Gee v. Pride, 992 F.2d 159, 161 (8th Cir. 1993) (evidentiary issues

reviewed for plain error where objection not made before district

court). We conclude that, particularly as the affidavits were

clearly based on personal knowledge, see Williams, 594 F.2d at 703-

04, no fundamental miscarriage of justice occurred through

consideration of these affidavits and documents.

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Springfield's reasons for adverse action were pretextual for

discrimination. See Kinkead v. Southwestern Bell Tel. Co., 49 F.3d

454, 457 (8th Cir. 1995). The district court properly granted

summary judgment to Springfield on all of Ruby's claims.8

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

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