*3 ing Kеmpcke, likely age would “make FAGG, LOKEN, Before WOLLMAN By time issue” this action was taken. Judges. Circuit Kempcke of the found the three “downgraded” been fifteen had and six were LOKEN, Judge. Circuit way By August “on their out.” all Company Kempcke fired Darrell Monsanto сompany or fifteen had left the been demot- company docu- when he refused to return ed. pattern ments that he believed reflected Kempcke Upgrade showed the Plan to age against himself and oth- asked, I Garrison and “Dоes this mean don’t grant appeals now ers. joba have or future here?” Dissatisfied dismissing age dis- non-answer, Kempcke then with Garrison’s crimination and retaliation claims under complained supervisor, to his James Schaf- Act, Age Employment in Discrimination buch, Upgrade age Plan reflected 621-34, §§ Human and the Missouri U.S.C. discrimination. Sehafbuch demanded that seq. 213.010 et Act, §§ Rights Ann. Mo. Stat. return all documents found We reverse. computer. Kempcke replied that Monsanto light in the most favor- We view the facts should deal with his on that issue. question time in Kempcke. able to At the responded Sehafbuch with a memorandum year training forty-eight was a old senior stating that would be terminated manager Operations Global Monsanto’s for insubordination unlеss he returned the Kempcke had denied three Division. been documents June 1993. Sehafbuch turning forty, manager positions after fired on June when he failed to explanation being that Monsanto reserved meet that deadline. positions “young рromotables.” these He summary judg granted performance received a favorable review district dismissing Kempcke’s ment discrimina with comment that his work “well claims, concluding expectations. early tion and retaliation above” Mоnsanto’s assigned personal Monsanto fired him for a business Monsanto him a com- company proper Kempcke, return partially at least because of their reason — pro ty ages. alone, refusal was not Standing Plan is —and innоcuous, quite tected that could a retalia an' con- grant summary tion claim. We review the possible age cern with discrimination claims judgment de novo. See Rothmeier v. Invest equated “should not be with an admission of Advisers, Inc., (8th ment animus,” age-rеlated Bashara v. Black Hills Cir.1996). Cir.1994), Corp., 26 F.3d identifying because a document of a
I. Retaliation
group
employees
significantly pro-
is “not
Earley
bative” of
discrimination.
provides
The ADEA
it is “un
Champion
Corp.,
Int’l
for an
to discriminate
lawful
*4
against any
еmployees
Kempcke,
twenty-two
...
But
a
of his
year employee
opposed any practice
performance
... has
with an excellent
such individual
section,
record,
by
partici
made unlawful
or ...
nonetheless inferred thаt
was a
pated
any
investigation,
underlying
in
in an
factor
proposed
manner
the Plan’s
out
proceeding,
litigation
chapter.”
placements,
upon
or
under this
interpretation
based
his
623(d).
document,
§
Kempcke’s
language
29 U.S.C.
retaliаtion
in
by
the Plan
reinforced
requires proof
engaged
claim
in
he
recurring
Monsanto executives’
references to
ADEA-protected activity,
“young promotables”
Monsanto took ad
and the 1991 letter de-
him,
employment
against
claring
verse
action
opportunities
youn-
need to find
for
ger
there was a causal connection between the
employees. Kempcke confronted his su-
Ind.,
pervisor
two. See Montandon v. Farmland
with these
requested
documents and
(8th Cir.1997).
Inc.,
explanation.
116 F.3d
359
At the
clearly protected
an
That
summary judgment
hearing,
supervisor
activity.
gave
He also
the documents to his
attorney
Schafbuch testified that he fired
supervisor
and told his
that Mon-
“for
to return all
documents thаt
santo
attorney
must deal with his
on the
proper
have removed from
question
Monsanto
of whether the documents would be
ty,” including
Plan and the 1991
arguably opposi-
returned. This was at least
litigation activity,
letter
had delivered to his
placed
tional or
because it
then,
question,
might
is whether
documents that
evidence discrimina-
engaged
protected
in ADEA
activi
legal professional
tion in the hands of a
who
ty
arguably incriminating
litigate
when he delivered
Kempeke’s
would
the issue on
behalf
t
company
attorney
informally
documents to his
and then
if he could not resolve the matter
attorney
Monsanto to
employee
good
told
contact his
with Monsanto. An
with a
documents,
comply
return of the
employer
instead
faith reason to believe his
is en-
gaged
with Monsanto’s demand to return the
in unlawful
discrimination “has a
preserving
himself.
documents
interest in
evidence of
employer’s]
employment prac-
[his
unlawful
activity
“op-
Protected
includes
O’Day
Douglas
tices.”
v. McDonnell
Heli-
posting] any practice
by
made unlawful”
(9th Cir.1996).
