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Eighth Circuit


Smith v. Fairview Ridges Hospital, No. 08-1924 (8th Cir. Oct. 27, 2010). Panel: SHEPHERD, Melloy [BYE, dissenting in part]. Claims on Appeal: 1. Title VII harassment (race). 2. Title VII constructive discharge (race). 3. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Co-worker comments and incidents that lacked an "obvious or overt racial animus" and did not have an connection or nexus to such comments were properly not considered by the district court in the determination whether the harassment was severe or pervasive, in case involving African-American employee (asked she was Puerto Rican, her lunch was criticized because of its smell, comment about acne, plaintiff was criticized for talking to volunteer from Somalia, image from The Onion satire tabloid). Remaining comments, though more specifically racial (picture of Buckwheat character, fried chicken comment, reference to ghetto dwellers), insufficiently frequent or severe.2. Because co-worker harassment was not severe enough to constitute harassment, neither could it serve as constructive discharge.3. Notices of Corrective Action one month or more after complaints of discrimination and EEOC charge lack sufficient temporal proximity. Alternatively, employee failed to rebut legitimate, non-discriminatory business-related reasons for discipline. Although she contended that other employees were given lighter treatment for workplace infractions, she failed to establish that the co-workers were similarly situated in all relevant respects.

Bonn v. City of Omaha, No. 09-3332 (8th Cir. Oct. 19, 2010). Panel: COLLOTON, Wollman, Ebel. Claims on Appeal:  Title VII and retaliation. § 1983 claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff who issued report complaining about racial discrimination in community policing did not "oppose a practice" covered by Title VII, even if the report briefly mentioned police recruiting as one part of the problem.

Smith v. Hy-Vee, Inc., --- F.3d ----, 110 FEP 840 (8th Cir. Oct. 12, 2010). Panel: Per curiam [Arnold, Colloton] [BYE, dissenting in part]. Claims on Appeal: 1. Mo. state law harassment (sex). 2. Mo. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Judgment after a jury trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Female manager's sexually explicit comments and behavior which was directed equally at male and female employees not shown to motivated by sex.2. Plaintiff waived challenge to exclusion of specific incidents of harassment at trial by not presenting the evidence in an offer of proof (FRE103(a)), and not otherwise establishing plain error (FRE103(d)).

Prince v. Kids Ark Learning Center, LLC, --- F.3d ----, 110 FEP 618 (8th Cir. Sept. 29, 2010). Panel: Per curiam [Loken, Bright, Gruender]. Claims on Appeal: Title VII harassment (sex). Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: District court did not abuse discretion by failing to extend successor liability to company that acquired the defendant's license, employees and assets after the harassment took place. The new business took over, with different management and financing, in the wake of the original owner falling ill and the former business being investigated by the state for licensing violations. The judge found no connection between the charge of discrimination and the business reasons for reorganizing the business.

Newberry v. Burlington Basket Co., --- F.3d ----, 110 FEP 615 (8th Cir. Sept. 28, 2010). Panel: COLLOTON, Wollman, Ebel. Claims on Appeal: ADE and Iowa state law termination. Disposition Below: Judgment after a jury trial ($25,000 compensatory damages, $140,000 attorney fees) [plaintiff]. Outcome on Appeal:  Affirmed [plaintiff]. Grounds: Jury was charged under mixed-motive theory. After trial, the Supreme Court issued Gross v. FBL Financial Servs., Inc., 129 S. Ct. 2343 (2009), which holds that all ADEA cases are subject to the but-for/determining factor standard of liability. While this charge is no longer valid under Gross, court affirms the verdict under the Iowa Civil Rights Act. The Supreme Court of Iowa recently concluded, in a sex-discrimination action tried as a so-called "pretext" case, that an instruction derived from Eighth Circuit Model Civil Jury Instruction 5.96 on "motivating factor" was correct. DeBoom v. Raining Rose, Inc., 772 N.W.2d 1, 13 (Iowa 2009). Because the instruction was correct under Iowa law, and the award (solely compensatory losses) was awardable fully under that law, there was no prejudice to defendant because of the charge, despite the intervening change of law under Gross. Plaintiff counsel's hourly rate affirmed, even though it was higher than defense counsel's hourly rate. No proportionality required between jury award and attorney fee. District court within its discretion to reduce duplicative hours between two counsel.

EEOC v. Con-Way Freight, Inc., --- F.3d ----, 110 FEP 481 (8th Cir. Sept. 22, 2010). Panel: ARNOLD, Loken, Gruender. Claims on Appeal: 1. Title VII and § 1981 hiring (race). 2. Mo. state law hiring (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Applicant was interviewed by manager who made racially biased comments, but manager was fired before applicant's name was forwarded along for background check; when background check was completed, employee was disqualified because of past theft-related convictions. EEOC could not prevail either by straight pretext (she was not "qualified" for the position) or mixed-motive (person who made remark was not involved in the decision to turn her down). Title VII § 706(g)(2)(B) applies only to mixed-motive cases, and here the defendant offered only one reason why employee was not hired (she failed criminal background check). That manager reportedly told applicant that criminal background check "won't go that far" back not admissible under FRE801(d)(2)(D). 2. Plaintiff entitled to remand of state law claim, where Missouri law on mixed-motive is different from federal law and law ought to be clarified by state court.

Chism v. Curtner,--- F.3d ----, 110 FEP 292 (8th Cir. Aug. 31, 2010). Panel: BYE, Colloton, Gruender. Claims on Appeal: § 1981 termination. Constitutional and state law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: White officers who were not fired after arrests were not "similarly situated" to African-American plaintiff for purpose of prima facie test, where they were under different decision-makers. Alternatively, plaintiff failed to show that reason for discharge (six arrests, culminating in arrest on federal charges) was a pretext. Although job rules specified that convictions rather than arrests could support a termination decision, rules were non-exclusive grounds for termination and employee was admonished that they must engage in good conduct.

Colenburg v. Starcon Intern., Inc., No. 09-2544 (8th Cir. Aug. 31, 2010). Panel: WOLLMAN, Smith, Colloton. Claims on Appeal: 1. Minn. state law promotion (race). 2. Minn. state law termination (race). 3. Minn. state law retaliation. 4. Minn. state law harassment (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant] 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Manager's contention that successful candidate had more relevant experience in same position (which he temporarily filled) not shown to be a pretext.2. Employee who was fired for having an altercation with a manger in front of co-workers cannot show that he was comparable to other, white employees who engaged in miscellaneous violations. Remark by co-worker to the effect that "that nigger is next" to be fired was inadmissible hearsay, not a party admission under FRE801(d)(2)(D).3. No prima facie evidence of causation between complaints of race discrimination, failure to promote and termination. No evidence that manager who made adverse decisions acted on racial complaints of others.4. There oral comments insufficiently severe.

Sheriff v. Midwest Health Partners, P.C., No. 09-3367 (8th Cir. Aug. 30, 2010). Panel: MURPHY, Benton[BEAM, dissenting in part]. Claims on Appeal:  Title VII harassment (sex). Disposition Below: Judgment after a jury trial ($100,000 compensatory damages) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Plaintiff presented sufficient evidence that the hostile work environment was motivated by sex:. Plaintiff testified that staff physician kissed her on the forehead. made physical contact with her on multiple occasions, including embraces where he pulled her against his body and brushed his hand against her breast. Record also established that environment was severe or pervasive, as it involved repeated grabbing over a two year period, which did not abate even after the employer imposed corrective measures. Attempted corrective measures were inadequate: "Midwest took no action after Sheriff's first complaint, waited seven weeks to confront Meyer after her second complaint, failed throughout to keep Sheriff informed, and never identified who was responsible for the investigation. Moreover, Meyer never fully consented to Midwest's remedial demands, and he continued to harass Sheriff by trying to mock and intimidate her." Plaintiff's award for emotional distress could be support by lay testimony. Under 42 U.S.C. § 1981a(b)(3)(A), plaintiff must establish a 101-employee Threshold to support an award of $100,000; court affirms the award over an objection (that the panel held had been procedurally waived) that the plaintiff had established only that the defendant employed 15 or more people.

Watson v. CEVA Logistics U.S., Inc., No. 09-3322, (8th Cir. Aug. 30, 2010). Panel: MELLOY, Hansen, Smith. Claims on Appeal: Title VII, § 1981 and state law harassment (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: African-American plaintiffs reported a host of racially-motivated offenses: slurs, Thereats, graffiti, the presence of Confederate flags, uneven discipline, false reports of violations and whites simply shunning or refusing to work with African-American co-workers. (As to the flags, the panel recognized the racial connotations but dropped a footnote acknowledging the differing significance that white Southerners and blacks invest in the stars-and-bars.) District court erred in framing the claim as one having only to do with occasionally slurs. It analyzes the record and holds that the district court understated the specificity of the attacks on plaintiffs. Comments were directed at plaintiffs and were made in their presence. Some comments were also directed at the plaintiffs in the presence of others, i.e., "I hate them damn n****rs," in reference to Watson, and Ryan Fisher's reference to Banks as a "f**king n****r." Some of the comments were made in a manner that a jury could reasonably conclude would be particularly demeaning or humiliating to the plaintiffs, i.e., "I told your black ass I wasn't going to do it," which was said to one plaintiff in front of a supervisor, rather than another co-worker. Slurs and other incidents evidencing racial animus were directed at co-workers in one particular protected group. Panel discredits defense arguments concerning graffiti; plaintiffs need not articulate with absolute precision the number of times they saw the graffiti and that we should analyze each viewing as a separate instance of harassment. "To that end, the 'key difference' between graffiti and a racial slur should not be overlooked: 'the slur is heard once' and 'vanishes in an instant, while graffiti remains visible until the employer acts to remove it." There were also allegedly Thereats to the plaintiffs' physical safety ("N****r, go down there and throw the switch" could mean that manager provoked a reaction from plaintiff and then Threatened him with physical violence), and instance where co-workers created dangerous situations in an effort to sabotage and potentially injure them. Jury could find corrective efforts, such as painting over graffiti and firing one offender, was not enough. A reasonable fact finder could conclude that supervisors at other times acquiesced in discriminatory behavior or were at least indifferent to complaints (e.g., plaintiffs told to "tough it out" because they had "targets on their backs").

Kirkeberg v. Canadian Pacific Ry., No. 09-1422 (8th Cir. Aug. 27, 2010). Panel: COLLOTON, Bye, Beam. Claims on Appeal: 1. AD and Minn. state law termination. 2. ADA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [plaintiff]. Grounds: 1. Under pre-amended ADA, employee failed to establish that monocular vision substantially limited his major life activities. Doctor's certification indicated that plaintiff need reduced work schedule only temporarily. Tiring more easily, finding foot travel more difficult, and not being able to read as long not a substantial limitation. Hepatitis C also not shown to be substantially limited. No "regarded as" liability, in the major life activity of working; employer never criticized employee's performance. Under Minnesota law, which uses a "materially limits" rather than "substantially limits" standard, result is the same. 2. Even assuming that retaliation for requesting a reasonable accommodation is actionable under 42 U.S.C. § 12203(a), employee never requested accommodation; never formally requested opportunity to relocate work to home.

Fuller v. Fiber Glass Systems, LP,618 F.3d 858 (8th Cir. 2010). Panel: BENTON, Murphy, Beam. Claims on Appeal: Title VII and § 1981 harassment (race). Disposition Below: Judgment after a jury trial ($65,000 compensatory damages, $63,930 attorney's fees) [plaintiff]. Outcome on Appeal:  Affirmed [plaintiff]. Grounds: Record presented sufficient evidence of an objectively severe or pervasive, racially-hostile work environment where the racist remarks continued over a two-month period. Notably, "[o]n [Fuller's] first day at the corporate office, her co-worker/trainer told her she didn't like black people." The panel also finds that the employer did not prevail, as a matter of law, on its Faragher/Ellerth affirmative defense, because Fuller did reasonably raise complaints under the company's anti-harassment policy, which were not timely resolved; plaintiff testified that within the first week, she complained to her supervisor about how she was treated, but supervisor took no remedial action, and in fact told the alleged harasser about her complaint. Another manager told the plaintiff just to "hang in there." Only after the plant manager took a formal complaint, about two months after starting in the corporate offices, were any measures taken by the company. Compensatory award based on lay testimony affirmed (finding also that it was not "clearly excessive"). Rejects other claims of trial error by employer (possible juror prejudice, admission of a manager's statement over a defense objection that it was obtained by improper ex parte communications, alleged instructional errors, and an alleged defect in allowing the magistrate judge to preside briefly over part of the trial). Affirms attorney's fee award over cross-appeals by both parties; rejects employer's suggestion that partial success warranted reduction of 50%, and plaintiff's suggestion that correct lodestar hourly rate was $250 not $225.

Cross v. Prarire Medows Racetrack & Casino, Inc.,615 F.3d 977, 109 FEP 1712 (8th Cir. Aug. 12, 2010). Panel: WOLLMAN, Hansen, Murphy. Claims on Appeal: Title VII and Iowa state law harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Four incidents in two years insufficiently severe or pervasive. Alternatively, admonition to employees to avoid horseplay was sufficient (in light of disputed evidence about how severe the misbehavior was), even if it was not in full compliance with company harassment policy. Employee also failed to pursue other avenues after it became clear that the first-level manage would not investigate complaints. Unreported incidents were not so open and notorious that employer should have been aware of them.

Fanning v. Potter, 614 F.3d 845, 109 FEP 1727 (8th Cir. 2010). Panel: COLLOTON, Bye, Arnold. Claims on Appeal: 1. Title VII retaliation 2. ADA, Title VII discrimination. Breach of settlement agreement [not discussed here]. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No evidence that the USPS took any action to terminate OWCP benefits. While seven of Fanning's health benefit refund payments were issued late, the amount were very small and delays were brief; would not likely dissuade reasonable employee. As to employee's administrative separation, by the time that employee's separation became effective on December 23, 2006, she had been on leave without pay for over six years, and her physician had advised at least four times that she was permanently and totally disabled and would never be able to return to work, which was not a pretext for retaliation.2. Claims were not plead; at most they were alluded to in attachments to complaint. Fed. R. Civ. P. 15(b)(2), which provides for an issue not raised in the pleadings to be tried by the parties' express or implied consent, does not rescue claims. The parties did not squarely address the claim in their summary judgment briefs.

Nyrop v. Independent school Dist. No. 11, 616 F.3d 728, 23 A.D. Cases 801 (8th Cir. 2010). Panel: RILEY, Gibson, Murphy. Claims on Appeal: ADA, Rehabilitation Act, and Minn. state law reasonable accommodation and hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Employee with MS was not substantially limited in a major life activity. Impairments required the employee to make adjustments (putting more breath into her speech, using air conditioning to control temperature) and cumulation of fatigue, sensory loss and difficulty in chewing and swallowing did not substantially impair ability to take care of self. Though she can not teach music, she had never claimed not to be able to work, and did in fact work in a variety of positions. Record of disability claim fails for the same reasons; record did not suggest that she was substantially limited. "Regarded as" liability fails; no evidence that school district, which continued to employ plaintiff, regarded her as substantially limited in working. Isolated comments about her fitness to work in particular jobs did not imply that supervisors thought she could work in general.

Fercello v. County of Ramsey, 612 F.3d 1069, 109 FEP 1516 (8th Cir. 2010). Panel: MELLOY, Bye, Shepherd. Claims on Appeal: Title VII and Minn. state law retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Plaintiff failed to establish that some or all of the events that occurred were either retaliatory. Loss of parking place and office relocation were not materially adverse. Exclusion from management meetings and e-mail might be deemed materially adverse, but same actions occurred simultaneously to others who did not have harassment complaints. Negative performance reviews, even if deemed materially adverse, occurred some six months after plaintiff complained, and (in any event) the employer sought varied feedback and complaints about the employee's performance were extensive. Plaintiff obtains no benefit for challenging particulars of the review. No evidence that oral warnings, complained about by employee, took place. Making fun of employee during meeting and ignoring contributions not materially adverse. Although placing employee under constant supervision could be evidence of retaliation, these steps pre-dated complaint of harassment. Failure to retain after probationary period occurred long after she made harassment complaint, and assessment of her performance was not shown to be tainted or dishonest. Conditions were not so intolerable as present circumstances of constructive discharge. Scattered assortment of events in the nineteen months after employee were petty, unsubstantiated or not casually related to complaint.

Wisbey v. City of Lincoln, NE, 612 F.3d 667, 23 A.D. Cases 618 (8th Cir. 2010). Panel: SHEPHERD, Smith, Benton. Claims on Appeal: ADA termination FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee was terminated not because she was "regarded as" disabled, but because she was certified as not fit for duty as an emergency dispatcher owing to her depression. Fitness-for-duty exam was not a prohibited medical examination under 42 U.S.C. § 12112(d)(4)(A) because it was job-related and supported by business necessity (public safety position). Plaintiff was also properly held to admission in FML application that she was presently unable to work.

Jones v. National American University, 608 F.3d 1039, 109 FEP 1004 (8th Cir. 2010). Panel: MURPHY, Riley, Gibson. Claims on Appeal: ADEA promotion. Disposition Below: Judgment after a jury verdict ($17,565 damages, $17,565 liquidated damages, plus attorney’s fees and costs) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: District court did not abuse its discretion in admitting job descriptions, concluding that two witnesses' testimony that the descriptions were posted at the job site was sufficient to establish authentication under Fed. R. Evid. 901(a) and that the descriptions were admissible as party-admissions under FRE 801(d)(2)(a). Defendant's EEOC position statement was properly admitted for impeachment purposes, even though the district court earlier excluded the EEOC file in its entirety. Judgment as a matter of law properly denied; jury could have found that the reason given by the defendant at trial for not promoting the plaintiff (lack of management skills) contradicted the reason given to the EEOC (sub-par performance in her current position), and was more likely than not a pretext for its actual reason -- that plaintiff was age 56 -- in the context of the entire record (that the successful candidate was more than two decades younger than the plaintiff and also lacked management experience, and the decision maker allegedly said of another candidate that “I'm not sure we want a grandpa working with our high school students”). District court did not err in refusing an “honest belief” instruction, and by instructing the jury that “[p]retext may be shown with evidence that the employer's reason for its employment decision has changed substantially over time.”

Kobus v. College of St. Scholastica, Inc., 608 F.3d 1034, 23 A.D. Cases 522 (8th Cir. 2010). Panel: LOKEN, Gruender, Benton. Claims on Appeal: AD and Minn. state law reasonable accommodation. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to affirmatively request a leave of absence to cope with depression, nor were his symptoms so conspicuous that the employer ought to have been deemed on notice. Court rejects EEOC ADA Enforcement Guidance suggesting that a request for time off to deal with stress is sufficient to trigger employer’s obligation to provide a reasonable accommodation.

Norman v. Union Pacific R.R. Co., 606 F.3d 455, 109 FEP 679, 23 A.D. Cases 328 (8th Cir. 2010). Panel: BENTON, Smith, Shepherd. Claims on Appeal: 1. ADA termination. 2. Title VII termination (sex, race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff made out prima facie case. She established that employer regarded her is mentally disabled and limited in her ability to work, and presented genuine issue of material fact whether she could have returned to work after recovering from a physical illness. She denied that she was not “qualified” for the job because never suffered a mental illness and recovered from her physical illness. Summary judgment is properly affirmed on ground that she was terminated for a legitimate, non-discriminatory reason (failing to submit release from physician certifying her ability to return to work). Employer need not give reasonable accommodation to a person merely regarded-as disabled. 2. Plaintiff not similarly situated to white male employee who was allowed to return to work from leave for mental illness, where that employee furnished the necessary medical release to employer.

Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 109 FEP 561 (8th Cir. 2010). Panel: MELLOY, Riley, Wollman. Claims on Appeal: 1. Title VII, §1981 harassment (reverse race). 2. Title VII, §1981 discipline and termination (reverse race). 3. ADEA termination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. No evidence that miscellaneous name-called was due to race, or that employer should be held liable for co-workers’ harassment that was not reported to the company. Occasional racial comments were also insufficiently severe or pervasive to support liability. No evidence that employee was subjectively offended, where he voluntarily return to work at the same site and suggested that his spouse apply to work there as well. 2. Plaintiff failed to identify similarly-situated minority employees, i.e., with driving accidents, who were treated more lightly. While a lack of investigation into the particular incident that caused his termination, he already had two prior preventable accident in his record. Fact that managers were black does not tend to establish a racial motive, and if anything cuts against it here because the black managers were also the ones who had employed him (“same actor”). 3. Even assuming that employee carried out administrative prerequisites, claim fails on the merits for the same reason as the race claim (i.e., failure to identify significantly younger comparables).

 Torgerson v. City of Rochester, 605 F.3d 584, 109 FEP 454 (8th Cir. 2010). Panel: SMITH, Murphy, [BENTON, dissenting in part]. Claims on Appeal: 1. Title VII, §1981 hiring (plaintiffs #1, 2) (sex, race). 2. § 1981 “national origin” claim (plaintiff #2). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Subjective panel-interview process had substantial impact (up to 40%) on rankings of firefighter applicants, and plaintiffs who had otherwise passed examinations wound up downgraded because one commissioner found one plaintiff “awkward” and “unsophisticated,” and the other because during the interview she supposedly did not demonstrate that she was better qualified that the candidates at the top of the list. Thus, as to prima facie case, it was sufficient to show that they passed the initial examinations, which made them similarly situated with the other candidates, except for the interview score. Although department could rely upon the final scores (with the interviews) as a legitimate, non-discriminatory reason for not hiring the plaintiffs, employees presented genuine issue of material fact on pretext based on (1) the subjective nature of the hiring process, including the panel and fire chief interviews; (2) the different standards commissioner used in the fire chief interviews; (3) commissioner's reference to plaintiffs as “unfit”; (4) the hiring of some white candidates with similar or lower qualifications than the appellants; and (5) the hiring of an addition al five white males after this challenged 2006 hiring process. Each issue presented credibility disputes for jury, especially as subjective aspects of process were not documented, and plaintiffs otherwise possessed similar qualifications to successful applicants 2. Failure to allege that Native American was a “race” rather than a “national origin” claim meant that plaintiff failed to state a claim.

Burkhart v. American Railcar Industries, Inc., 603 F.3d 472, 109 FEP 378 (8th Cir. 2010). Panel: MURPHY, Wollman, Shepherd. Claims on Appeal: 1. Title VII and Ark.. state law harassment (sex). 2. Title VII and Ark.. state law retaliation. State tort claim (not discussed here). Disposition Below: 1. Summary judgment [defendant] 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Harassment claims untimely. The only acts that are alleged to have occurred within 180 days of EEOC charge (and one year under state law) were not acts of sex harassment, but retaliation. 2. No proof of causation between making complaints about harassment and disciplinary action because employee had a long, pre-existing record of complaints about her performance.

Elam v. Regions Financial Corp., 601 F.3d 873, 108 FEP 1729 (8th Cir. 2010). Panel: GRUENDER, Shepherd, Lange. Claims on Appeal: Title VII/PD and Iowa state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Passing reference by manager to plaintiff as “the pregnant girl teller” which did not reflect bias but was purely descriptive was not “direct” evidence of discrimination. That employer attempted to accommodate employee by allowing her to come to work later not evidence of discriminatory animus. Nor was written warning about failure to perform her duties while she was absent from work due to morning sickness; no evidence that non-pregnant employees were treated relatively better when they were absent. Using direct method, and assuming that the plaintiff established a prima facie case, employee did not rebut legitimate, non-discriminatory reason (repeated acts of misconduct: use of cell-phone at teller window, abandoning station, laying head down arriving late to a training meeting). Other employee may have committed one of the violations but not all of them. All reasons given by employer were consistent with the complaint of poor performance.

Schultz v. Windstream Communications, Inc., 600 F.3d 948, 108 FEP1619 (8th Cir. 2010). Panel: BENTON, Smith, Shepherd. Claims on Appeal: ADE and Neb. state law benefits. ERISA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although benefit plan set eligibility for early retirement in part on age, this is permitted by 29 U.S.C. § 623(l)(1)(A)(i).

EEOC v. Kelly Services, Inc., 598 F.3d 1022, 108 FEP 1409 (8th Cir. 2010). Panel: SMITH, Melloy, Shepherd. Claims on Appeal: Title VII employment agency referral (religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: It is illegal "for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his . . . religion . . . ." 42 U.S.C. § 2000e-2(b). An employment agency's referral obligations under § 2000e-2 is "a question of first impression for this court"; open question whether an employment agency's failure to refer an applicant may constitute an "adverse employment action." Summary judgment warranted on alternative ground that EEOC failed to show that host employer had an available position to which defendant could actually refer employee when she applied for available temporary work. Employment agency not obliged to prove that an accommodation (under 42 U.S.C. § 2000e(j)) would place an "undue burden" on the host employer. addition ally, there was no evidence of discrimination by defendant, because it had a valid, non-discriminatory reason for not making the referral: host employer's "facially neutral, safety-driven dress policy prohibiting all employees-permanent and temporary-from wearing loose clothing or headwear of any kind," and employee wore a khimar (head scarf) for religious reasons. Outcome might have been different if the suit had been directly against host employer.

Helton v. Southland Racing Corp., 600 F.3d 954, 108 FEP 1505 (8th Cir. 2010). Panel: Per Curiam [Loken, Arnold, Benton]. Claims on Appeal: 1. Title VII and Ark. state law harassment and constructive discharge (reverse race). 2. Title VII and Ark. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Conduct was not sufficiently severe or pervasive to constitute harassment or constructive discharge (occasional yelling, once-a-week emails that employee considered demeaning). 2. Because only adverse action indicated by plaintiff was constructive discharge, and this claim failed as a matter of law, there was no "materially adverse action" to support a retaliation claim.

Lake v. Yellow Transportation, Inc., 596 F.3d 871, 108 FEP 1029 (8th Cir. 2010). Panel: BENTON, Murphy, Smith. Claims on Appeal: Title VII and § 1981 termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: The district court erred when it held that the plaintiff's attendance deficiencies meant that the employee was not "otherwise qualified" under McDonnell Douglas. Plaintiff is not required to disprove reason for firing him at prima facie stage of the analysis. Plaintiff also presented a genuine issue of material fact on pretext: "Yellow contends that Lake's unavailability during probation is immaterial, insisting it fired Lake primarily for tardiness and no other probationary employees were tardy. . . . But drawing the inferences in favor of Lake, [manager's] statements of expectations for probationary employees do not distinguish tardiness and unavailability. Lake [who is African-American] was fired under Yellow's policy, and white employees were not."

Ernster v. Luxco, Inc., 596 F.3d 1000, 108 FEP 916 (8th Cir. 2010). Panel: LOKEN, Bye [MURPHY, concurring]. Claims on Appeal: ADE and Iowa state law hiring. Disposition Below: Judgment following a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court appropriately instructed jury on issue of whether plaintiff sales representative was an independent contractor. Instruction not required to perfectly track Darden test. Bifurcating trial into deciding independent contractor issue first was proper, although as a legal question it was ultimately up to the district court to decide it. Sufficient evidence supported decision in favor of plaintiff being independent contractor, not covered by the relevant statutes, such as tax treatment of plaintiff, lack of benefits, plaintiff covered her own expenses, worked our in the field, set her own schedule, and testimony of other sales representatives who said they were contractors.

Lors v. Dean, 595 F.3d 831, 22 A.D. 1618 (8th Cir. 2010). Panel: Per Curiam [Wollman, Hansen, Melloy]. Claims on Appeal: ADA demotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Whether at the prima facie or pretext stage, plaintiff was unable to show that the proffered reason for the demotion (disobeying orders) was false and that the true cause was disability. Employer also offered accommodations (to take breaks to check blood sugar, flexibility in work schedule to treat condition).

Lewis v. Heartland Inns of America, L.L.C., 591 F.3d 1033, 108 FEP 449 (8th Cir. 2010). Panel: MURPHY, Bye [LOKEN, dissenting]. Claims on Appeal: 1. Title VII and Iowa state law termination. 2. Title VII and Iowa state retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff presented genuine issue of material fact whether employer enforced a de facto requirement that a female employee conform to gender stereotypes in order to work the day shift. Plaintiff, a front-desk clerk at a motel, describes her own appearance as "slightly more masculine," e.g., loose fitting clothing, men's button down shirts and slacks, avoiding makeup and wearing her hair short. New director complained that plaintiff lacked "Midwestern girl look" and that appearance of front-desk clerks during the day should be "pretty." Title VII plaintiff who is a woman need not must produce evidence that she was treated differently than similarly situated males. Title VII protects against adverse actions motivated by sex stereotyping, citing similar decisions in other circuits. It also holds that the record betrayed the pretextual nature of the employer's reasons for firing plaintiffs. "Evidence that Heartland's reason for the termination were pretextual include the fact that Lewis had a history of good performance at Heartland. She had no prior disciplinary record and had received two merit based pay raises. The two individuals who supervised her during the majority of her employment at Heartland both stated that they had no problem with her appearance, and at least one customer had never seen customer service like that Lewis had provided. On this record, a factfinder could infer a discriminatory motive in Heartland's actions to remove Lewis." 2. Plaintiff made out prima facie case. She engaged in oppositional conduct by complaining that she was subjected to a second interview by management for an illegal reason, discrimination because of the way she dressed. There was also temporal proximity (fired There days after raising a protest).

Hawks v. J.P. Morgan Chase Bank, 588 F.3d 959, 107 FEP 1603 (8th Cir. 2010). Panel: SMITH, Bye, Colloton. Claims on Appeal: Minn. state law discrimination and harassment (reverse sex). Disposition Below: Dismissed for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Conclusory allegation that he was treated differently and more hostilely then other employees fails to state a claim. No abuse of discretion in failing to grant more time to respond to motion or to reopen judgment.

Wimbley v. Cashion, 588 F.3d 959, 107 FEP 1603 (8th Cir. 2009). Panel: BENTON, Melloy, Gruender. Claims on Appeal: § 1983 termination (race, sex). Disposition Below: Qualified immunity denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Plaintiff correctional officer presented genuine issue of material fact about whether she was singled out for disciplinary termination for using pepper spray in a prison cell when a white male who committed the same violation was not fired. Warden credited white male officer's explanation that the discharge was justified despite substantial prisoner testimony to the contrary.

Gross v. FBL Financial Services, Inc., 588 F.3d 614, 107 FEP 1441 (8th Cir. 2009). Panel: COLLOTON, Melloy, Benton. Claims on Appeal: ADE and Iowa state law termination. Disposition Below: On remand from Supreme Court [defendant]. Outcome on Appeal: Remanded for new trial on liability [defendant]. Grounds: Age discrimination "mixed-motive" verdict (where jury instruction shifted the burden to the employer in the event that the jury found a "motivating factor"), could not be upheld independently under state law, the Iowa Civil Rights Act. DeBoom v. Raining Rose, Inc., 772 N.W.2d 1 (Iowa 2009), and other cases confirm that state law would track federal law on the issue of whether the burden would shift to the employer in the event of a "motivating factor" finding. Under Iowa law, the panel holds that at most the burden of proof would not shift "in a mixed-motive case unless the plaintiff shows by direct evidence that age was a motivating factor in the employer's decision." Plaintiff conceded that there was no "direct" evidence in his case, so the original jury charge (which provided for an unconditional shift in the burden of proof) was not an accurate statement of the law. Plaintiff also sought to include willfulness and compensatory damages in the remand, two issues that he lost in the first trial. But because Gross he failed to take his own appeal from the first verdict, these issues were forfeited.

Baker v. Silver Oak Senior Living Mgt. Co., 581 F.3d 684, 107 FEP 363 (8th Cir. 2009). Panel: COLLOTON, Riley, Bowman. Claims on Appeal: 1. ADE and Mo. state law termination. 2. ADE and Mo. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Whether Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), changed the liability standard under ADEA, this case was fully litigated under indirect method of proof. Direct evidence included comments by managers who participated in the termination decision that management should hire "younger, vibrant people," company "should start looking over applications better and try to consider hiring younger people," directions that managers should fire employees in their 50's and 60's to hire "younger workers," who would be "better workers, have more energy." Ambiguous comments ("dead wood," employee dressing "like an old lady"). Employee also was placed on probation after refusing instruction to fire older employee. Employer gave different reasons for decision at time of termination and later (added more reasons after charge and after civil action was filed). 2. District court erred in striking plaintiff's affidavit, where employer's deposition questions to plaintiff-witness were unclear. Employee presented protected opposition activity (i.e. complaining that employer could not order terminate employees "just because they are old."

