Albert Rinchuso v. Brookshire Grocery Company, doing business as Brookshire Pharmacy 102

United States Court of Appeals
For the Eighth Circuit
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No. 18-2494
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Albert Rinchuso
Plaintiff - Appellant
v.
Brookshire Grocery Company, doing business as Brookshire Pharmacy #102
Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
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Submitted: September 26, 2019
Filed: December 9, 2019
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Before SMITH, Chief Judge, WOLLMAN and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
Albert Rinchuso sued his former employer, Brookshire Grocery Company,
alleging gender-based discrimination. The district court1 granted Brookshire’s
1 The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.

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motion for summary judgment. Rinchuso appeals, arguing the district court erred in
refusing to consider his direct evidence argument and granting summary judgment for
Brookshire. We have jurisdiction under 18 U.S.C. § 1291. Because summary
judgment was appropriate and any error in declining to consider Rinchuso’s direct
evidence argument was harmless, we affirm.
I. Background
In May 2014, Brookshire Grocery Company (“Brookshire”) hired Albert
Rinchuso as a pharmacist. At the time of his employment, Rinchuso signed an
acknowledgment of Brookshire’s internet and conduct policies in which he
acknowledged that using the company computer for personal purposes or acting
inappropriately at work could result in termination. Shortly after he began working
at Brookshire, female coworkers reported Rinchuso was engaging in inappropriate
behavior and he was verbally warned.
In January 2017, Brookshire’s human resources department opened an
investigation in response to a coworker complaint that Rinchuso was viewing
pornography on his work computer. Brookshire interviewed four of Rinchuso’s
female coworkers, who alleged Rinchuso viewed naked women on his work
computer, gambled, and touched them inappropriately at work. Notwithstanding the
interviews, Brookshire’s information technology department was unable to
conclusively determine if Rinchuso viewed pornography on his work computer.
Brookshire also interviewed Rinchuso, who admitted to visiting sports and dating
websites at his work computer but denied viewing pornography, gambling at work,
or touching his coworkers. Brookshire did not interview Rinchuso’s two male
coworkers.
Brookshire terminated Rinchuso on January 20, 2017. On February 28, 2017,
Rinchuso filed a complaint in state court claiming he was fired in violation of the
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Arkansas Civil Rights Act’s prohibition on gender-based discrimination.
Specifically, Rinchuso alleged that he was subjected to disparate treatment when he
was terminated after accusations of inappropriate touching. Rinchuso claimed a prior
female employee, Laura Cole, was not terminated after coworkers accused her of
inappropriate touching in 2014.
Brookshire removed the case to federal court and moved for summary
judgment. In response, Rinchuso argued discovery had elicited direct evidence of
Brookshire’s discriminatory motive in firing him. The district court found
Rinchuso’s direct evidence argument to be an untimely attempt to amend his
complaint and declined to consider it. The district court found Rinchuso failed to
present a prima facie case of discrimination and granted summary judgment in favor
of Brookshire. Rinchuso moved the district court to amend or alter its judgment
under Federal Rule of Civil Procedure 59(e) asserting that his direct evidence
argument was a method of proof for his underlying disparate treatment claim, not a
new theory of recovery. The district court denied the motion. Rinchuso timely
appealed the district court’s orders granting summary judgment for Brookshire and
denying his Rule 59(e) motion.
II. Discussion
A. Summary Judgment
We review the grant of a motion for summary judgment de novo.
Higgins v. Union Pac. R.R. Co., 931 F.3d 664, 669 (8th Cir. 2019). Summary
judgment is appropriate if, viewing all evidence and reasonable inferences in the light
most favorable to the nonmovant, there is no genuine issue of material fact. Id.
The Arkansas Civil Rights Act prohibits gender discrimination by employers.
Ark. Code Ann. § 16-123-107(a)(1) (2016). Violations of the Arkansas Civil Rights
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Act are evaluated under the Title VII gender-discrimination framework and relevant
federal case law prohibiting disparate treatment. Greenlee v. J.B. Hunt Transp.
Servs., 342 S.W.3d 274, 277-79 (Ark. 2009). A plaintiff alleging disparate treatment
may survive summary judgment by either: (1) showing direct evidence of
discrimination or (2) presenting an inference of discrimination under the McDonnell
Douglas framework. Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir.
