United States v. James Boesen, Jr.

1 The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota, sitting by designation.
2 The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1660
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Vickie S. Moyer, *
*
Petitioner-Appellant, * Appeal from the United States
* District Court for the
v. * Eastern District of Arkansas.
*
DVA Renal Healthcare, Inc., * [UNPUBLISHED]
*
Respondent-Appellee. *
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Submitted: December 17, 2009
Filed: March 30, 2010
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Before LOKEN, Chief Judge, BENTON, Circuit Judge, and VIKEN,1 District Judge.
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BENTON, Circuit Judge.
Vickie S. Moyer sued her former employer, DVA Renal Healthcare, alleging
race discrimination, wrongful discharge, and retaliation. The district court2 granted
summary judgment to DVA. See 2009 WL 426537 (E.D. Ark. Feb. 20, 2009). Moyer
appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

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I.
DVA provides dialysis services to patients with chronic kidney failure. It
requires employees to follow infection control guidelines. Violation of the guidelines
can result in disciplinary action, including termination.
In 2003, DVA hired Moyer, a white woman, as a patient-care technician. In
2006, DVA hired a new facility administrator and a new nurse manager – both
African-American women.
In early March 2007, the two supervisors met with Moyer to discuss her time-
management skills. They disagreed whether certain patient activities needed to be
documented. Moyer became angry, and left the room screaming. One supervisor
followed Moyer into the breakroom, where she was about to call DVA’s anonymous
compliance hotline. The supervisor warned her not to call compliance, threatening to
fire her. Moyer called the supervisor a racist. (The next day, unbeknownst to the
supervisors, Moyer did call the compliance hotline to complain she had been unfairly
reprimanded.) After the confrontation, Moyer received a verbal warning, but no loss
in pay, seniority, or work hours.
On March 19, Moyer received an annual performance evaluation consistent
with those given by white supervisors in the past. The same day, DVA gave her a
3.02 percent pay raise.
On March 30, the administrator disciplined Moyer for leaving a needle exposed
on March 26, in violation of DVA guidelines. (The patient later developed an
infection.) DVA terminated Moyer on April 5 for “unsatisfactory performance,” after
she was disrespectful in a meeting that day. Between early March and her
termination, Moyer had also received oral and written warnings for not clocking out

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from work as directed, failing to complete required patient documentation, arriving
late to a mandatory staff meeting, and arguing with her supervisor.
Moyer sued DVA, alleging race discrimination, wrongful discharge, and
retaliation, in violation of the public policies of Arkansas. In the district court, Moyer
presented an affidavit of a black employee who said that the two supervisors were
unprofessional, unpleasant, and rude. Two white affiants also asserted that the
supervisors treated white employees unfairly. The court granted DVA’s motion for
summary judgment. Moyer appeals.
II.
This court reviews the district court’s judgment de novo. Littleton v. Pilot
Travel Ctrs., 568 F.3d 641, 644 (8th Cir. 2009). Summary judgment is appropriate
if, viewing the evidence favorably to the non-movant, no genuine issue of material
fact exists, and the movant is entitled to judgment as a matter of law. King v.
Hardesty, 517 F.3d 1049, 1056 (8th Cir. 2008).
A.
The Arkansas Civil Rights Act (ACRA) forbids discrimination in employment.
Ark. Code Ann. § 16-123-107(a)(1). As guidance on ACRA discrimination claims,
the Arkansas Supreme Court draws upon Title VII and the federal cases interpreting
it. Henderson v. Simmons Foods, Inc., 217 F.3d 612, 615 (8th Cir. 2000).
In Title VII race discrimination cases, a plaintiff may survive summary
judgment by presenting direct evidence of discrimination. Russell v. City of Kansas
City, 414 F.3d 863, 865 (8th Cir. 2005). Moyer does not present direct evidence of
discrimination. Moyer may create an inference of unlawful discrimination under the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792