Sutherland v. Missouri Dept. of Corrections, 580 F.3d 748, 107 FEP 269 (8th Cir. 2009). Panel: BENTON, Gruender, Arnold. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant] 2. Affirmed [defendant]. Grounds: 1. One incident of rubbing arm and touching breast not sever or pervasive. 2. Lower performance evaluation and shunning by co-workers not materially adverse.

Humphries v. Pulaski Co. Special Sch. Dist., 580 F.3d 688, 107 FEP 140 (8th Cir. 2009). Panel: GRUENDER, Wollman (MELLOY, concurring in part). Claims on Appeal: Title VII, §§ 1981 and 1983, and Ark. state law promotion (reverse race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: "Racial equality" policies which provides that school district will make "special efforts to employ and advance women, blacks, and handicapped persons" was direct evidence of racial motive. Putative policy that at least one assistant principal in each school must be the opposite race as the principal, supported by statistics showing this to be nearly always true with respect to hiring/promotion also direct evidence of discrimination. In such a case, employer may defend that the policy was promulgated under a valid affirmative action plan. Genuine issue of material fact whether interviewers' scoring and ranking of interviews tainted promotion process. Even though plaintiff here had low scores that would have precluded advancement in process, possibility that scoring was itself biased negates this argument. Genuine issue of material fact whether, under Title VII and equal protection, affirmative action was validly adopted as corrective measure under consent decree. Here, decree did not set hiring goals, require biracial commissions, and demand pairing of assistant principals with principals of other races. Also a genuine issue of material fact whether there was a manifest racial imbalance in the workforce and whether policies were aimed at attaining balance in the workforce. Summary judgment on one promotion affirmed because it was not included in a timely charge.

Anderson v. Family Stores of Ark., 579 F.3d 858, 107 FEP 157 (8th Cir. 2009). Panel: HANSEN, Loken, Colloton. Claims on Appeal: Title VII and Ark. state law harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Supervisor harassment that involved back and shoulder rubs, calling employee "baby doll," saying employee will not be "one of my girls," one-time sexual proposition by phone and insinuation that she would make more progress in company if she got along with him not severe or pervasive. No evidence that accusations of cash register shortages and bookkeeping discrepancies were motivated by gender. No tangible employment action where she was allowed to continue work after spurning proposition, and was even given a promotion.

Betz v. Chertoff, 578 F.3d 929, 107 FEP 152 (8th Cir. 2009). Panel: ARNOLD, Smith, Shepherd. Claims on Appeal: 1. ADEA constructive discharge. 2. ADEA retaliation. Disposition Below: 1. Judgment following a bench trial [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Judge not compelled to infer age bias from inquiry by manager about employee's retirement plans. That younger employees performing comparable work were classified GS-11 instead of GS-7 (like plaintiff) not material where other employees had a different supervisor. Another younger employee under the same supervisor was also classified GS-11, but there is no evidence manager knew that she was significantly younger than plaintiff. Evidence that was excluded in the course of summary judgment and not tendered at trial waived; alternatively, the evidence did not bear on the question of age animus. Plaintiff also not entitled to relief because court did not err in finding that she was not constructively discharged. It did not clearly err in finding that plaintiff was not intolerably overworked at her salary grade. 2. No genuine issue of material fact that plaintiff's retaliation claim was untimely because it was not submitted to a counselor within 45 days. Employee could not benefit from tolling under 29 C.F.R. § 1614.105(a)(2) because her previous complaint was timely filed, demonstrating that she was aware of the 45-day period. Continuing-violation principle did not apply to discrete act of denying a promotion. Retaliation-based constructive discharge claim, though it might have been timely, failed as a matter of law because there was no conduct that could be deemed intolerable.

Hutson v. Wells Dairy, Inc., 578 F.3d 823, 107 FEP 50 (8th Cir. 2009). Panel: COLLOTON, Riley, Smith. Claims on Appeal: Title VII termination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Termination is discrete act and 300 days began to run when the employee learned about the termination, even if she was allowed to continue to work after that date. Claims about other events occurring after she learned about her termination not included in the scope of the charge.

Dixon v. Pulaski Co. Special school Dist., 578 F.3d 862, 107 FEP 25 (8th Cir. 2009). Panel: MELLOY, Wollman, Gruender. Claims on Appeal: Title VII, §§ 1981 and 1983, and Ark. state law promotion (race). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: That employer might have been factually inaccurate about employee's minimum qualifications does not support conclusion that decision was tainted by discrimination. Only suggestion that employer may not have honestly believed plaintiff was not qualified was inadmissible hearsay evidence. Even a showing that employer actually considered plaintiff minimally qualified would not mitigate fact that successful candidate was far more qualified. There was nothing fishy about altering job description, where evidence showed that revised description more accurately described the job. Deviation from policy of requiring board to review and approve changes to job description not evidence of pretext. No evidence that approval policy was in any way related to preventing discrimination. Deviation from policy of having entire interview committee screen applicants where this step was commonly skipped, anyway, and committee did eventually review that applications and consult with the decision maker. Deviations were not evidence of pretext for discrimination, in light of weak prima facie case, limited evidence of falsity and disparity of job qualifications.

EEOC v. Siouxland Oral Maxillofacial Surgery Assoc., LLP, 578 F.3d 921, 107 FEP 31 (8th Cir. 2009). Panel: COLLOTON, Wollman, Riley. Claims on Appeal: Pregnancy Discrimination Act termination. Disposition Below: Judgment entered after a jury trial ($15,341 to plaintiff #1, $5,757 to plaintiff #2, prejudgment interest and $43,200 in attorney's fees) [plaintiff]. Outcome on Appeal: Affirmed and remanded for punitive damage trial [plaintiff]. Grounds: EEOC presented sufficient evidence of willfulness to warrant a punitive damage instruction, and failure to offer instruction was reversible error. decision makers were aware of the PD and had been warned that company either could or should not fire plaintiffs. This evidence was sufficient to show knowledge or reckless disregard of plaintiffs' federal rights. Though defense witnesses contended that they did not manifest belief that they were committing discrimination, but genuinely believed that they were acting on legitimate grounds (that one employee would not be available during critical period, and the other was not hired because she supposedly was not qualified). Jury was not required to accept this conclusion, though. No prior circuit case law required entry of judgment as a matter of law on punitive damage case when managerial employees knew about the charge. Evidence of "inconsistent explanations" not a minimum requirement for punitive damages. Defendant's severance motion (for the two plaintiff) under FRCP 20(b) and 42 deferred for remand. District court did not err in denying injunctive relief where the record only constrained two incidents of pregnancy discrimination in five years, and award of back pay and attorneys' fees were enough to meet the goals of Title VII to deter future discrimination. Award of fees to the two plaintiffs' shared trial attorney, for $43,200, remanded for reconsideration after the punitive damage trial concludes.

Sandoval v. American Building Maint. Indus. Inc., 578 F.3d 787, 107 FEP 38 (8th Cir. 2009). Panel: BYE, Gibson (GRUENDER, dissenting in part). Claims on Appeal: Title VII and Minn. state law discrimination and harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed in part [plaintiff]. Grounds: Failure to name subsidiary of employer as a second employer, and failure to move to amend until after limitations expired, rendered amendment untimely. Court applies four-part test of Baker v. Stuart Broad. Co., 560 F.2d 389 (8th Cir. 1977) - interrelation of operations, common management, centralized control of labor relations, common ownership or control - and comparable definition used in Title VII for foreign employers to establish a genuine issue of material fact that parent and sub are integrated employer. Record showed that entities shared officers, parent approved appointment of officers for sub, parent controls all stock of sub, the two companies entered into a Service Agreement, where parent provided accounting, administration, electronics services, benefits, HR insurance, legal services, safety advice and treasury services. Annual reports and company publications admitted significant control by parent of sub. Though court affirms dismissal of timely retaliation, discrimination and harassment claims for reasons stated by the district court, court remands claims about co-worker harassment on genuine issue of material fact about whether harassment was sufficiently widespread to put the employer on constructive notice. On-site supervisors lacked sufficient authority over employees to trigger strict liability, and employees' complaints to on-site supervisors were inconsistent with published anti-harassment reporting policies. Constructive notice might be established; district court erred by categorically excluding evidence of other sex harassment claims of incidents that plaintiffs did not witness. While such incidents may not be proof of a subjectively hostile environment, they are highly relevant to whether the harassment was severe and pervasive, and whether the employer had constructive notice.

Takele v. The Mayo Clinic, 576 F.3d 834, 106 FEP 1825 (8th Cir. 2009). Panel: MILLER, Loken, Bye. Claims on Appeal: 1. Title VII, § 1981 termination (race, national origin). 2. Title VII, § 1981 retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee could not meet fourth prong of McDonnell Douglas prima facie test, where only identified comparable in resident program had superior grades, and shortcomings were not regarded by faculty as severe as the plaintiff. Same-actor inference applies where There of the four people who made decision to admit plaintiff to program also approved of his termination. Proffered evidence of racial bias does not suggest animus (comparing plaintiff's successful completion of a treatment plan to a thousand monkeys getting together to write the Bible, unexplained laughing and joking, references to foreigners). Also, plaintiff himself had not asserted racial motive during the review process for the termination. 2. Hospital's concerns about plaintiff's performance long pre-dated any complaint that plaintiff made to ombudsman, negating a retaliatory motive.

Winspear v. Community Development, Inc., 574 F.3d 604, 106 FEP 1483 (8th Cir. 2009). Panel: MELLOY, (BOWMAN, concurring) (SMITH, dissenting). Disposition Below: Title VII harassment (religion). Outcome on Appeal: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in applying constructive discharge standards to a hostile work environment claim, which have different standards (in particular, that constructive discharge requires proof of a tangible employment action). Though plaintiff stated in response to summary judgment that he quit his job "to escape religious and other harassment," he never amended his complaint to allege this claim or to dismiss the harassment claim. Court remands claim for review of the hostile work environment claim.

Mc Namara v. Yellow Transportation, Inc., 570 F.3d 950, 106 FEP 1025 (8th Cir. 2009). Panel: MELLOY, Loken, Benton. Claims on Appeal: Title VII termination (sex). Disposition Below: Motion to compel arbitration denied [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Arbitration agreement enforced. Customer Relations Manager is not an exempt transportation worker under 9 U.S.C. § 1, despite that he managed employees who worked on shipping dock. Under South Dakota law, court predicts, continued employment may serve as consideration for arbitration agreement. Because of possible concern about enforceability of a contractual limitations period, district court ordered to retain jurisdiction to resolve at a later date.

Littleton v. Pilot Travel Centers, LLC, No. 08-1221 (8th Cir. June 4, 2009).  Panel:  LOKEN, Beam, Kyle. Claims on Appeal: 1. Title VII and Ark. state law retaliation. 2. Title VII and Ark. state law compensation (race). Disposition Below:  1. Summary judgment [defendant]. 2. Judgment after a bench trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Correction notice issued on employee's performance (allegedly for harassing a customer) not sufficiently adverse action to support retaliation claim. Although there was an open question about whether termination Thereats would constitute action, there was no proof of causal connection (months-long gap between complaint and corrective notice, no evidence that decision-maker was aware of the complaint). Although there was dispute about facts underlying the corrective notice, it did not reveal any basis for challenging legitimacy of process behind investigating customer complaint. 2. Although employee got lower pay raise than others in his area, he had recently transferred into region from another part of the country and already had relatively higher salary (despite that others had more seniority). Although judge who tried the case denied judgment as a matter of law owing in part to credibility determination, successor judge who replaced first judge after he died was not required to defer to that decision (Fed. R. Civ. P. 63).Exclusion of witnesses whose testimony was offered only on the dismissed retaliation claims was not error. Witnesses not shown to have personal knowledge of facts relevant to racial bias.

McLain v. Anderson Corp., No. 08-2473 (8th Cir. June 3, 2009). Panel:  MELLOY, Murphy, Shepherd. Claims on Appeal: 1. Minn. state law termination (disability). 2. Minn. state law reprisal (retaliation). State tort claim (not discussed here). Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Complaint that included claim for interference with pension benefits under Minnesota Human Rights Act conferred federal jurisdiction over case, where such a claim was completely preempted by ERISA. Though loss of benefits might be characterized as solely a measure of damages under state law, complaint actually alleged that decision to fire employee was motivated by intent to deprive him of benefits, a claim under section 510 of ERISA. Summary judgment on the merits affirmed where employee failed to show employer regarded him as materially limited from major life activity of working. Record shows that employer continued to give him assignments after his knee injury and report showing him totally disabled, and there were other areas of the company where it believed he could work. 2. Refusal to train and eventual termination supported by legitimate, non-discriminatory reasons (no alternative jobs open and work restrictions).

Qamhiyahv. Iowa State Univ., No. 08-2548 (8th Cir. June 1, 2009). Panel:  MELLOY, Gruender [COLLOTON, concurring in the judgment]. Claims on Appeal: Title VII and Iowa state law denial of tenure (national origin, religion, gender, pregnancy). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Plaintiff did not present direct evidence of discrimination by body that denied her tenure, Board of Regents. Whatever evidence she possessed about lower levels of decision making, there was no evidence that the board "served as the conduit, vehicle, or rubber stamp by which another achieved his or her unlawful design." Using pretext method of proof, plaintiff did not present a genuine issue of material of fact on pretext. No evidence of deviations from procedural norms; plaintiff had ample opportunities to present her candidacy. school did not offer "shifting" reasons for denying tenure (reviewers consistently complained of weaknesses in scholarship, fundraising and publishing). Decision to deny tenure not "obviously unsupported."

Finan v. Good Earth Tools, Inc., 565 F.3d 1076, 21 A.D. Cases 1542 (8th Cir. 2009). Panel:  BENTON, Riley, Shepherd. Claims on Appeal: ADA termination. Disposition Below:  Judgment after a jury trial ($410,000 back pay, $65,000 damages) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Employee established that he was otherwise qualified in spite of neurological condition to perform essential functions of his job, in particular the ability to drive. Employee not estopped from ADA claim by acceptance of SSI benefits, where SSA did not determine whether he was incapable of performing essential functions of the job at the time he held it. No error in admitting evidence that employer failed to give employee a reasonable accommodation. No abuse of discretion in refusing to consider supposedly false affidavit submitted by employee to obtain appointed counsel. Because jury found that employee was able to perform essential functions of job, back pay award was appropriate.

Drum v. Leeson Elec. Corp., 565 F.3d 1071, 106 FEP 309 (8th Cir. 2009). Panel:  BENTON, Melloy, Magnuson. Claims on Appeal: Title VII, EP and Mo. state law pay discrimination (sex). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: Because it is undisputed that there is a pay differential between male and female employees' salaries -- his approximated the market rate, hers was well below it - and they performed equal work, the burden of proof shifts to employer to show that the differential was based on a factor other than sex. Simply to argue that male was the most qualified candidate and required an annual salary of $62,500 was insufficient as a matter of law. Showing that male employee's salary resulted from a hiring policy that set salaries slightly under industry averages, there is genuine issue of material fact whether that policy was in effect when male was actually hired. Employee also failed to present relative education, experience, or other qualifications of employees.

Franklin v. Local 2 of the Sheet Metal Workers Intern. Ass'n, 565 F.3d 508, 106 FEP 300 (8th Cir. 2009). Panel:  RILEY, Smith, Shepherd. Claims on Appeal: 1. Title VII disparate impact (race). 2. Title VII retaliation. Disposition Below:  1. Judgment after a bench trial [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. District court did not abuse discretion in rejecting expert analysis that did not account for race-neutral explanations for plaintiffs receiving fewer referrals (such as that some plaintiffs entered into settlements with several contractors promising not to re-apply for work, some were unwilling to work outside the metro area, etc.). The report also failed supposedly "to account for the impact of 'core employees' on the total number of hours worked." ("Core employees" are those who regularly work for a select employer.) District court was not required to consider "business necessity" because plaintiffs failed to make out a prima facie case. 2. While panel would not go so far as plaintiffs in holding that posting their names publically was retaliation per se, record presented genuine issues of material fact about pretext; evidence raises a possible reasonable inference Local 2 was aware of a negative impact on Appellants based upon the listing and, during meetings, reading of Appellants' names, claims, and related costs. 

Wallace v. DTG Operations, Inc., 563 F.3d 357, 105 FEP 1761 (8th Cir. 2009). Panel: MELLOY, Beam, Gruender. Claims on Appeal: Missouri state law retaliation. Disposition Below: Judgment after a jury trial ($10,000 back pay, $20,000 compensatory, $500,000 punitive) [plaintiff]. Outcome on Appeal: Affirmed, except punitive damage award remitted to $120,000 [plaintiff]. Grounds: Plaintiff presented sufficient evidence in support of verdict: she was fired fifteen days after making a complaint of sex harassment, employer unable to coherently explain why she was fired, and "one decision maker expressed anger based on Wallace's mode of reporting the alleged sexual harassment, even though she followed a recommended reporting method." Judge did not err in giving "contributing factor" instead of "determining factor" instruction on causation. Hill v. Ford Motor Co., No. SC 88981, ___ S.W.3d ___, 2009 WL 454281 (Mo. Feb. 24, 2009) (en banc). Affirms economic and compensatory damages and $220,000 in fees. Quantitative testimony regarding salary and bonuses, coupled with the qualitative testimony regarding benefits, was insufficient to support the finding of $10,000 in lost wages and benefits. Jury could place a value on those elements of actual damages that the testimony identified without precise testimony as to dollar amounts. The benefits at issue-free use of the Company's cars, including gas and insurance, and health benefits-were, by their nature, easily understandable and quantifiable by lay persons. Moreover, $20,000 for "other damages sustained by the plaintiff, such as future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses" supported by lay testimony (testimony from Wallace regarding her reaction to losing her job, the value she placed on the job, and her actions and opportunities following her termination; Wallace's aunt testified regarding Wallace's emotional state after her termination and what the job had meant to Wallace). On punitive damages, evidence support of award, but panel reduces award down to $120,000, citing due process concerns (stepping back from a 16:1 punitive-actual ratio to a4:1 ratio).

Peyton v. Fred's Stores of Arkansas, Inc., 561 F.3d 900, 21 A.D. Cases 1345 (8th Cir. 2009). Panel: LIMBAUGH, Murphy, Smith. Claims on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff was not otherwise qualified to perform the essential functions of her job because cancer treatment render her unable to go to work for an extended and indefinite period, which could not be accommodated. Plaintiff admitted that at the time of termination she had no idea when, if ever, she would be able to return; request for an indefinite leave of absence (regardless which party had the obligation to request it) is not a reasonable accommodation.

McCullough v. Univ. of Arkansas for Medical Sciencees, 559 F.3d 855, 105 FEP 1476 (8th Cir. 2009). Panel: COLLOTON, Bye, Beam. Claims on Appeal:  1. Title VII discrimination (sex). 2. Title VII retaliation. First Amendment and state law claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Male plaintiff accused female employee of sex harassment; two female employees accused him of harassment, and the university, following an investigation, terminated plaintiff. Plaintiff could not generate "direct" evidence of termination simply by attacking employer's belief that women accusers were correct. Plaintiff also failed to establish that explanation for termination was pretext for sex discrimination. Nothing in record showed that the several levels of management looking at the allegations did not honestly believe that the women were telling the truth. University did not give "shifting" reasons for termination; reasons was based consistently on investigative findings. Failure to interview all possible witnesses, even if it violated university policy, did not tend to show that investigation was tilted on account of sex. Investigators did speak to 11 out of the 26 witnesses who plaintiff listed. 2. Though letter stating reason for termination referred to plaintiff's complaints of harassment, letter specifies that he was fired for filing untruthful complaints, as well as for sexual harassment. Conclusion that plaintiff lacked credibility was supported by independent corroboration from neutral non-parties.

Willnerd v. First National Nebraska, 558 F.3d 770, 21 A.D. Cases 1164 (8th Cir. 2009). Panel: MELLOY, Riley, Gibson. Claims on Appeal: 1. ADA termination. 2. ADA failure to rehire. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Employee presented genuine issue of material fact about whether proffered non-discriminatory reasons for terminating employee were pretextual. Employer did have business reason to conduct RIF, but selection process was possibly tainted. Employer placed production quota on employee that might have been unattainable. Supervisors made inconsistent statements regarding whether they considered other employees for termination (dispute about whether employee's performance even played a role in his termination). Other similarly-situated employees, though performing below plaintiff, were not subject to quotas or termination. Although employer claimed that he had addition al duties, these duties were removed from his list of tasks about which he was reviewed. One comparable employee was able to stay in place despite inability to meet production levels. One supervisor admitted that he was concerned about how customers would react to plaintiff's disability (affecting his speech). 2. Employee turned down for four different positions. As for two, senior loan operations assistant and assistant branch manager, employee presented a genuine issue of material fact about whether he was a "qualified individual." Employer did not develop record about what the essential functions would be. Physician's report that stated that plaintiff could not have effectively used phone or spoken with clients contradicted by his actual experience of performing those tasks. For one of these positions, employer claimed to have hired superior candidate, but it failed to articulate job requirements clearly enough to relate to candidates' respective merits. Plaintiff had clearly more experience in loan-related job, more post-secondary education. As for senior credit analyst and mortgage loan originator positions, plaintiff possessed the very qualifications that the employer claimed that he lacked.

Graves v. UMB Bank Financial Corp., 558 F.3d 784, 21 A.D. Cases 1157 (8th Cir. 2009). Panel: MELLOY, Beam, Benton. Claims on Appeal: ADA hiring. Disposition Below: Judgment after a bench trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Case tried by EEOC; intervenor plaintiff took appeal. District court did not err in admitting evidence about defects in the EEOC investigation that delayed the employer from learning that the employee did not need voice-activated software. Employee opened door by querying during direct examination why the delay may have occurred. Admission of four exhibits in connection with EEOC investigation describing possible settlement demands not reversible error. In spite of FRE408, which ordinarily would exclude material containing or about actual offers of settlement, any error in admitting exhibits was harmless because employee lost on liability. Notes of HR investigator were admitted into evidence as a business record, FRE803(6). Notes of internal investigations generally ought not fit under this exception, but error was harmless; same witnesses testified at trial, and notes at most bolstered credibility. Admission of defendant's past hiring of disabled employees was relevant background evidence, and in any event plaintiff opened door by arguing that the company had "two doors," for the non-disabled and the disabled. Evidence of another individual who made claims of disability discrimination properly excluded under FRE403, involving little more than allegations that would require extensive examination at trial.

Satcher v. Univ. of Arkansas at Pine Bluff Bd. of Trustees, 558 F.3d 731, 105 FEP 1109 (8th Cir. 2009). Panel: MAGNUSON, Melloy, Benton. Claims on Appeal: § 1981 and First Amendment retaliation. Due process and state law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Defendants did not waive immunity to suit by putting in answer but failing to present until summary judgment. No evidence of causal connection between prior complaint of discrimination and later non-renewal, and in any event school and legitimate, non-discriminatory reason for action (insubordination).

King v. Vilsack, 553 F.3d 1156, 105 FEP 486 (8th Cir. 2009). Panel: GRUENDER, Beam, Shepherd. Claims on Appeal: ADE and Iowa state law hiring. Disposition Below: Judgment following a bench trial [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court upheld on decision not to credit There statements as "direct evidence" of discrimination: statement that agency wanted to bring "educated, young blood" into the USDA; statement that chief had told them he had just hired a "young, skinny blonde" with a master's degree; statement at a work party that the "has-been need to listen to the newbies." Case remanded because of fourth statement on which judge made no findings (at a retirement party in March or April 2005, chief discussed philosophy of hiring younger, educated people. At least one reasonable interpretation of testimony, if accepted as true, shows that statement was made shortly after the selection committee's March 4, 2005 decision and it arguably demonstrated discriminatory animus in the decision making process.

EEOC v. Southwestern Bell Telephone, L.P., 550 F.3d 704, 105 FEP 15 (8th Cir. 2008). Panel: GRUENDER, Beam, Shepherd. Claims on Appeal: Title VII termination (religion). Disposition Below: Judgment following a jury trial ($396,000 and $390,000 for two claimants; plus reinstatement and front pay) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Employer waived appeal for sufficiency of the evidence or a new trial by failing to file post-trial motions under Fed. R. Civ. P. 50(b) and 59.

Jackson v. UPS, Inc., 548 F.3d 1137, 104 FEP 1571 (8th Cir. 2008). Panel: SHEPHERD, Bye, Beam. Claims on Appeal: 1. Title VII discrimination (race, sex). 2. Title VII retaliation. Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee who was disqualified in June 2006 from her job as feeder driver, filed a grievance and a charge, and by September 2006 was successfully reinstated to the position with full back pay and seniority did not suffer an adverse employment action. 2. No causation shown between filing of charges in 2004 and 2005 and disqualification from position in 2006; no evidence that relevant agents at employer knew about charges.

Culpepper v. Johanns, No. 07-3824 (8th Cir. Dec. 1, 2008). Panel: GRUENDER, Wollman, Smith. Claims on Appeal: Rehabilitation Act promotion and retaliation. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee complied with 29 C.F.R. § 1614.105(a)(1), by making written request for counseling to the agency's Office of Civil Rights instead of EEO Counselor. Request sufficed because it (1) initiated contact with an agency official who is logically connected with the EEO process and (2) demonstrated employee's intent to begin the EEO process.

Roeben v, BG Excelsior Ltd. Partnership, 545 F.3d 639, 104 FEP 1153 (8th Cir. 2008). Panel: WOLLMAN, Loken, Smith. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to rebut legitimate and non-discriminatory reason for discharge (e.g. theft of hotel property). Even if investigation was not conclusive, there was paucity of evidence that age was a factor in discharge. Employee's misconduct for more severe than that of alleged, youthful comparables.

Kosmicki v. Burlington Northern & Santa Fe Ry. Co., 545 F.3d 649, 21 A.D. Cases 289 (8th Cir. 2008). Panel: ARNOLD, Murphy, Benton. Claims on Appeal: ADA " regarded as" termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Possible deliberate failure of employee to accurately disclose prescription drugs he used, which might impair his ability to work safely, constituted legitimate and non-discriminatory reason for termination. That one manager might also have believed that employee suffered head injury was simply speculation and did not vitiate rule violation as "real reason."

Richey v. City of Independence, 540 F.3d 779, 104 FEP 333 (8th Cir. 2008). Panel: COLLOTON, Erickson [SHEPHERD, concurring]. Claims on Appeal: Mo. state law termination. § 1983 claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Assuming that male employee engaged in protected activity by complaining about female co-worker's alleged advances (later found not substantiated), summary judgment affirmed on alternative ground that employer had legitimate, non-discriminatory reason (employee had violated multiple personnel policies), where report of harassment was not only unfounded but determined by city panel to be false, combined with other incidents of abuse of city employees. City was entitled to consider harassment allegation as a false complaint under its own personnel policies.

Jenkins v. Winter, 540 F.3d 742, 104 FRD 350 (8th Cir. 2008). Panel: BENTON, Murphy, Bright. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. District court erred in excluding affidavits on the ground that they constrained hearsay: Although each affidavit constrained an inadmissible hearsay statement, this did not justify exclusion of entire affidavit. With affidavits reinstated to record, employee presented a genuine issue of material fact as to co-worker and supervisor harassment. There was genuine issue of material fact about when supervisors learned of harassment, with affidavits supporting a much earlier time period than the agency argued. 2. Claims waived either because they were not included in the notice of appeal or not argued in the opening brief.

Montes v. Greater Twin Cities Youth Symphonies, 540 F.3d 852, 104 FEP 274 (8th Cir. 2008). Panel: MELLOY, Murphy, Colloton. Claims on Appeal: Title VII termination (race, national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to establish that reason for termination (that he promoted another music organization without prior board approval and was unwilling to cooperate with the board) was pretextual. Even assuming that the decision to fire him was unjustified, there was insufficient evidence to establish that the actual reason for the termination was race or national origin.

Kozisek v. County of Seward, NE, 539 F.3d 930, 20 A.D. Cases 1601 (8th Cir. 2008). Panel: BEAM, Melloy, Benton. Claims on Appeal: ADA termination. § 1983 claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff failed to established that he was "regarded as" disabled by alcoholism, where record established that board's recommendation that employee enter alcohol-abuse program was based not on myths or stereotypes, but on incident that resulted in criminal charges (shooting household pets) and on recommendation of professional counselor. Plaintiff's other theory, that he was disabled by PTSD, fails because employer proffered legitimate, non-discriminatory reason for termination (that he would not enter inpatient treatment). Also, no evidence that the board knew about the PTSD diagnosis.

Martinez v. City of St. Louis, 539 F.3d 857, 104 FEP 445 (8th Cir. 2008). Panel: LOKEN, Gibson, Melloy. Claims on Appeal: Title VII, §§ 1981 and 1983 hiring (reverse race). Disposition Below: Consent decree dissolved; retroactive, individual relief for two white applicants [plaintiff]. Outcome on Appeal: Individual relief vacated [defendant]. Grounds: 1976 affirmative-action consent decree was not dissolved until the present litigation in 2003, so white employees could not have prevailed on claim about hiring that occurred in 2001; compliance with consent decree was legitimate reason not to hire them. Plaintiffs also could not prevail on theory that city ought to have dissolved decree at an earlier date, which is speculative basis for liability at best.

Adams v. O'Reilly Automotive, Inc., 538 F.3d 926, 103 FEP 1793 (8th Cir. 2008). Panel: ARNOLD, Melloy, Benton. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employer prevails on Faragher/Ellerth defense. Employer maintains policy of "zero tolerance," requiring investigation and documentation of every report of sexual harassment; complaint procedure with multiple channels for reporting sexual harassment (supervisor, a special anonymous sexual harassment hotline, or the corporate human resources department); strictly confidential and specific prohibition against retaliation; widely disseminated through training videos and handbooks. Requirement that employee present corroboration not unreasonable. Four alleged incidents of failure to fully investigate other women's claims of harassment unsupported by record; in any event, no evidence employer failed to investigate reasonably and in good faith. Plaintiff's decision to wait thirty months to report incidents was unreasonable. Fear of retaliation, unsubstantiated by record evidence, not enough reason.

Loeb v. Best Buy Co., Inc., 537 F.3d 867, 104 FEP 15 (8th Cir. 2008). Panel: SMITH, Wollman, Murphy. Claims on Appeal: ADE and Minn. state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Assuming that plaintiff made out prima facie case, plaintiff did not establish that employer's explanation for decision was pretext. Record supported plaintiff's argument that two reasons given by employer (reduce labor costs, streamlined processes) were not legitimate reasons. But those reasons were given by individuals who were not decision-makers. Letter to EEOC stated another reason (general staff reduction) , but this was consistent with fact that employer did eliminate plaintiff's job. Other explanations were mere elaborations on theme that employer believed plaintiff would be unhappy and lacked qualifications for new phase. No evidence other than very general job descriptions that younger employees replaced plaintiff. No evidence that subsequent younger hire was substantially less qualified than plaintiff. One inquiry about the employee's age and comment that he looked younger was insufficient evidence of age animus.

McNary v. Schreiber Foods, Inc., 535 F.3d 765, 20 A.D. Cases 1505 (8th Cir. 2008). Panel: SMITH, Wollman, Murphy. Claims on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee (with Graves disease and diabetes) fired for allegedly falling asleep on the job failed to present genuine issue of material fact about whether this reason (whether true or not) was honestly believed by supervisor. Comparative evidence fails because there was no evidence in record about whether other individuals who fell asleep were treated more leniently.

