Leroy Johnson v. Westinghouse Air Brake Technologies Corporation, doing business as WABTEC

United States Court of Appeals
For the Eighth Circuit
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No. 23-3066
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Leroy Johnson
Plaintiff - Appellant
v.
Westinghouse Air Brake Technologies Corporation, doing business as WABTEC
Defendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: April 10, 2024
Filed: June 13, 2024
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Before BENTON, GRASZ, and STRAS, Circuit Judges.
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BENTON, Circuit Judge.
Leroy L. Johnson did not disclose key facts during a workplace investigation.
Westinghouse Air Brake Technologies Corporation (Wabtec) fired him. After
removal, the district court1 granted summary judgment under the Missouri Human
Rights Act (“MHRA”); Title VII of the Civil Rights Act of 1965 (“Title VII”); and
1 The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.

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the Age Discrimination in Employment Act (“ADEA”). Having jurisdiction under
28 U.S.C. § 1291, this court affirms.
Johnson worked as a supervisor for Wabtec at its Independence plant—the
only salaried black employee during most of his time there. He supervised, trained,
and interacted with employees to ensure they performed their jobs correctly.
Johnson was also responsible to follow all company policies. Before the events here,
he had uniformly positive reviews and a clean disciplinary record.
Wabtec implemented COVID workplace policies and protocols that generally
followed the Center for Disease Control guidelines. Wabtec required employees to
immediately notify their supervisor or HR if they were “exposed” to or come into
“direct contact” with someone confirmed to have COVID-19.
Johnson was aware of these rules and expectations. His daughters, Shelia and
Kelia, worked at the same plant. On Sunday, August 9, 2020, Johnson and his
daughters learned that the daughters’ cousin tested positive for COVID. That
Monday, neither Johnson nor his daughters told their managers or HR that one of
them interacted with the cousin. Shelia left work early on Monday, not feeling well.
On Tuesday, Johnson told his direct supervisor, Devin Krahl, that “maybe Shelia was
around the cousin.” Krahl later said he was unsure whether Johnson said if he had
been in contact with the cousin. Johnson and Kelia left to get tested.
Based on conversations with all three of them, Wabtec believed: (a) one or
more of them had interacted with the COVID-positive cousin and with each other
during the previous week; (b) they knew the cousin had tested positive before
coming to work on Monday; (c) none of them notified management before coming
to work on Monday, and (d) Johnson interacted with employees. Wabtec ordered a
three-day shutdown of the plant. Wabtec sent all employees to be tested, suspending
production at the plant.

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Wabtec issued a Last Chance Agreement to Johnson, Shelia, and Kelia, which
they signed. The Agreement stated:
This Agreement is intended to serve as a last chance effort to address
the Employee’s inappropriate and complete disregard for the safety
rules, failure to adhere to COVID-19 protocol as outlined by the
Company, and irresponsible and disruptive behavior that resulted in
increased health risk to co-workers, a plant shutdown, and ultimately
financial loss.
Johnson’s Agreement provided: (a) it would be in effect until September 4, 2021;
(b) if Johnson committed any safety violation, misconduct, or noncompliance with
corporate policies, or did not satisfactorily perform his job duties, he would be
discharged immediately; (c) as a Production Supervisor, he needed to lead by
example and be a role model to employees; (d) as a Production Supervisor, he should
be a champion for safety, productivity, work ethic, teaching, and respect with the
employees at the site; and (e) failure to comply with any term of the Agreement
would subject him to immediate discharge.
On August 5, 2021, Shelia told the HR Manager, Caleb Carriere, that her
partner had tested positive for COVID. Carriere directed her to get tested and to
quarantine. Her results were negative. The following Wednesday, August 11, Shelia
went to her father’s house for about 30 minutes. That Friday, she again visited his
house, telling him she felt like she had allergies. They discussed whether she should
get tested that day; she did. The next day, Saturday, Johnson and the daughters
attended a family event, which lasted about 30 minutes. Later that day, Shelia
received positive results and alerted her father.
On Sunday, August 15, Johnson told Krahl that Shelia had tested positive.
Johnson reported for work on Monday. That day, HR received an anonymous tip
that Johnson may have been in contact with COVID. Krahl asked Johnson if he had
this contact. Johnson said that after dropping balloons off at the family event on
Saturday, he left. Out of caution, Wabtec sent Johnson home.

