Rod Warren; Eric Booker Plaintiffs - Appellants John Manz; Dion Foster; Bryant Wells v. Nucor Corporation

United States Court of Appeals
For the Eighth Circuit
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No. 24-1132
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Rod Warren; Eric Booker
Plaintiffs - Appellants
John Manz; Dion Foster; Bryant Wells
Plaintiffs
v.
Nucor Corporation
Defendant - Appellee
Chris Booker; Troy Brooks; Brad Campbell; Kellie Crain; Jay Henderson; Lou
Incrocci; David Reinhart; Greg Starnes; Keith Williams
Defendants
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Appeal from United States District Court
for the Eastern District of Arkansas - Northern
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Submitted: July 18, 2025
Filed: September 9, 2025
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Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
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GRUENDER, Circuit Judge.
Rod Warren and Eric Booker appeal the district court’s1 grant of summary
judgment to the Nucor Corporation on their claims of racial discrimination, a racially
hostile work environment, and retaliation. We affirm.
I. Background
On review of a grant of summary judgment, we view facts and draw
“reasonable inferences” in the light most favorable to the nonmoving party—here,
Warren and Booker. See Scott v. Harris, 550 U.S. 372, 378 (2007). We begin with
Warren’s allegations. Warren worked at the Nucor steel plant in Blytheville,
Arkansas from 1994 until his termination in 2022. During his long tenure at the
plant, Warren received a mixture of positive and negative feedback on his
performance reviews, as well as occasional warnings for policy infractions. He also
alleges various incidents occurred during this time that created a racially hostile
work environment.
The events that immediately led to Warren’s termination began on July 9,
2021, when Nucor management interviewed Warren regarding a recent allegation
by one of his coworkers that Warren had used a racial slur. The interview began
with a management representative asking if Warren knew why he was being
interviewed. He replied, “If I’m over here, it’s always some BS.” Upon being
informed of the coworker’s allegation, Warren became irate and aggressive. He
denied that he had used a racial slur and stated that he was “madder than a
motherfucker” and “one pissed off motherfucker.” He also stated, “I can’t keep my
shit together,” “I need to cool the fuck down,” and “It’s real tough for me to keep
my shit in check.” He threatened the coworker whom he believed had reported him,
stating that management had “better hope” he didn’t see the coworker. As a result
1 The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.

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of Warren’s actions during the July 9 interview, Nucor suspended Warren with pay
while it investigated the allegation.
Nucor’s investigation did not confirm that Warren had used a racial slur, and
Nucor allowed Warren to return to work.2 However, because of Warren’s conduct
during the interview, on July 21 Nucor management held another meeting with
Warren and informed him that he would be required to attend anger management
classes and would be placed on a last chance agreement. The last chance agreement
made clear that Warren would be terminated if he failed to comply with Nucor’s
policies again. Warren signed the agreement but refused to sign the related third
step warning, asserting that he wanted Nucor to further investigate his previous
attendance violations identified in the document. A little over a month later, in
September 2021, Warren filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”), alleging that his recent
discipline—i.e., the anger management classes and last chance agreement—resulted
from racial discrimination.
Several months later, in February 2022, Warren failed to perform certain job
duties. When his supervisor questioned Warren about his performance, Warren
stated that he had already told the supervisor’s boss about the incident. The
supervisor continued to question Warren, who became irate, insisting that he had
failed to perform his job duties because he had been sick. During this conversation,
Warren swore repeatedly and informed the supervisor, among other things, that he
had “stayed to help my fucking co-worker out” and that “[n]ext time I will take my
ass home.” Three days later Nucor fired Warren, citing poor work performance,
insubordination, and aggressive and threatening behavior in violation of his last
chance agreement.
2 Warren asserts that he did not, as accused, use the word “nigger” in
conversation with his coworker. Rather, he maintains that he used the word “negro”
and that he told his coworker that it means “less than and not a citizen of.”