Heaton v. The Weitz Company, 534 F.3d 882, 103 FEP 1570 (8th Cir. 2008). Panel: RILEY, Wollman, Beam. Claims on Appeal: Title VII retaliation. Disposition Below: Judgment after a jury verdict; $137,070.44 in compensatory damages, including $73,320.00 for emotional distress; $25,000.00 punitive damages; $85,446.90 attorney fees [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Six-month delay between complaint about racial harassment and lay-off did not defeat inference of causation where there were other intervening events (friend of harasser picked turf fight with plaintiff, original lay-off decision revoked after plaintiff complained about retaliation, when laid-off he was told "things are catching up with you"). Jury could have inferred retaliation from such pattern of events. Punitive damages affirmed. Figures in management involved in critical decisions about harassment investigation and layoff knew about federal law against retaliation. Jury could have found management placed a friend of the harasser in charge of the harassment investigation, and investigation was indifferent at best. Emotional distress award affirmed; plaintiff testified that he felt "inadequate" and had no sense of identity, and how his reputation among his peers was damaged. Employee went to a psychologist and a family counselor for help, and he began taking antidepressant medication, which he was still taking at the time of trial. The medication had negative side effects, including sweating, nauseated insomnia. Attorney fees (90% of requested) affirmed, despite losing some claims, where overall success was significant.

Stewart v. City of St. Louis, 532 F.3d 939 (8th Cir. 2008). Panel: Per Curiam [Wollman, Beam, Riley]. Claims on Appeal: Title VII promotions (race) and disparate impact. Disposition Below: Summary judgment and judgment after a bench trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Judgment affirmed for reasons stated by district court.

O'Brien v. Johanns, 532 F.3d 805, 103 FEP 1356 (8th Cir. 2008). Panel: SHEPHERD, Melloy, Gruender. Claims on Appeal: Title VII harassment, constructive discharge (reverse race) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Two employees failed to identify adverse action for purposes of prima facie case or severe harassment. Supervisor scrutinized Appellants' travel documents arising out of a training session they attended in San Diego, Californians issued a memorandum stating that they had acted improperly in relation to their travel vouchers; did not allow plaintiff to serve as acting state administrative officer; one plaintiff's authority suspended; sent partial files concerning the secretarial applicants to regional and national headquarters to be reviewed; did not allow plaintiff to attend a training session in Texas; failed to respond to request to work from home in a sufficient manner; denied plaintiff a performance award; discussed suspending them; and attempted to institute disciplinary action against them; supervisor interfered with their work on a daily to weekly basis; embarrassed, isolated, and ostracized them; closely scrutinized and criticized their work; and increased their workload.

Tjernagel v. The Gates Co., 533 F.3d 666, 20 A.D. Cases 1345 (8th Cir. 2008). Panel: RILEY, Wollman, Beam. Claims on Appeal: AD and Iowa state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee diagnosed with MS failed to establish that she was actually or regarded-as disabled. Plaintiff failed to show she was substantially limited in any major life activity, where she admitted that she required no accommodations in the aftermath of her termination, and report showed that prior claims of disability were likely overstated. Employer's belief that employee should not be on production floor was not evidence that it regarded her as substantially limited in major life activity of work. Alternatively, employee's inability to work overtime due to medical condition established that she could not meet an essential job function (mandatory overtime).

Bearden v. International Paper Co., 529 F.3d 828, 103 FEP 1032 (8th Cir. 2008). Panel: MURPHY, Wollman ,Smith. Claims on Appeal: 1. Title VII termination (sex). 2. ADEA termination. 3. Equal Pay Act. Defamation claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Employee who altered requisition form at work to obtain a bicycle for work (for her spouse) not authorized by the company terminated for breach of trust and deceit. Male employees whom plaintiff identified as having suffered less severe consequences for violating company procedures were not similarly situated since they did not engage in the same or similar conduct for which she was terminated (i.e., altering company form). 2. Record established that employee was replaced in her duties by another employee eight years older. Even if inference of age bias were raised, employee did not establish that legitimate, non-discriminatory reason (deceit) was a pretext for age discrimination.3. Alleged male comparable established to have had different responsibilities (plaintiff's function essentially confined to negotiating contracts with suppliers and purchasing items, while former colleague bore responsibility for managing and safeguarding the mill's $17,000,000 inventory and supervised a crew of eleven hourly employees).

Winship v. Gage County school District, No. 34, 528 F.3d 1074, 103 FEP 927 (8th Cir. 2008). Panel: BEAM, Riley, Melloy. Claims on Appeal: ADEA hiring. First Amendment claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee did not establish that reasons given for not hiring plaintiff (that she was only an average quality teacher, with demonstrated weaknesses in teaching large classes, and district would have to hire another part-time teacher to replace her) were a pretext for age discrimination. Alleged inconsistency in posted description of job, differences of opinion about quality of plaintiff's performance and use of subjective factors not genuine issues of material fact for trial of ADEA claim.

EEOC v. Allstate Ins. Co., 528 F.3d 1042, 103 FEP 805 (8th Cir. 2008). Panel: BRIGHT, Melloy [SHEPHERD, dissenting]. Claims on Appeal: ADEA disparate impact rehire. Disposition Below: Partial summary judgment for plaintiff [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Imposition of no-rehire policy for agents who were terminated en masse and reinstated as independent contractors challenged for disparate impact. Analysis showed that 5599 employees forty or over constituted 23% of general workforce, while 613 affected employees under 40 were 2.7% of workforce; . Rehire policy did fall under 29 U.S.C. § 623(a)(2), under which Smith v. City of Jackson, 544 U.S. 228 (2005), pegged the ADEA disparate impact theory: it was linked to an employment policy (the reorganization) and deprived the employees of opportunities with employer. Court also held that either of two statistical analyses established prima-facie case, where employer did not challenge validity of statistics. Alternative hiring analysis pursued by employer was invalid basis to gauge impact of rehire policy, which regarded different applicant pool. Average-age analysis of persons adversely affected versus general workforce, pursued by EEOC, also invalid, because policy affected only one group, not general workforce, so pools are not comparable.

Hervey v. County of Koochiching, 527 F.3d 711, 103 FEP 813 (8th Cir. 2008). Panel: COLLOTON, Riley [MELLOY, dissenting in part]. Claims on Appeal: 1. Title VII and Minn. state law discrimination (sex). 2. Title VII an Minn. state law retaliation. State law claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Argument that sheriff who made decision to remove major responsibilities from plaintiff during reorganization was not authorized to do so was not allegation of sex discrimination, and there was no inference that subsequent actions made by new management team were motivated by sex. Description of different officers as "boys in blue" (sheriff's deputies) and "boys in brown" (corrections officers) not probative of age bias (stray remark). Suspensions for insubordination not shown to be discriminatory. Alleged comparators did not commit recent offenses; plaintiff allegedly lied to a current supervisor, while males were either involved in incidents dating back decades or occurred off-duty. Same incidents did not constitute a hostile work environment, because they were not shown to be motivated by sex.2. Statement that sheriff would recommend that plaintiff be reassigned to corrections officer, oral warning for untruthfulness and suspension for insubordination not motivated by retaliation because they were in process owing to pre-existing disciplinary problems. Temporal proximity not sufficient basis for finding genuine issue of material fact. Even if method of imposing discipline was especially "humiliating," it is not probative of retaliation where other motivations (reaction to insubordination, personal tension between officers) were equally or more likely. Employee may not head off adverse action by filing a complaint of discrimination during intervening period.

Van Horn v. Best Buy Stores, L.P., 526 F.3d 1144, 103 FEP 599 (8th Cir. 2008). Panel: ARNOLD, Murphy, Benton. Claim on Appeal: Title VII and Iowa state law retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), does not apply to retaliation cases under Title VII; only single-motive, determinative factor theory applies. Thus, employee failed to make out prima facie case where employee she had complained about offensive remarks as many as six months before she was fired, and only other evidence of causal link was tendency of manager to mock her for insisting on following rules and not having an "edge" (e.g., he would say "HR' or "game off" when she entered the room, and "game on" when she would leave).

Batiste-Davis v. Lincare, 526 F.3d 377, 103 FEP 506 (8th Cir. 2008). Panel: BENTON, Riley, Colloton. Claim on Appeal: Title VII and §1981 termination (race). Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court judge erred in admitting evidence of a Title VII and ADA discrimination case she filed six years earlier against another employer. The judge admitted proof of the lawsuit as evidence of "prior acts" under Rule 404(b), "to show Davis's motive in filing this case" and employee's "credibility, state of mind with respect to the current litigation, and pattern or plan of asserting false claims." No evidence that the earlier suit had been fraudulently filed. While several circuits bar the admissibility of prior lawsuits, if not fraudulently filed, circuit allows such evidence under a four-prong balancing test (e.g., if "prior suit was relevant, similar, and probably close enough in time," plus Fed. R. Evid. 403 undue prejudice). In this case, probative value of the lawsuit was minimal as employer presented evidence of only one suit, which was six years old. Because the probative value was substantially outweighed by its unfair prejudice, the district court abused its discretion in admitting evidence of Davis's prior lawsuit. On the other hand, the judgment was affirmed on the ground that admission was harmless; the evidence was used primarily for impeachment purposes. Because in the complaint, plaintiff alleged emotional suffering, mental anguish and loss of enjoyment of life due to the alleged discrimination, district court did not err in holding that the evidence of her treatment for depression was relevant to damages and thus admissible. Verdict not against great weight of evidence.

Gross v. FBL Financial Services, Inc., 526 F.3d 356, 103 FEP 518 (8th Cir. 2008). Panel: COLLOTON, Melloy, Benton. Claim on Appeal: ADEA demotion. Disposition Below: Judgment after a jury trial; $46,945 damages [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Under ADEA, mixed-motive cases proceed under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and court adhere's to Justice O'Connor's concurrence that employee must present direct evidence to support this theory. Because jury was not properly instructed on this theory, case must be remanded for retrial. Jury not required to be instructed that reasons correlated with age are not a violation of the ADEA. On remand, district court judge should reconsider admissibility of vice president's testimony about complaints he heard about the plaintiff's performance.

Moore v. Forrest City school Dist., 524 F.3d 879, 103 FEP 257 (8th Cir. 2008). Panel: SMITH, Wollman, Bright. Claim on Appeal: 1. Title VII, §§ 1981 and 1983 promotion (race). 2. Title VII, §§ 1981 and 1983 retaliation. Disposition Below: 1. Judgment after a bench trial [defendant]. 2. Judgment after a bench trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Denial of March 2005 promotion justified by successful candidate's administrative experience, and fact that plaintiff applied too late in the process. Denial of August 2005 position supported by lack of eligibility to serve as a lead teacher. 2. No adverse action in failing to promote plaintiff in August 2005 when judge found there was no position available. Failure to appoint employee as Dean of Students supported by plaintiff's failure to apply for the job (due to its lower pay and prestige).

Buboltz v. Residential Advantages, Inc., 523 F.3d 864, 20 A.D. Cases 801 (8th Cir. 2008). Panel: BEAM, Gruender [BYE, dissenting]. Claim on Appeal: 1. AD and Rehabilitation Act discrimination. 2. AD and Rehabilitation Act reasonable accommodation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee did not establish prima facie evidence of a materially adverse action. Requirement that legally-blind employee who provided residential services to the disabled work every other weekend, not dispense medicine and not work unaccompanied, where first item was applied uniformly to staff, and latter two did not significantly impair ability to perform job. Employee also did not establish that same conditions caused constructive discharge; no evidence that shift and staffing decisions were intended to discriminate or that they were severe enough to motivate her to quit. 2. Employee noting "I have, like, numerous devices I can use" insufficient evidence that she sought accommodation of her blindness.

Lyons v. Potter, 521 F.3d 981, 20 A.D. Cases 917 (8th Cir. 2008). Panel: COLLOTON, Riley, Benton. Claim on Appeal: Title VII (race and sex), ADE and ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to present genuine issue of material fact on equitable tolling of limitations period for ten-month delay of filing civil action, where only evidence of incapacity was employee's statement that she was "distraught" during that period and "not able to make rational decisions."

Recio v. Creighton Univ., 521 F.3d 934, 103 FEP 25 (8th Cir. 2008). Panel: SHEPHERD, Loken, Wollman. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No materially adverse action in following events: delay in being notified of vacancy in Spanish faculty; temperature in office; requiring her to acknowledge probationary status in contract; denied work-study opportunity in Spain; switching teaching schedule from two to There days a week; ostracism; being excluded from department website. No causation proved regarding denial of opportunity to teach advanced courses; six months separate protected activity from decision, and she was denied such opportunities even before her complaints of discrimination.

Smith v. Int'l Paper Co., 523 F.3d 845, 103 FEP 37 (8th Cir. 2008). Panel: GRUENDER, Loken, Benton. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee's complaint to human resources about workplace civility, not specifically related to race, not protected conduct. Although employee had previously complained about race bias, employee forfeited that allegation of protected activity by not mentioning it in his charge, complaint or during the briefing of summary judgment.

Fitzgerald v. Action, Inc., 521 F.3d 867, 103 FEP 30 (8th Cir. 2008). Panel: BYE, Riley, Benton. Claim on Appeal: ADEA termination. ERIS action (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Assuming that plaintiff made out prima facie claim of discrimination, employer articulated legitimate, non-discriminatory reason for termination (accumulated misconduct). Evidence of inconsistent explanations for termination and age comments by supervisor does not create genuine issue of material fact of whether age was a determinative factor in termination where (1) employee had record of termination; (2) co-worker in protected group who did not have discipline record kept his job; (3) same-actor inference (hired at 50, terminated at 52).

Brannon v. Luco Mop Co., 521 F.3d 843, 20 A.D. Cases 709 (8th Cir. 2008). Panel: SHEPHERD, Melloy, Bright. Claim on Appeal: ADA termination and reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion in declining to strike defendant's local rule summary judgment statement of uncontested facts and Rule 56(f) declaration. Severe absenteeism (40 days out of the last 77 before termination) established that she did not meet the essential function of attendance at work.

Soto v. Core-Mark Int'l Inc., 521 F.3d 837, 102 FEP 1855 (8th Cir. 2008). Panel: BYE, Wollman, Shepherd. Claim on Appeal: Title VII and Minn. state law retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee did not present genuine issue of material fact that employer manifested good faith belief that employee had fallen asleep on the job, based on supervisor's own observation and evidence of witnesses who believed he was asleep. Also, not evidence of retaliatory motives based on letter telling employee to make an appointment with the manager if he wanted to complain about workplace bias, being told to get out of manager's office and evidence that white employee may have been allowed to get by with infractions of uniform/cell-phone use rules.

Fields v. Shelter Mutual Ins. Co., 520 F.3d 859, 102 FEP 1652 (8th Cir. 2008). Panel: BEAM, Bye, Gruender. Claim on Appeal: Title VII and §1981 compensation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff failed to identify similarly-situated individuals for purposes of prima facie case (comparators were hired into different titles, under new policy that paid outside hirers higher salaries, worked for different supervisors, had significantly more time at the company, or were in fact paid less than the plaintiff).

Riley v. Lance Inc., 518 F.3d 996, 103 FEP 272 (8th Cir. 2008). Panel: BOWMAN, Bye, Smith. Claim on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court erred at step two of the prima facie case analysis, when it required plaintiff to show a genuine issue of fact as to whether "he was performing his job at the level that met the employer's legitimate expectations." Plaintiff needed only to show that he was "otherwise qualified" for the position he held. Summary judgment affirmed on alternative basis that employer's reason for terminating him -that his performance did not meet employer's expectations-was a pretext for discrimination. Even if his sales were improving, employer was entitled to consider There-year record in putting him on a performance plan. Fact that he received bonuses not probative of employer's view of his performance; both the district sales bonuses and the regional bonuses were based on the overall performance of the entire district and region, respectively, not on his individual performance. Employee did not present genuine issue of material fact about whether he met targets set for him by the deadline given.

King v. Hardesty, 517 F.3d 1049, 102 FEP 1374 (8th Cir. 2008). Panel: SMITH, Bye, Bowman . Claim on Appeal: 1. §§ 1981, 1983 discrimination. 2. §§ 1981, 1983 retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed in part [plaintiff]. Grounds: 1. While school administrator made various racial remarks (use of the n-word, referring to black males as "bucks," etc.), one specific remark that "white people teach black kids . . . better than someone from their own race," constituted direct evidence that jury could find proves that race was a discriminatory motive in decision to terminate black instructor from staff and not assign her homebound instruction hours. Concerning adverse actions for which there was no direct evidence (as person who made remark was not involved in those decisions), employee presented sufficient evidence by pretext-method of proof to reverse on some items. Genuine issue of material fact on pay increase because while employer claimed that she did not qualify (she was not a certified teacher), there were two different versions of the policy and under one of them she did qualify. Removal from substitute list presented no genuine issue of material fact because this was discipline for rule infractions, and plaintiff could not establish similarly situated individuals who were subject to disciplined were allowed to stay on list. But employee presented genuine issue of material fact on assignment of fewer hours for substitute teacher after restored to list; district court erroneous issued sua sponte ruling that employee did not make out prima facie proof of this claim, which the defendant had not argued. District court also failed to rule specifically on claim that employee was not selected for home school communicator position.2. District court erred in granting summary judgment on claims regarding denial of fellowship opportunities and failure hire for other home communicator which employer did not move to dismiss. Claim on denial of individual opportunities for substitute teaching properly dismissed; evidence showed no issue of material fact that reason for denial of jobs was disciplinary removal from list. Claim regarding denial of homebound instruction assignments also properly dismissed, where employer had valid explanation based on her lack of qualifications. All other retaliation claims dismissed for same reasons as corresponding discrimination claims reversed, as employee had evidence of pretext.

Jessie v. Potter, 516 F.3d 709, 102 FEP 1270 (8th Cir. 2008). Panel: GIBSON, Wollman, Benton. Claim on Appeal: Title VII discrimination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Noting split in circuits, court declines to decide whether employee has to plead and prove tolling of limitations period. Also court notes unresolved issue of who decides equitable tolling where there are contested issues of fact (bench or jury). Summary judgment affirmed on ground that employee failed to present genuine issue of material fact about whether she suffered mental incapacity to meet 45-day limit for reporting to EEO counselor. Mental disability (depression) did not impair employee's ability to understand manage her legal business; she was pursuing workers compensation and disability retirement at the same time.

Anda v. Wickes Furniture Co., 517 F.3d 536, 102 FEP 1274 (8th Cir. 2008). Panel: GRUENDER, Murphy, Hansen. Claim on Appeal: Title VII and Minn. HRA harassment and constructive discharge (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Isolated comments, only two of which had sexual content, not severe or pervasive, and employer took effective remedial action to reprimand eventually terminate employees involved in the misconduct. Employer did not have imputed knowledge of other incidents, not involving plaintiff, which would have merited an earlier response; supervisors did not witness events and they were not reported. Insufficient evidence to support employee's contention that company maintained unwritten "two witness" rule to make a report of harassment, which was inconsistent with written policy. Same incidents were not severe enough to constitute constructive discharge.

Culton v. Missouri Dep't of Corrections, 515 F.3d 828, 102 FEP 969 (8th Cir. 2008). Panel: SMITH, Riley,Tashima. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to present evidence of causation where (1) supervisor made decision to transfer employee to lower status position before he learned about harassment complaints, and information provided by lower-level supervisor who was alleged harasser was not inaccurate; and (2) docking of pay owing to unauthorized sick day was consistent with agency policy.

Barker v. Missouri Dep't of Corrections, 513 F.3d 831, 102 FEP 803 (8th Cir. 2008). Panel: SMITH, Riley,Tashima. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No protected activity, where alleged harassment was an isolated remark about an employee (not plaintiff) lacked a "commanding voice" and no one could have reasonably supposed that this comment alone was actionable.

Sturgill v. UPS, 515 F.3d 831, 102 FEP 803 (8th Cir. 2008). Panel: LOKEN, Wollman, Riley. Claim on Appeal: Title VII reasonable accommodation (religion). Disposition Below: Judgment after a jury trial ($103,722.25 in compensatory and $207,444.50 in punitive damages, reinstatement, front pay, an injunction and attorneys fees and costs of $134,838.37) (plaintiff). Outcome on Appeal: Affirmed, except for injunction and punitive damages (plaintiff). Grounds: Driver fired after he refused to deliver packages after sundown on a Friday. District court erred in instructing the jury that a reasonable accommodation must eliminate the religious conflict rather than simply minimize it, an instruction that improperly took that issue from the jury. (Court notes conflict with other circuits on this issue.) Reasonable accommodation turns on fact-intensive issues such as work demands, the strength and nature of the employee's religious conviction, the terms of an applicable CBA, and the contractual rights and workplace attitudes of co-workers. Employee might in some instances have to compromise a religious observance or practice, or accept a less desirable job or less favorable working conditions. But while the district court erred, on the facts of the case the error had no probable effect on the verdict, because of UPS's complete failure to accommodate employee on the day in question, in spite of a pain-free alternative of splitting the load without violating the CBA." Denial of reasonable accommodation would not entitle an employee to legal relief under 42 U.S.C. § 1981a(a)(1), which pertains only to "intentional" discrimination. Panel contrasted an accommodation claim with a claim of religious discrimination. Plaintiff presented both at trial, but won only the former. The panel characterizes a reasonable accommodation claim as following a "negligence" rather than "intentional" theory. Panel warns that allowing such damages in future cases might constitute plain error. The panel also held that the employee's termination was proximately caused by the failure to accommodate, supporting reinstatement, front pay and other relief. Injunction vacated as overbroad. Punitive award reversed. Employee failed to meet standard under 42 U.S.C. § 1981a where employer followed a nationwide, multi-step protocol for considering employee requests for religious accommodation and no UPS employee was shown to have acted with malice or reckless indifference to accommodation request. Award of fees affirmed in full, finding that the unsuccessful discrimination claim was an alternative theory, and that counsel would have devoted substantially the same time to both claims. Travel and process-server expenses were recoverable under 42 U.S.C. § 2000e-5(k).

Rask v. Fresenius Medical Car North America, 509 F.3d 466, 19 A.D. Cases 1697 (8th Cir. 2007). Panel: ARNOLD, Colloton, Gruender. Claim on Appeal: AD and Minn. state law termination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine issue of material fact about whether employee (who suffered depression) would be qualified individual, whether with or without accommodation, where regular attendance was an essential function of her job (patient care technician), employee failed to specifically identify any resulting limitations caused by her depression, and requested accommodation (giving her slack on attendance policy) would not have assisted employee in performance of duties.

Ward v. Int'l Paper Co., 509 F.3d 457, 102 FEP 167 (8th Cir. 2007). Panel: BENTON, Loken, Gruender. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Requirement of "addition al evidence" in reduction-in-force case to raise inference of discrimination was not overruled by Reeves. Employee did not present addition al evidence with proof that (1) 71% of the positions eliminated in the RIF were held by individuals over age 50 (where there was no proffer of number of age 40 and over employees before and after RIF); (2) only some of the employee's duties were turned over to another younger employee; (3) that comparable, younger employee was promoted two years later; (4) employee claimed that younger comparable was "less qualified," (5) affidavits by replaced older employees lacking in personal knowledge, containing inadmissible hearsay or unrelated to plaintiff's situation; (6) evidence that employer selected positions to be eliminated.

Dovenmuehler v. St. Cloud Hosp., 509 F.3d 435, 19 A.D. Cases 1701 (8th Cir. 2007). Panel: SMITH, Loken, Riley. Claims on Appeal: AD and Minn. state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to present genuine issue of material fact about whether she suffered (or was regarded by employer as suffering) disability, where her status as recovered drug addict did not significantly restrict her in the major life activity of work, where it precluded her from a specialized nursing position (in pediatric intensive care setting) where hospital could not practically impose "supervised access" to drugs that would require constant supervision. Employee was able to work as a nurse in other settings.

Ramlet v. E.F. Johnson Co., 507 F.3d 1149, 102 FEP 6 (8th Cir. 2007). Panel: BENTON, Bowman, Shepherd. Claims on Appeal: ADE and Minn. state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Replacement of 42-year-old salesman in territory following RIF by two salesmen aged 37 and 41 did not present inference of age discrimination, where they were not "significantly younger," and no other addition al evidence of intent was presented.

Brenneman v. Famous Dave's of America, Inc., 507 F.3d 1139, 102 FEP 1 (8th Cir. 2007). Panel: BENTON, Bye, Shepherd. Claims on Appeal: 1. Title VII and Iowa law harassment (sex). 2. Title VII and Iowa law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee made out prima facie case of harassment, with record that sexually-explicit comments by supervisor (combined with offensive touching) continued for virtually entire length of her employment. But employer made out entitlement to Faragher-Ellerth defense, where employee (1) could not demonstrate constructive discharge (employee was informed that employer was investigating and proposing solutions to harassment, and even invited her back with an apology after she resigned); (2) employer maintained and distributed preventative anti-harassment and anti-retaliation policy; (3) employer also proposed corrective measures (revised schedule or transfer of employee to restaurant five miles away), that employee unreasonably refused to discuss with human resources executive who was clearly superior in rank to the harasser and who was in position to prevent retaliation. 2. No evidence of constructive discharge meant that there was no materially adverse action.

Bakhtiari v. Lutz, 507 F.3d 1132, 102 FEP 9 (8th Cir. 2007). Panel: BEAM, [SHEPHERD, Murphy, concurring]. Claims on Appeal: Title VII , §§ 1981, 1983 retaliation .Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employer did not abuse discretion in denying sanctions for spoliation, related to disappearance of e-mails, where the record included evidence that employer's IT department took appropriate steps to back up files and there was some evidence that the employee may have contributed to the deletion of the e-mails. Court reiterates circuit case law that where employee presents no direct of circumstantial evidence of causal link between protected activity and materially adverse action, court applies McDonnell Douglas test. Plaintiff established no protected activity, where pursuing grade appeal to Department of Education or complaints to international affairs office about student immigration status were not related to opposing discrimination in his employment as teaching assistant.

Harris v. Chand, 506 F.3d 1135, 101 FEP 1793 (8th Cir. Nov. 13, 2007). Panel: BENTON, Melloy, [SMITH, dissenting in part]. Claims on Appeal: Title VII/§ 1981 termination and retaliation. Disposition Below: Judgment following a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion in admitting evidence of after-acquired evidence of resume fraud, where jury was instructed to consider it only for proof of damages and employer established that it terminated two other employees who made educational misrepresentations during same period. Court also did not abuse discretion in excluding evidence of alleged discrimination against another woman who worked under a different unit manager and different decision makers. Time limit of two days on employee to present her case not an abuse of discretion; employee made no offer of proof as regards two witnesses, unilaterally withdrew There more and waived her rebuttal case. Only two witnesses whose testimony plaintiff preserved concerned punitive damages, employee turned down opportunity to present in rebuttal and imposition of time limit was therefore not shown to affect substantive right of employee.

Engle v. Rapid City Sch. Dist., 506 F.3d 1118, 101 FEP 1808 (8th Cir. 2007). Panel: COLLOTON, Loken, Arnold. Claims on Appeal: 1. Title VII and S.D. state law harassment. 2. Title VII and S.D. state law constructive discharge . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Employee presented a genuine issue of material fact regarding co-worker harassment, where employer's response to complaints was arguably inadequate. Employer did not dispute that co-worker conducted egregious harassment, and upon investigation he was suspended without pay. On return to workplace he was placed under counseling, denied free-rein of the worksite, kept away from other female employees and warned he would be fired if caught again. 2. Negligence that would support an claim of co-worker harassment insufficient to establish intent of employer to impose conditions severe enough that employee's decision to quit was a fitting response. No abuse of discretion to quash subpoena of deposition of attorney, where high burden for such discovery was not met.

Green v. City of St. Louis, 507 F.3d 662 (8th Cir. 2007). Panel: GIBSON, Loken, Wollman. Claims on Appeal: § 1981 retaliation. First Amendment and False Claims Act claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to establish genuine issue of material fact regarding prima facie case, where there was no evidence that any particular jobs were open for which he was qualified or which the City had reason to believe he would be interested in. Employee whose department closed had failed to offer proof concerning jobs that became available, or whether the jobs were commensurate with his previous duties, compensation, and rank, which might have raised inference that the employee could expect city to recall him.

Napreljac v. John Q. Hammons Hotels, Inc., 505 F.3d 800, 19 A.D. Cases 1313 (8th Cir. 2007). Panel: LOKEN, Arnold, Colloton. Claims on Appeal: ADA termination. State tort claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to present genuine issue of material fact on whether he was disabled. Temporary work restriction did not substantially limit employee in major life activity of work.

Carraher v. Target Corp., 503 F.3d 714, 101 FEP 1055 (8th Cir. 2007). Panel: SHEPHERD, Murphy [BEAM, concurring and dissenting]. Claims on Appeal: ADE and Minn. state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although employee made our prima facie case under pretext method of proof, he did not successfully rebut legitimate, non-discriminatory reason that he abandoned his job and did not inform supervisor of his plans. Contrary to employee's argument, he did not establish that he had accrued vacation time that he was making use of. No reason given for termination in official communication, so no inconsistency between contemporaneous reason and current ones offered in litigation. Age-based remarks made by non-decision makers five or more months before termination regarded as stray remarks. Asserted decline in age of recruiters, stepped-up college recruiting and alleged inconsistencies in following company policy not probative.

Weger v. City of Ladue, 500 F.3d 710, 101 FEP 917(8th Cir. 2007). Panel: SHEPHERD [LOKEN, concurring] [BYE, dissenting in part]. Claims on Appeal: 1. Title VII and Mo. state law harassment (sex). 2. Title VII and Mo. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Although commanding officer engaged in continuous harassment of two plaintiffs, employee waited a year to report behavior through official channels. Employer established Faragher/ Ellerth defense as a matter of law. City maintained policy calculated to prevent/correct harassment. That managers witnessed half-dozen acts did not constitute a report of harassment, with individual acts were insufficiently severe to manifest harassment. Argument that same observations constituted constructive notice invalid; policy designated specific office to which to make complaints, six incidents were not pervasive no single officer saw more than There. Though investigation was flawed and remedy arguably punitive against employee, it had effect of ending harassment. Generalized fear his retaliation not reasonable basis for plaintiffs' delaying a report of harassment. 2. Alleged events of retaliation not materially adverse, applied to employees generally or were not support by evidentiary record (directives isolating employees from co-workers, "papering" personnel files, less-positive performance evaluations, failure to provide comp/overtime opportunities).

Shaffer v. Potter, 499 F.3d 900, 101 FEP 489 (8th Cir. 2007). Panel: BENTON, Murphy, Bright. Claims on Appeal: Title VII termination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee who Threatened to kill coworker fails to present genuine issue of material fact on prima facie case; she could not identify other employees who issued such Thereats that were not terminated. Supervisor's statement that "if you hadn't been fooling around with a married man none of this would have happened" not direct evidence of sex discrimination; supervisor was not decision maker.

Clegg v. Arkansas Dept. of Corrections, 496 F.3d 922, 101 FEP 345 (8th Cir. 2007). Panel: HANSEN, Colloton, Gruender. Claims on Appeal: 1. Title VII/§ 1983 and Ark. state law reinstatement (race and sex). 2. Title VII/§ 1983 and Ark. state law retaliation. USERRA claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No adverse action demonstrated, where (1) employee, upon return from active military service, was reinstated at same grade level and paid a higher hourly wage; (2) when she complained about assignment, she was returned to her original title; (3) lack of orientation back to work and equipment, which was remedied after employee complained; (4) performance evaluation of "satisfactory" did not detrimentally affect her employment; (5) cumulative effect of the above not severe or pervasive. Court affirms qualified immunity finding for individual defendants on same facts. 2. No materially adverse action under the same facts.

