Albert N. Collins, Jr. v. Kansas City Missouri Public School District

United States Court of Appeals
For the Eighth Circuit
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No. 23-2182
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Albert N. Collins, Jr.
lllllllllllllllllllllPlaintiff - Appellant
v.
Kansas City Missouri Public School District
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: January 9, 2024
Filed: February 12, 2024
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Before LOKEN, ARNOLD, and STRAS, Circuit Judges.
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ARNOLD, Circuit Judge.
After the Kansas City Missouri Public School District terminated Albert
Collins's employment, he sued the school district, claiming that it had discriminated
against him because he is black and because he engaged in protected activities. The

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school district successfully moved the district court1 for summary judgment in its
favor, and Collins appeals. Reviewing the court's decision de novo, see Beasley v.
Warren Unilube, Inc., 933 F.3d 932, 936 (8th Cir. 2019), we affirm.
Collins had been employed in various positions at the school district for about
a decade, and, at the time relevant here, he was an "attendance ambassador." He
reported directly to Samuel Johnson, whom Collins characterized as his longtime
friend. Johnson later left the school district and reported to state education authorities
that the school district had engaged in "attendance fraud." To support his allegations,
Johnson supplied the authorities with information that Collins had provided him. The
school district hired a third party to investigate the allegations, and once that
investigation was complete, the school district fired Collins.
Collins admits that he participated in the fraud. Emails sent between Johnson's
and Collins's personal accounts reveal that Johnson provided Collins with lists of
students whose attendance records he would change at home from his personal
computer without supporting documentation. To illustrate, one day Johnson sent
Collins an email titled "Lets work my brother" in which he asked Collins to "move
50–70 a day" and said that "if you could move about 50 up tonight . . . that would be
great." So Collins did so. That particular day was no aberration. Collins testified that
he regularly altered attendance records until "they hit whatever mark they needed to
hit," and he admitted that he decided which students' records to alter from the
provided lists. Collins never questioned Johnson's directives or refused to follow
them.
In his complaint, Collins raised numerous claims against the school district
arising out of his termination, but only three remain relevant. The first is a claim that
1The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
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the school district discriminated against him on the basis of race when it terminated
him, in violation of Title VII (42 U.S.C. § 2000e-2(a)(1)) and 42 U.S.C. § 1983. The
second is that the school district retaliated against him for engaging in activities
protected under Title VII (42 U.S.C. § 2000e-3(a)) and § 1983. Finally, Collins
complains that the school district violated a state law that prohibits public employers
from retaliating against whistleblowers. See Mo. Rev. Stat. § 105.055.3(1).
Collins maintains that the district court erred in granting summary judgment
to the school district on his race-discrimination claim. Summary judgment is
appropriate where the moving party shows that there are no genuine disputes of
material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(a). Title VII prohibits employers from discriminating against employees on the
basis of race, see 42 U.S.C. § 2000e-2(a)(1), and § 1983 subjects to suit anyone acting
under color of state law who deprives someone of a right secured by federal law.
Collins has no direct evidence of racial discrimination. He does not point to any
record evidence showing that the two people responsible for terminating
him—Human Resources Director Jennifer Collier and Employee Relations Director
Marilyn Overton—ever said anything to suggest that Collins's race motivated their
decision to terminate him.
To succeed on his claim under both Title VII and § 1983 without direct
evidence of discrimination, Collins must first establish a prima facie case of
discrimination, which means that he must show that the circumstances of the case
give rise to an inference of racial discrimination. See Beasley, 933 F.3d at 937;
Burton v. Ark. Sec'y of State, 737 F.3d 1219, 1229 (8th Cir. 2013). If he establishes
a prima facie case, then the school district must articulate a legitimate,
nondiscriminatory reason for Collins's termination. See id. The school district here
identified Collins's participation in attendance fraud as that reason, which we believe
is a manifestly sufficient reason for terminating him. To prevail, Collins must show
that the school district's reason was a pretext for unlawful discrimination. See id. We
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will assume that Collins has established a prima facie case and so consider whether
he has demonstrated pretext. See Onyiah v. St. Cloud St. Univ., 684 F.3d 711, 716
(8th Cir. 2012).
We agree with the district court that Collins hasn't done so. He attempts to
demonstrate pretext by arguing that a white employee named Rick Bishop
participated in the scheme and yet was not terminated. We've recognized that "[a]
common approach" for showing that an employer's claimed reason for termination is
a pretext for unlawful discrimination "is to introduce evidence that the employer
treated similarly-situated employees in a disparate manner." See Beasley, 933 F.3d
at 938. But the plaintiff must show that the two "were similarly situated in all relevant
respects," which is a showing we've described as "rigorous." See id. That means that
they "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." See id.
The district court correctly held that Collins and Bishop were not similarly
situated enough to permit a reasonable jury to find that race motivated the school
district's decision. Bishop worked in the school district's IT department and reported
to a different supervisor from Collins's. Though Collins says that he had to work with
IT staff as part of his job and "had to go through Bishop to get things to perform his
duties," that's a far cry from stating that he and Bishop "dealt with the same
supervisor" or were "subject to the same standards." See id. Collins also told the
district court "that he and Bishop worked closely together in the same department,"
but the court was right to conclude that no reasonable juror could agree since Collins
admitted in his deposition that he wasn't a member of the IT department at the
relevant time, could not provide the names of IT employees other than Bishop, and
could not recall ever attending an IT department meeting.