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HR investigated. Carriere, leading the investigation, asked Johnson if he had
been in contact with Shelia. Johnson mentioned contacting her only on Wednesday,
August 11, for about 30 minutes. Interviewed, Shelia said she had been at her
father’s house on Friday, August 13, for ten minutes. Again questioned about
contact with Shelia, Johnson admitted that she had been at his home on Friday, and
also that she was present at the outdoor family event on Saturday, August 14.
Stacey Scharlatt, Wabtec’s Vice President and HR Business Partner, decided
that Johnson had violated his Agreement by contacts with a COVID-positive
individual, without notifying Wabtec. In sum, Scharlatt decided:
So again he had multiple contacts with an individual who was COVID
positive and failed to, A, disclose that, came into work anyway, again,
putting the population at risk and then when directly asked about the
contact that he had had, he lied about that contact until he was
subsequently asked again about the scope and magnitude of those
interactions.
While acknowledging that Wabtec did not know definitively the nature of Johnson’s
contacts, Scharlatt concluded that Johnson knew Shelia was positive and failed to
proactively alert anyone about the nature of the contact. Wabtec terminated Johnson.
Wabtec’s general manager testified he did not recall who decided to terminate
Johnson but did recall the group that did and why: because “he was in close
proximity and did not acknowledge or advise of that close proximity of somebody
that was COVID positive” and he violated the Agreement. The three Wabtec
employees most involved in terminating Johnson—Scharlatt, Carriere, and a senior
HR manager—were all white and decades younger than Johnson (who was about 66
years old when terminated).
Wabtec offered Johnson a severance payment of three weeks’ pay, if he
surrendered any right to assert claims for wrongful termination. Johnson refused.

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He sued in state court for wrongful termination in violation of the MHRA, Title VII,
and ADEA. After removal, the district court granted summary judgment for Wabtec.
“This court reviews de novo a grant of summary judgment.” Torgerson v.
City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Summary
judgment is proper “if 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). To create a genuine dispute of fact, “the mere existence of a scintilla of
evidence in support of the plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). “On a motion for summary
judgment, facts must be viewed in the light most favorable to the nonmoving party
only if there is a genuine dispute at those facts.” Torgerson, 643 F.3d at 1042
(internal quotations omitted). “Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions,
not those of a judge.” Id. (cleaned up).
Title VII and the MHRA serve the “narrow purpose of prohibiting
discrimination” based on certain, discrete classifications, including age and race.
Haigh v. Gelita USA, Inc., 632 F.3d 464, 471 (8th Cir. 2011); 42 U.S.C. §§ 2000e
- 2000e-17 (prohibiting race and color discrimination); § 213.070.2, RSMo Supp.
2017 (prohibiting race, color, and age discrimination).
Because Johnson identifies no direct evidence of discrimination, his claims
are analyzed under the burden-shifting framework set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802 (1973). See Smothers v. Rowley Masonic
Assisted Living Cmty., LLC, 63 F.4th 721, 727-28 (8th Cir. 2023) (ADEA); Button
v. Dakota, Minn. & E. R.R. Corp., 963 F.3d 824, 831 n.5 (8th Cir. 2020)
(acknowledging that Missouri courts apply McDonnell Douglas to the MHRA);
Grant v. City of Blytheville, 841 F.3d 767, 773 (8th Cir. 2016) (Title VII).