McGinnis v. Union pacific R.R., 496 F.3d 868, 101 FEP 254 (8th Cir. 2007). Panel: RILEY, Bowman, Arnold. Claim on Appeal: 1. Title VII and Neb. state law termination (sex). 2. ADE and Neb. state law termination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No direct evidence furnished by alleged preference manager had for woman with whom he was having affair, where manager was simply engaged in consensual relationship, preference (if any) was not "because of sex" and (in any case) manager was not the individual who decided to terminate employee. Under pretext method of proof, district court erred in evaluating prima facie case by (1) holding that rule violations disqualified employee for job as train dispatcher, and (2) requiring him to show he was replaced by female employee. Summary judgment affirmed on alternative grounds that (1) employee did not demonstrate background circumstances that would cause employer to discriminate against him because he was a man (where 82% of employees in his job category are male); and (2) in any event, employer proffered unrebutted legitimate, non-discriminatory reason (poor performance, failing proficiency test, six rule violations). 2. Employee did not demonstrate that he was replaced by someone significantly younger as part of prima facie case (replacement was older), and employer established legitimate, non-discriminatory reason for termination. Proficiency test was not a pretext, where others younger than employee also failed it. Employee also failed to challenge the citations for rule violations when they occurred.

Gilbert v. Des Moines Area Community College, 495 F.3d 906, 101 FEP 572 (8th Cir. 2007). Panel: RILEY, Hansen, Melloy. Claims on Appeal: 1. Title VII and Iowa state law promotion (race). 2. Title VII and Iowa state law retaliation . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. College proffered, as legitimate non-discriminatory reason for non-promotion that the four finalists out-pointed plaintiff. Contrary to employee's argument, the college did perform an affirmative action review. There was no record evidence that the college had an unwritten practice of interviewing qualified internal candidates, as plaintiff claimed. Employee also lacked prior presidential experience; although such experience was not required, it was a legitimate category. Viewed in the light most favorable to the employee, record shows at most that the employee was comparable to the finalists, not that he was more qualified. 2. No genuine issue of material fact about pretext regarding demotion after employee was found to have plagiarized his application to be president. Employee admitted his application constrained plagiarized materials and his response during the investigation was not fully candid. Lack of explicit prohibition against plagiarism does not demonstrate that college's decision to investigate and discipline employee was pretextual.

Merritt v. Albemarle Corp., 496 F.3d 880, 101 FEP 232 (8th Cir. 2007). Panel: WOLLMAN, Bright, Gibson. Claims on Appeal: Ark. state law constructive discharge. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee claimed that team leader pressured her for sex, and that on occasions when she would refuse, she was assigned to relatively more dangerous tasks. Team leader, who lacked authority to take tangible job actions, but only power to assign her to particular work duties, was not supervisor for purpose of imposing vicarious liability. Alternatively, no evidence that employer knew or should have known of non-supervisor behavior.

Ollis v. HearthStone Homes, Inc., 495 F.3d 570, 101 FEP 109 (8th Cir. 2007). Panel: RILEY, Melloy, Shepherd. Claims on Appeal: 1. Title VII termination (religion). 2. Title VII retaliation. Disposition Below: 1. Judgment following a jury trial ($1 nominal damages and fees) [plaintiff]. 2. Judgment following a jury trial ($1 nominal damages and fees) [plaintiff] . Outcome on Appeal: 1. Affirmed [plaintiff]. 2. Affirmed [plaintiff]. Grounds: 1. There was sufficient evidence in the record that the reason the employer terminated plaintiff was because of his resistance to New Age coaching (Mind Body Energy, or MBE) and management methods, rather than sex harassment allegations. Testimony at trial indicates (1) employee canceled many of his MBE coaching sessions, (2) HearthStone kept a record of attendance at these sessions, (3) attendance at the MBE meetings was reasonably perceived as an employment requirement, and (4) Ollis complained about MBE sessions. 2. Record also supported retaliation verdict: (1) MBE sessions conflicted with his beliefs; (2) employee expressed disagreement with the MBE concept to executives; (3) HearthStone kept a record of attendance at these sessions; and (3) attendance at the MBE meetings was reasonably perceived as an employment requirement. Fee award with 25% discount for failure to prove compensatory damages acceptable

Brown v. Fred's, Inc., 494 F.3d 736, 101 FEP 113 (8th Cir. 2007). Panel: COLLOTON, Hansen, Gruender . Claims on Appeal: 1. Title VII termination (sex). 2. Equal Pay Act . Disposition Below: 1. Summary judgment [defendant]. 2. .Judgment after a jury trial [plaintiff]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [plaintiff]. Grounds: 1. Suit against parent properly dismissed on summary judgment, where nothing suggests that parent and subsidiary were a single entity. No grounds for estoppel because parent always made clear its separate corporate identity. 2. Jury was entitled to disbelieve employer's argument that employee did not perform equal work to another assistant manager in a different store; although male employee's store had high volume, there was scant evidence to show that difference in sales volume created substantial difference in working conditions or job demands. Although there were periods when the plaintiff earned more than her male counterpart, these were times when she functioned as a full rather than assistant manager, and that under ordinary circumstances when they performed substantially equal work, jury could find that plaintiff earned less. Jury could also find against employer on factor other than sex defense. As to at least two male employees, record did not substantiate that they had superior retail experience. Store volume was also not a defense; males who worked higher-volume store kept their high salaries when relocated to the plaintiff's store. Liquidated damages under 29 U.S.C. § 216(b) affirmed. Jury found willful violation and it was sufficient for district court to adopt that finding without making special finding for reduction or elimination of that award on the basis "good faith" and "reasonable grounds for believing" action did not violate EPA under 29 U.S.C. § 260.

Kight v. Auto Zone, Inc., 494 F.3d 727, 101 FEP 34 (8th Cir. 2007). Panel: MURPHY, Hansen, Colloton. Claims on Appeal: ADEA termination. Disposition Below: Judgment following a jury trial ($110,500 damages, liquidated damages and fees) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: District court did not err in excluding four-year-old corrective action review (CAR) against employee at trial, which was not part of the decision to terminate the employee, was issued by a manager not called to testify, contents were vague, and employer had other witnesses it could have called about the employee's behavior. CARs of other employees not relevant because employer did not show that they were similarly situated to plaintiff, contents of CARs are too general to establish any comparison, and defendant did not make offer of proof as to the ages of the other employees. Employer forfeited objection to jury instruction, Fed. R. Ci.v P. 51. Judgment as a matter of law or new trial properly denied, where evidence at trial showed that the decision-maker harbored age-animus, that he previously had good evaluations, that management refused to address employee's complaints about the age bias, and manager manipulated interviews with employees to bias them against the plaintiff.

Dominic v. DeVilbiss Air Power Co., 493 F.3d 968, 101 FEP 21 (8th Cir. 2007). Panel: MURPHY, Bright, Benton. Claim on Appeal: Title VII and Ark. state law harassment (sex) and retaliation. Disposition Below: Judgment following a jury trial ($113,000 compensatory damages, $250,000 punitive damages and $50,964.51 fees) [plaintiff]. Outcome on Appeal. Reversed on punitive damages [defendant]. Grounds: Employer proved (and employee did not rebut) that it made good faith efforts to correct discrimination and harassment. Company had zero-tolerance policy for harassment, undertook four investigations that were neutral and non-suggestive. Investigation failed to conclude that there was harassment by manager, so termination of manager would have been unreasonable and transfer of employee in small plant was infeasible. Company attempted to prevent retaliation by personally warning manager, quickly investigating retaliation, assigned an employee to monitor the situation, required manager to put employee's work assignments in writing, manager was given counseling and employee was allowed to work at home temporarily and given different HR executive to speak to when he said he did not want to continue dealing with another HR person. Even if employee proved that the employees involved in situation had malice or reckless indifference, that did not establish vicarious liability

Duckworth v. St. Louis Metropolitan Police Dept., 491 F.3d 401, 101 FEP 121 (8th Cir. 2007). Panel: BENTON, Murphy, Bright. Claims on Appeal: § 1983 reassignment (sex) and retaliation. Disposition Below: Summary judgment on qualified immunity denied [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Individual defendants lacked exceedingly persuasive justification to transfer junior-most female police officer to permanent night-shift, on theory that each shift should be "diverse" and that female officers should be available to do female-only searches. Record did not support either justification. Nonetheless, reassignment decision was made pursuant to special order which recognized some circumstances where gender should be considered (such as guarding prisoners of the same sex, or taking reports from domestic violence victims), and that a police administrator faced with clearly-established law allowing gender to be a factor in public safety jobs could have reasonably ordered such an assignment.

Harrison v. United Auto Group, 492 F.3d 972, 100 FEP 1809 (8th Cir. 2007). Panel: BENTON, Loken, Gruender. Claims of Appeal: Title VII/§ 1981 failure to hire (race). Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff failed to establish he was rejected for position as dealership manager, when uncontested evidence established that an offer was made and that he turned it down. Evidence that applicant was being steered to a Memphis location because there were more minorities there (versus Fayetteville) and that position was not compensated at the level that the plaintiff though ought to be offered (which was the same as white managers received) did not raise inference of discrimination.

EEOC v. Convergys Customer Mgt. Group, 491 F.3d 790, 19 A.D. Cases 740 (8th Cir. 2007). Panel: SMITH, Melloy, Benton. Claims on Appeal: ADA reasonable accommodation. Disposition Below: Judgment after a jury verdict; $14265.22 back pay, $100,000 compensatory [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Employee in wheelchair with brittle bone disease was not required to request a specific accommodation for tardy policy, concluding that the employee provided the company all necessary information relevant to his disability. Employer here was obliged (but failed) to explore possible accommodations. Specifically, the jury could have concluded that a 15-minute grace period was reasonable (it would have simply created another time for the employee to return from lunch) and that the ADA (42 U.S.C. § 12111(9)(B)) especially recognizes "modified work schedules" as a reasonable accommodation. The record also supported emotional distress damages (severe depression and anxiety, leading to isolation, shame and weight gain). Employer was not entitled to a judgment as a matter of law on its affirmative defense of good faith, specifically recognized under 42 U.S.C. § 1981a(a)(3), for working "in consultation with the person with the disability who has informed the [employer] that accommodation is needed, to identify and make a reasonable accommodation . . . ." The panel rejects entry of remittitur, finding the $100,000 award not grossly excessive.

Devlin v. Schwan's Home Service, Inc., 491 F.3d 778, 100 FEP 1713 (8th Cir. 2007). Panel: BYE, Smith, Beam. Claims on Appeal: 1. Title VII and MN state law retaliation. 2. Title VII and MN state law harassment (sex). 3. Title VII and MN state law discrimination (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. No support in record for materially adverse action manifested in following claims: (1) denial of pay guarantees (little evidence regarding circumstances of payment of such guarantees, no evidence of causal connection); (2) interference with inventory on delivery truck (scant evidence that this actually occurred, and event was trivial); (3) report of customer complaints and unfair instance of punishment (trivial); (4) denial of Route Builder, an assistant assigned to the same route (no proof of significant value or causal connection); (5) failure to investigate discrimination claims (record contradicts this allegation); (6) cumulation of the above (insufficiently adverse). 2. A few comments and allegedly frustrating experiences on job (denied a Route Builder, unfairly disciplined, unfairly disciplined, paid less than comparable males, not allowed to expense phone calls, required to make inventory changes on computer) not severe or pervasive. 3. No adverse employment actions (denial of Route Builder, etc.), and collective events not severe enough to find constructive discharge. Company had offered to work with employee and transfer her to another division, so resignation was not only option.

McPherson v. O'Reilly Automotive, Inc., 491 F.3d 726, 19 A.D. Cases 673 (8th Cir. 2007). Panel: MURPHY, Beam, Shepherd. Claims on Appeal: 1. ADA termination. 2. ADA disclosure of confidential medical information. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No evidence in record that the employee, who became physically incapable of performing position available to employee on his return to work from medical leave, could perform essential functions of any of the warehouse vacancies he saw posted at the worksite. 2. No genuine issue of material fact presented on evidence that employee was unable to secure work elsewhere, and that his employment counselor during one phone call to former employer was told that McPherson was fired because he was "completely disabled." It was unclear what counselor might have told company agent who made that admission, and agent not shown to be aware that she was disclosing the information to prospective employer.

Huber v. Wal-Mart Stores, 486 F.3d 480, 19 A.D. Cases 484 (8th Cir. 2007). Panel: RILEY, Wollman, Beam. Claims on Appeal: AD and Ark. state law reasonable accommodation. Disposition Below: Summary judgment for plaintiff [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Employee with a disabled hand went from an order-filler position (which she could no longer do) to lower-paying janitorial work. Although the employee sought to be employed in a vacant router position, the employer opted for a non-disabled applicant for the job. Court holds, noting split with Tenth Circuit, that 42 U.S.C. § 12111(9)(B) does not require that employer give priority to disabled employee in filling vacancies where it is following a routine policy of filling position with best-qualified employee.

Fjelsta v. Zogg Dermatology, PLC, 488 F.3d 804, 100 FEP 1511 (8th Cir. 2007). Panel: LOKEN, Melloy [Lay, deceased]. Claims on Appeal: Title VII and MN state law discrimination (pregnancy). MN state law statutory and tort claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Supervisor's statement that "Tanya, you better take precautions so both you girls don't end up pregnant, we can't have both nurses gone at the same time," not direct evidence of discrimination because it did not reflect negative attitude toward pregnancy but merely reflected "obvious self-interest" of employee to avoid having both full-time nurses absent at the same time. Using indirect method, employee fails to establish that she was replaced by similarly-credentialed nurse, so fails prima facie case.

Holland v. Sam's Club, 487 F.3d 641, 100 FEP 105 (8th Cir. 2007). Panel: RILEY, Wollman, Shepherd. Claims on Appeal: 1. Title VII and MO state law harassment (sex). 2. Title VII and MO state law failure to transfer (sex). 3. Equal Pay Act. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Employee waived argument that limitations period for filing charge was tolled by continuing violations theory, where employee did not specify in district court specific facts supporting doctrine. 2. Transfer from operating forklift in warehouse to stocker in electronics not materially adverse. 3. Employee fails to make out prima facie case because she does not present sufficient evidence about responsibilities and conditions of jobs held by men.

Morgan v. A.G. Edwards & Sons, 486 F.3d 1034, 100 FEP 1075 (8th Cir. 2007). Panel: RILEY, Hansen, Smith. Claims on Appeal: ADEA demotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Voluntary early retirement plan, directed only at protected-age employees, did not constitute evidence of an attempt by employer to sweep out its older staff: "Although the memorandum referred to the possibility employees who elected not to participate might be considered for any future involuntary reductions, a reasonable person would not have viewed this language as a coercive Thereat to 'quit or be fired.'" Memo also did not mislead employees into thinking that they would not be replaced. Plan also did not discriminate against relatively older employees. Employee failed to state a prima facie case under McDonnell Douglas (noting his replacement by an older employee, who remained There more years) and that testimony by co-workers and non-decision makers about a supposed youth-movement did not constitute "direct" evidence of age discrimination.

Rehrs v. The Iams Company, 486 F.3d 353, 19 A.D. Cases 430 (8th Cir. 2007). Panel: RILEY, Hanson, Smith. Claims on Appeal: ADA failure to transfer (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Shift rotation on a packaging plant line was an "essential function" of the employee's job (exposes more employees to management, increases productivity) that could not be accommodated by maintaining him in a straight shift (owing to his need for regular hours, to maintain his diabetes regimen). Employer established that it could not maintain employee on the same shift without hardship to his co-workers. That the plant used to operate on straight shifts does not present genuine issue of material fact, following acquisition of plant by new employer and decision to move to shift rotations. Temporary assignment of employee to a straight shift did not require employee to maintain that position. "Essential function" may include scheduling flexibility. No evidence of vacancies that employee was qualified to occupy.

Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046, 100 FEP 609 (8th Cir. 2007). Panel: GIBSON, Loken, Murphy. Claim on Appeal: Title VII and §1981 failure to promote, demotion and constructive discharge. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: The employee, a manager trainee identified in the opinion as Egyptian-born and Muslim, claimed that he was treated poorly by the associate manager (camel-jockey, harem references; rude behavior; inferior job assignments). His tenure at the store also overlapped the 9/11 terror attacks. After the employee left Speedway, he was called upon at home by the FBI, questioned and searched ostensibly in connection with the 9/11 conspiracy, supposedly because of tip by former employer. Failure to allow discovery of identity of alleged informant by FBI not abuse of discretion. Magistrate fully considered plaintiff's need for the evidence and found it to be speculative. Even if disclosure of the informant's identity would confirm plaintiff's suspicion that the informant was employed at the defendant, he still would have to show that the informant's statements showed anti-Arab animus and connect that discriminatory intent to adverse employment actions. The magistrate's in camera review revealed that informant did not accuse employee of making bombs or other terroristic activities, substantially weakening his theory that the informant falsely accused him of being a terrorist and that this showed employer's animus against Arabs in the wake of September 11. Motion for continuance under Fed. R. Civ. P. 56(f) properly denied, where there was no showing that FBI files were likely to contain evidence need to survive summary judgment. Transfer to other work location and reprimand were not materially adverse actions. Redesignation of employee from manager trainee to assistant manager was adverse action, but employer presented legitimate reason (employee ran out of trainee hours and manager did not think he was ready for promotion. Racially offensive statements were stray remarks unconnected to demotion decision. No genuine issue of material fact whether hour-reduction policy went into effect at the same time and resulted in loss of work hours for employee. Alleged false citizen complaint to FBI not supported by admissible evidence; alleged quote by FBI agent that source of tip was employer constituted inadmissible hearsay. Alleged racial harassment was not sufficient to support constructive discharge claim. Working conditions not severe or pervasive.

EEOC v. Convergys Customer Mgt. Group, 491 F.3d 790, 19 A.D. Cases 740 (8th Cir. 2007). Panel: SMITH, Melloy, Benton. Claims on Appeal: ADA reasonable accommodation. Disposition Below: Judgment after a jury verdict; $14265.22 back pay, $100,000 compensatory [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Employee in wheelchair with brittle bone disease was not required to request a specific accommodation for tardy policy, concluding that the employee provided the company all necessary information relevant to his disability. Employer here was obliged (but failed) to explore possible accommodations. Specifically, the jury could have concluded that a 15-minute grace period was reasonable (it would have simply created another time for the employee to return from lunch) and that the ADA (42 U.S.C. § 12111(9)(B)) especially recognizes "modified work schedules" as a reasonable accommodation. The record also supported emotional distress damages (severe depression and anxiety, leading to isolation, shame and weight gain). Employer was not entitled to a judgment as a matter of law on its affirmative defense of good faith, specifically recognized under 42 U.S.C. § 1981a(a)(3), for working "in consultation with the person with the disability who has informed the [employer] that accommodation is needed, to identify and make a reasonable accommodation . . . ." The panel rejects entry of remittitur, finding the $100,000 award not grossly excessive.

Devlin v. Schwan's Home Service, Inc., 491 F.3d 778, 100 FEP 1713 (8th Cir. 2007). Panel: BYE, Smith, Beam. Claims on Appeal: 1. Title VII and MN state law retaliation. 2. Title VII and MN state law harassment (sex). 3. Title VII and MN state law discrimination (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. No support in record for materially adverse action manifested in following claims: (1) denial of pay guarantees (little evidence regarding circumstances of payment of such guarantees, no evidence of causal connection); (2) interference with inventory on delivery truck (scant evidence that this actually occurred, and event was trivial); (3) report of customer complaints and unfair instance of punishment (trivial); (4) denial of Route Builder, an assistant assigned to the same route (no proof of significant value or causal connection); (5) failure to investigate discrimination claims (record contradicts this allegation); (6) cumulation of the above (insufficiently adverse). 2. A few comments and allegedly frustrating experiences on job (denied a Route Builder, unfairly disciplined, unfairly disciplined, paid less than comparable males, not allowed to expense phone calls, required to make inventory changes on computer) not severe or pervasive. 3. No adverse employment actions (denial of Route Builder, etc.), and collective events not severe enough to find constructive discharge. Company had offered to work with employee and transfer her to another division, so resignation was not only option.

McPherson v. O'Reilly Automotive, Inc., 491 F.3d 726, 19 A.D. Cases 673 (8th Cir. 2007). Panel: MURPHY, Beam, Shepherd. Claims on Appeal: 1. ADA termination. 2. ADA disclosure of confidential medical information. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No evidence in record that the employee, who became physically incapable of performing position available to employee on his return to work from medical leave, could perform essential functions of any of the warehouse vacancies he saw posted at the worksite. 2. No genuine issue of material fact presented on evidence that employee was unable to secure work elsewhere, and that his employment counselor during one phone call to former employer was told that McPherson was fired because he was "completely disabled." It was unclear what counselor might have told company agent who made that admission, and agent not shown to be aware that she was disclosing the information to prospective employer.

ON REVIEW TO THE U.S. SUPREME COURT -- Huber v. Wal-Mart Stores, 486 F.3d 480, 19 A.D. Cases 484 (8th Cir. 2007). Panel: RILEY, Wollman, Beam. Claims on Appeal: AD and Ark. state law reasonable accommodation. Disposition Below: Summary judgment for plaintiff [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Employee with a disabled hand went from an order-filler position (which she could no longer do) to lower-paying janitorial work. Although the employee sought to be employed in a vacant router position, the employer opted for a non-disabled applicant for the job. Court holds, noting split with Tenth Circuit, that 42 U.S.C. § 12111(9)(B) doesnt require that employer give priority to disabled employee in filling vacancies where it is following a routine policy of filling position with best-qualified employee.

Fjelsta v. Zogg Dermatology, PLC, 488 F.3d 804, 100 FEP 1511 (8th Cir. 2007). Panel: LOKEN, Melloy [Lay, deceased]. Claims on Appeal: Title VII and MN state law discrimination (pregnancy). MN state law statutory and tort claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Supervisor's statement that "Tanya, you better take precautions so both you girls don't end up pregnant, we can't have both nurses gone at the same time," not direct evidence of discrimination because it did not reflect negative attitude toward pregnancy but merely reflected "obvious self-interest" of employee to avoid having both full-time nurses absent at the same time. Using indirect method, employee fails to establish that she was replaced by similarly-credentialed nurse, so fails prima facie case.

Holland v. Sam's Club, 487 F.3d 641, 100 FEP 105 (8th Cir. 2007). Panel: RILEY, Wollman, Shepherd. Claims on Appeal: 1. Title VII and MO state law harassment (sex). 2. Title VII and MO state law failure to transfer (sex). 3. Equal Pay Act. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Employee waived argument that limitations period for filing charge was tolled by continuing violations theory, where employee did not specify in district court specific facts supporting doctrine. 2. Transfer from operating forklift in warehouse to stocker in electronics not materially adverse. 3. Employee fails to make out prima facie case because she does not present sufficient evidence about responsibilities and conditions of jobs held by men.

Morgan v. A.G. Edwards & Sons, 486 F.3d 1034, 100 FEP 1075 (8th Cir. 2007). Panel: RILEY, Hansen, Smith. Claims on Appeal: ADEA demotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Voluntary early retirement plan, directed only at protected-age employees, did not constitute evidence of an attempt by employer to sweep out its older staff: "Although the memorandum referred to the possibility employees who elected not to participate might be considered for any future involuntary reductions, a reasonable person would not have viewed this language as a coercive Thereat to 'quit or be fired.'" Memo also did not mislead employees into thinking that they would not be replaced. Plan also did not discriminate against relatively older employees. Employee failed to state a prima facie case under McDonnell Douglas (noting his replacement by an older employee, who remained There more years) and that testimony by co-workers and non-decision makers about a supposed youth-movement did not constitute "direct" evidence of age discrimination.

Rehrs v. The Iams Company, 486 F.3d 353, 19 A.D. Cases 430 (8th Cir. 2007). Panel: RILEY, Hanson, Smith. Claims on Appeal: Title VII and NE state law failure to transfer (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Shift rotation on a packaging plant line was an "essential function" of the employee's job (exposes more employees to management, increases productivity) that could not be accommodated by maintaining him in a straight shift (owing to his need for regular hours, to maintain his diabetes regimen). Employer established that it could not maintain employee on the same shift without hardship to his co-workers. That the plant used to operate on straight shifts does not present genuine issue of material fact, following acquisition of plant by new employer and decision to move to shift rotations. Temporary assignment of employee to a straight shift did not require employee to maintain that position. "Essential function" may include scheduling flexibility. No evidence of vacancies that employee was qualified to occupy.

Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046, 100 FEP 609 (8th Cir. 2007). Panel: GIBSON, Loken, Murphy. Claim on Appeal: Title VII and §1981 failure to promote, demotion and constructive discharge. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: The employee, a manager trainee identified in the opinion as Egyptian-born and Muslim, claimed that he was treated poorly by the associate manager (camel-jockey, harem references; rude behavior; inferior job assignments). His tenure at the store also overlapped the 9/11 terror attacks. After the employee left Speedway, he was called upon at home by the FBI, questioned and searched ostensibly in connection with the 9/11 conspiracy, supposedly because of tip by former employer. Failure to allow discovery of identity of alleged informant by FBI not abuse of discretion. Magistrate fully considered plaintiff's need for the evidence and found it to be speculative. Even if disclosure of the informant's identity would confirm plaintiff's suspicion that the informant was employed at the defendant, he still would have to show that the informant's statements showed anti-Arab animus and connect that discriminatory intent to adverse employment actions. The magistrate's in camera review revealed that informant did not accuse employee of making bombs or other terroristic activities, substantially weakening his theory that the informant falsely accused him of being a terrorist and that this showed employer's animus against Arabs in the wake of September 11. Motion for continuance under Fed. R. Civ. P. 56(f) properly denied, where there was no showing that FBI files were likely to contain evidence need to survive summary judgment. Transfer to other work location and reprimand were not materially adverse actions. Redesignation of employee from manager trainee to assistant manager was adverse action, but employer presented legitimate reason (employee ran out of trainee hours and manager did not think he was ready for promotion. Racially offensive statements were stray remarks unconnected to demotion decision. No genuine issue of material fact whether hour-reduction policy went into effect at the same time and resulted in loss of work hours for employee. Alleged false citizen complaint to FBI not supported by admissible evidence; alleged quote by FBI agent that source of tip was employer constituted inadmissible hearsay. Alleged racial harassment was not sufficient to support constructive discharge claim. Working conditions not severe or pervasive.

Vajdl v. Mesabi Academy of Kidspeace, Inc., 484 F.3d 546, 100 FEP 716 (8th Cir. 2007). Panel: SMITH, Murphy, Hansen. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. 3. Title VII constructive discharge (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds : 1. Court holds that, absent special circumstances, a correctional facility will not be held liable for a hostile work environment created by inmates. Behavior by co-workers was not objectively or subjectively sever or pervasive (There month window of being asked for a date, touched and occasionally subjected to comments on her looks); plaintiff admitted in deposition that it amounted to flirting. 2. Although plaintiff accused employer of limiting her ability to sanction inmates, employee admitted that limitation was never enforced, therefore not materially adverse. 3. Combined behavior above did not support the kind of objectively intolerable working conditions that would require employee to leave.

Libel v. Adventure Lands of America, Inc., 482 F.3d 1028, 19 A.D. Cases 267 (8th Cir. 2007). Panel: RILEY, Hansen, Smith. Claims on Appeal: AD and Iowa law termination. ERISA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion in enforcing local rule on summary judgment requiring citations to the record, when court gave employee leave to amend response to statement of uncontested facts but failed to correct deficiencies. Decision to terminate was made by manager who was not aware of employee's MS or insurance status, and no evidence that CEO communicated these facts to the manager. Employee also failed to demonstrate that she had an ADA-qualifying disability and waived argument on appeal.

Miles v. Bellfontaine Habilitation Center, 481 F.3d 1106, 100 FEP 645 (8th Cir. 2007). Panel: Per Curiam (Riley, Hansen, Melloy). Claims on Appeal: Title VII discrimination. FMLA claim (not discussed here). Disposition Below: Dismissed for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in holding that employee was obliged to attach EEOC charge to complaint, or provide addition al support for allegations in complaint that she met administrative filing precondition to suit.

Tipler v. Douglas Co., 482 F.3d 1023, 100 FEP 617 (8th Cir. 2007). Panel: BENTON, Bye, Colloton. Claims on Appeal: Title VII/§ 1983 Equal Protection shift reassignment . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: In jail with female inmates, no need to perform BFOQ analysis if the policy requiring female-only supervision of female inmates is reasonable and policy imposes only minimal restriction on employee. Collective bargaining agreement granted county right to adjust shift schedule to produce enough female guards to supervise women inmates; plaintiff was assigned based on seniority order. Occasional use of men for short periods to allow female guards to take bathroom breaks did not make strict segregation otherwise unreasonable, and no evidence that employee suffered any loss of significant employment opportunities. It did not impair her ability to receive later promotions; personal inconvenience was not enough for liability. Under Equal Protection clause, employer had important governmental objective (following state law and union contract) and policy was "substantially related" to achieving those objectives.

Christensen v. Titan Distribution, Inc., 481 F.3d 1085, 100 FEP 624, 19 A.D. Cases 336 (8th Cir. 2007). Panel: GRUENDER, Colloton, Bright. Claims on Appeal: 1. AD and Iowa law hiring. 2. ADE and Iowa law hiring. Disposition Below: 1. Judgment entered following a jury trial (punitive damages $195,000, reduced to $97,500; $65,000 motional distress; $130,000 back pay ,reduced to $78,209; $47,525 front pay; $54,875.80 attorneys fees) [plaintiff]. 2. Judgment entered following a jury trial ($78,209 liquidated damages) [plaintiff]. Outcome on Appeal: 1. Affirmed [plaintiff]. 2. Affirmed [plaintiff]. Grounds: 1. Applicant was turned down for warehouse supervisor (to continue in plant where he worked when the defendant acquired his former employer) on ground that he was not physically fit (owing to knee problem) to perform all of the tasks of all the employees reporting to him. Jury had been given option to find liability for "regarded as" and "actually disabled," and it found liability as to both. District court erred in upholding, over a motion for judgment as a matter of law, finding that employer regarded plaintiff as disabled, because at most evidence raised inference that plaintiff could not perform all of the jobs at the facility. But evidence did support finding that employee was "actually disabled" (e.g., job restrictions on walking, stooping and lifting meant that employee could not perform 50% of the jobs in the job market). Jury could also find that employer's proffered justification for not hiring plaintiff (that it decided to eliminate the position for economic reasons) was pretext: reason contradicts assurance at time that job was available, no manger at trial admitted to making decision not to hire plaintiff, and non-disabled employee continued to perform supervisor duties after plaintiff was turned down. Punitive damages award supported by employer's awareness of federal law requirements and refusal of managers to associate with decision not to hire plaintiff. Emotional distress damages supported by lay testimony (plaintiff and spouse) that plaintiff suffered stress, felt distraught, was upset at not being breadwinner and cried during ten-month job search. New trial rejected. No abuse of discretion awarding front pay where parties stipulated to infeasibility of instatement and plaintiff's eventual employment was lower paying and less prestigious. 2. Plaintiff was age 58 and the person hired in his stead was age 25. For reasons discussed above, jury could find that reason proffered for not hiring plaintiff was pretextual. Plaintiff not required to submit statistical evidence showing a pattern of age bias. Liquidated damages supported by record that employer abandoned its original justification for not hiring plaintiff at trial and refused to identify manager who made the decision.

Carrington v. City of Des Moines, 481 F.3d 1046, 100 FEP 513 (8th Cir. 2007). Panel: BENTON, Bye, Colloton. Claim on Appeal: Title VII and Iowa state law retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine issue of material fact on causation where employer's investigation of job-performance preceded his protected activity. Court finds that there is no mixed-motive analysis for retaliation, either under 42 U.S.C. § 2000e-2(m) or Price Waterhouse, so district court did not err in not using "motivating factor" analysis.

Stewart v. Indep't Sch. Dist. No. 196, 481 F.3d 1034, 100 FEP 265, 19 A.D. Cases 281 (8th Cir. 2007). Panel: MELLOY, Loken [Lay on panel, but took disability]. Claims on Appeal: ADE and ADA retaliation . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: school district executive transferred into principal's job at high school claimed retaliation for filing ADA/ADEA discrimination charge (2001) and delivering letter to district complaining about discrimination (2002); alleged adverse actions included unwanted transfer back to district job and hostile work environment. Six-month gap between filing of charge and forcible transfer defeats an inference based on temporal proximity; in any event, district was offering employee other jobs during this period to remove her from deteriorating situation at high school to which she was assigned, where faculty, parents and administration had targeted her as an undesirable outsider. Hostile work environment claim fails as a matter of law because hostility was clearly based on opposition to employee personally, rather than opposition to filing a charge; also, no temporal proximity (behavior followed 2-8 months after alleged protected activities). Vague voice-mail to faculty and parents that mentioned plaintiff's legal complaints did not establish genuine issue of material fact about causation. Subsequent EEOC charge by employee in 2002 not shown to cause hostile work environment in 2005.

