Donna Green v. City of Pine Bluff , 105 F. App'x 880 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3746
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Donna Green, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
City of Pine Bluff, Arkansas, *
* [UNPUBLISHED]
Defendant-Appellee. *
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Submitted: July 8, 2004
Filed: August 2, 2004
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Before WOLLMAN, LAY, and MELLOY, Circuit Judges.
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PER CURIAM.
Donna Green appeals the district court’s1 adverse grant of summary judgment
in her employment-discrimination suit against the City of Pine Bluff, Arkansas (“the
City”). Green asserted claims under Title VII, the Due Process Clause of the Fifth
Amendment, the Arkansas Civil Rights Act of 1993 (“ACRA”), and other state laws.
Having carefully reviewed the record, we affirm. See Palesch v. Mo. Comm’n on
1
The Honorable Susan Webber Wright, Chief Judge, United States District
Court for the Eastern District of Arkansas.
Human Rights, 233 F.3d 560, 565-66 (8th Cir. 2000) (summary judgment standard
of review).2
Green’s employment as a police officer with the Pine Bluff Police Department
was terminated following an incident on September 4, 2000, in which Green heard
gunshots outside her apartment building and was next to her bedroom window when
it was smashed by a beer bottle. Without looking out the window, Green grabbed her
service weapon and fired four shots toward the ground. She then looked and saw her
estranged husband’s vehicle leaving the parking lot. When the police arrived at her
apartment, Green initially failed to disclose that she had fired her weapon, but she
later corrected her report. On October 2, 2000, the Chief of Police, Nathaniel Clark,
notified Green that she had been terminated for violating several department policies,
including those covering use of force, conduct unbecoming an officer, and dishonesty
or untruthfulness. The Pine Bluff Civil Service Commission unanimously upheld
Clark’s decision. Following her termination, Green alleged she had been sexually
harassed by Clark and her direct supervisor. She eventually filed suit, claiming she
was subjected to hostile work environment sexual harassment, terminated in
retaliation for complaining about the harassment, and disciplined more harshly than
her male co-workers.
We agree with the district court’s conclusion that Green failed to establish a
prima facie case of retaliation. See Krough v. Cessford Constr. Co., 336 F.3d 710,
712 (8th Cir. 2003) (to make out a prima facie case of retaliation, a plaintiff must
“show that she engaged in activity protected by Title VII, that an adverse employment
action occurred, and that a causal connection linked her protected activity and the
adverse employment action”). The record does not demonstrate that Green engaged
2
Because we affirm the district court’s ruling on Green’s Title VII claims, we
necessarily affirm its ruling on her ACRA claims. See Henderson v. Simmons Foods,
Inc., 217 F.3d 612, 615 n.3 (8th Cir. 2000).
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in any protected activity. Green testified that she had not reported any of the
harassing behavior to her supervisors or anyone “up the chain of command.” The
only evidence that Green ever attempted to report the offensive behavior was her
request that another officer file a complaint on her behalf. The officer refused to file
the complaint, but it is unclear from the record when Green made the request and
whether the officer Green approached was responsible for taking such complaints.
Green has not come forward with any evidence to rebut Clark’s sworn statement that
he was unaware of any offensive behavior. Even if Green had established a prima
facie case, she has failed to present sufficient evidence to prove the City’s legitimate,
nondiscriminatory reason for her termination – her violation of several department
policies in connection with the discharge of her weapon and her subsequent
untruthfulness about the incident – was a pretext for intentional discrimination. See
id. (describing burden-shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-04 (1973), in a retaliatory discrimination case).
We also agree with the district court’s conclusion that Green failed to come
forward with evidence from which a reasonable jury could find she was subjected to
hostile work environment. Although Green testified that she endured unwelcome
sexual harassment during her employment, the evidence she presented failed to
demonstrate that the harassing conduct was so severe or pervasive that it altered the
conditions of her employment and created a hostile working environment. See Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Green’s testimony, in general, shows
that she found the police department to be a good place to work and that she got along
with the other officers. On appeal, Green contends the district court erred by
disregarding a report prepared at the request of the Mayor of Pine Bluff following
complaints of sexual harassment by female police officers. We find that this report
is insufficient to create a genuine issue of material fact because the report is not
sworn or certified and consists largely of inadmissible hearsay. See Firemen’s Fund
Ins. Co. v. Thien, 8 F.3d 1307, 1310 (8th Cir. 1993); Fed. R. Civ. P. 56(c).
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Finally, we conclude the district court correctly granted summary judgment on
Green’s disparate treatment claim because Green failed to demonstrate that similarly
situated male police officers were treated differently. See Clark v. Runyon, 218 F.3d
915, 918 (8th Cir. 2000) (the employee must demonstrate, by a preponderance of the
evidence, that other individuals were similarly situated in all relevant respects;
individuals used for comparison “must have dealt with the same supervisor, have
been subject to the same standards, and engaged in the same conduct without any
mitigating or distinguishing circumstances”); Harvey v. Anheuser-Busch, Inc., 38
F.3d 968, 972 (8th Cir. 1994) (misconduct of more leniently disciplined employees
must be of comparable seriousness). Green compares herself to several male officers
who were not terminated for firing warning shots with their service weapons, being
untruthful, or engaging in other misconduct. However, she has not demonstrated that
the misconduct of the male officers was similar in all relevant respects to Green’s
misconduct or that their misconduct was comparable in seriousness to hers.
Furthermore, many of the male officers were disciplined under police chiefs other
than Clark.
For the foregoing reasons, we affirm.
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