2004). Direct evidence shows a “specific link” between discriminatory animus and
an employment decision. Id. (quoting Thomas v. First Nat’l Bank of Wynne, 111
F.3d 64, 66 (8th Cir. 1997)). Under the McDonnell Douglas framework, a plaintiff
establishes a prima facie case of disparate treatment by showing they: (1) belong to
a protected class; (2) were meeting the employer’s legitimate job expectations; (3)
suffered an adverse employment action; and (4) were treated differently than similarly
situated employees outside the protected class. McDonnell Douglas Corp. V. Green,
411 U.S. 792, 802-03 (1973); Jackman v. Fifth Judicial Dist. Dep’t of Corr. Servs.,
728 F.3d 800, 804 (8th Cir. 2013).
Rinchuso’s proffered direct evidence consisted of: (1) a claim he was never
warned about inappropriate touching in 2014; (2) Brookshire’s decision not to
interview two male employees; (3) Brookshire’s failure to present video evidence of
Rinchuso touching coworkers or misusing his work computer; and (4) a lack of
conclusive evidence Rinchuso viewed pornography at work. Assuming his assertions
are true, none of Rinchuso’s purported direct evidence establishes the required
“specific link” between his termination and gender-based animus. See Thomas, 111
F.3d at 66. Brookshire’s policies permit termination for inappropriate conduct or
personal use of a work computer, the latter of which Rinchuso admitted. Declining
to interview two male employees while investigating inappropriate touching of
exclusively female employees is insufficient to show discriminatory intent in this
case.
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The absence of conclusive evidence that Rinchuso violated internet and
conduct policies is insufficient to prove improper termination because the central
question in determining if termination is proper is not whether the employee actually
engaged in prohibited conduct, but whether the employer believed so in good faith.
McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 861-62 (8th Cir. 2009).
The lack of conclusive evidence of Rinchuso’s violations is insufficient to prove that
Brookshire fired him with discriminatory intent where interviews with Rinchuso’s
coworkers and his own admissions provide a good-faith basis for termination.
Viewing all evidence and reasonable inferences in a light most favorable to Rinchuso,
he has failed to demonstrate direct evidence of discrimination sufficient to survive
summary judgment.
Rinchuso also failed to establish a prima facie case of disparate treatment.
Under McDonnell Douglas’s fourth prong, Rinchuso must proffer “specific, tangible
evidence” that Laura Cole was “similarly situated in all relevant respects, including
that the offenses were of the same or comparable seriousness.” Phillip v. Ford Motor
Co., 413 F.3d 766, 768 (8th Cir. 2005); Fiero v. CSG Sys., Inc., 759 F.3d 874, 879
(8th Cir. 2014). An unsupported, self-serving allegation that another employee was
similarly situated is insufficient. Fatemi v. White, 775 F.3d 1022, 1040 (8th Cir.
2015).
Rinchuso’s complaint contains only a bare allegation that he and Cole are
similarly situated. In response to Brookshire’s motion for summary judgment,
Rinchuso only references Cole once, and then to state that he no longer intends to
prove disparate treatment by use of a comparator. Under these circumstances,
Rinchuso has either failed to support his assertion that he and Cole were similarly
situated or completely abandoned proving disparate treatment by a McDonnell
Douglas inference. In either instance Rinchuso has failed as a matter of law to
provide sufficient evidence to give rise to a jury question on the issue of disparate
treatment.
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A. The Rule 59(e) Motion
We review the district court’s denial of a motion to alter or amend filed under
Rule 59(e) for abuse of discretion. Voss v. Hous. Auth. of the City of Magnolia, 917
F.3d 618, 623 (8th Cir. 2019).
The district court declined to consider Rinchuso’s direct evidence argument,
finding it was essentially an untimely motion to amend his complaint to add a new
theory of recovery. Proof by direct evidence and a McDonnell Douglas inference are
two alternative methods of proving disparate treatment, not separate theories of
recovery. It was permissible for Rinchuso to prove his claim either by direct evidence
or by using the McDonnell Douglas framework. The district court abused its
discretion in denying Rinchuso’s Rule 59(e) motion after its order granting summary
judgment misidentified a method of proof as a theory of recovery.
Even so, abuse of discretion in denying a Rule 59(e) motion is harmless if the
court did not err in assessing the underlying claim. Auto Servs. Co., Inc. v. KPMG,
LLP, 537 F.3d 853, 857 (8th Cir. 2008). Because Rinchuso failed to present
sufficient direct evidence or demonstrate a prima facie case under McDonnell
Douglas, the district court did not err when it granted summary judgment for
Brookshire. Having properly assessed the underlying claim, any error in denying
Rinchuso’s Rule 59(e) motion was harmless.
III. Conclusion
For the foregoing reasons, we affirm.
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