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(1973). Under it, Moyer must show that she: (1) is a member of a protected class; (2)
was meeting the employer’s legitimate job expectations; (3) suffered an adverse
employment action; and (4) was treated differently than similarly-situated employees
who were not members of her protected class. Id. at 802.
Moyer fails to create an inference of unlawful discrimination. First, she did not
meet the legitimate work expectations of DVA. Moyer claims that the facts of the
needle incident that precipitated her termination are disputed. However, she
admittedly failed on a number of occasions to abide by DVA’s policy on infection
control and professional conduct.
Second, Moyer has not identified similarly-situated employees outside her
protected class who enjoyed preferential treatment. “Employees are similarly situated
when they are involved in or accused of the same offense and are disciplined in
different ways.” Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994).
Employees must be similarly situated in all relevant respects. Wimbley v. Cashion,
588 F.3d 959, 962 (8th Cir. 2009). Although Moyer claims that two African-
American employees violated DVA’s polices but were not fired, she does not show
that either employee committed the same infractions she did – shouting and crying in
the treatment facility, using contaminated medical equipment on a patient, behaving
unprofessionally toward supervisors, and failing to wear protective equipment despite
having just received training and having been reminded three times to do so. Thus,
the two African-American employees are not similarly situated.
Even if Moyer could establish a prima facie case of race discrimination, an
employer “may avoid liability under [the ACRA] by showing that his or her actions
were based on legitimate, nondiscriminatory factors and not on unjustified reasons.”
Ark. Code Ann. § 16-123-103(c). DVA had legitimate, nondiscriminatory reasons for
Moyer’s termination. Insubordination and violation of company policy are justifiable
reasons for termination. See, e.g., Twymom v. Wells Fargo & Co., 462 F.3d 925, 935

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(8th Cir. 2006); Johnson v. AT&T Corp., 422 F.3d 756, 762 (8th Cir. 2005); Ward
v. Procter & Gamble Paper Prod., 111 F.3d 556, 560 (8th Cir. 1997); Price v. S-B
Power Tool, 75 F.3d 362, 365-66 (8th Cir. 1996); Miner v. Bi-State Dev. Agency, 943
F.2d 912, 913-914 (8th Cir. 1991). Therefore, the district court properly granted
summary judgment on Moyer’s race discrimination claim under the ACRA.
B.
In Arkansas, an “at-will employee cannot be terminated if he or she is fired in
violation of a well-established public policy of the State, but such public policy must
be outlined in our statutes.” Island v. Buena Vista Resort, 103 S.W.3d 671, 679 (Ark.
2003). See also Northport Health Serv., Inc. v. Owens, 158 S.W.3d 164, 174 (2004);
Sterling Drug, Inc. v. Oxford, 743 S.W.2d 380, 385 (1988) (recognizing that the
constitution also sets the state’s public policy). Arkansas public policy prohibits the
termination of at-will employees based on race discrimination and retaliation. Ark.
Code Ann. §§ 16-123-107(a)(1), 16-123-108.
A prima facie case of wrongful discharge for violation of public policy requires
substantial evidence that discrimination or retaliation was the reason for the discharge.
Wal-Mart Stores, Inc. v. Baysinger, 812 S.W.2d 463, 467(Ark. 1991). “When an
employee has made a prima facie case of retaliation, or wrongful discharge, the
burden shifts to the employer to prove that there was a legitimate, non-retaliatory
reason for the discharge.” Id.
As stated above, Moyer has not established a prima facie case that her
termination resulted from race discrimination. She has likewise failed to rebut DVA’s
legitimate, nondiscriminatory reasons for the discharge. Therefore, her wrongful
termination claim fails.

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In order to establish a prima facie case of retaliation, Moyer must produce
evidence that: (1) she engaged in statutorily protected activity; (2) a materially adverse
action was taken against her; and (3) there is a causal connection between the two
events. Fanning v. Potter, No. 4:07CV01194 SWW, 2009 WL 49753, at *3
(E.D.Ark. Feb. 25, 2009), citing Burlington Northern & Santa Fe R.R. Co. v. White,
548 U.S. 53, 60, 68 (2006).
Moyer has failed to establish a prima facie case of retaliation. First, her call to
the compliance hotline is not a statutorily protected activity, because she called to
protest an unfair reprimand, not to report any violation of the law. Private interests
do not implicate Arkansas public policy. 743 S.W.2d at 385.
Second, Moyer does not establish a causal connection between her call to the hotline
and her termination. Moyer presents no evidence that her supervisors even knew of
her call to the hotline.
Moyer’s wrongful termination and retaliation claims fail, and summary
judgment was appropriate.
III.
The judgment of the district court is affirmed
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