Myron CANADY, Appellant, v. WAL-MART STORES, INC., Appellee, 440 F.3d 1031

WOLLMAN, Circuit Judge. Myron Canady appeals from the district court’s grant of

summary judgment to Wal-Mart Stores, Inc. (Wal-Mart) on his race-based employment discrimination and hostile work environment claims. We affirm. I. Canady, an African American, worked at the Springfield, Missouri, Wal-Mart as a produce associate from June 2001 until he was terminated in December 2001. Cana-dy’s duties included stocking, cleaning, and maintaining the floors. Paul Smith was Canady’s direct supervisor, and Smith reported to Marian Kirch, a co-manager. Rick Risenhoover was the general manager of the Springfield Wal-Mart.

Shortly after being introduced to Cana-dy, Smith referred to himself as a “slave driver” when describing his reputation as a manager within the store. Approximately one week after Canady reported the comment to Kirch, Smith met with Canady to discuss the matter and apologize for the comment. Later that summer, Smith, mimicking the actors in the film Rush Hour, asked Canady, “What’s up, my nig-ga?” This occurred in the break room, and Canady did not complain at the time of the incident.

In his affidavit, Canady alleges that Smith also referred to him as a “lawn jockey,” stated that all African Americans look alike, and remarked that Canady’s skin color seemed to wipe off onto towels. ■ On September 23, 2001, Canady and two other Wal-Mart associates were scheduled to work in the produce department. One of the associates left without permission, and Dennis Brown, the manager on duty, excused the other for a family emergency. When Brown explained to Canady that he would be the only associate in the produce department that night, Canady became upset.

Brown asked Canady to write down his complaints so that management could address the situation. Canady submitted a letter to Brown later that night, stating that the day shift was not fulfilling its responsibilities. The next day, Risenho-over, Kirch, Smith, and Canady attended a meeting to discuss Canady’s complaints. At the meeting, Canady mentioned the “What’s up, my nigga?” comment, and Smith apologized. Following that meeting, Smith did not use that phrase again. On December 17, 2001, Canady was eating an orange in the food preparation area.

Wal-Mart’s policy prohibits eating in that area, and inspectors had recently cited the Springfield store for having an aluminum can in the food preparation area. When Brown asked Canady to stop eating, Cana-dy began arguing loudly with him. In response to Brown’s call, Kirch came to the produce department. Canady continued to yell in front of customers and other associates, whereupon Kirch suspended him for the remainder of the day. Kirch investigated the incident and spoke with the district manager and personnel in the loss prevention department.

He then obtained approval from Wal-Mart’s corporate office to terminate Cana-dy. After conferring with Kirch, Risenho-over decided to terminate Canady for gross misconduct and insubordination. On December 18, 2001, Kirch informed Cana-dy of Risenhoover’s decision. II. We review de novo the district court’s grant of

summary judgment, viewing the evidence in the light most favorable to the nonmoving party. Zhuang v. Datacard Corp., 414 F.3d 849, 854 (8th Cir.2005). We conclude that

summary judgment is proper only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Zhuang, 414 F.3d at 854. A. Canady contends that the district court erred in granting

summary judgment on his employment discrimination claim because Smith’s comments constituted direct evidence of unlawful race discrimination. We disagree. To present direct evidence of discrimination, Canady must establish evidence “sufficient to permit the factfinder to find that [the discriminatory] attitude was more likely than not a motivating factor in the employer’s decision.” Simmons v. Océ-USA, Inc., 174 F.3d 913, 915 (8th Cir.1999). Smith’s use of the term “slave driver” and the phrase ‘What’s up, my nigga?” could well be considered racially offensive.

