*1 contends that Greaser is Department The her filed in indigent affidavit
not proceed in for leave to of her motion
support incomplete and at at best pauperis is
forma support In of this blatantly false. worst
contention, Department points out that that her failed reveal affidavit Greaser’s $10,000 excess had earned
husband quarters of stat-
during three the first “unem- her husband was
ing instead Department Thus, contends
ployed.” pau- Greaser’s in revocation of forma mandated 28 U.S.C.
peris status is 1915(e)(2), provides, part: “[T]he
§ any if the the case at time dismiss
court shall (A) allegation of determines that — untrue.”
poverty is Department cited
The inaccuracies attention. brought to the district court’s
were aware that Greaser’s
The court was therefore in her were understated
financial resources
affidavit, that she was found but nevertheless finding that this
indigent. We conclude clearly that the decision erroneous pauperis status to Greaser
grant in forma Cross, not an of discretion. See abuse
pauperis status is denied. HINDMAN, Appellant,
Keith CORPORATION, Appellee.
TRANSKRIT
No. Appeals, Court of
United States
Eighth Circuit. April
Submitted June
Decided Rehearing
Rehearing Suggestion for July
Denied *2 Jr., Smith, AR, Byars, argued,
Joe D. Fort Appellant. for Reynolds, Rock, AR, Charles W. Little (Monte argued Estes, brief), D. on the Appellee. ARNOLD,1
Before S. Chief RICHARD LOKEN, PRATT,2 Judge, Judge, Circuit Judge. District PRATT, Judge. District appeals judg- Keith Hindman from a final ment in the entered United States district court, granting summary judgment in favor Corporation, thereby of Transkrit dis- missing his claim he was demoted Age violation of the Discrimination Em- (1994). Act, ployment §§ 29 U.S.C. 621-34 argues that the district erred finding to con- “no evidence youn- clude per- ger worker.” A review of the record us that the district court erred on this suades issue. We therefore reverse. Pratt, stepped S. The W. States Dis- Hon. Richard Arnold down as Hon. Robert United Iowa, Judge Appeals Chief of the United Judge States Court trict the Southern District of Eighth for the Circuit the close of business on sitting by designation. April 1998. He has been succeeded Hon. Pasco M. Bowman II. productivity punished never for this low
I. BACKGROUND rating. undisputed facts reveal that March motion In his resistance Transkrit’s (hereinaf- 1, 1996, Keith Hindman summary judgment, Hindman submitted *3 Hindman) posi- his from ter was demoted3 support to the ultimate evidence additional at journeyman operator Tran- tion collator as intentionally dis- he was issue of whether company in a which is Corporation, skrit age. against In his based on his criminated manufacturing printing or multi- of business that Hindman testified between deposition, had part Hindman worked business forms.4 1993, regularly July and of Eubanks March plant fall Fort since the at Transkrit’s Smith him.7 to age-derogatory statements made 1984, journeyman collator as a of worked suggested that periodically also Eubanks years, approximately eight operator for and elsewhere, that stating Hindman find work holding position his at was the oldest worker at his not understand how could his At all the time of demotion. relevant was to do the work he Hindman wanted (hereinafter Eubanks) times, Henry Eubanks two currently doing. Hindman recalled and Gunner was Hindman’s direct foreman (1) sug- specific occasions where: Eubanks Lewald) (hereinafter depart- Lewald was gested greeter; that a he become Wal-Mart manager collating department. ment for the (2) brought in a classified ad- and Eubanks position and for a loan-officer vertisement position journeyman a collator In his as good, probably “that be real stated would operator, performance Hindman received re- easy you.”8 Hindman also testified views, reviews, annually. least These at 1996, February in after affidavit that Eubanks, that in all written demonstrate injured home, his ankle at Lewald Hindman areas, excluding Hindman productivity, was climbing be “you commented are too old to safely, favorably He reviewed. worked (cid:127) that, you younger let like around should attitude, good good produced maintained Further, upon returning it.”9 to people do forms, quality knowledgeable, was and reli- hoped saying to Eubanks that he work and that able. The reviews also demonstrate surgery, to Eu- he would not need have 1986, September Hindman was from while your I responded, age, “at banks wouldn’t operator position in the of collator train- still do that.”10 demotion, ee, last his until the review before consistently record demon- advised Hindman that Eubanks February 23, improve.5 production rating to strates that on or about his needed demotion, criticism, however, precipitating Hindman’s Lewald Despite this Hindman raise,6 regular “L and consistently operators’ and he reviewed the sheets” received a intervals, wage productivity a low Hindman’s rate