Thomas v. Corwin, 483 F.3d 516, 100 FEP 297 (8th Cir. 2007). Panel: RILEY, Wollman, Gruender. Claims on Appeal: 1. ADA medical testing. 2. ADEA discrimination and termination. 3. Title VII discrimination. 4. Title VII /ADA retaliation. State law claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Test was job-related and consistent with business necessity under 42 U.S.C. § 12112(d)(4)(A), where fitness for duty (FFD) exam and review of medical records was integral to typist's duties (interacting with juveniles, parents in juvenile unit) who exhibited signs of stress and anxiety, was compelled to take There-week leave owing to psychological problems, and whom employer believed was not being honest about use of antidepressants. 2. No adverse employment action in negative employment evaluation or requirement that plaintiff participate in FFD. Termination, though adverse, not discriminatory where employee refused to cooperate in FFD and produced no evidence of another, improper reason for the termination. 3. No adverse consequences caused by negative evaluation. 4. Assuming that plaintiff participated in protected activities and that evaluation was an adverse action, employee presented no proof of causation, where FFD request came in heels of There-week leave from work due to stress, and in any event the request by the employer was a legitimate non-discriminatory basis for action. Termination was motivated by employee's failure to cooperate with FFD and violation of work rules of conduct.

Gretillat v. Care Initiatives, 481 F.3d 649, 19 A.D. Cases 97 (8th Cir. 2007). Panel: WOLLMAN, Riley, Gruender. Claims on Appeal: AD and Iowa law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Extent of walking and standing restrictions known to employer were at most an inconvenience, not severe enough to substantially limit any major life activity. Other limitations not known to employer (crawling, kneeling, crouching, squatting) not major life activities as described in 29 C.F.R. § 1630.2(i). No record of "working" being presented as a major life activity, and in any event employee admitted that limitations did not prevent her from working (provided that she got rest breaks).

Carpenter v. Con-Way Central Express, Inc., 481 F.3d 611, 100 FEP 521 (8th Cir. 2007). Panel: BYE, Loken, Shepherd. Claims on Appeal: 1. Title VII and Iowa state law constructive discharge. 2. Title VII and Iowa state law harassment (race). 3. Title VII and Iowa state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Supervisor's statement that "if you don't like the way things are run around here, leave your keys on my desk" not constructive discharge, where employee truck driver had just Threatened to quit because of complaints of harassment that he felt were not being answered. Other employees (as many as six others) who were exposed to comparable harassment at plant did not resign, and supervisor in fact took steps to respond to the employee's complaint. 2. Pranks played on employee (misloading trailer, placing garbage in trailer) were not severe or pervasive enough to constitute hostile work environment. 3. Failure to immediately arrest alleged harassing behavior not adverse employment action under Burlington Northern. No causal connection between failure to correct behavior and employees cooperation in a co-worker's discrimination case.

Fair v. Norris, 480 F.3d 865, 100 FEP 517 (8th Cir. 2007). Panel: MELLOY, Smith, Benton. Claims on Appeal: Title VII promotion (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee was not, in fact, denied a promotion and thus could not make out prima facie case, despite that she was required to file grievance to obtain consideration and wait 22 days for relief. No evidence that similarly situated male or white employees received a higher raise than she did in comparable position.

Higgins v. Gonzales, 481 F.3d 578, 100 FEP 206 (8th Cir. 2007). Panel: BYE, Colloton, Benton. Claims on Appeal: 1. Title VII discrimination (race). 2. Title VII retaliation . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No adverse employment action taken against Indian assistant U.S. Attorney, as the following alleged activities did not result in loss of pay, benefits or opportunities: (1) removed from one primary job duty for a few weeks (to resolve issue of funding); (2) denied supervision and training, where employee's performance met expectations and extra training was not indicated; (3) subjected to "whisper" campaign and manager kept "shadow file"; (4) formally complained about, but no consequences; (5) denied review; (6) recommended for termination (record did not support this allegation); and (7) transferred to another office, where her term expired and she was offered position in a different district that involved the same work she had already been doing. Even taken collectively, record did not show systematic bad treatment. 2. Under Burlington Northern, alleged lack of training and transfer to another district were not materially adverse, where record did not establish that employee suffered "situation so unbearable or bleak" that an employee would have been dissuaded from complaining about discrimination. Transfer occurred after employee's term expired, through considerable effort by agency to locate another position. Though she had to go to another city and start fresh with new cases, this constitutes mere inconvenience.

In re Union Pacific Employment Practices Litig., 479 F.3d 956, 100 FEP 185 (8th Cir. 2007). Panel: GRUENDER, Bowman [BYE, dissenting]. Claims on Appeal: 1. Title VII/PDA benefits. 2. Title VII benefits (sex). Disposition Below: 1. Summary judgment for plaintiff [plaintiff]. 2. Summary judgment for plaintiff [plaintiff]. Outcome on Appeal: 1. Reversed [defendant]. 2. Reversed [defendant]. Grounds: 1. Denial of insurance coverage of contraceptives (other than for medical necessity) not related to conditions of pregnancy, childbirth or related medical conditions. Panel rejects authority of EEOC opinion letter on subject, which related to question of whether employer could deny prescription contraceptive while covering surgical contraceptive measures. 2. No evidence that denial of all coverage of contraceptives treated women less favorably. District court used wrong standard when it held that employees could point to coverage of other treatments for conditions "that pose an equal or greater Thereat to employees' health than does pregnancy."

EEOC v. Woodmen of the World Life Ins. Soc., 479 F.3d 561, 99 FEP 1595 (8th Cir. 2007). Panel: HANSEN, Riley, Smith. Claims on Appeal: Title VII harassment and retaliation. Disposition Below: Motion to compel arbitration denied [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Arbitration agreement could be enforced against employee-intervenor in EEOC enforcement action. Evidence of employee's bankruptcy and costs associated with arbitration did not render agreement unconscionable, because those conditions did not pertain at the time employee entered into agreement. Employer agreed to waive fee-splitting provision as it pertains to arbitrator; contract had severability clause. That employee faces attorney fees not unique to arbitration. While it would be more efficient to participate jointly with EEOC in a single proceeding, that also does not make agreement unconscionable. That EEOC filed own proceeding did not cause employee to forfeit her individual claim under Title VII (distinguishing Waffle House).

Harris v. Brownlee, 477 F.3d 1043, 99 FEP 1402 (8th Cir. 2007). Panel: MURPHY, Loken, Shepherd. Claims on Appeal: Title VII settlement agreement. Disposition Below: Agreement enforced [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee obtained all the relief that he was entitled to under settlement when agency re-reviewed his classification (using a neutral reviewer who reached same result as the one employee challenged).

EEOC v. Wal-Mart Stores , 477 F.3d 561, 18 A.D. Cases 1697 (8th Cir. 2007). Panel : SMITH, Riley, Hansen. Claim on Appeal: ADA hiring . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employer declined to employee an applicant with cerebral palsy who uses crutches or a wheelchair, and has limited hand mobility. He twice applied for a "Greeter/Customer Assistant" or cashier position at his local Wal-Mart in July 2000 and February 2001. District court granted summary judgment on the grounds that Bradley was not a qualified individual and that, in any event, the reasons given by the employer for turning Bradley down were not pretextual. Panel holds that employee presented a triable issue of fact on his qualifications, having made a "facial showing" of his capacity to perform the jobs with an accommodation. The EEOC's expert "suggested several accommodations, including a sit-to-stand wheelchair, a drafting-type high stool with armrests for addition al balance, a narrow wheelchair, the removal of several inches of the divider beside the checkstand to accommodate a regular wheelchair, supplying [applicant] with a hand scanner, and installing a convex mirror. For the greeter position, [the expert] recommended that [applicant] use an electronic scooter or similar device." Panel also reversed district court's pretext ruling. Employer's reasons for its decision must be measured as of the time the decision was made, and record constrained testimony showing that the various reasons furnished by Wal-Mart for its decision (doubts about the employee's availability, alleged holes in the employee's job history, supposed unwillingness to allow Wal-Mart to contact a current employer) did not or could not have motivated the failure to hire. The panel joins in circuit split about who bears the burden of proof on the ADA issue of "direct Thereat," holding (as have Second, Seventh and Ninth Circuits) that the burden of proving that an employee's disability poses a direct Thereat to the employee or others rests on the employer. (The First, Tenth and Eleventh Circuits and maybe the Fifth would place the burden on the employee.) Wal-Mart's expert testified that Bradley had a history of falling on his crutches, but he also "admitted . . . that his opinion assumes that Bradley would be using crutches, not a wheelchair." Panel concludes that employer "failed to explain how [applicant], using a wheelchair or other similar device, poses any more of a Thereat than Wal-Mart customers who shop using such devices."

Allen v. Tobacco Superstore, Inc.,475 F.3d 931, 99 FEP 1127 (8th Cir. 2007) . Panel: RILEY, Beam [SMITH, dissenting in part]. Claim on Appeal: Title VII promotion (race) and retaliation . Disposition Below: Judgment after advisory jury and bench trial; $16,116.26 back pay, $7500 compensatory, $75,000 punitives, $74,905 attorney fees, $4122.28 costs [plaintiff]. Outcome on Appeal: Affirmed except as to punitive damages [plaintiff]. Grounds: District court did not abuse discretion when it denied judgment as matter of law as a sanction against plaintiff for alleged perjury; court concluded that plaintiff did not present false testimony or withhold evidence material to the suit. Evidence of discrepancies had impeachment value; district court did not commit clear error in finding that employee did not deliberately falsify her application. Judgment as a matter of law properly denied on promotion, retaliation another claims. District court did not commit clear error in finding that white employee who got into argument with manager was promoted, while plaintiff who also got into an argument with a manager did not. No clear error on finding of discrimination on second promotion/retaliation claim, because employer hired white employee with considerably less experience and skill with computers. Moreover, with 82 stores in states with large black populations the chain had never hired or promoted a black manager, and employer lacked formal method to seek promotion, relying on oral requests and word of mouth. Timing of hiring of white manager shortly after employee filed a civil action against company supports inference of retaliation. Review of factual findings did not reveal evidence of bias sufficient to overcome presumption of impartiality. District court did not abuse discretion in empanelling an advisory jury (Fed. R. Civ. P. 39(c)). District court ordered jury with There days' warning, even though neither side demanded one. The judge, too late realizing his error, vacated the jury verdict, treated the verdict as advisory and issued findings of fact and conclusions of law. Panel finds no record evidence that the employer would have tried the case differently, and deems any alleged error not worthy of a new trial. Back pay affirmed as to finding on what addition al salary employee would have earned, but corrects district court's math in calculating final award. The panel majority vacates punitive damages, finding that the employee failed to prove malice or reckless disregard of federal law, despite the following findings: "(1) TSI had no employment policies; (2) TSI did not hire a black manager until after two other black employees, Dianne Darrough (Darrough) and Theresa Sharkey (Sharkey) filed discrimination claims; (3) TSI had eighty-two stores in 2003 and no black managers; (4) TSI did not promote Darrough and Allen; (5) TSI was on notice of claims of discrimination because There charges of discrimination had been filed; (6) despite the charges, TSI continued its practice of not posting vacancies; and (7) the EEOC found TSI discriminated against Sharkey." Insufficient evidence of malice or recklessness. Attorney fees affirmed; district court reduced lodestar and number of claimed hours by principal attorney. District court did not abuse discretion by failing to deny award or sharply reduce it for limited success; employee was prevailing party on two of her claims.

Chalfant v. Titan Distribution, Inc., 475 F.3d 982, 18 A.D. Cases 1601 (8th Cir. 2007) . Panel: GRUENDER, Loken, Smith. Claim on Appeal: AD and Iowa state law hiring. Disposition Below: Judgment after a jury trial ($60,000 back pay, $100,000 punitives, $18,750 front pay) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: District court properly denied Rule 50 JMOL. There was sufficient evidence that employer regarded applicant as having "disability" owing to various health conditions (expert and fact witnesses testified that employee could have physically performed work he applied for, company surreptitiously altered exam from pass to fail, expert testified that by employer's evaluation applicant would have been prevented from performing 70% of jobs listed in Dictionary of Occupational Titles). Applicant and expert also demonstrated that position he applied for did not require lifting as "essential function" and that he had performed the job for a week before he was told he was not going to be hired. Jury was also free to conclude that employer did not eliminate position that plaintiff applied for until after it chose not to hire him, and that it lied to him about failing the physical exam, when he in fact passed. Punitive award supported by evidence that managers had been trained that discrimination against the disabled violated state and federal law, "Titan also had knowledge of the federal disability discrimination laws because it had been a defendant in two federal disability discrimination cases that were ultimately appealed to our circuit, "managers all denied having anything to do with decision until trial. and company altered the applicant's exam results from pass to fail. New trial motion on "great weight" of evidence fails for the above reasons. Jury and district court could also find that employee sufficiently mitigated his damages and qualified for one-year back pay based on testimony that plaintiff regularly reviewed the classified ads for comparable work, and expert testimony that at the employee's age there were not likely to be many openings.

EEOC v. City of Independence, 471 F.3d 891, 99 FEP 770 (8th Cir. 2006). Panel: BENTON, Wollman, Bowman. Claim on Appeal: § 1981 termination. Disposition Below: 1. ADE and Mo. state law benefits. 2. ADE and Mo. state law constructive discharge. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. City adopted a policy that allowed employees to bank unused leave time on behalf of disadvantaged co-workers who exhausted their allocated leave and needed addition al time off ("Leave Donation Program"). Such banked leave time was not extended to employees "eligible for regular retirement," i.e., those age 60 or older with over with five or more years of service. Employee who was over 60 and retirement-eligible was not allowed to withdraw leave time from the program to recover from complications posed by tachycardia (a form of heart disease). The record also constrained age-discriminatory remarks directed at Hopkins ("I didn't know that you were that old"; "Well, you're of retirement age, Richard, you're over 60"). District court erred in granting summary judgment on ground that the policy -- based on retirement eligibility, not age per se - - merely "correlated" with age. Panel holds "[b]ased on the direct evidence that the city's Human Resources Administrator and other personnel decision makers said the disqualification was because of age and acted accordingly, [employee] raises a genuine issue of material fact as to what the employer supposed about age. In this case, . . . the discriminatory acts were not 'isolated' but were the standard operating procedure for the Leave Donation Program." 2. Denial of paid leave did not result in constructive discharge, where city met several times with employee to discuss other alternatives, such as reassignment and long-term disability.

Arnold v. Nursing and Rehab. Center, 471 F.3d 843, 99 FEP 586 (8th Cir. 2006). Panel: SMITH, Loken, Gruender. Claim on Appeal: § 1981 termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court erred in considering the adequacy of the employee's performance as an element of the prima facie case. But summary judgment affirmed on alternative ground that employee - a nurse - failed to present genuine issue of material fact that reason for termination (abuse of a patient) was pretextual. Denial of fees to employer was not abuse of discretion.

Gordon v. Shafer Contracting Co., Inc., 469 F.3d 1191, 99 FEP 513 (8th Cir. 2006). Panel: LAY, Loken, Melloy. Claim on Appeal: 1. Title VII (race) and § 1981 harassment. 2. Title VII (race), ADE and § 1981 failure to hire. 3. Title VII (race), § 1981 wage. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Although there was issue regarding timeliness of employee's charge, defense is sidestepped by ruling in the merits. Employee failed to present genuine issue of material fact about employer's Faragher defense, where employee did not avail himself of complaint process, which was published in employee manual and gave employee several options of company management with whom to lodge complaint, including home phone numbers. 2. Assuming employee made out prima facie case of discrimination, he failed to show that reason for failing to rehire him (that he did not attend pre-season meeting or put in application for position until the jobs were already filled) was pretextual. 3. All persons in employee's position got the same wage under the collective bargaining agreement.

Wells v. SCI Mgt., 469 F.3d 697, 99 FEP 516 (8th Cir. 2006). Panel: GRUENDER, Wollman, Riley. Claim on Appeal: 1. Title VII and Mo. state law termination. 2. Title VII and Mo. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Female employee failed to show that she was treated less favorably than similarly situated male employees in first stage of prima facie case, where (1) she was subject to a substantial number of complaints by customers (unlike male counterparts) and (2) during reduction in force men and women were both terminated. Sexist comments by non-decision makers were immaterial to claim. 2. Thirty-four month gap between charge of discrimination and termination did not establish causal link.

EEOC v. Dial Corp., 469 F.3d 735, 99 FEP 321 (8th Cir. 2006). Panel: MURPHY, Hansen, Riley. Claim on Appeal: 1. Title VII hiring (sex) 2. Title VII disparate impact (sex). Disposition Below: 1. Judgment after a jury trial ($30,003 compensatory) [plaintiff]. 2. Judgment after a bench trial (back pay and benefits) [plaintiff]. Outcome on Appeal: 1. Affirmed [plaintiff]. 2. Affirmed [plaintiff]. Grounds: 1. There was sufficient evidence to support the jury pattern-or-practice finding that lifting test that screened out most female applicants for factory job was discriminatory, where test required many more lifts than actual job, was more difficult than prior tests that allowed more women to be hired, women actually had lower injury rate than men, men were hired more often in spite of comparable performance by women, and scoring appeared biased against women. Statistical disparity in hiring men was ten standard deviations. Jury could have found that by April 2001, company was aware of disparity in hiring rates but continued to use the test. 2. No clear error in the judge's ruling on disparate impact. The panel affirmed the judge's finding that the Dial test lacked content validity (29 C.F.R. § 1607.5(B)). Although injuries declined after application of test, district court did not clearly err in finding that rate were already declining before test was implemented and women overall had lower injury rate. The court also affirmed recovery for the claimants denied employment (back pay up to $120,236 and lost medical premiums). Court not obliged to factor turnover rate into back pay award. Employees were not required to show that they incurred medical expenses for award of lost insurance premiums. It remanded, for further proceedings, denial of back pay for one claimant who was turned down for reemployment based on after-acquired evidence of a criminal record. There was genuine issue of material fact whether criminal record would have been discovered in hiring process; only evidence of policy was counsel's say-so, not under oath.

Pittari v. American Eagle Airlines, Inc., 468 F.3d 1056, 18 A.D. Cases 1089 (8th Cir. 2006). Panel: RILEY, Colloton, Kyle. Claim on Appeal: ADA regarded-as forced leave. Disposition Below: Judgment after a jury trial ($2000 actual, $1 compensatory; $24,000 in attorney fees and $5,906.06 in costs) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Judgment as a matter of law directed for employer. The employee, a flight attendant, argued too late that he was substantially limited (because of his use of depression/anti-anxiety medication) in the major life activity of "cognitive abilities." At trial the jury was instructed only on the major life activity of "working," and employee failed to prove significant limitation in that area, because employer offered to instatement him in other less demanding work. Court remands case to calculate costs accruing after the defendant's Rule 68 offer.

Lewis v. St. Cloud State Univ., 467 F.3d 1133, 99 FEP 113 (8th Cir. 2006). Panel: ARNOLD, Bye, Melloy. Claim on Appeal: 1. ADE and Minn. state law termination 2. ADEA, Title VII and Minn. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Replacement of dean by candidate who was two-and-one-half years younger was not "substantially younger" for purposes of prima facie test, but even if he made out prima facie case he did not prove that reasons for termination (creating divisive environment, ineffective in handling conflicts, favoritism and bias). Suggestion by provost that employee should start planning "retirement" not probative of age animus. Evidence of past positive annual reviews did not rebut reasons later given for dean's termination that he did not dispute. 2. Eleven-month period between charge and termination did not support inference of retaliation.

Didier v. Schwan Food Co., 465 F.3d 838, 18 A.D. Cases 915 (8th Cir. 2006). Panel: BEAM, Arnold, Doty. Claim on Appeal: AD and Ark. state law termination and reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff unable to establish a substantial limitation caused by his injured right arm; he failed to demonstrate that the injury substantially affected the major life activity of taking care of one's self. Difficulty shaving, brushing his teeth, grooming, cleaning himself, wiping after going to the bathroom, feeding himself with a spoon, and dressing himself with his right hand mitigated by fact that he could accomplish the same tasks with his left hand. Moreover, requested accommodation (having another employee handle doors or drive open routes) was unrelated to this disability.

Wittenburg v. American Exp. Financial Advisors, Inc., 464 F.3d 831, 98 FEP 1697 (8th Cir. 2006). Panel: SMITH, Bye, Hansen. Claim on Appeal: 1. ADE and Minn. state law termination. 2. Title VII and Min. state law termination (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Comments that employer was not averse to hiring younger portfolio managers and growing them," that analyst department would "maybe add a junior person," and comment that firm wanted to keep "those that were younger" with "more years of service ahead of them" too weak and generalized to establish causal relationship to termination much later. No inference that younger employees were retrained when reduction in force hit younger and older analysts. Plaintiff also survived first round of RIF over younger staff. Explanation of RIF did not require employer to proffer evidence of financial distress. Resetting of performance rating prior to RIF not suspicious where there was rating was later changed and not used to evaluate employee, absent any evidence of manipulation. Evaluations, moreover, not shown to be age-biased. Comparable employees who were preserved in RIF were at most six years younger than plaintiff and thus not "substantially younger." Allegation that company refilled position that plaintiff occupied months later not supported by the record. 2. Following evidence insufficient to establish inference of discrimination: that plaintiff was one of two (out of 26) female analysts where males were also terminated, comment made by manager four years earlier that male analysts were "sole support for their families," that younger male was hired (when two other males were terminated from same division, comment that "you're husband has a job, doesn't he?" where same supervisor hired female analysts (including the plaintiff), and that one male was preserved who had superior 2002 rating.

Thompson v. Bi-State Development Agency, 463 F.3d 821, 98 FEP 1537, 18 A.D. Cases 769 (8th Cir. 2006). Panel: BOGUE, Arnold, Colloton. Claim on Appeal: 1. ADA constructive discharge. 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No constructive discharge where disciplinary hearing associated with employee's second preventable accident as bus driver was conducted normally and without intent to harass. 2. Four-month period between charge and disciplinary action does not present an inference of retaliation.

EEOC v. Trans States Airlines, Inc., 462 F.3d 987, 98 FEP 1441 (8th Cir. 2006). Panel: SMITH, Gibson, Colloton. Claim on Appeal: Title VII and Mo. state law termination (race, national origin, religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Pilot of Indian descent native of Fiji was subject of investigation after anonymous tip that he had made comments supporting the terrorist attack of 9/11 at a bar. He was terminated later when he admitted a violation of company policy (wearing a uniform at a bar). EEOC failed to establish that reason given for termination was pretextual. Although employee's name was Mohammed Hussein, he was not Arab and there was no evidence that manager who terminated him (who had never met him) was aware of his religion, national origin or ethnicity. Alleged failure to follow progressive discipline policy not probative of discrimination, where collective bargaining agreement did not cover probationary pilot. Failure to conduct more thorough investigation not probative; other pilots were summarily terminated around the same time for drinking. Evidence that other managers faced with the same situation would have carried out more careful investigation does not establish that the manager who made decision abused his authority. No material "shifting" or conflicting explanation of reason for termination. Appropriate action taken in light of safety concern of public connection between pilots and alcohol. Attorneys' fees to defendant properly denied.

Twymon v. Wells Fargo & Co., 462 F.3d 925 (8th Cir. 2006). Panel: MELLOY, Murphy, Colloton. Claims on Appeal: 1. Title VII and Iowa state law termination (race). 2. Title VII and Iowa state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No proof of racial animus by direct method, by employee fired for alleged abuse of computer access. Comments about employee not knowing "her place" and "Midwest nice" lacked racial content, while alleged statements about "Uncle Tom" were made by executive while trying to help her career, not in context of her termination. By indirect method, even assuming plaintiff made out prima facie case, employee failed to rebut explanation that employee was fired gross violation of computer policy (including excessive personal use of e-mail and internet access, and storing of obscene materials. Unsubstantiated claim that other employee might have had access to her computer, especially in light of protocols in place to identify users of individual computers, did not demonstrate that this reason was pretextual. Employee does not present genuine issue of material fact that bank did not honestly believe employee was accountable for violations of policy. 2. As above, although employee presumably made out prima facie case she cannot prove pretext for termination.

Arraleh v. County of Ramsey, 461 F.3d 967, 98 FEP 1744 (8th Cir. 2006). Panel: SMITH, Gruender [HEANEY, dissenting] . Claims on Appeal: 1. Title VII (race, national origin), § 1981 and Minn. state law failure to hire. 2. Title VII, § 1981 and Minn. state law retaliation. 3. Title VII (race. national origin), § 1981 and Minn. state law harassment. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Remarks that hiring temporary employee (who was Somali Muslim) on full-time basis would be like "raising little terrorist kids" and that employees should "leave their blackness behind" not direct evidence of discrimination where employee failed to show link between the people who made these remarks and the county's failure to hire. Plaintiff also failed to show, through indirect method, that (1) under prima facie case, he was passed over in favor of less-qualified candidate; and (2) in any event, plaintiff failed to establish pretext over employer's explanation (that the candidate selected had superior educational credentials and work experience). Employee incorrectly charged that county changed its reasons in the course of the litigation. 2. Period of There weeks between complaint and hiring decision was short enough to establish causation for purposes of prima facie case, but not sufficient to establish pretext (e.g., employer's explanation that it considered his deficiencies in performance). 3. Disparaging remarks were mostly unrelated to race or religion (e.g. complaints that hew was frequently late or lazy), and employer followed up on complaint at once with an appointment with the plaintiff (which he cancelled).

Clark v. Johanns, 460 F.3d 1064, 98 FEP 1249 (8th Cir. 2006). Panel: COLLOTON, Murphy, Melloy . Claims on Appeal: 1. Title VII failure to renew temporary appointment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No genuine issue of material fact about pretext; employer's reasons (Monday-only work schedule inflexible, Clark appeared to want to allow term to expire). Evidence of alleged "hostile work environment" not relevant to claim of failure to renew. Same supervisor had made original decision to hire her (same actor). 2. It is not a protected activity to be an "unknowing" subject of another employee's complaint, where employer did not present evidence to show that employer attributed complaint to the employee.

Green v. Franklin Nat'l Bank, 459 F.3d 903, 98 FEP 1367 (8th Cir. 2006). Panel: MELLOY, Wollman [LAY, dissenting in part] . Claims on Appeal: 1. Title VII (race) and § 1981 harassment. 2. Title VII (race) and § 1981 termination. 3. Title VII and § 1981 retaliation. State statutory claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant] . Grounds: 1. Eight instances of co-worker calling black employee a "monkey," saying he would like to eat plaintiff's liver, and saying that he liked to "get even" with people who wronged him created genuine issue of material fact on severe or pervasive harassment. But no genuine issue regarding remedial action (co-worker harasser was fired less than a month after first complaint). Other alleged harassment not shown to be racially motivated. 2. No genuine issue of material fact on causation, because plaintiff failed to prove that the employees who allegedly mistreated her (not giving her a parking place, and snubbing her) were involved in decision. 3. District court erred in finding that employee failed to raise a genuine issue of material fact regarding prima facie case because she supposedly had an obligation to report the perceived failure of the company to take remedial action. Court also questions summary judgment on ground that temporal connection alone (There weeks) was not enough to prove prima facie case. But panel affirms summary judgment on ground that employee failed to prove that reason given for termination (that she insisted on attended classes that interfered with her working hours) was pretextual. Employer was short-staffed and employer even offered to reimburse the cost of the classes.

Jones v. UPS Inc., 461 F.3d 982 (8th Cir. 2006). Panel: COLLOTON, Gruender [HEANEY, dissenting in part]. Claims on Appeal: 1. Title VII harassment (race). 2. ADEA, and Kan. and Mo. state law termination. Other statutory claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. District court did not abuse discretion under W.D. Mo. R. 56.1in disregarding employees' statement of controverted facts, where it included various inaccuracies, was argumentative and violated standard that response be "concise." No evidence that employee subjectively perceived conditions at plant as harassing (e.g., filing a complaint). No evidence that similarly situated employees (those who were reassigned to another route and refused to drive it) were treated differently. 2. Employees did not present genuine issue of material fact on pretext, where they did not rebut legitimate, non-discriminatory reason for termination (refusal to answer radio calls, insubordination).

Riser v. Target Corp., 458 F.3d 817, 98 FEP 1097 (8th Cir. 2006). Panel: BEAM, Murphy, Benton. Claims on Appeal: Title VII and Minn. state law termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Regardless of whether employee made out prima facie case that he was qualified for his job, he did not establish a genuine issue of material fact on pretext. Employer specifically identified performance reasons (as a management trainee, failed to conduct a sufficient number of "huddles" failed to anser the phone, and was deficient in the number of pulls he completed). Challenging the accuracy of these conclusions or reasons for these alleged deficiencies (or alleged failure to communicate all of the reasons to the employee) does not cast doubt on the employer's good faith. Also failed to show that he was treated relatively less favorably than similarly situated whites.

Jeffery v. Kansas City Southern Ry., 456 F.3d 841, 98 FEP 929 (8th Cir. 2006) . Panel: MELLOY, Loken, McMillian. Claims on Appeal: Title VII harassment (race). Disposition Below: Judgment after a jury trial; $900,000 in punitive damages;$128,000 actual damages for There plaintiffs [plaintiffs]. Outcome on Appeal: Affirmed, but punitive damages vacated [plaintiffs]. Grounds: District court properly denied Rule 50 motions based on sufficiency of the evidence and claim preclusion. On liability issues, there was testimony to support finding that employer did not always promptly act to prevent or correct harassment; incidents were open and notorious, and it was not enough for employer to simply point to its written policies. Prior litigation over racial discrimination in requiring plaintiff to produce a medical excuse for two absences involved events different from and occurring long before the present harassment claim. District court also did not err in vacated punitive damages, finding that in key instances the record failed to establish that acts of harassment (including offensive language, graffiti in the break room bulletin board, and vandalism of his locker) reoccurred after he lodged complaints with management. The Court accordingly found that the employee did not prove a wilful violation under Kolstad.

Reynolds v. Ethicon Endo-Surgery, Inc., 454 F.3d 868, 98 FEP 783 (8th Cir. 2006) . Panel: BENTON, Murphy, Beam. Claims on Appeal: Title VII transfer (pregnancy). State tort claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Transfer was not demonstrated to be materially adverse, because it preserved title, salary and advancement prospects. Preference to stay put in Sioux Falls instead of moving out-of-state not protected by Title VII. Claim that elimination of two states from her territory was adverse was not exhausted in EEOC charge or plead in complaint.

Robinson v. Potter, 453 F.3d 990, 18 A.D. Cases 198 (8th Cir. 2006) . Panel: BYE, Hansen, Smith. Claims on Appeal: 1. Rehabilitation Act retaliation. 2. Rehabilitation Act discrimination. Disposition Below: 1. Summary judgment [defendant]. 2. Judgment after a jury trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed. Grounds: 1. On first of two claims, employee fails to make out prima facie case because hse cannot show decision maker knew about EEOC charge. With second application, she cannot make out a genuine issue of material fact about pretext, given that she used the wrong application format to apply, her interview process scored her the lowest of There applicants and she was regarded as overqualified. 2. No error in denying motion to compel on ground that employee did not exhaust good-faith efforts to resolve the discovery dispute under Fed. R. Civ. P. 37(a)(2)(A). Grant of motion in limine not error where it concerned application for position that was not at issue in the case.

Yeager v. City Water & Light Plant of Jonesboro, Ark, 454 F.3d 932, 98 FEP 545 (8th Cir. 2006) . Panel: LOKEN, Lay, Smith. Claims on Appeal: Title VII termination (reverse discrimination, sex) Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee fired for sex harassment fails to demonstrate any similarly situated female employee treated more leniently for same offense. Employer could draw distinction between employee whose conduct draws a complaint from a co-worker and one whose does not.