Smith, however, was not involved in Risenhoover’s decision to terminate Canady. It was Kirch’s decision to suspend Canady and Risenhoover’s decision to terminate him. Absent a causal link between the racial comments and the adverse employment action, Smith’s comments are best classified as, “statements by a decisionmaker unrelated to the decisional process.” Id. at 916 (internal citations and quotations omitted). Canady also failed to establish indirect evidence of unlawful race discrimination. To survive

summary judgment under the burden-shifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the plaintiff must establish a prima facie case of employment discrimination. Id. at 802, 93 S.Ct. 1817. If established, the employer may advance a legitimate, nondiscriminatory reason for the employee’s discharge. Id. The burden of production then returns to the plaintiff to show that the employer’s reason is a pretext for racial discrimination. Id. at 804, 93 S.Ct. 1817.

We agree with the district court that Canady did not establish a prima facie case of race-based employment discrimination. To establish a prima facie case, a plaintiff must show the following: (1) he was a member of a protected group, (2) he was meeting the legitimate expectations of his employer, (3) he suffered an adverse employment action, and (4) there are facts that permit an inference of discrimination. Zhuang, 414 F.3d at 854. The parties agree that Canady is a member of a protected group and that he suffered an adverse employment action when Wal-Mart terminated him.

The parties dispute whether Canady was meeting the legitimate expectations of Wal-Mart, but even if he was, Canady has not shown that there are facts that permit an inference of discrimination. Canady merely stated his belief that he was treated differently than similarly situated Caucasian employees. Canady presented no evidence that WalMart treated other insubordinate employees differently, and Wal-Mart has presented evidence of several Caucasian employees who were terminated for conduct that was less egregious than Canady’s.

Even if Canady had established a prima facie case, Wal-Mart has articulated a legitimate, nondiscriminatory reason for its actions. Wal-Mart terminated Canady because he was insubordinate. He refused to comply with a manager’s reasonable request, and he yelled at the manager in front of other associates and customers. Most importantly, Canady has not presented any probative evidence that Wal-Mart’s decision to terminate him was a pretext for unlawful discrimination. Smith’s remarks were made outside of the decision making process.

Without more, the comments are “not enough to create a trial worthy issue of pretext.” Simmons, 174 F.3d at 916 (internal citations and quotations omitted). B. Canady also contends that the district court erred in granting

summary judgment on Canady’s race-based hostile work environment claim. “To satisfy the high threshold of actionable harm, [Canady must show that] his workplace was permeated with discriminatory intimidation, ridicule, and insult.” Elmahdi v. Marriott Hotel Servs., Inc., 339 F.3d 645, 653 (8th Cir.2003) (internal citations and quotations omitted). “[M]ere utterance of an ... epithet that engenders offensive feelings in a[n] employee ... does not sufficiently affect the conditions of employment” to give rise to a triable hostile work environment claim. Id. (quoting Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Taking Canady’s allegations as true, Smith’s comments were offensive, but insufficient to meet the threshold of actionable harm. In so holding, we of course recognize, as cited by Judge Lay in his dissent, the Supreme Court’s recent decision in Ash v. Tyson Foods, Inc., — U.S. -, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (per curiam), in which the Court held that the Eleventh Circuit had erred in holding that modifiers are necessary in all instances to render the word “boy” probative of bias. Id. at 1196.

The Court went on to hold that, although the use of the word “boy” will not always be evidence of racial animus, the word must be considered in context. Similarly, in certain contexts, the term “slave driver” could be considered evidence of racial animus. There is nothing in the context of this case, however, to suggest that the term was probative of bias, for Smith used “slave driver” to describe his reputation as a manager. Smith apologized after Cana-dy complained, and he did not use the term again.

Likewise, as set forth above, when Canady mentioned during the September 24 meeting the “What’s up, my nigga?” remark, Smith apologized for having made the comment and thereafter did not repeat it. In light of these facts, then, we conclude that, however ill-chosen Smith’s comments, including his other earlier-described racially tinged statements, and however ill-advised his attempts at racial humor, Smith’s conduct did not give rise to an actionable claim of racial hostility- The judgment is affirmed. . The Honorable Richard E. Dorr, United States District Judge for the Western District of Missouri.