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It is unclear, moreover, whether Bishop engaged in the same conduct as
Collins. Collins implicates Bishop in the attendance fraud but never explains
specifically what Bishop did to further it. He testified at his deposition that Bishop
"was in the same knowledge" and "gave us access to do the corrections in attendance
audits that we did." But it's uncertain what Collins meant by this, and he offers no
explanations or evidence to support his assertion that Bishop knowingly participated
in the scheme, as opposed to unknowingly helping provide the digital means by
which Johnson and Collins could commit the fraud. Collins also testified that "[a]s
far as I know he was the one that we had to get the reports from." Again, Collins's
meaning is unclear. He admitted, though, that he did not know whether "Bishop was
tasked with changing individual scores on various students and then putting that
information in the way" Collins did. The shortcomings in the record fall on Collins
because he bears the burden of demonstrating that Bishop is similarly situated in all
relevant respects. See Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 956 (8th Cir.
2012). We don't think he has carried that burden.
In another apparent attempt to demonstrate pretext, Collins says that he and a
black secretary were singled out for discipline and termination for their roles in the
fraud. We disagree. As an initial matter, Collins admitted at his deposition that he
doesn't know if the school district terminated the secretary for participating in
attendance fraud or for something else altogether. But even if her termination
stemmed from her participation in the fraud, Collins still hasn't shown that the school
district treated any similarly situated non-black employee more favorably than the two
of them, so he hasn't demonstrated that the school district actually singled them out.
We've already held that Collins failed to show that the one comparator Collins
names—Bishop—was similarly situated to him. Though Collins doesn't name other
potential comparators, he does allude to some. He observes that he and the secretary
were the only employees of seven allegedly involved in the fraud who were
terminated. In support of this observation, Collins refers us to testimony that Collier
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gave in another case. Assuming that we should consider that testimony, Collier made
it clear in that testimony that the school district no longer employs the other alleged
participants, most of whom are white. Collins points out that the school district
allowed these other employees to resign in lieu of termination. Collier's testimony
reveals that is true for some of these employees, though others had already left the
school district by the time the investigation into attendance fraud was complete.
Regardless, even if we accept that forcing someone to resign in lieu of termination
is materially different from outright termination and that Collins was not also
afforded the same choice, those employees afforded that choice were executive-level
employees, and Collins has failed to demonstrate that they answered to the same
supervisor as he. So they too are not similarly situated.
In sum, we are satisfied that Collins has failed to provide enough evidence for
a reasonable jury to conclude that his termination was motivated by his race or had
anything to do with it. Collins may well believe that his termination was unfair or
disproportionate, but that's insufficient to succeed on his claim under Title VII and
§ 1983. See Beasley, 933 F.3d at 939. We hold that the court properly granted
summary judgment to the school district on his discrimination claim.
Collins's retaliation claim also fails. An employer may not discriminate against
an employee "because he has opposed any practice made an unlawful practice by this
subchapter, or because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchapter." See 42
U.S.C. § 2000e-3(a). To make out a prima facie case of retaliation, Collins must
present evidence that raises an inference that his termination "was causally linked to"
his protected conduct. See Pye v. Nu Aire, Inc., 641 F.3d 1011, 1021 (8th Cir. 2011).
Collins doesn't clearly identify what he believes was the protected conduct he
engaged in. At times he suggests that it was giving interviews to the school district
and the third-party investigator about the attendance-fraud scheme. But Collins
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doesn't explain how those interviews had anything to do with race. In fact, he
admitted at his deposition that the investigation was about attendance fraud and "was
not an investigation for race discrimination." Additionally, he told the Equal
Employment Opportunity Commission after his termination that the school district
retaliated against him "because of the information I possess." When asked to clarify
at his deposition, he said it was "for having the—the attendance names." The upshot
of all this is that he thought the school district retaliated against him not because he
engaged in protected activity but because of his knowledge of and participation in
attendance fraud, or perhaps because he helped make it known to others.
At other times Collins suggests that his protected activity was acting as a
witness for Johnson in claims he had brought against the school district. But as the
school district points out, Collins hasn't demonstrated that Johnson's claims had
anything to do with race. Collins affirmed at oral argument that he was adverting to
a specific complaint that Johnson had levied against the school district, but that
complaint doesn't raise allegations of racial discrimination or retaliation. And though
the word "retaliation" appears in that complaint as Collins says, Johnson was
complaining of the school district's alleged retaliation against him as a whistleblower,
not as someone who had participated in protected activity that concerns Title VII or
§ 1983. So the district court did not err in granting summary judgment on this claim
either.
Finally, Collins appeals from the grant of summary judgment on his state-law
whistleblower claim. Missouri law prohibits a public employer from disciplining an
employee for disclosing activities that the employee reasonably believes are a
violation of law, mismanagement, a gross waste of funds, or an abuse of authority.
See Mo. Rev. Stat. § 105.055.3(1). But that law specifically excludes from its
protection a disclosure that "relates to the employee's own violations," see id.
§ 105.055.4(4), and the district court held that this exclusion applied.
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On appeal, Collins resists the court's grant of summary judgment on this claim,
but he fails to address the court's holding that the statutory exclusion applied. He
instead raises other matters that the parties raised below, such as whether Collins
could have "disclosed" something that the school district already knew or whether he
could make a disclosure to a fellow wrongdoer. But Collins doesn't contest the district
court's holding that he can't take advantage of the whistleblower statute because the
information he shared related to his own misconduct. Since Collins failed to offer
some "meaningful argument" that the court erred in applying the statutory exclusion,
we deem his challenge to the court's grant of summary judgment on his whistleblower
claim waived. See Liscomb v. Boyce, 954 F.3d 1151, 1154 (8th Cir. 2020).
Affirmed.
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