Co.,
copter
79 F.3d
623(d).
ADEA, §
Employer conduct that an
in
employee opposes need not
fact be unlaw
in
Even
conduct
deliv
Rather,
employee
ful.
must “demon
ering arguably incriminating documents to
faith,
good
strate a
reasonable belief that the
generally consistent with
his
underlying challenged action violated the
discrimination,
opposing
unlawful
we
Co.,
Maryland
law.”
v.
F.2d
Cas.
Wentz
must also consider whether that сonduct was
(8th Cir.1989).
1153, 1155
excessive,
disruptive,
“generally
so
or
inimi
Viewing
employer’s
...
[the]
evidence
cal to
interests
as to be
623(d).
favorably
Kempcke,
beyond
protection”
most
Ho
reasonable
good
Experi
could conclude he had a
faith
Foundation
factfinder
chstadt Worcester
(1st
Biology,
reasonable
that the documents found in mental
545 F.2d
belief
Cir.
1976);
computer
ongoing
Joseph
Hosp.,
an
his
revealed
Monsanto
see Jackson v. St.
State
managers, including
plan to weed out senior
For
job
plaintiffs
confidential
to ensure that the
example,
employee who steals
documents,
personnel decisions were free of discrimina-
company
even documents
tion,
refusal to share
discrimination,
his
his
not en
has
may evidence
analysis
a fundamen-
with the
that will
gaged
protected
job duty
justified
of a
tal breach
discharged
if he is
claim
a retaliation
discharge for insubordination. On the other
762-64;
O’Day,
at
Horns
theft. See
hand,
Strip-Casting
v. Hazеlett
Grant
Inc.,
Conoco,
F.2d
by
(2nd Cir.1989),
Corp.,
sistent with this Age II. discrimination FAGG, Judge, Circuit dissenting. requires age An discrimination claim Kempcke was fired because he took his employer intentionally proof that dis give documents and refused to employee age against criminated over the them I big back. believe there is a differ- age. forty on account of his See 29 U.S.C. ence between out-and-out insubordination 623(a)(1), §§ Age discrimination protecting rights one’s civil when indirectly by showing proved be workplace. discrimination is afoot in the Al- employer’s profferred explanation is “unwor unintеnded,' though the court’s decision not thy pretext of credence” and a for intentional only opens up on-the-job another avenue of Dep’t Community discrimination. Texas puts employers position mischief but in a Burdine, 248, 256, Affairs they anything wherе can’t do about it. I 1089, 1094, L.Ed.2d would affirm the district court. case, Kempcke discovered recommending Plan elimination of manager positions. The Plan fifteen division age forty
noted that the fifteen were over predicted complain that five would outplaced. Kempcke com
plained that the Plan reflected discrimi
nation, to Plan and then first author Garrison pro than supervisor Sehafbuch. Rather LAWRENCE, Appellant, A. Deborah explanation, responded vide an Sehafbuch peremptory with a demand that COMMUNITIES, COOPER return the documents or be fired for insubor INC., Appellee, dination, though even Sehafbuch knew that given had the documents to his Equal Employment Opportunity Commission, Amicus If there no more to the incident than Curiae. that, a factfinder could reasonable conclude No. 97-1338. firing Kempcke that Monsanto’s action in his, innocently giving acquired documents to Appeals, United States Court of himself, attorney, returning rather than them Eighth Circuit. as to was such an extreme overreaetion be Seрt. 1997. Submitted is, pretextual, “unworthy of credence.” firing pre- And Monsanto’s reason Decided Jan. 1998. textual, that tends to the inference plan that the Plan was fact a
terminate and others on account of circumstances, ages.
their In these we con-
clude on the record before us that
presented sum- sufficient evidence avoid
mary judgment dismissing discrimi- generally Ryther claim. v. RARE
nation See Cir.1997), cert. — denied, -, Rothmeier, (1997); at
L.Ed.2d 1013