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We now turn to Booker’s allegations. Booker worked at the Blytheville steel
plant from 2018 until his resignation in 2022. Like Warren, Booker alleges that he
suffered racial discrimination and harassment while he was employed at Nucor. For
instance, in September 2020, Booker used the same procedures that his white
coworkers always used to request a vacation day, but his supervisor singled Booker
out for discipline. Booker complained to management about the supervisor, and,
after an investigation, Nucor reassigned the supervisor. Booker filed an EEOC
charge in January 2021, alleging racial discrimination related to this incident. Then,
sometime in early April 2021, a different supervisor, who was also white, made an
offensive remark to Booker about being his “slave driver” while pretending to crack
a whip. On April 26, Booker reported the incident to Nucor, which investigated the
incident. It fired the offending supervisor eight days later on May 3. On May 2,
Nucor issued Booker a first-step warning because he had arrived late for a scheduled
shift. Booker believed that this warning was issued in retaliation for his report.
Accordingly, on May 27, Booker filed a second EEOC charge, alleging that Nucor
had retaliated against him because he had filed the first EEOC charge and because
he had reported the whip-cracking incident. By October 2022, Booker had come to
believe that Nucor management desired him to leave and were “nitpicking” and
“targeting” him when they created and enforced rules. Booker resigned, citing his
low morale and bad experiences with management.
In April 2022, Warren and Booker, along with three other current and former
Nucor employees, sued Nucor and several of its employees in Arkansas state court,
seeking damages under Title VII, the Arkansas Civil Rights Act of 1993 (“ACRA”),
and the Arkansas Constitution. Nucor removed the case to the Eastern District of
Arkansas. The plaintiffs subsequently amended their complaint, removing one
plaintiff, all the Nucor employee defendants, and all the Title VII claims.3 Nucor
3 The case was initially removed pursuant to federal question jurisdiction, see
28 U.S.C. § 1441, because of the Title VII claims. Then, in the First Amended
Complaint, the plaintiffs dropped their Title VII claims as well as their claims against
the non-diverse parties. As complete diversity now exists, the district court

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moved for summary judgment, and the district court granted summary judgment to
Nucor on all the remaining claims. Warren and Booker appeal the grant of summary
judgment to Nucor on their claims of racial discrimination, retaliation, and a racially
hostile work environment under the ACRA.
II. Analysis
We review a district court’s grant of summary judgment de novo. Gareis v.
3M Co., 9 F.4th 812, 818 (8th Cir. 2021). Summary judgment is appropriate if, when
the record is viewed in the light most favorable to the nonmoving party, id., “the
movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We may affirm
summary judgment for any reason supported by the record. Gareis, 9 F.4th at 818.
Sitting in diversity jurisdiction, we apply state substantive law. Morgantown Mach.
& Hydraulics of Ohio, Inc. v. Am. Piping Prods., Inc., 887 F.3d 413, 415 (8th Cir.
2018). All claims here were brought under the ACRA and require the same analysis
as claims brought under Title VII. Henderson v. Simmons Foods, Inc., 217 F.3d
612, 615 n.3 (8th Cir. 2000).
A. Racial Discrimination
We first address Warren’s racial discrimination claim.4 Warren seeks to
establish this claim under the McDonnell Douglas burden-shifting framework rather
exercised jurisdiction pursuant to federal diversity jurisdiction. See 28 U.S.C.
§ 1332.
4 We need not address Booker’s racial discrimination claim. Booker
voluntarily nonsuited that claim before the district court and now argues he should
be allowed to revive it because Muldrow v. City of St. Louis altered our Title VII
antidiscrimination analysis. 601 U.S. 346, 359 (2024). Litigants cannot revive
previously nonsuited claims on appeal simply because an applicable legal standard
has changed. Once a party has intentionally relinquished a claim, “the claim is

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than by presenting direct evidence of discrimination. Therefore, to succeed, he
“must first make a prima facie case of employment discrimination.” See Moody v.
Vozel, 771 F.3d 1093, 1097 (8th Cir. 2014). To do this, Warren must prove that he
“(1) is a member of a protected group; (2) was meeting the legitimate expectations
of the employer; (3) suffered an adverse employment action; and (4) suffered under
circumstances permitting an inference of discrimination.” Id. (citation modified). If
Warren makes this threshold showing, then the burden shifts to Nucor to offer a
legitimate, non-discriminatory justification for the adverse employment action. See
id. If Nucor meets this burden, then the burden shifts back to Warren to prove that
Nucor’s justification is merely pretextual. See id.
Warren failed to establish the existence of a genuine issue of material fact
regarding the fourth element of his prima facie case—that he “suffered under
circumstances permitting an inference of discrimination.” See id. In response to
Nucor’s motion for summary judgment, Warren argued that similarly situated white
employees were subject to more lenient discipline than him. The district court
rejected this argument because Warren failed to present evidence of other white
employees who also violated a last chance agreement but who were treated more
leniently. On appeal, Warren does not contest this finding but instead argues that
the district court improperly ignored the evidence of pretext he had presented. He
points out that though evidence of pretext is usually considered at step three of the
McDonnell Douglas analysis, it may also be used to satisfy the “inference-of-
discrimination” element of the prima facie case. See Lake v. Yellow Transp., Inc.,
596 F.3d 871, 874 (8th Cir. 2010). Warren argues that he presented evidence of
pretext because Nucor “failed to follow its own policies.” See id. He asserts that
Nucor violated its policies when it (1) listed infractions that were over a year old on
his last chance agreement, (2) failed to have Warren sign the third step warning, and
(3) investigated an employee’s allegation that Warren had used a racial slur while
offsite.
waived and therefore unreviewable on appeal.” Styczinski v. Arnold, 141 F.4th 950,
955 (8th Cir. 2025).