Berkley v. Dillard's Inc., 450 F.3d 775, 98 FEP 633 (8th Cir. 2006). Panel: BENTON, Wollman, Hansen. Claim on Appeal: Race harassment and retaliation. Disposition Below: Claim dismissed after arbitration [defendant]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: "Dillard's Fairness in Action Program" was contractual, rather than purely information, because it was combined with an offer that could be accepted by continued employment. Refusal to sign acknowledgment did not alter employee's acceptance by performance. Arbitration agreement did not exclude pending administrative complaints. Employee waived unconscionability.

Wojewski v. Rapid City Regional Hospital, Inc., 450 F.3d 358, 17 AD Cases 1761 (8th Cir. 2006). Panel: SMITH, Lay, Loken. Claims on Appeal: AD and Rehabilitation Act termination Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Doctor with medical privileges at hospital not eligible for relief under Title I or III. Doctor did not constitute "employee" for Title I purposes despite signing Letter of Agreement with hospital subjecting doctor to more control than ordinary doctor with privileges. Doctor leased his own space, scheduled his own operating room times, employed and paid his own staff, billed his patients directly, received no social security or other benefits, and received no W2 or 1099 from hospital. Professional level of control did not affect relevant analysis of control of manner in which doctor performed operations. Under Rehabilitation Act, plaintiff was not a "qualified person with a disability," which also implied an employment (rather than independent contractor) relationship. Because plaintiff dies during pendency of case, equitable relief was moot under ADA Title III.

EEOC v. Technocrest Systems, Inc., 448 F.3d 1035, 98 FEP 115 (8th Cir. 2006). Panel: GRUENDER, Murphy, Melloy. Claims on Appeal: Title VII subpoena enforcement action Disposition Below: Subpoena enforced [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: District court did not abuse discretion by enforcing subpoena (42 U.S.C. § 2000e-9) in investigation of discrimination against Filipinos at workplace to obtain comparative information about employees in different worksites. Commission had no Threshold duty to establish prima facie case before obtaining data. District court erred, nevertheless, in denying Commission access to DOL and INS information about respondent's workforce, where it is relevant to national origin discrimination and court failed to explain why it had denied enforcement.

Richardson v. Sugg, 448 F.3d 1046, 98 FEP 401 (8th Cir. 2006). Panel: BEAM, Arnold, Riley. Claims on Appeal: Title VII termination (race). First Amendment claim (not discussed here). Disposition Below: Judgment after a bench trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not err in finding that personal service contract signed by college football coach was not enforceable as a prospective waiver of Title VII rights (restating continued validity of Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)). Such waivers violate public policy as espoused in Title VII. Nor may such a purported waiver be enforced by application of tender-back or ratification (noting split with Seventh Circuit). On the merits, the district court did not err in finding that two-year old racial comments by one defendant, followed by evidence that coach had since publically accepted defendant's change of heart, failed to produce direct evidence of discrimination. District court did not err in refusing to apply "cat's paw" analysis, where it was not adequately argued below, and not supported by the record in any case. Coach also failed to produce indirect proof of discriminatory intent, because defendants produced legitimate, non-discriminatory reason (coach had often, publically declared that the school should buy-out his contract, regarded as a slap in the face to the fans).

McClure v. Career Systems Development Corp., 447 F.3d 1133, 98 FEP 119 (8th Cir. 2006). Panel: BENTON, Murphy, Bowman. Claims on Appeal: 1. Title VII promotion (sex and race). 2. § 1981 retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Of There positions claimed, employee did not apply for two of them (and, alternatively, failed to show that applying would have been futile). As for the one he did apply for, the employer conceded the prima facie case, but established legitimate, non-discriminatory reason (other applicant was more experienced). Although employee's raw score was higher after interviews than successful applicant, this was only because he was asked more questions so his percentage score was overall lower. 2. Employee was suspended without pay when the employer learned during the employee's deposition that he lied about having a BA degree. Suspension was adverse employment action even after employee presented a corrected resume and was reinstated with back pay. Genuine issue of material fact presented where another employee who never complained about discrimination never suffered suspension, and there was a factual conflict about whether the employer was aware of the employee's educational background but took no action until after the lawsuit began.

Parsons v. Pioneer Seed Hi-Bred Int'l, Inc., 447 F.3d 1102, 98 FEP 203 (8th Cir. 2006). Panel: HANSON, Wollman, Benton. Claims on Appeal: ADE and Iowa state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee release enforceable under Older Workers Benefit Protection Act. Waiver was written in a manner calculated to be understood by an employee (29 U.S.C. § 623(f)(1)(a)), where (1) challenged tender-back requirement appeared only in a separate confidentiality provision and did not apply to release itself; and (2) attorney's fee provision only applied to actions to enforce the agreement. District court should not have relied upon the employee's subjective state-of-mind or failure to act (such as his failure to question these terms before signing the release) in deciding whether the agreement was facially valid; at most, such evidence may apply to the ultimate question of voluntariness, but not to the technical requirements for a valid release.

Breitkreutz v. Cambrex Charles City, Inc, 450 F.3d 780, 17 AD Cases 1569 (8th Cir. 2006). Panel: BYE, Melloy [HEANEY, dissenting]. Claims on Appeal: AD and Iowa state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Lifting restriction did not translate into substantial limitation of major life activities of manual tasks or working, nor was there a genuine issue of material fact about whether employer regarded employee as so limited.

Nitsche v. CEO of Osage Valley Cooperative, 446 F.3d 841, 97 FEP 1850 (8th Cir. 2006) . Panel: RILEY, Heaney, Melloy. Claims on Appeal: Title VII and Mo. state law harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed as a matter of law to demonstrate that harassment was severe or pervasive (e.g., sporadic comments over 20 years, male-on-male sexual crudity, off-premises viewing of pornography, one incident of placing vermin inside the employee's lunch box, no physical or Threatening conduct).

Kohlbek v. City of Omaha, 447 F.3d 552, 97 FEP 1742 (8th Cir. 2006) . Panel: WOLLMAN, Bye, Colloton. Claim on Appeal: Equal Protection promotion (reverse discrimination race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Two firefighters made out triable issue of fact about whether the affirmative action plan violated Equal Protection. The possible flaw in the plan, holds the court, is the use of racial classifications even for those titles where there was no history of past discrimination. Omaha used a rubric for underutilization of minorities -- the half person rule -- that determines that any time the actual number of minorities in a particular position is not within half of a person of the goal, an underutilization exists. Half person rule does not require a statistically significant showing of discrimination before racial classifications are triggered. There was no evidence of statistically significant shortfalls in officer ranks, and had not been for 14 years. Case remanded for consideration of alternate justification (compelling interest in diversity).

Tenge v. Phillips Modern Ag Co., 446 F.3d 903, 97 FEP 1667 (8th Cir. 2006) . Panel: GIBSON, Colloton, Gruender. Claim on Appeal: Title VII termination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: It is not illegal under Title VII for an employee to discharge an employee on the basis of an employee's admitted, consensual sexual conduct with a supervisor ("sexual favoritism" does not amount to discrimination on the basis of "sex"). Supervisor could make termination decision because of need to placate spouse. Such evidence was not direct evidence of discrimination. Using indirect approach, court holds that employee failed to prove that male employees were involved in similar misconduct but treated differently. Sexual banter by men not comparable to notes and physical contact exchanged between plaintiff and her supervisor.

Powell v. Yellow Book USA, 445 F.3d 1074, 97 FEP 1679 (8th Cir. 2006). Panel: ARNOLD, Wollman, Gibson. Claim on Appeal: 1. Title VII harassment (sex and religion). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Woman's hostile work environment claims against female co-worker fail where sex-related conduct (talk about sexual exploits outside the office, discussed particular fantasies that she harbored concerning co-workers, propositioned plaintiff for sex) was not severe or pervasive, while company gave prompt and effective response to alleged religious harassment (counseling other employee to stop proselytizing plaintiff). "An employer, however, has no legal obligation to suppress any and all religious expression merely because it annoys a single employee." Religious placards in cubical were not abusive. Alleged religious harassment not severe or pervasive. 2. Multiple reprimands that had no economic effect on the plaintiff not an "adverse employment action."

Schierhoff v. GlaxoKline Consumer Healthcare LP, 444 F.3d 961, 17 AD Cases 1441 (8th Cir. 2006). Panel: COLLOTON, Melloy, Benton. Claim on Appeal: Mo state law termination (age and disabilities). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to present prima facie case either that he was disabled under Missouri state law or that he met the employer's legitimate expectations (he was terminated for absenteeism, missing as many as 96 days in one-year period). Employee also failed to present direct evidence by way of manager's alleged statement one year earlier that the employee was "old and worn out" and ought to "quit." No evidence that the manager that made this statement was involved in decision to terminate employee, who at most gathered attendance records of plaintiff and others for review by human resources.

Cotrill v. MFA, Inc., 443 F.3d 629, 97 FEP 1487 (8th Cir. 2006). Panel: GRUENDER, Bowman [MURPHY, dissenting in part]. Claim on Appeal: 1. Title VII discrimination (sex). 2. Title VII harassment (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Hostile work environment allegations in EEOC charge did not exhaust claim of disparate treatment (i.e. that conditions of men's room was different from women's room). 2. Allegations that supervisor contaminated toilet area used by plaintiffs and employer's actions in investigating supervisor's spying on women's room were like or reasonably related to EEOC charge alleging spying against the offending supervisor. Spying itself was not a form of harassment because it did not alter "terms and conditions"; female employees were unaware of the spying and thus could not subjectively perceive actions as hostile, nor did they perceive the contamination (which involved use of poison ivy and petroleum jelly) as harassing. Plaintiff who participated in the investigation - who disrobed four times before supervisor was caught, fired and turned over to police - admitted in deposition that company did nothing improper during investigation and indeed cooperated in setting up the camerand planning sting. Even if she had not consented, four incidents were insufficiently severe or pervasive to constitute harassment. Both employees continued to use the bathroom and work at same facility.

Bowles v. Osmose Utilities Services, Inc., 443 F.3d 671, 97 FEP 1305 (8th Cir. 2006). Panel: ARNOLD, Wollamn, Lay. Claim on Appeal: § 1981 harassment. Disposition Below: Judgment after a jury trial ($20,000 compensatory damages, $80,000 punitive damages) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: The judge found the defendant employer liable for supervisor harassment of a black employee on a utility pole crew. While the employer argued that it should have prevailed as a matter of law on its Faragher defense, the panel held that there was a straight conflict in testimony about when the plaintiff first complained about the harassment and the district court judge could have believed the employee's account. "[T]he decision to credit certain witnesses and not others is virtually never clear error." The panel also upheld as reasonable punitive damage award, and held that it is not necessary to plead punitive damages under Fed. R. Civ. P. 8 or 9(g), where the employee gave the defendant at least There weeks' notice before trial that he intended to seek such relief. The panel also noted that Fed. R. Civ. P. 54(c) allows award of "relief to which a party in whose favor [final judgment] is rendered, even if the party has not demanded such relief in the party's pleadings.

Wallace v. DTG Operations, Inc., 442 F.3d 1112, 97 FEP 1292 (8th Cir. 2006). Panel: MELLOY, Gruender [COLLOTON, dissenting]. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee presented genuine issue of material fact about whether she was fired in retaliation for filing a sex harassment charge, where the evidence shows that (1) supervisor made decision to fire her 15 days after her complaint came to light, and the actual termination occurred 28 days after her report; (2) employee was the only management employee axed in a general downturn in travel business after 9/11 in 2002; (3) the employer had no record that the employee was at risk of termination prior to the harassment charge; (4) the company violated its own transfer policy by not allowing plaintiff to land somewhere else in the enterprise; (5) supervisor expressed disapproval that employee went over his head about the complaint and complained that complaint would chill off-color humor; and (6) the employer couldn't keep its story straight in discovery. That employee did not expressly identify the transfer policy as a separate, continuing violation does not preclude her from using the failure to transfer as further evidence of retaliatory motive.

Box v. Principi, 442 F.3d 692, 97 FEP 1399 (8th Cir. 2006). Panel: SMITH, Hansen, Bogue. Claims on Appeal: Title VII discrimination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Denial of training in one instance (due to lack of funding), work assignments, delay in producing job description, and denial of one annual leave day not adverse actions, thus employee did not establish prima facie case.

Simpson v. Merchants & Planters Bank, 441 F.3d 572, 97 FEP 1239 (8th Cir. 2006). Panel: BEAM, Bye, Smith. Claim on Appeal: Equal Pay Act. Disposition Below: Judgment after a jury trial ($35,664.37 damages, doubled for willfulness) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Jury had sufficient evidence to find that defendant wilfully violated EPA, where record established that untitled male bank officer received $7,000 more in salary than plaintiff when he started, personnel policy treated men and women differently (e.g. sick leave cannot be used for maternity leave), bank president stated he wished she would quit, bank president ignored her idea for security but adopted same idea when male counterpart suggested it and executive VP (a woman) said that a man was needed at the bank. Jobs were substantially equal. Factor other than sex (college degree) could have been rejected on ground that skills needed at bank were learned on the job. Market defense properly rejected by jury on the record. Attorneys fee award with 20% reduction affirmed on cross-appeal, where plaintiff lost a number of claims on summary judgment.

Wedow v. City of Kansas City, 442 F.3d 661, 97 FEP 1217 (8th Cir. 2006). Panel: HANSEN, Loken, Arnold. Claim on Appeal: 1. Title VII terms and conditions (sex) 2. Title VII retaliation. Disposition Below: 1. Judgment after a jury trial (plaintiff 1, $40,000 compensatory; plaintiff 2, $225,000 compensatory) [plaintiff] 2. Judgment after a jury trial (plaintiff 1, $20,000 retaliation; plaintiff 2, $60,000 retaliation) [plaintiff]. Outcome on Appeal: 1. Affirmed [plaintiff] 2. Affirmed [plaintiff]. Grounds: 1. Claim of unequal facilities and equipment for female firefighters (e.g. lack of proper bathrooms and changing rooms, ill fitting uniforms and safety equipment) not precluded (issue or claim preclusion) by prior hostile work environment trial and judgment for plaintiffs, where disparate treatment claim was not at issue in first case and were not litigated, but only considered as possible background evidence. Statute of limitations not violated by claims of conditions that continued each day; unequal conditions claim not barred by Morgan, but more resembled Bazemore pay claim. Unequal conditions were materially adverse, because they affected safety and effectiveness of women; meets terms of 42 U.S.C. § 2000e-2(a)(2). Men and women not treated equally by being furnished same bathrooms and uniforms, where record showed that only men and not women were given proper-fitting equipment, that city knew that it could obtain tailored clothing and equipment but refused to do so for five years because of cost. Bathroom/changing facilities foe women, if they existed, were materially inferior. No equitable relief because one woman retired, while for the other plaintiff she was already able to use private facilities owing to her promotion to battalion chief and department had already embarked on long-term project to fix stations to upgrade women's facilities. 2. Although plaintiffs did not specifically charge that failure to permit plaintiffs to serve addition al shift designations or work out-of-class (which provide valuable training experience), claims were like or reasonably related to EEOC charges of discrimination. Retaliation occurred after charge was filed, but retaliation was alleged in charge and alleged to be "ongoing and continuing," which would have directed investigation into subsequent-arising charges. Charged violations were materially adverse and causation established by record that as soon as plaintiffs were ordered in first trial to be promoted, department refused to extend them the opportunities attendant to their rank. Evidence in record showed that deputy chief was aware of prior lawsuit and EEOC charges, and made decisions about shift designation assignment.

Wilson v. City of Des Moines, 442 F.3d 637, 97 FEP 1230 (8th Cir. 2006) . Panel: BEAM, Arnold, Riley. Claim on Appeal: Title VII and Iowa state law harassment (sex). Disposition Below: Judgment after a bench trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Testimony that co-workers called employee "bitch," "cunt," and "slut" was not hearsay, as district court originally concluded, but exclusion was not prejudicial because it did not bear on allegation of supervisor harassment and there was no evidence employer knew about alleged statements. Rule 412 governs evidence in Title VII sex harassment trials. But the panel also holds that the district court's failure to conduct a hearing before admitting the evidence at trial (which the employee lost) was harmless error, because the statements were confined to public statements she made at work, in which the employee enjoyed no privacy interest. No instructional error where jury was charged that (1) "an employee" (not necessarily plaintiff) could report to management about harassment; and (2) ostracism alone was not an adverse employment action under Iowa state law.

Quick v. Wal-Mart Stores, 441 F.3d 606, 97 FEP 1227 (8th Cir. 2006) . Panel: WOLLMAN, Riley [LAY, dissenting]. Claim on Appeal: Pregnancy Discrimination Act termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Criticism of employee by manager for taking 12 weeks maternity leave and manager's statement that she did not expect plaintiff to return to work not direct evidence of discrimination, which occurred in broader meeting about employee's deficiencies and five months before termination decision. Assuming plaintiff made out prima facie indirect case of discrimination, employer proffered legitimate non-discriminatory reason for termination (violating discount policy), which (though implemented upon employee's return on day after maternity leave) was preceded by management investigation of employee's admitted violation

Canady v. Wal-Mart Stores, Inc., 440 F.3d 1031, 97 FEP 1133 (8th Cir. 2006). Panel: WOLLMAN, Riley [LAY, dissenting]. Claim on Appeal: 1. Title VII termination (race). 2. Title VII harassment (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Evidence of employer's alleged racial insensitivity ot African-American (manager said he was a "slave driver," use of expression "what's up, my nigga" from a movie) not direct evidence, where manager was not decision maker. Under indirect method, employee failed to establish prima facie case where he presented no evidence of other employees, not black, who engaged in loud argument with supervisor in front of customers and employees and was treated differently. Insubordination was also a legitimate, non-discriminatory reason for termination, and employee failed to present evidence otherwise presenting an inference of discrimination. 2. "Slave driver" comment lacked racial connotation, and manager apologized for one-time use of "nigga" comment. Other misguided attempts at racial humor were not severe or pervasive.

Garner v. Missouri Dep't of Mental Health, 439 F.3d 958, 97 FEP 1141 (8th Cir. 2006). Panel: LOKEN, Lay, Benton. Claim on Appeal: 1. Title VII/§1981 termination (race). 2. Title VII/§1981 retaliation. Disposition Below: 1. Judgment after a jury trial [defendant]. 2. Judgment after a jury trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Evidence that employer investigated social workers' allegation that plaintiff improperly accepted money from patient's Social Security check not inadmissible hearsay, where it was offered as evidence of why employee was suspended, rather than for the truth of the allegation. Investigation also distinguished other circumstances where white employees were allegedly not terminated for comparable violations. No unfair prejudice under FRE403. 2. Complaint did not include § 1981retaliation claim against individual supervisor, and district court did not abuse discretion in finding that instructions conference was too late a stage in proceedings to amend complaint to add that claim under Fed. R. Civ. P. 15. Failure to amend was harmless because employer prevailed at trial on retaliation (on "same decision" defense), which means preforce that supervisor also would have been found not liable. No attorney fees in mixed-motive retaliation verdict under 42 U.S.C. § 2000e-2(m).

Canny v. Dr. Pepper/Seven Up Bottling Group, Inc., 439 F.3d 894, 17 A.D. Cases 1153 (8th Cir. 2006). Panel: RILEY, Arnold, Beam. Claim on Appeal: AD and Iowa state law reasonable accommodation/ discrimination. Disposition Below: Judgment after a jury trial ($53,910 back pay, $20,000 emotional distress, and $100,000 punitive damages) [plaintiff]. Outcome on Appeal: Affirmed except punitive damages [plaintiff]. Grounds: Employee with Stargardt's Disease, a degenerative illness, had 20/200 vision. Jury could find he was qualified individual to work as merchandiser or in warehouse loader position. Employer waived objection to warehouse loader expressly when presenting Fed. R. Civ. P. 50(a) motion after close of plaintiff's evidence, which insulated verdict from review post-trial or on appeal. Alternatively, employee established that he could safely operate forklift in factory; supervisor erroneously concluded that if the employee was restricted in driving, he was also barred from operating forklift. Driving not an "essential function" of merchandiser job, where employee could arrange transportation with others. Jury could find that employer cause interactive process to fail, where employer's witnesses admitted that they never individually investigated employees performance, never sent employee for medical examination, never contacted other facility to locate available positions, knew that employee would agree to transfer and employer waited two years to make rehire offer. Punitive damages properly denied as a matter of law where failure to accommodate was motivated by safety, rather than malice towards blind employee. Admitting employer's renewed offer of employment (supposedly, a settlement offer) at trial was not abuse of discretion where employer opened door by using it in direct examination. Remittitur properly denied on back pay, where employer's offer of reinstatement was at best conditional and disadvantageous to employee (employee would have to arrange own transportation, relocate and make wage concessions.

Battle v. United Parcel Service, Inc., 438 F.3d 856, 17 A.D. Cases 1099 (8th Cir. 2006). Panel: BENTON, Smith, Heaney. Claim on Appeal: AD and Ark. state law reasonable accommodation. FMLA claim (not discussed here). Disposition Below: Judgment after a jury trial (back pay and compensatory damages) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Package Division Manager with depression, anxiety and obsessive-compulsive disorders presented sufficient evidence to establish substantial limitation on major life activity of thinking through treating physician and spouse's testimony. Doctor had 38 years experience evaluating psychiatric impairment. Spouse testified that employee could not make ordinary household or financial decisions, or discipline children. Sufficient evidence established that employer failed to engage in good-faith interactive process, where physician furnished report that employee was fully capable of performing all essential job functions, but company waited two months to act on it, during which time employee was on leave. Requested accommodation, of supplying employee with agenda for meetings in advance, could be found reasonable.

Samuels v. Kansas City Missouri school Dist., 437 F.3d 797, 17 AD Cases 961 (8th Cir. 2006) . Panel: RILEY, Arnold, Beam. Claims on Appeal: ADA reasonable accommodation. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff not a qualified person with a disability, where medical examinations taken at the time of request for accommodation established no long-term or permanent disability from multiple accidents. Examination taken one year later for workers compensation claim not relevant. Evidence of temporary impairment also demonstrates plaintiff not substantially limited in major life activity of work.

Ledbetter v. Alltel Corporate Services, 437 F.3d 717 (8th Cir. 2006) . Panel: BENTON, Smith, Heaney. Claims on Appeal : Title VII/section 1981 denial of reclassification and a raise (race). Disposition Below : Judgment after a bench trial; $14,421.91 in backpay, $22,000 in compensatory damages, and costs and attorney's fees [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds : No clear error in judge's findings that (1) despite proffer of nondiscriminatory reasons for delaying plaintiff's reclassification and raise, such as uncertainty about the future of the Document Services department and the need to cut costs following the reorganization, two similarly situated white managers under same supervisor were treated better; (2) employer departed from internal procedures by denying plaintiff, but not other employees, reclassification; (3) excuse of lack of experience contradicted by favorable performance evaluation; and (4) denial of reclassification was an adverse employment action. Admission of incomplete list of employees identified by race not an abuse of discretion. Court's calculation of back pay was not clearly erroneous, where judge was required to select a percentage increase in salary, and judge's choice was within range. Compensatory award supported by employee's own testimony about humiliation and distress suffered.

Luney v. SGS Automotive Services, Inc., 432 F.3d 866, 97 FEP 198 (8th Cir. 2005) . Panel: MELLOY, Colloton, Benton. Claims on Appeal : Title VII harassment and termination (sex). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Plaintiff's original dismissal for failure to prosecute was Fed. R. Civ. P. 41(b) dismissal on the merits for purposes of res judicata. Claim not preserved by Missouri Savings Statute, which by its terms did not apply to Title VII claims.

Lee v. Rheem Mfg. Co., 432 F.3d 849, 97 FEP 118 (8th Cir. 2005) . Panel : GRUENDER, Loken, Benton. Claims on Appeal : ADEA failure to hire. Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Questions in interview about applicant's expected years of service (e.g., "things have changed a lot," whether employee could "grasp these new processes," whether he had a "plan for the future") not direct evidence. Employer articulated legitimate reason for not rehiring (employee had originally retired in 1996 because of chronic fatigue syndrome, previously exhibited poor judgment, exhibited no sign of wanting to advance in career but mostly interested in making income to recover from losses in the stock market) and hiring committee thought other candidate was more qualified. Evidence of pretext insufficient to present genuine issue of material fact; employer substantiated each justification (presented evidence of succession plan, employee conceded that his health was a legitimate concern, other candidate objectively possessed qualifications that plaintiff lacked).

Nuzum v. Ozark Automotive Distributors, Inc., 432 F.3d 839, 17 AD Cases 688(8th Cir. 2005) . Panel: RILEY, Fagg [LAY, concurring]. Claims on Appeal: ADA, ADE and Minn. state law discrimination and retaliation. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Tendinitis of the elbow not shown to be a "disability," where (1) employee's overall ability to perform manual tasks central to most peoples' lives not significantly limited (record revealed numerous household and life activities that employee could perform); (2) major life activity of working not by shown to be significantly affected by lifting restriction; (3) limitation on sleeping that prevented employee from sleeping more than five hours a night not significant; (4) limitation on "hugging," even if it involves a "major life function," unrelated to any accommodation that the employer could provide. Panel limits prior circuit case law classifying lifting as a major life activity, treating it instead as one category of basic motor functions that together represent a major life activity.

Johnson v. Univ. of Iowa, 432 F.3d 325, 97 FEP 109 (8th Cir. 2005).Panel: MELLOY, Lay, Benton. Claims on Appeal: Title VII and Equal Protection challenge to parental leave policy. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: Parental leave policy that allowed adoptive parents and biological mothers, but not biological fathers, to use accumulated sick leave for parental leave, did not discriminate on the basis of sex. Employer could treat mothers differently because childbirth could reasonably be presumed to require disability-based leave. Employer could also rationally conclude that adoptive fathers might need addition al time off for administrative reasons.

Baucom v. Holiday Companies , 428 F.3d 764, 17 A.D. Cases 491 (8th Cir. 2005). Panel: RILEY, Fagg [LAY, concurring] . Claims on Appeal: ADA, ADE and Minn. state law discrimination and retaliation. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: Modest fluctuation in working hours, disciplinary warnings, and negative performance review do not constitute adverse employment actions for purpose of prima facie test.

McPheeters v. Black & Veatch Corp., 427 F.3d 1095, 96 FEP 1459 (8th Cir. 2005). Panel: HANSEN, Wollman, Benton. Claims on Appeal: ADE and Mo. state law termination. Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: No abuse of discretion in admitting evidence at trial. Evidence of colloquy during deposition between attorneys for both sides about whether defendant appropriately answered an interrogatory was inadmissible on FRE403 grounds. Court did not categorically rule out admission of evidence of other age discrimination claims against employer, but plaintiff's counsel did not make offer of proof at trial to renew issues of admissibility. Objections to plaintiff counsel's opening statement sustained; no abuse of discretion in barring plaintiff's counsel from discussing contested evidence. Judge's apparent frustration with lawyers was screened from jury and caused no prejudice. Allowing recess during plaintiff counsel's opening statement not abuse of discretion. Excuse of company witness who plaintiff wished to cross-examine on medical grounds not an abuse of discretion, where plaintiff had opportunity to depose witness. Co-worker e-mails properly excluded on relevance grounds, FRE401. No offer of proof, and no plain error, regarding exclusion of evidence of salaries of incoming replacement employees. Defense counsel's use of management book kept by vice president in examination of witness permissible; district court properly excluded the book as an exhibit. Document written by plaintiff used for impeachment purposes only was not subject to disclosure in discovery; plaintiff suffered not prejudice. Defense counsel did not violate witness-advocate rule by reasking question that referenced to an earlier part of the trial. Alleged cumulation of errors did not warrant new trial.

Maxfield v. Cintas Corp. No. 2, 427 F.3d 544, 96 FEP 1249 (8th Cir. 2005). Panel: MCMILLIAN, Colloton, Benton. Claims on Appeal: Title VII, § 1981 and Ark. state law demotion, transfer and termination (race). USERRA claim (not discussed here). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant] Grounds: Assuming that employee met prima facie test for McDonnell Douglas, he did not create genuine issue of material fact on whether reason for transfer (four months' sales deficits) was pretext. Only supposedly comparable individual ran only two months' worth of deficits. Termination supported by evidence of violation of company policy and dishonesty; and no evidence that discrimination motivated the decision.

Grabovac v. Allstate Ins. Co., 425 F.3d 538, 17 A.D. Cases 225 (8th Cir. 2005) . Panel: MCMILLIAN, Arnold, Colloton. Claims on Appeal: 1. Title VII termination (sex) and retaliation. 2. Equal Pay Act. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant] Grounds: 1. Broker who failed to pass mandatory examination by a set deadline was not qualified for purposes of the indirect, prime facie test. Alternatively, males who were alleged comparables had different titles and/or deadlines and met the employer's conditions. 2. Plaintiff's salary was second highest out of five marketing business consultants in her region, all others male.

Simpson v. Des Moines Water Works, 425 F.3d 538, 17 A.D. Cases 225 (8th Cir. 2005) . Panel: GIBSON, Bye, Gruender. Claims on Appeal: AD and Iowa state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee fired for testing positive for marijuana use neither established causation between any alleged disability and termination decision (for purposes of prima facie case), n or presented genuine issue of material fact on pretext (where proffered reason for discharge included driving company vehicle without a license and failed drug test).

Kasper v. Federated Mutual Ins. Co., 425 F.3d 496, 96 FEP 961 (8th Cir. 2005) . Panel: RILEY, Bowman, Benton. Claim on Appeal: Title VII retaliation . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Employee failed to establish genuine issue of material fact about whether there was causal connection between sex harassment complaint and termination where first critical performance evaluation had already been communicated two weeks prior to the employee's complaint. Termination also came one year after her complaint. Alternatively, there is no evidence that the employer was motivated by any factor other than employee's failure to file monthly reports as required.

Larry v. Potter, 424 F.3d 849, 96 FEP 897 (8th Cir. 2005) . Panel: HANSEN, Wollman, Benton. Claim on Appeal: Title VII transfer (race, sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee did not present genuine issue of material fact that employer's explanation of denial of transfer was pretextual (i.e. that employee had poor work attitude and excessive absences).

Johnson v. Ready Mixed Concrete Co., 424 F.3d 806, 96 FEP 1091 (8th Cir. 2005) . Panel: COLLOTON, Arnold, McMillian. Claim on Appeal: Title VII termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee did not produce genuine issue of material fact on pretext, where white truck drivers identified as comparables were not similarly situated. Employee had been terminated for dishonesty (i.e., for allegedly concealing acid damage to truck), while the white drivers had not misrepresented facts to the company or falsified reporting documents. While timing evidence supported an inference of a mistake by the employer about the employee's damage to the truck, it does not show that the employer did not have an honest belief about the misconduct. District court did not have to draw adverse inference from the absence of photographic evidence of the damage to the trucks; even if pictures existed, it was the respective employee's actions during the investigation that mattered, not the damage to the vehicles.

Singletary v. Missouri Dept. of Corrections, 423 F.3d 886, 96 FEP 807 (8th Cir. 2005) . Panel: SMITH, Loken, Beam. Claim on Appeal: 1. § 1981 termination. 2. Title VII discrimination (race). 3. Title VII retaliation. 4. Title VII harassment (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. State has Eleventh Amendment immunity from § 1981 action. 2. Paid administrative leave was not an adverse employment action (citing case law form Fourth, Fifth and Sixth Circuits). 3. Same as (2). 4. Racial slurs did not constitute a hostile work environment where they were infrequent, not personally heard by employee, one officer who admitted using a slur was transferred, and alleged acts of vandalism were not shown to have any connection with the use of racial slurs.