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Johnson argues the district court improperly weighed evidence on summary
judgment.
At summary judgment, claims based on indirect evidence must satisfy a prima
facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. To establish a
prima facie case of race or color discrimination under Title VII or the MHRA,
Johnson must show: (1) he is a member of a protected class; (2) he met his
employer’s legitimate expectations; (3) he suffered an adverse employment action;
and (4) the circumstances give rise to an inference of discrimination. Watson v.
McDonough, 996 F.3d 850, 855 (8th Cir. 2021) (Title VII); Guimaraes v.
SuperValu, Inc., 674 F.3d 962, 973-74 (8th Cir. 2012) (MHRA); see also Lampley
v. Mo. Comm’n on Hum. Rts., 570 S.W.3d 16, 22 (Mo. banc 2019) (“When
reviewing cases under the [MHRA], appellate courts are guided by both Missouri
law and any federal employment discrimination (i.e., Title VII) case law that is
consistent with Missouri law.”) (cleaned up).
There is no dispute here about the first three elements of the prima facie case.
The fourth element is disputed: Whether Johnson can establish an inference of
discrimination “by showing more favorable treatment of similarly situated
employees who are not in the protected class, biased comments by a decisionmaker,
or that the employer failed to follow its own policies or shifted its explanation of the
employment decision.” Mayorga v. Marsden Bldg. Maint. LLC, 55 F.4th 1155,
1162 (8th Cir. 2022).
On this record, Johnson almost repudiated his claims of discrimination.
Asked whether Wabtec terminated his employment because of his race, Johnson
testified, “No. I’ll say no.” Asked whether he was treated less fairly, he said
“Maybe, maybe because of race. I’d have no clue. But why would I say that.”
Johnson agreed that no current or former Wabtec employees made any
statements to him suggesting race discrimination. But he argues he established a
prima facie case by showing that Wabtec treated similarly situated white employees

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more favorably than him. Johnson points to Betty Bonham and James Jones as
receiving offers for higher severance pay than his. But both of them, two older
salaried white employees, were not similarly situated because of the nature of their
separations. Unlike Johnson, neither Bonham nor Jones were terminated for
misconduct. Bonham was involuntarily laid off, Jones fired due to a reduction in
force. Though Jones had a last chance agreement in place, he was not discharged
for violating it—as Johnson was. These differences demonstrate they were not
“similarly situated in all relevant respects.” Grant v. City of Blytheville, Arkansas,
841 F.3d 767, 774 (8th Cir. 2016), quoting Young v. Builders Steel Co., 754 F.3d
573, 578 (8th Cir. 2014).
Johnson counters, asserting Wabtec fabricated a reason to terminate him, thus
treating him differently than Bonham and Jones. Johnson cites no evidence of
fabrication, except for claiming he did not violate all the COVID policies. Johnson
asserts his notification to Krahl on Sunday, August 15, complied with Wabtec’s
policies. Even so, Johnson violated the Agreement by his non-disclosures. The
Agreement subjected Johnson to immediate discharge for safety violations,
misconduct, and unsatisfactory performance of job duties. Even if Johnson’s
interactions with Shelia between Wednesday and Saturday did not meet the CDC
definition of “close contact,” Johnson failed to disclose to Carriere the circumstances
of the interactions until after confronted about omissions. The Agreement and its
precipitating facts put Johnson on notice that he had to be completely candid about
any potential exposure to COVID.
Johnson emphasized that he made significant disclosures to Krahl who told
him to come to work on Monday. Johnson, however, did not tell the full story to
investigator Carriere when first questioned. Wabtec could reasonably believe
Johnson’s failure to be fully candid was a safety concern, amounting to misconduct.
Johnson’s misconduct was a ground for termination, beyond any COVID policy
violations. The district court properly granted summary judgment on Johnson’s
MHRA and Title VII claims.

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This Court need not address the ADEA claim because on appeal, Johnson
waived this claim. In his opening brief on this claim, he argues only that he did not
waive it at the district court and disagrees with the district court’s application of
Eighth Circuit precedent on waiver. At no point does Johnson address the merits of
his claim, thus waiving any challenge to them. Summary judgment was properly
granted on the ADEA claim. See United States ex rel. Ambrosecchia v. Paddock
Labs., LLC, 855 F.3d 949, 954 (8th Cir. 2017) (claims not raised in an opening brief
are deemed waived).
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The judgment is affirmed.
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