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To show pretext Warren must establish that a genuine issue of material fact
exists regarding whether racial discrimination, rather than his own misconduct,
“actually motivated” Nucor’s termination decision. See Torgerson v. City of
Rochester, 643 F.3d 1031, 1047 (8th Cir. 2011). Warren’s arguments fail, because
Nucor’s alleged policy violations fail to demonstrate a discriminatory motive. First,
Nucor placed Warren on a last chance agreement because of his conduct during an
interview with company management. During this meeting he demonstrated an utter
lack of anger management, used extensive profanity, and threatened his coworker.
Warren was not placed on a last chance agreement because of his old infractions but
because of his own misconduct. Regardless of whether Nucor has a policy against
considering old infractions, that Nucor considered them here does not create an
inference of racial discrimination. Second, Nucor gave Warren the opportunity to
sign his third step warning, but he declined to do so. This does not give rise to an
inference of racial discrimination. And third, Nucor’s investigation of an off-site
racial slur does not create an inference of pretext. Even Warren admitted during his
deposition that Nucor should have investigated the allegation. The district court
properly granted summary judgment because Warren failed to establish the existence
of a genuine dispute of material fact regarding whether racial discrimination actually
motivated Nucor’s termination decision.
B. Retaliation
We next address Warren’s and Booker’s retaliation claims. To establish a
prima facie case of retaliation, an employee must prove that “(1) he engaged in
protected conduct, (2) he suffered a materially adverse employment action, and (3)
the adverse action was causally linked to the protected conduct.” Pye v. Nu Aire,
Inc., 641 F.3d 1011, 1021 (8th Cir. 2011).
Warren alleges two adverse employment actions: being placed on a last-
chance agreement and being terminated. He alleges two instances of protected
conduct: in September 2021 when he filed an EEOC complaint and at the July 21,

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2021 meeting when he said that he was being racially discriminated against after
being informed that he had been placed on a last chance agreement.5 The timing
does not permit an inference of retaliation. Nucor placed Warren on a last-chance
agreement before either instance of protected activity. And Nucor did not terminate
Warren until February 11, 2022—nearly seven months after the meeting and over
five months after the EEOC complaint. “Generally, more than a temporal
connection is required to present a genuine factual issue on retaliation,” and “[t]he
inference vanishes altogether when the time gap between the protected activity and
the adverse employment action is measured in months.” Tyler v. Univ. of Ark. Bd.
of Trs., 628 F.3d 980, 986 (8th Cir. 2011). Thus, Warren failed to establish a genuine
dispute of material fact as to whether his protected conduct was causally connected
to the adverse employment actions.
For his part, Booker claims he was retaliated against for complaining about
the supervisor who made an offensive remark about being his “slave driver” because
he received a tardiness warning the day before the supervisor was terminated.
Booker failed to establish that he suffered a materially adverse employment action.
See Muldrow, 601 U.S. at 357 (citing Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006)) (explaining that Title VII’s anti-retaliation provision
“applies only when the retaliatory action is ‘materially adverse,’ meaning that it
causes ‘significant’ harm”). The tardiness warning did nothing more than provide
notice that if Booker continued to arrive late, he could be fired. See Garrison v.
Dolgencorp, LLC, 939 F.3d 937, 943 (8th Cir. 2019) (“[Employer] only told
5 Warren also seems to assert that he was retaliated against when he was placed
on the last chance agreement after he expressed his general indignation during the
July 9 interview. This assertion fails. Disciplining an employee because he
threatened coworkers and used offensive language is not “retaliation.” Warren also
asserts—for the first time in his reply brief—that he engaged in protected activity
when he complained to his supervisor on January 12 that Nucor “is a racist
company.” He did not raise this before the district court and did not raise it here
until his reply brief. “It is well settled that we do not consider arguments raised for
the first time in a reply brief.” Wengert v. Rajendran, 886 F.3d 725, 729 n.2 (8th
Cir. 2018).