Johnson v. AT&T Co., 422 F.3d 756, 96 FEP 762 (8th Cir. 2005) . Panel: HANSEN, Wollman, Benton. Claim on Appeal: Title VII, § 1981 and Mo. state law termination (race and age). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee, who was terminated after he was identified (by nine co-workers, based on audiotape recording) as the individual who phoned in repeated bomb Thereats to his work facility, failed to establish pretext. Although a subsequent investigation revealed facts tending to exonerate the employee, that information was not available to the employer when the decision was mad to fire him. Court found no record support for claim that manager testified falsely about incident in state unemployment hearing. Lack of thorough investigation is not proof of pretext; termination adequately supported by co-worker testimony, absent evidence that the co-workers possessed racial bias against employee.

Gilooly v. Missouri Dept. of Health and Senior Services, 421 F.3d 734, 96 FEP 659 (8th Cir. 2005). Panel: MELLOY, Smith [COLLOTON, dissenting in part]. Claim on Appeal: 1. Title VII, § 1983 and Mo. state law harassment (sex). 2. Title VII, § 1983 and Mo. state law discrimination (sex). 3. Title VII, § 1983 and Mo. state law retaliation . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Reversed [plaintiff]. Grounds: 1. Frequent desk visits and unannounced visits at home by female managers did not constitute severe or pervasive harassment. 2. Suspension supported by evidence that employee violated confidentiality, conflict of interest and reporting rules, while allegedly similar employees had not committed infractions of comparable severity. 3. Employee created genuine issue of material fact about causation, where decision makers furnished different and contradictory accounts of the reason for the termination. Anti-retaliation provision protects an employee who files a good-faith complaint of harassment from adverse action even where the employer afterwards contends that the employee lied during the investigation, absent a clear record of deception.

Turner v. Gonzales, 421 F.3d 688 (8th Cir. 2005). Panel: GRUENDER, Melloy, Heaney. Claim on Appeal: 1. Title VII discipline (race). 2. Title VII harassment (race). 3. Title VII retaliation . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Reversed [plaintiff]. Grounds: 1. Employee FBI agent fails to present prima facie case, where she was disciplined for repeatedly ignoring internal workplace procedures and deadlines, while male agents were charged with lesser violations. 2. That male agents junior to employee in experience allegedly showed plaintiff disrespect and, in one instance, received an assignment ahead of plaintiff, and one comment uttered outside plaintiff's presence, not severe or pervasive. 3. Denial of automatic step increase, caused by performance rating downgrade, constitutes an adverse employment action. Timing of downgrade (two months ahead of schedule and five days after manager became aware of discrimination complaint) evidence of causation. Transfer of agent to different state and away from her area of specialty may also constitute an adverse employment action. Issue of fact presented regarding timing and validity of two negative performance evaluations that led to her transfer. Although plaintiff was accused of mistakes in two cases, plaintiff rebutted this showing with evidence of U.S. Custom's officer who contradicted FBI's claims. Moreover, agent who investigated plaintiff for second evaluation admitted that he interviewed no one who interacted with the plaintiff, other than her two superiors, and other agents with first-hand knowledge could and did vouch for her work as outstanding.

Davis v. KARK-TV, Inc., 421 F.3d 699, 96 FEP 673 (8th Cir. 2005). Panel: MELLOY, Loken, Hansen. Claim on Appeal: 1. Title VII, § 1981 and Ark. state law promotion (race). 2. Title VII, § 1981 and Ark. state law pay (race). 3. Title VII, § 1981 and Ark. state law constructive discharge (race). 4. Title VII, § 1981 and Ark. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Assuming that employee could make out prima facie case, employer met its burden of production by showing that employee was not as fast as other candidates at learning how to produce and display graphics, and employee's rebuttal only challenged the other candidates' experience. No evidence that employee was denied relevant training. 2. Employer rebutted employee's claim by showing that she had not earned a raise in excess of 2% based on her performance, and that she had stated that she did not want a raise in a lower range. 3. Transfer that gave employee a higher-level title and 7% raise not adverse, even if transfer required plaintiff to work undesirable evening shift. 4. Same as (3).

Jankovitz v. Des Moines Independent Community school Dist., 421 F.3d 649, 96 FEP 695 (8th Cir. 2005). Panel: MCMILLIAN, Arnold, Colloton. Claim on Appeal: ADEA benefits . Disposition Below: Summary judgment for plaintiff [defendant]. Outcome on Appeal: Affirmed [plaintiff]. Grounds : Early retirement plan that paid a lump sum based on unused sick leave, but that did not apply to employees age 65 or older, violated ADEA. Benefit plan not protected by affirmative defense, 29 U.S.C. § 623(f)(2)(B)(ii), because the definition of "early" retirement was entirely based on age instead of length of service.

Bass v. SBC Communications, Inc.,418 F.3d 870, 16 AD Cases 1857 (8th Cir. 2005). Panel: SMITH, Murphy, Bye. Claim on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee with Raynauds Syndrome and Scleroderma who failed to produce evidence that he was medically released to return to work could not prove standing (i.e. that he was qualified to perform essential functions of job), and admitted in his deposition that during relevant time frame he was unable to return to work.

Wright v. Rolette County, 417 F.3d 879, 96 FEP 385 (8th Cir. 2005). Panel: MELLOY [BYE, concurring] [HEANEY, dissenting]. Claim on Appeal: 1. § 1983 constructive discharge (sex). 2. § 1983 harassment (sex). Disposition Below: 1. Summary judgment on qualified immunity [plaintiff]. 2. Summary judgment on qualified immunity [plaintiff]. Outcome on Appeal: 1. Reversed [defendant]. 2. Affirmed [plaintiff]. Grounds: 1. Although employee made out harassment claim, behavior did not reach "intolerable" stage that would compel employee to quit. 2. Right against sex harassment clearly established in 2002. That employee made no allegation of sexual advances or touching does not repudiate claim of harassment, where supervisor made extremely vulgar sexualized comments to employee, sometimes in presence of other employees, over two year period.

Rodgers v. U.S. Bank, N.A ., 417 F.3d 845, 95 FEP 340 (8th Cir. 2005). Panel: GRUENDER, Melloy [COLLOTON, concurring in the judgment]. Claim on Appeal: Title VII, § 1981 and Mo. state law termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: On prima facie case, panel majority disapproved of the stringent standard applied by the district court at the prima facie stage. "At the prima facie stage of the McDonnell Douglas burden-shifting framework, we choose to follow the low-Threshold standard for determining whether employees are similarly situated." At the pretext stage, the court affirmed summary judgment. Proffered reason was that employee violated the bank's policy against employees processing transactions on their own accounts. The employee failed to rebut this explanation, either by locating comparable white employees (whose offenses were sporadic and involved far less money). Plaintiff was also on final-warning status, where comparable white employees were not. Allegedly inadequate investigation not a basis for inferring pretext. Adding reasons to support discharge that do not contradict original explanation not evidence of pretext.

Pointer v. DART, 417 F.3d 819, 96 FEP 285 (8th Cir. 2005). Panel: WOLLMAN, Hansen, Benton. Claim on Appeal: Title VII termination (race). Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although district court abused its discretion in refusing to enforce witness subpoenas, this decision was not shown to violate substantial rights under FRE103(a), where there was no offer of proof of what the witnesses' testimony would have been or whether it would have cast doubt on credibility of employer's witness.

Logan v. Liberty Healthcare Corp., 416 F.3d 877, 96 FEP 877 (8th Cir. 2005) . Panel: MCMILLIAN, Wollman, Benton. Claims on Appeal: ADA, ADE and Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Assuming that plaintiff made out prima facie case, plaintiff did not rebut legitimate, non-discriminatory reason for demotion and termination (i.e., persistent personal animosity between plaintiff and supervisor that preexisted her complaint of discrimination, and alleged dishonesty about use of sick leave). Affidavit from co-worker that plaintiff was subject to unprecedented scrutiny was conclusory.

Wallace v. Sparks Health System, 415 F.3d 853, 96 FEP 253 (8th Cir. 2005) . Panel: BOWMAN, Riley, Gruender. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Expressions of irritation by employer during EEOC conciliation process that lead to settlement do not establish causal connection, and one year passed between EEOC charge and layoff. No evidence that employer withheld information about open positions within organization. Alternatively, employer furnished legitimate non-discriminatory reason for termination (RIF), and plaintiff failed to establish that this reason was unworthy of credence.

Cheshewalla v. Rand & Son Construction Co., 415 F.3d 847, 96 FEP 171 (8th Cir. 2005) . Panel: WOLLMAN, Hansen, Riley. Claims on Appeal:1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Alleged harasser was not a supervisor within the meaning of Faragher; as foreman, he did not have hiring or firing authority. Evaluated as a co-worker harassment situation, plaintiff did not report harassment immediately and when she turned foreman in he was permanently transferred away from plaintiff, satisfying standard of due care. 2. Four-week interval between complaint of harassment and termination is insufficient by itself to establish causal connection. Intervening events (plaintiff's repeated unexcused absences and reduction in force) furnished legitimate reason for termination.

Russell v. City of Kansas City, Mo., 414 F.3d 863, 96 FEP 1 (8th Cir. 2005) . Panel: LOKEN, Hansen, Morris Sheppard Arnold. Claims on Appeal: Title VII termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff terminated for alleged violation of anti-harassment policy presented genuine issue of material fact about intent. Though plaintiff waived direct method of proof, evidence showed evidence of pretext. Comments by plaintiff (about Mexican children in presence of Latina, and calling a gay employee "sissy pants") were not taken as insulting or harassing by those employees, who each testified that plaintiff was being singled out because of her race. One African-American, one white male were not punished as harshly under same policy.

Zhuang v. Datacard Corp., 414 F.3d 849 , 96 FEP 95 (8th Cir. 2005) . Panel: WOLLMAN, Gibson, Colloton. Claims on Appeal: 1. Title VII, ADE and Minn. state law termination. 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff does not make out prima facie case. Transfer to tester position involved only minor changes in working conditions and no change in compensation; not an adverse employment action. While termination was an adverse action, plaintiff did not show that she was meeting the legitimate expectations of the employers (she received low rating in RIF). Comments about plaintiff's age and accent did not support inference of discriminatory intent. 2. While there was a disputed issue of fact about the timing of her termination (before or after her discrimination complaint), fact is not material because record lacked other evidence sufficient to support causal connection; supervisor's knowledge of EEOC charge alone is not enough. Alternatively, employer establish performance-based reason for discharge not rebutted by plaintiff.

Ace Elec. Contractors, Inc. v. International Broth. of Elec. Workers, Local Union Number 292, AFL-CIO, 414 F.3d 896 (8th Cir. 2005). Panel: HANSEN, Melloy [MURPHY, dissenting]. Claim on Appeal: Minn. state law challenge to collective bargaining agreement (age). Disposition Below: Summary judgment for plaintiff [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds : CBA that required quota of employees age 50 or over as electrical workers violated public policy, as declared in state employment discrimination law. Minnesota law, unlike ADEA, protects relatively younger employees as well.

Philip v. General Motors, 413 F.3d 766, 95 FEP 1858 (8th Cir. 2005). Panel: MELLOY, Bye [HEANEY, dissenting]. Claims on Appeal: Title VII termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff did not present prima facie case that he was treated differently than similarly situated employees. Acts of disparate treatment alleged in affidavits not connected up with plaintiff's incident.

Tatum v. Arkansas Dep't of Health, 411 F.3d 955, 95 FEP 1697 (8th Cir. 2005) . Panel: MELLOY, Loken, Hanson. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII constructive discharge (sex). Disposition Below: 1. Judgment as a matter of law, after jury awarded $300,000 compensatory damages [defendant]. 2. Judgment as a matter of law [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. In co-worker harassment, case, remedial action was prompt and effective as a matter of law -- despite taking two weeks to initiate after complaint -- where harassment ceased at once, even though plaintiff continued to work in the same office as the alleged harasser. Investigation took two and a half months, involved two investigators and nineteen witness interviews, and resulted in a written finding. 2. Being forced to continue to work with alleged harasser during investigation, and unfriendly behavior of co-workers, not "intolerable" and failed to establish that employer intended to force plaintiff to quit.

Soliman v. Johanns, 412 F.3d 920 (8th Cir. 2005) . Panel: RILEY, Colloton [BYE, dissenting]. Claims on Appeal: Title VII harassment and termination (race, national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion by denying pro se litigant leave to file a response to summary judgment after his father's death, where court had already granted one extension, warned that there would not be another extension, and plaintiff filed second motion for extension after deadline had run. Plaintiff, on the merits, failed to establish that he was performing up to employer's reasonable standards (record constrained evidence of serious performance deficiencies) and evidence of alleged harassment was not sufficiently severe. Although district court erred in waiting only one day to enter judgment on magistrate judge's report and recommendation, error was harmless because plaintiff lacked any non-frivolous objections.

Coons v. Mineta, 410 F.3d 1036, 95 FEP 1616 (8th Cir. 2005). Panel: MURPHY, Heaney, Smith. Claims on Appeal: ADE and Title VII failure to rehire (race). Disposition Below: Dismissal for lack of subject matter jurisdiction [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Issue of fact presented on face of complaint regarding equitable tolling of limitations period for filing a charge. District court erred in holding that supposedly untimely charge deprived court of subject matter jurisdiction. Plaintiff's complaint sufficiently alleged that discriminatory act (rehire decisions in 1998) was not known to plaintiff until 2002. Record insufficiently developed to determine whether agency abused discretion in interpreting 29 C.F.R. § 1614.105(a)(2) not to allow extension to file charge. Alleged systemic discrimination throughout rehire process to present might also support continuing violation.

Tatum v. City of Berkeley, 408 F.3d 543, 95 FEP 1470 (8th Cir. 2005). Panel: MCMILLIAN, Riley, Gruender. Claims on Appeal: Title VII and §1981 discrimination and harassment (race); and retaliation. Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Reversed for one plaintiff [plaintiff]. Grounds: Dismissal of six plaintiffs' cases affirmed. Panel rejects claims of different plaintiffs that zero-tolerance drug policy was pretextual, that one employee was constructively discharged when someone tampered with his breathing equipment, and sundry claims treated summarily. One plaintiff, though, presented evidence that although he supposedly failed probation because of alleged falsification of his employment application, there was evidence that the oral interview panel showed no concern about the alleged misrepresentation after he offered to clear it up with addition al documentation. Jury could infer retaliatory or discriminatory motive.

Haas v. Kelly Services, Inc., 409 F.3d 1030, 95 FEP 1355 (8th Cir. 2005). Panel: SMITH, Melloy [COLLOTON, dissenting in part]. Claims on Appeal: 1. ADE and Mo. state law termination. 2. ADE and Mo. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff established prima facie case, but failed to establish that age motivated termination, as against evidence that she was fired for insubordination (failure to return to work when called). Evidence about altercation between younger female supervisor and plaintiff about supervisors "short skirt" and denial of bonus did not point specifically to age. 2. That termination occurred weeks after complaint of discrimination, timing of termination decision was in dispute, and facts about alleged insubordination were in dispute creates genuine issue of material fact on retaliation.

Williams v. Missouri Dep't of Mental Health, 407 F.3d 972, 95 FEP 1345 (8th Cir. 2005). Panel: SMITH, Melloy, Colloton. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Female employees contended that the acts of harassment (a supervisor who exposed himself, and fondled and grabbed the two plaintiffs) were so severe and pervasive that liability for hostile work environment attached before they ever had an opportunity to complain (although one plaintiff did complain, albeit after she left the worksite). Court holds that employer proved Faragher/Ellerth defense as a matter of law. Employer's policy allowed employees to skip levels of management and was otherwise reasonable, and as soon as one of the plaintiffs complained, the agency began investigation and placed harasser on administrative leave. Even if first incident created actionable hostile work environment, employer still would have had defense as it took prompt corrective actions after first complaint.

Sallis v. University of Minnesota, 408 F.3d 470, 95 FEP 1281 (8th Cir. 2005). Panel: SMITH, Loken, Riley. Claims on Appeal: 1. Title VII promotion (race). 2. Title VII discrimination (race). 3. Title VII harassment (race). 4. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Desert Palace v. Costa mixed-motive analysis not applicable to ordinary disparate treatment case. Assuming plaintiff made out prima facie test, summary judgment supported by failure of plaintiff to rebut legitimate, non-discriminatory reason (other candidate more qualified). 2. No evidence of other adverse employment actions to support claim. District court did not abuse discretion by denying access to university's entire file of race discrimination complaints and limiting him only to complaints from his department, Parking and Transportation Services. 3. Rude, insensitive remarks singling plaintiff out because of his skin color not severe or pervasive. 4. Complaints in personnel file insufficient to constitute "adverse employment action."

Al-Zubaidy v. TEK Industries, Inc., 406 F.3d 1030, 95 FEP 1292 (8th Cir. 2005). Panel: RILEY, Loken, Morris Sheppard Arnold. Claims on Appeal: 1. Title VII termination (race, sex, religion, national origin). 2. Title VII harassment (race, sex, religion, national origin). 3. Neb. state law discrimination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant] 3. Affirmed [defendant]. Grounds: 1. Employee (a state inmate who worked for a manufacturing facility that contracted with the state) did not rebut legitimate, non-discriminatory reason for termination (excessive absences). Plaintiff waived failure-to-rehire claim by not putting it in his administrative charge. 2. Offensive, offhand isolated remarks not severe or pervasive. 3. State civil rights statute does not govern prison labor according to state's attorney general opinion. Whether correct or not, judgment could be affirmed on alternative ground that claim lacked merit (as found under Title VII).

Voeltz v. Arctic Cat, Inc., 406 F.3d 1047, 16 A.D. Cases 1208 (8th Cir. 2005). Panel: BOWMAN, Morris Sheppard Arnold, Gruender. Claims on Appeal: 1. ADA reasonable accommodation. 2. ADA transfer and failure to rehire. Disposition Below: 1. Judgment entered after a jury trial; $71,000 back pay ; $74,626 in front pay [plaintiff]. 2. Judgment entered after a jury trial; liability, but finding mixed-motive defense for employer [defendant]. Outcome on Appeal: 1. Reversed [defendant]. 2. Affirmed [defendant]. Grounds: 1. JAML correctly denied on estoppel defense; jury found that employee manifested good-faith belief that application for SSDI benefits was not inconsistent with definition of "qualified individual" under Cleveland v. Policy Management. Jury, however, did not make a finding that plaintiff lost his job because of employer's failure to engage in the interactive process and accommodate his MS, hence no proof of injury to substantiate award. Case remanded for entry of nominal damages. 2. Because of the jury's finding on the affirmative "same decision" defense, where reinstatement "could not have been ordered as a matter of law because of the jury's findings that Voeltz would not have been working at Arctic Cat regardless of his disability, Voeltz is not entitled to front pay as an alternative to reinstatement."

Pope v. ESA Services, Inc., 406 F.3d 1001, 95 FEP 1230 (8th Cir. 2005). Panel: GRUENDER, Bye, John R. Gibson. Claims on Appeal: 1. Title VII and Minn. state law promotion (race). 2. Title VII and Minn. state law termination (race). 3. Title VII and Minn. state law retaliation. State tort and whistleblowing claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Plaintiff did not rebut explanation for decision to hire outside applicant for district manager's position (plaintiff had not shown superior performance as a general manager, other candidate had experience managing multiple grocery stores). No admissible evidence that decision maker refused to socialize with black employees. 2. Employer reasonably and in good faith believed employee committed overtime violation and had petty cash shortage. Only other white employee with comparable record was also fired. 3. Fact that plaintiff mentioned absence of black managers in region to hiring manager was not a "protected activity."

Peterson v. Scott County, 406 F.3d 515, 95 FEP 1252 (8th Cir. 2005). Panel: HEANEY, Bye, Melloy. Claims on Appeal: 1. ADEA, Title VII (sex) and Minn. state law failure to hire. 2. ADEA, Title VII (sex) and Minn. state law promotion. 3. Title VII, ADE and Minn. state law harassment. 4. Title VII, ADE and Minn. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff] 3. Affirmed [defendant]. 4. Reversed [plaintiff]. Grounds: 1. Proffered explanation was that plaintiff applied later than other applicants, whose background checks were completed ahead of hers. Genuine issue of material fact whether employees were hired in strict order that background checks were completed. Employer also changed explanation mid-stream, allowing inference of unlawful discrimination. 2. For purposes of prima facie case, plaintiff was similarly situated to There younger men considered for job, even though they were already full-time employees with more experience. At pretext stage, where employer raised relative qualifications of applicants, plaintiff presented genuine issue of material fact where two males hired did not meet minimum qualifications. Also, alleged performance deficiencies of plaintiff could not have affected hiring decision because they were not reported to decision makers. 3. There comments by supervisors about "old ladies" not severe or pervasive. 4. Because sexual harassment under Title VII is evolving, plaintiffs who reasonably believed that comments about "old ladies" were harassment engaged in protected conduct by complaining to manager, even if a court ultimately concludes that plaintiff was mistaken in her belief. Termination occurred only two weeks after complaint, and was preceded by calendar entry that stated "Call Pam Johnson/ER . . . INTR-Dismissal" which may have referred to plaintiff (who was interim employee). Conflicting evidence about how many shifts plaintiff missed.

Thomforde v. IBM Corp., 406 F.3d 500 (8th Cir. 2005). Panel: HANSEN, Smith, Fagg. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Under Older Workers Benefit Protection Act, 29 U.S.C. § 626(f), release held not enforceable where agreement was not written in a manner calculated to be understood by participants, as required by the OWBPA. Covenant not to sue excluded ADEA claims, but release did not. Employee asked in-house counsel prior to signing what this apparent conflict in the language meant, company refused to answer.

Wentzel v. Missouri-American Water Co., 404 F.3d 1038, 16 A.D. Cases 1124 (8th Cir. 2005) . Panel: BENTON, Wollman, MacMillian . Claims on Appeal: AD and Mo. state law forced leave. Disposition Below: Summary judgment (defendant). Outcome on Appeal: Affirmed (defendant). Grounds: Employer could not have regarded plaintiff as substantially limited in the major life activity of working, where his lifting restriction only made him unqualified for his laborer's job, not broad range of jobs. Delay in return to work was not motivated by retaliation, but by plaintiff's failure to abide by arbitrator's award requiring second medical opinion before returning to full-duty.

Henderson v. Ford Motor Co., 403 F.3d 1026, 95 FEP 970, 16 A.D. Cases 1025 (8th Cir. 2005) . Panel: DORR, Loken, Smith . Claims on Appeal: 1. AD and Minn. state law reasonable accommodation. 2. AD and Minn. state law termination. 3. Title VII, AD and Minn. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant] 3. Affirmed [defendant]. Grounds: 1. No equitable tolling of limitations periods for claim, where employee admitted in a deposition that she was already suspicious as early as 1998 that she was not being placed in an open position because her supervisor told her she was instructed by company to keep her from returning to plant in retaliation for helping other employees pursue discrimination claims. 2. Plaintiff failed to prove as part of prima facie case that she was qualified to fill any of the openings with her medical restrictions and low seniority. Alternatively, employer's alleged failure to reasonably accommodate plaintiff is not evidence of pretext because those events occurred years before. 3. Protected activity separated from termination by more than two years.

Torlowei v. Target, 401 F.3d 933, 95 FEP 753 (8th Cir. 2005) . Panel: Per Curiam [Smith, Beam, Benton]. Claims on Appeal: Title VII discrimination (race). Disposition Below: Summary judgment (defendant). Outcome on Appeal: Affirmed (defendant). Grounds: Published opinion affirms district court's analysis, except to correct its reliance on Desert Palace , which it holds to be inapplicable at the summary judgment stage.

Parisi v. The Boeing Co., 400 F.3d 583, 95 FEP 596 (8th Cir. 2005) . Panel: MCMILLIAN, Riley, Gruender. Claims on Appeal: ADEA failure to rehire. Disposition Below: Summary judgment (defendant). Outcome on Appeal: Affirmed (defendant). Grounds: Plaintiff failed to exhaust 94 applications to be rehired in EEOC charge. Original charge does not incorporate addition al incidents, which occurred in some instances before he filled out intake questionnaire. Each incident was discrete event within meaning of Morgan.

Stidham v. 3M Company, 399 F.3d 935, 95 FEP 417 (8th Cir. 2005) . Panel: BYE, Murphy, McMillian. Claims on Appeal: ADE and Mo. state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff terminated during reductio-in-force when her job was declared "redundant." While acknowledging that the dictionary definition of "redundant" is ordinarily "repetitive," the panel found no disputed issue of fact that the 3M Company meant something different by its use of the word. Court declines to credit alleged statistical evidence of fate of older employees. Employer presents "same actor" inference, because manager who made decision to eliminate her job also the one who originally hired her. Her retirement benefits would not have bee affected is she had accepted reassignment to her prior position.

Shelton v. Boeing Co., 399 F.3d 909, 95 FEP 606 (8th Cir. 2005). Panel: MCMILLIAN, Riley, Gruender. Claim on Appeal: ADEA failure to rehire. Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee did not exhaust administrative remedies where neither his charge nor his intake questionnaire made reference to failure to rehire claim, but only to original layoff. Scope of charge specifically limited by reference to date of layoff, but no other event.

Eliserio v. United Steelworkers of America, 398 F.3d 1071, 95 FEP 421 (8th Cir. 2005) . Panel: GRUENDER, Bye, Beam. Claims on Appeal: Title VII and Ia. state law harassment (race) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: The plaintiff (who was in the bargaining unit, but not a member) complained to management about racial harassment; the company fired the employee, but he was reinstated in the course of grievance proceedings. Graffiti began to appear throughout the plant referring to "Taco Bob," "Ratelserio" (complete with drawings of the plaintiff as a rat), and "a woman gave birth to a taco shaped turd and she named him Bob." After the plaintiff complained, there subsequently appeared pre-printed, union-issued "No Rat" stickers sprouting on union members personal belongings. Distribution of stickers at time coinciding with graffiti presented genuine issue of material fact about whether union supported racial harassment. Evidence that harassers admitted that they would "stop at nothing to get rid of" plaintiff was not hearsay under FRE 801(d)(2).

Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 95 FEP 549 (8th Cir. 2005) . Panel: BENTON, Smith, Beam. Claims on Appeal: 1. ADA, Title VII and Iowa state law training (sex). 2. Title VII and Iowa state law harassment (sex). 3. Title VII and Iowa state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant] 3. Affirmed [defendant]. Grounds: 1. Plaintiff (with workplace injury and medical restrictions) failed to meet prima facie burden because she did not pass test that qualified her for training. No reasonable accommodation claim because plaintiff failed to inform employer of accommodation that was needed. Plaintiff failed to return to doctor for follow-up evaluation. Plaintiff who failed qualifying test also failed prima facie burden under Title VII of establishing she qualified for training. 2. Plaintiff who admitted that she was not botherd by offensive conduct flunks subjective prong of proving harassment. 3. No adverse action in denying training, because decision was based on failure to provide updated medical evaluation. Offer to allow plaintiff to training in exchange for withdrawing administrative charge was settlement offer under FRE408 and therefore not admissible.

Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011, 16 A.D. Cases 801 (8th Cir. 2005) . Panel: MCMILLIAN, Murphy, Benton. Claims on Appeal: AD and Mo. state law termination claim. ERISA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Claim was termination for association with a disabled person (her newborn child with Down's syndrome). Prima facie case was not disputed. After Desert Palace, analysis of summary judgment did not change; plaintiff was always able to prove unlawful discrimination without directly disproving the proffered reason for the adverse action. Although district court properly analyzed claim under indirect method, it erred in holding that plaintiff did not raise genuine issue of material fact challenging asserted reason for termination (elimination of plaintiff's job in reorganization). Here, job was eliminated two months after plaintiff enrolled her child on her insurance, she had excellent record for eleven years, and she was qualified (but discouraged from applying for) vice president vacancy.

Pedroza v. Cintas Corporation No. 2 d/b/a Cintas Corporation , No. 03-1407 (8th Cir. 2005). Panel: MELLOY, Beam [COLLOTON, concurring]. Claims on Appeal: Title VII and Mo. state law harassment (same-sex), retaliation and constructive discharge. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff failed to show that unwelcome, sexually-tinged behavior by female co-worker was motivated by sex. To show that harassment was motivated by sexual desire, plaintiff had to present admissible evidence that. Much of what plaintiff presented was inadmissible comments or rumors about her co-worker's sexual orientation that was excluded in the district court, and no appeal was taken on the decision on the motion in limine. Fact that harassing actions involved physical grabbing, kissing and statement that co-worker "wanted" plaintiff was insufficient to establish co-worker's motivation. Court declines to set separate standard for female same-sex harassment from men. No adverse action based on plaintiff's voluntary decision to switch positions with co-worker and then resign.

Shanklin v. Fitzgerald, 397 F.3d 596, 95 FEP 240 (8th Cir. 2005). Panel: RILEY, Gibson, Gruender. Claim on Appeal: 1. Title VII and Mo. state law termination (race). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Teacher failed to show as a matter of law that she was meeting school district's legitimate expectations, where there was systematic documentation of repeated problems in the classroom (difficult relations with students, cursing, using tape recorder in class when directed not to by administration) and evaluations showing that she was not competent. Alternatively, school district had legitimate, non-discriminatory reason for terminating teacher (did not improve in areas in which she was specifically counseled). 2. No evidence of causal connection between October 2000 EEOC charge and August 2001 termination. Ten-month gap, combined with ample evidence of intervening and repeated failures by teacher, defeats genuine issue of material fact.

Okruhlik v. Univ. of Arkansas, 395 F.3d 872, 95 FEP 82 (8th Cir. 2005) . Panel: WOLLMAN, McMillian, Riley. Claims on Appeal: 1. Title VII retaliation, denial of tenure. 2. Title VII harassment (sex). Disposition Below: 1. Judgment as a matter of law [defendant]. 2. Judgment as a matter of law [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Female faculty member who did not appeal negative recommendation by dean did not suffer "adverse employment action," because recommendation did not end tenure process and plaintiff withdrew herself before it was completed. Court defers to university's characterization of the tenure process as complete only after the university president makes decision. While intermediate decision might be relevant to discrimination case, it does not give rise to a separate claim. 2. University prevailed as a matter of law on Faragher/Ellerth defense; plaintiff failed to avail herself of grievance mechanisms.

LeGrand v. Area Resources for Community & Human Services, 394 F.3d 1098, 95 FEP 14 (8th Cir. 2005) . Panel: RILEY, Gibson, Gruender. Claims on Appeal: Title VII and Mo. state law harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Following activity (by priest who was advisor and served on board of plaintiff's project) not sufficiently severe or pervasive to male employee: invitation to watch porn and masturbate together); subsequent invitation to watch porn combined with kiss on the mouth, grab at buttocks and hand brushed against genitals; priest briefly gripped employee's thigh.

Knutson v. AG Processing, Inc., 394 F.3d 1047, 16 A.D. Cases 545 (8th Cir. 2005) . Panel: COLLOTON, M. Arnold, Riley. Claims on Appeal: ADA reassignment. Disposition Below: Judgment after a jury trial (compensatory and punitive damages, injunctive relief and attorney's fees) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Employee could not show that employer regarded him as disabled, as regards the major life activity of work, where it removed him as boiler operator and reassigned him to other work in the plant, at the same level pay and a comparable level of physical activity.

Hesse v. Avis Rent a Car Systems, Inc., 394 F.3d 624, 94 FEP 805 (8th Cir. 2005). Panel: MURPHY, Lay, Melloy. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII termination/failure to recall. 3. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Male manager's noisemaking was not specifically directed female employee. Although same manager had two years earlier kicked her desk and pushed her chair, record showed that he ceased harassing activities after plaintiff complained to supervisors in 1999; subsequent activity that resumed in 2001 not shown to be related to plaintiff's gender. Moreover, employer would prevail on Faragher/Ellerth affirmative defense, since it took effective steps to end harassment. 2. Plaintiff failed to identify a similarly situated male employee in her job category who was laid-off and not recalled. Alternatively, the reason for termination -- reduction in force - was not pretextual. 3. Termination came nearly two years after her complaint about manager was resolved, defeating causation.

Banks v. Int'l Union Electronic, Electrical, Technical, Salaried and Machine Workers of America, 390 F.3d 1049 (8th Cir. 2004). Panel : SMITH, Riley, Lay. Claims on Appeal: Title VII race and retaliation claims. LMRA claims (not discussed here). Disposition Below: Rule 12(b)(6) motion to dismiss [defendant]. Outcome on Appeal: Affirmed [plaintiff]. Grounds : Claims barred by res judicata/collateral estoppel because they rose out of same nucleus of common events as prior case; no addition al events occurred that created new claims.

Riggs v. Kansas City Missouri Public school Dist., 385 F.3d 1164, 94 FEP 1102 (8th Cir. 2004). Panel: MCMILLAN, Morris Sheppard Arnold, Melloy. Claims on Appeal: 1. Title VII, section 1981 and Mo. state law termination (race). 2. Title VII, section 1981 and Mo. state law promotion (race). Disposition Below: 1. Summary judgment [defendant]. 2. Judgment following a jury trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. In reverse discrimination case, plaintiff failed to present prima facie case that he was meeting employer's legitimate expectations (fired for failure to follow directives, failure to comply with written warning and unwillingness to provide direction to staff); alternatively, plaintiff raised no inference of race discrimination by evidence that prior administration expressed preference for African-Americans. 2. Intervening Desert Palace decision did not require retrial on mixed-motive theory where plaintiff expressly declined a charge on that theory at trial and thus waived objection.

Griffith v. City of Des Moines, 387 F.3d 733, 94 FEP 993 (8th Cir. 2004) . Panel: LOKEN, Bye [MAGNUSON, concurring] . Claims on Appeal: Title VII, § 1981 and 1983, and Iowa state law discrimination and retaliation . Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Handling of sex abuse charges against Latino firefighter found neither to be motivated by race nor retaliation. Court holds that Desert Palace v. Costa did not alter direct/indirect methods of proof at summary judgment stage under McDonnell Douglas. Leave of absence in face of public allegations of sex abuse not discriminatory where the employee himself requested it. After he was allowed to return to work, denial of request for retraining not actionable because it was not an adverse employment action. unrelated disciplinary actions were supported by evidence of plaintiff's misconduct, and not bias or retaliation. No retaliation where complaints of discrimination were filed only after pre-hearing notice of discipline. Co-workers who mocked plaintiff about abuse charges, sometimes but not always in racial terms, did not create a severe or pervasive racially hostile work environment.

Wortham v. American Family Ins. Group, 385 F.3d 1139, 94 FEP 1005 (8th Cir. 2004) . Panel: RILEY, Wollman, McMillian. Claims on Appeal: 1. ADEA, Title VII (race), and Iowa state law transfer. 2. Section 1981 transfer. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. Plaintiff insurance agent held an "independent contractor," based on form of contract; lack of supervision, budget, formal hours of work and office space; and compensation by commission. 2. No evidence of disparate treatment.

Maki v. Allete, Inc., 383 F.3d 740, 94 FEP 743 (8th Cir. 2004) . Panel: HEANEY, Wollman, Bowman. Claims on Appeal: Title VII and Minn. state law pension (sex). Disposition Below: Dismissed on Rule 12(b)(6) motion [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds : Claim that plaintiffs' pension payments were too small because they were not allowed to bridge service dates that were cut short by discriminatory marriage and pregnancy rules in the 1950s and 60s Accured (for statute of limitations purposes) when each individual plaintiff retired and her pension benefits vested.

Genthe v. Quebecor World Lincoln, 383 F.3d 713, 15 A.D. Cases 1697 (8th Cir. 2004) . Panel: WOLLMAN, Hansen [BYE, dissenting in part]. Claims on Appeal: ADA failure to promote. Disposition Below: Judgment as a matter of law defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : No genuine issue of material fact about whether plaintiff was turned sown for promotions because employer regarded him as having a limiting impairment, or that he was passed over for promotion because of such an impairment. For the two promotion decisions that the jury found were discriminatory, the decision makers (an individual supervisor and a committee) made reference to plaintiff's health, but did not manifest doubts about his fitness overall for any major life activity. No plain error in ADA charge to jury on his other, losing claims.

Baker v. John Morrell & Co., 382 F.3d 816 (8th Cir. 2004) . Panel: BYE, Loken, Magnuson. Claims on Appeal: Title VII and Iowa state law harassment, retaliation, discrimination ans retaliation (sex). Disposition Below: Judgment after a jury trial; $839,470 compensatory damages, $33,314 back pay, $650,000 punitive damages [plaintiff]. Outcome on Appeal: Affirmed[plaintiff]. Grounds : Evidence sufficient to support verdict on all claims (years of verbal and physical abuse, and employer's ineffectual awareness of situation). Constant barrage of harassment was objectively intolerable, company failed to respond to complaints and employee rationally determined that she had no response other than to leave. Retaliation claim supported by evidence that employer cut down her breaks, refused to provide job assistance, yelled at her about mistakes, withheld privileges extended to other employees and discouraged her from making further complaints. District court did not abuse its discretion under Fed. R. Civ. P. 15(b) and 54(c) by allowing plaintiff to amend complaint following the verdict to include Iowa state law claim. Because state and federal law standards are the same, defendant was on notice and not prejudiced by amendment. Although defendant contended that it would more likely have settled if it had known about uncapped damages, there was no evidence of that strategy was actually affected and plaintiff's demands had been well in excess of $300,000 (which placed defendant on notice that she might seek more than the Title VII capped damages).

Wilson v. Brinker Int'l, Inc., 382 F.3d 765, 94 FEP 585 (8th Cir. 2004) . Panel: MELLOY, McMillian, Colloton. Claim on Appeal: Title VII and Minn. state law harassment (sex). Disposition Below: Judgment as a matter of law after a jury verdict [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Judgment for defendant affirmed where plaintiff failed to establish continuing violation for harassment claim, where jury executed special interrogatories finding that no act of harassment occurred within 300 days of plaintiff's EEOC charge filing date. District court did not err in failing to grant judgment as a matter of law to plaintiff on timing issue, because employer contested acts of harassment that allegedly occurred during the 300 day period and jury could have chosen to disbelieve plaintiff (as an interested witness). Burden of establishing continuing violation on plaintiff, notwithstanding Morgan . Challenges to form of instructions waived below and do not present plain error.

Morgan v. United Parcel Service of America, Inc., 380 F.3d 459, 94 FEP 591 (8th Cir. 2004) . Panel: BEAM, Morris Sheppard Arnold [MELLOY, concurring and dissenting]. Claim on Appeal: Title VII and §1981 pattern or practice pay, work conditions and promotions (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Four Rule 23(b)(2) classes of African-American managers were certified for liability purposes. On promotion claim, relying on subjective factors, plaintiffs' expert failed to perform correct Wilcoxon test to determine racial pattern of promotions, and when performed correctly the test results were negative. Proof of discrimination in promotions in some districts would not establish "standard operating procedure" of discrimination overall. Plaintiffs also relied on applicant pool without correcting for unqualified. Unverified complaints by class members about unequal work conditions insufficient to raise an inference of pattern-or-practice discrimination. Regarding compensation, two multiple regression analyses by plaintiffs' experts failed to create a genuine issue of material fact because they were critically incomplete (did not consider past pay or performance evaluation data) and exclusion of these explanatory variables was not justified without evidence that they were biased by past discrimination against the class. Moreover, plaintiffs failed to present anecdotal evidence of pay discrimination.

Jackson v. Flint Ink North America Corp., 382 F.3d 869, 94 FEP 549 (8th Cir. 2004). Panel: MORRIS SHEPPARD ARNOLD, John Gibson, Riley. Claim on Appeal: Title VII harassment (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds : Plaintiff presented genuine issue of material fact on severe or pervasive harassment, which included uses of the word "nigger," and two instances of "KKK" graffiti over eighteen months, including in graffiti in showers with an arrow connecting plaintiff's name to a burning cross ans KKK sign. Case previously reported at 370 F.3d 791, 93 FEP 1612 (8th Cir. 2004).

Rowe v. Hussmann Corp., 381 F.3d 775, 94 FEP 520 (8th Cir. 2004). Panel: WOLLMAN, Richard S. Arnold, Morris Sheppard Arnold. Claims on Appeal: Title VII and Mo. state law harassment (sex). Disposition Below: Judgment after a jury trial; $500,000 emotional distress damages, $1,000,000 punitive damages [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds : Charge filed in 1999 timely under state and federal law. Under Title VII, as construed by Morgan, plaintiff's claim continued because jury could have found that harassment by manager did not cease between 1996 and 2000. District court did not err in failing to give jury defendant's version of the instruction, which provided two inaccurate alternative bases for finding limitations defense. Under state law, charge was timely under the continuing violation doctrine, which is consistent with Morgan. Emotional distress damage award supported by plaintiff's testimony that she suffered a constant fear of her manager; experienced panic attacks (nausea, headaches, sweating, and hyperventilation); moved her residence; obtained a gun card and mace;. took lunch and taking coffee breaks in the women's restroom; and had impaired relations with children. (Her treating psychologist testified that plaintiff suffered from an anxiety disorder and that her prognosis is poor.) Punitive award supported by harasser's outrageous conduct (contact verging on rape, Thereats of violence, etc.) and company's failure to take action.

Williams v. The Thomson Corp., 383 F.3d 789, 94 FEP 543 (8th Cir. 2004). Panel: PER CURIAM (Murphy, Heaney, Magill). Claim on Appeal: Title VII and ADA discrimination claims. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Plaintiff's claims time-barred by failure to file suit within 90 days of receiving right-to-sue letter; plaintiff's original failure to read letter for two weeks after it was forwarded to her. Law-of-the-case did not apply to ruling by federal district court in Ohio that transferred case to Minnesota (rather than dismissing outright). No tolling because plaintiff should have advised Commission of her change of address. In any event, claims were meritless. Plaintiff's response affidavit that merely reiterated her complaint properly struck.

Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 15 A.D. Cases 1601 (8th Cir. 2004). Panel: MELLOY, Murphy, Bright. Claim on Appeal: Minn. state law disability reasonable accommodation claim. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds : Plaintiff's polycystic kidney disease, requiring dialysis There times a week (along with rigorous schedule of treatment, limits on lifting, diet, and other physical limitations) is a disability under state law. Plaintiff was terminated from driving and other work; he was told at the time that it was because he could not meet lifting requirement, but during litigation employer also noted his inflexible schedule. State law "material limits" standard is more inclusive that ADA "substantially limits" standard. Not only is kidney failure itself a disability, but so are incapacitating conditions of plaintiff's treatment. Plaintiff also presented genuine issue of material fact about whether lifting duties were "essential," where previously the company accommodated restrictions. and plaintiff had functioned for six years within his medical restrictions. Undue burden defense presented genuine issue of material fact. Termination out of seniority order constituted adverse employment action. McDonnell Douglas pretext burden-shifting does not apply to reasonable accommodation claims.

Kincaid v. City of Omaha, 378 F.3d 799, 15 A.D. Cases 1505 (8th Cir. 2004). Panel: MELLOY, Riley, McMillian. Claim on Appeal: ADA, Title VII and §1981 failure to promote. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Though assuming that plaintiff met prima facie case for disability and race discrimination, employer articulated legitimate, non-discriminatory explanation (i.e. plaintiff's failure to furnish "fitness for duty certificate" and successful candidate's qualifications), and plaintiff failed to advance sufficient evidence to rebut these reasons. Court had no basis to second-guess relative qualifications of candidates.

Williams v. ConAgra Poultry Co., 378 F.3d 790, 94 FEP 266 (8th Cir. 2004). Panel: MORRIS SHEPPARD ARNOLD, McMillian, Melloy. Claim on Appeal: Title VII, §1981 and Ark. state law harassment and termination claims. Disposition Below: Judgment after a jury trial; on termination claim, $927,788.90 compensatory, $6,063,750 punitive damages (remitted to $173,156 compensatory, $600,000 punitive damages); on harassment, $1,001,397.40 compensatory, $6,063,750 punitive damages (remitted compensatory damages to $600,000) [plaintiff]. Outcome on Appeal: Affirmed, except punitive damages remitted to $600,000 [plaintiff]. Grounds : Plaintiff, a black male supervisor at a poultry plant, was terminated allegedly for fighting with a co-worker. At trial, Williams claimed that he was instead fired on account of race, and had suffered racial harassment. The race harassment evidence at trial included incidents both witnessed and not witnessed by the plaintiff, including numerous racist remarks, nooses left at the stations of black employees, exposure to KKK fliers and selective sexual harassment of African-American women. District court did not err in admitting evidence of harassing events not witnessed by plaintiff, on grounds that evidence was relevant (1) to credibility of plaintiff's testimony, (2) as evidence of racial animus for termination claim and (3) to prove punitive damage. Evidence relating specifically to harassment suffered by plaintiff was sufficient to support finding of severe or pervasive harassment (management singling out plaintiff for special scorn, using racially insensitive language and one specifically racial slur, graffiti in men's room, selective enforcement of rules, disparate assignment of job duties). Jury could award punitive damages separately for both claims. Plaintiff presented sufficient evidence to support finding of reckless indifference to plaintiff's federally protected rights. Citing State Farm Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003), court finds $6 million punitive verdict excessive because it improperly relied on evidence of misconduct that occurred to others and is excessive compared to $300,000 cap under Title VII. Court reduces award to $600,000.

Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 94 FEP 283 (8th Cir. 2004). Panel: FAGG, Loken [Richard S. Arnold, dissenting in part]. Claims on Appeal: 1. Title VII, section 1981 and Iowa state law harassment (race). 2. Title VII and Iowa state law retaliation. 3. Section 1981 retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Reversed [defendant]. Grounds : 1. Use of racial epithets at workplace did not rise to severe or pervasive harassment where they occurred about once a month and were not targeted at the plaintiff (who was white). 2. Plaintiff failed to exhaust administrative remedies by raising retaliation in charge. 3. Genuine issue of material fact presented where employee was fired while on vacation just six days after making last complaint about harassment, and where reason given for termination (poor relations with subordinates) had never been raised before, contradicted plaintiff's otherwise commendable history and appears to have been solicited by management while plaintiff was on vacation.

Tolen v. Ashcroft , 377 F.3d 879, 94 FEP 193 (8th Cir. 2004). Panel: MELLOY, Morris Sheppard Arnold, McMillian. Claim on Appeal: 1. Title VII termination (race). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff terminated as Assistant U.S. Attorney for perjury in connection with his brother's bank robbery trial, the unauthorized outside practice of law, making false statements to investigating officers, using government time, clerical assistance, and space for personal reasons, and misusing his position as an Assistant U.S. Attorney for personal gain. failed to present prima facie case that he was treated less favorably than comparable non-minority staff, as other alleged misconduct by co-workers was neither as severe nor as frequent as plaintiffs. Even if he survived prima facie test, plaintiff failed to disprove legitimate, non-discriminatory reasons for termination. 2. Refusal to cooperate in investigation was not a protected act. No post-employment act was causally connected to filing of EEOC charge.

McCurdy v. Arkansas State Police, 375 F.3d 762, 94 FEP 228 (8th Cir. 2004) . Panel: RILEY, Erickson [MELLOY, dissenting]. Claim on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Assuming that plaintiff demonstrated that single incident of harassment by supervisor was severe (one hour of intensive sex talk and physical grabbing) and made timely complaint, and where agency took effective steps to investigate and remedy harassment (by relocating plaintiff, turning investigation over to internal affairs, conducting a disciplinary hearing and ultimately demoting guilty officer), employer was not required under Faragher/Ellerth affirmative defense to prove second prong (that plaintiff unreasonably failed to use remedial policy) in order to avoid liability.

Woods v. Perry, 375 F.3d 671, 94 FEP 146 (8th Cir. 2004). Panel: MURPHY, Wollman, Heaney. Claim on Appeal: Title VII promotion (reverse discrimination). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff failed to present "background circumstances" in prima facie case that would support inference that agency discriminated against male staff. With prior promotions favoring women, the same supervisors had previously promoted men and women, and the agency furnished non-invidious explanations for the decisions. The successful female candidate in this case had objectively superior qualifications (15 years longer in agency, 14 years as assistant manager, superior leadership). Nothing suspicious about omission from job description of requirement of knowledge of vehicle maintenance, which would not have tipped balance in plaintiff's favor. No proof that agency's stated reason was pretextual

Neumann v. AT&T Communications, Inc., 376 F.3d 773 (8th Cir. 2004). Panel : COLLOTON, Melloy, Fagg. Claim on Appeal: Minn. state law disability reasonable accommodation claim. ERIS and tort claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff's receipt of workers' compensation benefits precludes a disability discrimination claim under Minn. law, because both claims were based on the same back injury.

MacGregor v. Mallinckrodt, Inc., 373 F.3d 923, 94 FEP 35 (8th Cir. 2004). Panel: GOLDBERG, Murphy, Fagg. Claim on Appeal: Title VII promotion and termination claim (sex). Disposition Below: Judgment after a jury trial; $68,802 lost wages, $102,000 lost stock options, $1 nominal compensatory damages, $829,197 punitive damages (reduced to $300,000) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Plaintiff presented sufficient evidence that she was terminated, rather than constructively discharged: she was previously denied a promotion (in favor of a less-qualified male), manager had twice remarked that there were "too many women" in marketing, plaintiff's job was eliminated, and only alternative position offered to plaintiff was plainly inferior (same salary, but no supervisory or budgetary responsibilities, and job was eliminated one year later). No error in adverse action" instruction or verdict form. Punitive damages supported by evidence that plaintiff complained about manager's sex biased comments, investigation was minimal, manger was not reprimanded and plaintiff was never informed of outcome. Amount of punitive damages not excessive. In setting appropriate cap, judge could take judicial notice of size of company from tax and company records (FRE 201(b)). District court did not abuse discretion by allowing plaintiff to present lost stock options at trial, where she did not answer discovery on that element of damages, where defendant knew about claim and did not move to compel data.

Groves v. Cost Planning and Management Int'l, Inc., 372 F.3d 1008, 93 FEP 1769 (8th Cir. 2004). Panel: PER CURIAM (Morris Sheppard Arnold, Fagg, Riley). Claim on Appeal: Pregnancy Discrimination Act termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Assuming that plaintiff satisfied prima facie case requirements, she could not prove that reasons for her termination (her job was identified as most expendable in RIF) were pretextual, and undisputed record showed that employer only learned about pregnancy after making the decision to eliminate her job. Panel reaffirms that even after Reeves, an employee in a RIF has burden to show both that the reason proffered was pretextual and that the protected status was a factor in the decision. No evidence to support spoliation inference, where documents that the company destroyed were not personnel records under 29 U.S.C. § 1602.14 and there was no indication that the documents (correspondence with company's insurance carrier) would have favored her case.

Duncan v. Delta Consolidated Industries, Inc., 371 F.3d 1020, 93 FEP 1843 (8th Cir. 2004). Panel: MELLOY,.Beam, Colloton. Claim on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Failure on EEOC charge form for pro se plaintiff to check box for "sex" or provide description of alleged sex harassment forfeited that claim. 2. Alleged retaliation (being assigned heavier parts of machinery to operate after complaining about harassment) was not an adverse employment action and was not shown to be motivated by complaints about sex harassment.

Jackson v. Flint Ink North America Corp., 370 F.3d 791, 93 FEP 1612 (8th Cir. 2004). Panel: MORRIS SHEPPARD ARNOLD, Riley [JOHN GIBSON, dissenting]. Claim on Appeal: 1. Title VII harassment (race). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Six uses of the word "nigger," and two instances of "KKK" graffiti over eighteen months not sufficiently severe or pervasive to constitute harassment. Graffiti, which included burning cross, presents "closer case," but was generic in quality and not directly menacing to plaintiff. 2. Assuming that a month elapsed between his harassment complaint and his termination, plaintiff had long, preexisting disciplinary record, the termination (for "abuse of time") was grieved and arbitrated by union and the findings went entirely against the employee, there was no evidence that disciplinary warnings were pretextual, and other employees similarly situated were also terminated.

Ristrom v. Asbestos Workers Local 34 Joint Apprentice Committee, 370 F.3d 763, 15 A.D. Cases 1057 (8th Cir. 2004). Panel: RILEY, Morris Sheppard Arnold [HEANEY, concurring]. Claim on Appeal: 1. ADA cancellation of apprenticeship. 2. ADA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff could not prove that ADD and depression substantially restricted his ability to learn compared to the average person in the general population. Two medical evaluations failed to make this connection. Inability to complete a few, highly specialized courses did not indicate an inability to learn. Moreover, union did not know that employee had a learning disability. No evidence that depression medication impaired plaintiff. 2. Termination came There months after he sought accommodation for his disabilities and was reasonably based on superceding failure to attend classes and to obtain medical verification of his disability.

Younts v. Fremont Co., 370 F.3d 748, 93 FEP 1544 (8th Cir. 2004). Panel: RILEY, Hansen, Melloy. Claim on Appeal: Title VII/EPA unequal pay and promotion claims. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed in relevant part [defendant]. Grounds: One plaintiff who died was not proper party where neither a suggestion of death nor a motion for substitution was filed in any court. Except in one instance, plaintiffs failed to demonstrate duties, skill, effort and responsibilities associated with jobs to which they sought to compare themselves (remand allowed on one job where plaintiff claimed she did not receive equal amenities - uniform allowance, cell phone, vehicle). Plaintiff failed to show, with respect to promotion, that she was qualified for the position or similarly situated to the male who won the job.

Jackson v. Homechoice, Inc., 368 F.3d 997, 93 FEP 1688 (8th Cir. 2004). Panel: PER CURIAM [Melloy, Hansen, Colloton]. Claim on Appeal: 1. Title VII discrimination and retaliation (race); 2.§1981 discrimination and retaliation. Disposition Below: 1. Summary judgment [defendant]; 2. Summary judgment [defendant] Outcome on Appeal: 1. Affirmed [defendant]; 2. Reversed [plaintiff]. Grounds: 1. No equitable tolling for plaintiff who believed he had filed charge by mail 27 months earlier. EEOC's failure to inform him of status of his charge was not misleading.; 2. Section 1981 claim became timely under Jones v. R.R. Donnelley.

Faber v. Menard, Inc., 367 F.3d 1048 (8th Cir. 2004). Panel: WOLLMAN, Fagg, Hansen. Claim on Appeal: ADE and Iowa state law discrimination and retaliation. Disposition Below: Denial of motion to compel arbitration [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Remanding case to determine whether, under Iowa law, fee splitting provision in arbitration agreement is unconscionable under the facts of this case, in which case it would be severed from the contract and the balance enforced.

Kohrt v. MidAmerican Energy Co., 364 F.3d 894, 93 FEP 1064 (8th Cir. 2004). Panel: HANSEN, Morris, Sheppard, Arnold, Heaney. Claim on Appeal: ADEA termination; Iowa state law tort claim [not discussed here]. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No proof of pretext for failure to rehire plaintiff where plaintiff admitted the other candidates had more relevant, recent experience as linemen, and comments about age by non-supervisors did not furnish causal link. (Plaintiff did prevail under public policy tort claim).

Watson v. O'Neill, 365 F.3d 609, 93 FEP 1080 (8th Cir. 2004) . Panel: SMITH, Melloy, Lay. Claim on Appeal: 1. Title VII retaliation; 2. Title VII racial hiring. Disposition Below:1. Summary judgment [defendant]; 2. Judgment after a jury verdict [defendant]. Outcome on Appeal: 1. Affirmed [defendant]; 2. Affirmed [defendant]. Grounds: 1. Retaliation claim not included in charge.; 2. New trial motion properly denied. Evidentiary objections defaulted, except for one racist statement that was years too remote in time to be probative.

Horn v. Univ. of Minnesota , 362 F.3d 1042, 93 FEP 1050 (8th Cir. 2004). Panel: HANSEN, Morris, Sheppard, Arnold, Riley. Claim on Appeal: 1. Title VII and Equal Pay Act wage discrimination; 2. Title VII retaliation; 3. Title VII constructive discharge (sex). Disposition Below: 1. Summary judgment [defendant]; 2. Summary judgment [defendant]; 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]; 2. Affirmed [defendant]; 3. Affirmed [defendant]. Grounds: 1.Male plaintiff did not have substantially equal duties compared to woman, both of whom functioned as assistant coaches, but female coach had addition al PR duties.; 2. Decision not to invite plaintiff to attend an independently run hockey camp and some alleged frostiness in their professional relations insufficient to establish adverse employment action.; 3. Director's documentation of alleged performance problems and dressing plaintiff down in front of students not "intolerable.".

Cherry v. Ritenour school Dist., 361 F.3d 474, 93 FEP 645 (8th Cir. 2004). Panel: BEAM, Loken, McMillian. Claim on Appeal: Title VII termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Assuming that plaintiff met prima facie burden, defendant's reason for not renewing plaintiff, African-American teacher's contract (did not improve in areas where she was counseled) found not pre-textual. Plaintiff identified no white teachers who were similarly situated and treated better.

Wheeler v. Aventis Pharmaceuticals, 360 F.3d 853, 93 FEP 641 (8th Cir. 2004). Panel: SMITH, Melloy, Richard S. Arnold. Claim on Appeal: Title VII termination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: African-American female plaintiff terminated for grabbing a male co-workers genitals. Although plaintiff made out prima facie case (there were other incidents of sexual horseplay in the workplace that were not punished as severely), only incident that employer learned of at the time and was fully comparable also resulted in termination. Co-worker's comments that women and blacks were "untouchable" not attributable to employer. Failure to uncover another incident of breast touching and conflicting testimony regarding her offense does not challenge employer's good faith belief in its reasons.

Weyers v. Lear Operations Corp., 359 F.3d 1049, 93 FEP 507 (8th Cir. 2004). Panel: WOLLMAN, Beam, Nangle. Claim on Appeal: ADE and Mo. state law termination and harassment. Disposition Below: Judgment after jury trial; more than $1 million (remitted to $718,962, plus costs and fees [plaintiff]. Outcome on Appeal: Reversed for new trial [plaintiff]. Grounds: District court erred in excluding plaintiff's verified intake questionnaire to EEOC (offered to impeach plaintiff's trial testimony), on ground that it mentioned sex discrimination claims that were already dismissed. Exclusion prejudicial, because questionnaire directly contradicted plaintiff's account of duration of harassment. Noting split of authority, court adopts Seventh Circuit's view that for supervisor liability for harassment to attach, asserted supervisor must control the plaintiff's own terms and conditions of employment.

Henthorn v. Capitol Communications Inc., 359 F.3d 1021, 93 FEP 585 (8th Cir. 2004). Panel: WOLLMAN, John R. Gibson, Riley. Claim on Appeal: 1. Title VII and Iowa state law harassment (sex); 2. Title VII and Iowa state law retaliation. Disposition Below: 1. Summary judgment [defendant]; 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]; 2. Affirmed [defendant]. Grounds: 1. Supervisor's offer to tear up unfavorable performance evaluation in exchange for going out for a drink not tangible employment action where plaintiff refused proposition and supervisor destroyed memo anyway. Alleged behavior not severe or pervasive. Requests that plaintiff go out with supervisor unaccompanied by sexual talk, propositioning, or touching.; 2. Supervisor's increased criticism of plaintiff's work and refusal to let her audition for temporary anchor-person position not adverse employment action, thus plaintiff did not make out prima facie case. addition ally, employer proffered non-discriminatory reasons for the negative evaluations and the decision not to audition plaintiff (co-workers turned in higher quality work).

Murphey v. City of Minneapolis, 358 F.3d 1074, 15 A.D. Cases 420 (8th Cir. 2004). Panel: LAY, Murphy, Fagg. Claim on Appeal: ADA termination claim. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff was not estopped from proving that he is a qualified person with a disability because of application for disability benefits, where employee's application nowhere averred that he was totally and permanently disabled, and doctor's statement attached to application which so suggested was not attributable to plaintiff.

Sellers v. Mineta, 358 F.3d 1058, 93 FEP 417 (8th Cir. 2004). Panel: HANSEN, [LOKEN, concurring], [BYE, dissenting]. Claim on Appeal: Title VII harassment and retaliation. Disposition Below: Judgment after jury trial; $800,000 compensatory (remitted to $300,000), $345,000 back pay $27,329.33 prejudgment interest, $638.293.99 front pay [plaintiff]. Outcome on Appeal: Front pay vacated and remanded. Grounds: District court should have considered post-employment conduct (fired for cause from a subsequent employer for filing a fraudulent loan request) that would constitute after-acquired evidence. District court on remand should consider whether plaintiff would have been reinstated. While eight year, eight month front pay period was not an abuse of discretion, failure to originally seek comparable employment in aviation industry requires reduction of amount for mitigation.

Erenberg v. Methodist Hospital, 357 F.3d 787, 93 FEP 467 (8th Cir. 2004). Panel: MELLOY, Bye, Hansen. Claim on Appeal: 1. Title VII and Minn. state law harassment (sex) 2. ADE and Minn. state law termination; 3. Title VII and Minn. state law retaliation. Disposition Below: 1. Summary judgment [defendant]; 2. Summary judgment [defendant]; 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]; 2. Affirmed [defendant]; 3. Affirmed [defendant]. Grounds: 1. No prima facie case. Alleged conduct not severe or pervasive (co-workers engaged in back rubs, sexual joking, called plaintiff "Malibu Barbie" 2-3 times).; 2. No prima facie case. Failed to show she was qualified for job, in view of performance deficiencies.; 3. No prima facie case. Criticism of her job did not change before and after she submitted complaint about alleged harassment.

Hitt v. Harsco Corp., 356 F.3d 920, 93 FEP 200 (8th Cir. 2004). Panel: COLLOTON, Melloy, Richard S. Arnold. Claim on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Company could rely on eyewitness reports that plaintiff Threw a punch at a co-worker, even if plaintiff could produce other witnesses that contested that account. Younger employees were terminated for fighting as well. Testimony that foreman and supervisor called plaintiff "old man" and "too old" not probative where they did not influence the termination decisions. Evidence of subsequent RIF does not influence case either, because RIF was not implemented prior to the fighting incident.

Joens v. John Morrill & Co., 354 F.3d 938, 93 FEP 72 (8th Cir. 2004). Panel: LOKEN, Lay, Heaney. Claim on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Noting split of authority, court adopts Seventh Circuit's view that for supervisor liability for harassment to attach, asserted supervisor must control the plaintiff's own terms and conditions of employment. Foreman's yelling at plaintiff not shown to be because of sex, but because of low production rate.

Marquez v. Bridgestone/Firestone, Inc., 353 F.3d 1037, 93 FEP 92 (8th Cir. 2004). Panel: PER CURIAM (Loken, Wollman, Hansen). Claim on Appeal: Title VII discrimination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No evidence that similarly situated persons were treated differently. Lengthy disciplinary record distinguished plaintiff from co-workers.

Peebles v. Potter, 354 F.3d1, 15 A.D. Cases 146 (8th Cir. 2004). Panel: BEAM, Morris Sheppard Arnold [BYE, concurring]. Claim on Appeal: Rehabilitation Act reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Failure to accommodate need not be solely motivated by discriminatory animus; rejecting application of pretext analysis to analyze reasonable accommodation claim. Under U.S. Airways v. Barnett, plaintiff's demand to obtain reassignment to light duty, without complying with "substantiation" requirement (to justify two-year absence from employment) would not be reasonable, because it would violate a work rule without cause. Termination of plaintiff four years after plaintiff began leave for bad back not retaliatory.

Clark v. Riverview Fire Protection Dist., 354 F.3d 752, 92 FEP 1793 (8th Cir. 2004). Panel: BYE, Richard S. Arnold, Smith. Claim on Appeal: Title VII discrimination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Upholding release signed by firefighter to return to active duty after being terminated for sleeping through a fire call.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                




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November 01, 2010
Stiefel v. Bechtel Corp., No. 09-55764 (9th Cir. Nov. 1, 2010); Kepas v. eBay Inc., No. 09-4200 (10th Cir. Nov. 2, 2010)

September 29, 2010
Newberry v. Burlington Basket Co., No. 09-3082 (8th Cir. Sept. 28, 2010)

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August 31, 2010
Hatmaker v. Memorial Medical Center, No. 09-3002 (7th Cir. Aug. 30, 2010)

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