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[employee] that her role would change if she did not qualify for leave and continued
to miss work. This was not a threat to demote her for attempting to exercise her
statutory rights. Rather, it provided notice that unexcused absences from work
would have consequences.”). The district court properly granted summary judgment
to Nucor on Warren’s and Booker’s retaliation claims.
C. Hostile Work Environment
We finally address Warren’s and Booker’s hostile work environment claims.
“To sustain a claim for hostile work environment, a plaintiff must show that (1) he
or she is a member of a protected class; (2) he or she is subjected to unwelcome race-
based harassment; (3) the harassment was because of membership in the protected
class; and (4) the harassment affected a term, condition, or privilege of his or her
employment.” Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 518 (8th Cir.
2010) (citation modified). This is both an objective and subjective inquiry—in other
words, the harassment must be “both objectively hostile as perceived by a reasonable
person and subjectively abusive as actually viewed by” the plaintiff. Id. To
determine whether harassment was objectively hostile, “we look to the totality of the
circumstances, including the frequency of the discriminatory conduct, its severity,
whether it is physically threatening or humiliating or a mere offensive utterance and
whether the conduct unreasonably interfered with the employee's work
performance.” Id. at 518-19 (citation modified). This is a “demanding” standard
and does not encompass “ordinary tribulations of the workplace.” Id. at 519. The
workplace must be “permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Singletary v. Mo. Dep’t
of Corr., 423 F.3d 886, 892 (8th Cir. 2005).
Evidence of harassment not directly experienced by a particular plaintiff may
still be relevant to establishing an objectively hostile work environment, especially
where there is evidence that the offensive remarks became known to all plaintiffs.
Ellis v. Houston, 742 F.3d 307, 320-21 (8th Cir. 2014). Here, assuming that Warren

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and Booker each knew about the other’s experiences, we consider their claims
together.
Warren points to several distinct incidents as evidence of a racially hostile
work environment, while Booker points only to one—the incident where his white
supervisor referred to himself as Booker’s slave driver and made a whip-cracking
motion. Warren first asserts that his white coworker, motivated by racism, falsely
alleged Warren had used a racial slur. Warren also points to several other events
that occurred during his tenure at Nucor. In 2002, a black coworker told Warren that
a white supervisor had remarked “[w]ell, there goes the neighborhood,” after
learning that the coworker had bought a home nearby. Warren did not report this
incident to Nucor. In 2010, Warren and several coworkers circulated an email with
“poem-like text” that discussed racially offensive terms and topics. Nucor
determined that the email had violated its harassment policy and suspended the
employees for three days. Warren’s coworker, with his approval, published an
article criticizing the discipline and referencing three unidentified black former
employees who had resigned because they believed they had been mistreated or
discriminated against. In 2019 or 2020, a white Nucor employee posted a comment
to the Facebook page of Warren’s brother that made a joking reference to wearing
KKK robes. Warren reported the comment to his supervisor on a Monday. Nucor
completed its investigation that Friday and fired the offending employee the
following week. Also around this time, Warren viewed a video that had been posted
on social media by a white Nucor employee and that included a confederate flag
hanging in the background. Warren did not report this incident to Nucor.
“Simple teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the terms and conditions of
employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citation
modified). Most of Warren’s allegations involved isolated incidents that could
hardly be characterized as “extremely serious.” See id. An unreported twenty-year-
old remark that Warren heard secondhand, an email he circulated himself, and two
social media posts, one of which he never reported and the other of which resulted

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in the responsible employee’s immediate termination, do not rise to the “demanding”
standard required for hostile work environment claims. See Anderson, 606 F.3d at
519. The two most serious allegations are that Warren was subject to an unnecessary
investigation based on the false claim of his racist coworker and that Booker’s
supervisor referred to himself as Booker’s slave driver and made a whip-cracking
motion.
To establish a hostile work environment claim based on the actions of his
coworker, Warren must present evidence that Nucor “knew or should have known
about the harassment and failed to respond in a prompt and effective manner.” See
id. (citation modified); see also Vance v. Ball State Univ., 570 U.S. 421, 424 (2013)
(“If the harassing employee is the victim’s co-worker, the employer is liable only if
it was negligent in controlling working conditions.”). Warren failed to present any
evidence that Nucor knew or should have known his coworker was motivated by
racism when the coworker alleged Warren had used a racial slur. Even assuming
Nucor knew that his coworker might be racially harassing him by making the false
allegation, Warren provides no alternative “manner” in which Nucor ought to have
responded. Upon learning of the racial slur allegation, Nucor did not discipline
Warren but suspended him with pay—including pay for scheduled overtime—while
it investigated. Upon failing to confirm that Warren had used a racial slur, Nucor
fully reinstated Warren without discipline, albeit subject to a last chance agreement
because of his conduct during the July 9 interview with management. Warren
concedes that Nucor should have investigated the allegation; given this, we fail to
see what else Nucor should have done.
Similarly, Booker alleged only a single incident of harassment by his
supervisor, and Nucor responded to this incident “swiftly and effectively.” See
McCurdy v. Arkansas State Police, 375 F.3d 762, 773 (8th Cir. 2004) (finding
employer was not liable for hostile work environment claim based on supervisor’s
harassment when it acted “swiftly and effectively” by terminating the offending
supervisor). Within eight days of Booker’s initial report, Nucor had investigated
and terminated the offending supervisor.

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In sum, viewing the allegations as a whole, Warren and Booker failed to
establish the existence of a genuine issue of material fact regarding their hostile work
environment claims. The district court properly granted summary judgment to
Nucor on Warren’s and Booker’s hostile work environment claims.
III. Conclusion
For the foregoing reasons, we affirm.
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