to two week between 3. The demotion caused (number 4) per per higher productivity $15.75 $9.64 from hour to and decreased machine (number 7), Additionally, poten- had the keeping the demotion thereby produc- hour. machine pension. negatively impact on tial Hindman’s rating average to tivity low. nine in the collat- 4. There are collator machines occasion, 6. one in December when On ing department Transkrit which are used to at up productivity, due to Lewald raise was held multi-part printed into assemble forms rolls adjusted the raise retroac- later reinstated and it journeyman forms. It is the collator business tively beginning year. to the of the responsibility up operator’s set collator machine, job, properly particular run the included, inter "I don’t Such utterances alia: any problems, and with mini- trouble-shoot forms, you how can work the twelve-hour shifts at see spoilage mum and a minimum you your age” how climb and "I don't see downtime. age.” your at Hindman around on the machine supervisors maintains that his inten- 5. Hindman 109; Dep. App. at at attempted production tionally to minimize alleg- justify demoting him. He level in order 112-13; App. Dep. at Hindman es, assigned selectively that him inter alia Lewald jobs productive, less that he was that would be 22; ¶ App. at 0199. 9. Hindman Aff. many assigned to with often work different helpers, inexperienced Au- collator ¶ him, App. began rotating at 0199. gust 10. Hindman Aff. Eubanks “make-ready sheets,” beginning production “highly discovered because it is day a zero-production11 Hindman had on the unusual for there to be defects since the previous day. questioned Further, prior Lewald Eubanks run acceptable.”16 Hind- respond- about this occurrence and Eubanks man did not notice defects occurred on by sending discussing ed a memorandum two the forms working because he zero-production days “high spoilage” and two back Finally, according of the machine. days allegedly had Febru- affidavit, spoilage Hindman’s “the other ... ary recommending that Hindman beyond was due my to circumstances control. be demoted. As the circumstances sur- The fact simply of the matter that we ran is rounding days disputed, four issue are part out of a necessary the form which was required the court is to view facts completion.” *4 light most to Hindman. favorable Eubanks, Based the on memorandum from 1996, February 1, On Lewald instructed Lewald recommended to Dale Hixon that crimp Hindman re-work12 the front to end Hindman be demoted. Hindman was then great unit of a machine. This work a took demoted, 1,1996. effective March deal of time as Hindman had to search for machine, many demotion, parts existing Subsequent not on the person to his no produce newly replace thus Hindman did not have time to hired Hindman. Hindman 22, any during February however, alleges, effectively forms his shift. On that he was re- 1996, after placed by younger Hindman came on Dale Carter already several workers half-way affidavit, completing change- employed finished Transkrit. In his he over on fin- younger operators a collator machine. Hindman testified that collator changeover completed ished stepped the the other run shifts machine num- 4, make-ready job. for ran the He then a ber the Hindman typically machine ran. pack13 check young the and submitted it to He further testified that trainees also Eubanks, approximately operated with four hours left machine 4 after number his demo- on approxi- Additionally, his shift. Hindman waited provided tion. Hindman a list mately thirty shift, minutes before Eubanks even- of who individuals worked on his but tually approval, covering declined in- were instead who for someone on vaca- Hindman structed to “re-web the collator.”14 tion or otherwise absent. This list contained result, spent specific As a Hindman the rest names and dates. There is also de- shift doing position testimony by what he be an considered to Hindman that “there “unnecessary partial make-ready people replaced on ma- were a number of me chine,”15 again produce thirty, forty.”18 ... was unable to some under some under 24, 1996, any February Criswell, example, On Hollis For forms. named David Tom (a Trainer) Newman, Hallum, put Graham Hindman on machine and Shawn and indicated 2, already number a machine that had been that he believed each of these individuals shift, previous thirty. run during deposition, and directed under In he also be complete approximate him to the run. Hindman did not testified to the number of times pack” prior conduct a “check on this machine each named individual took over his duties. machine, production” day day operator 11. A "zero is a 14. To “re-web” is re- quired equipment operator during to move some of the on the produce any does not forms running machine without forms. his or her shift. interesting 15. It is to note that after shift was words, machine, 12. In other disassemble the over, pack by left the check his ma- Hindman cloth, emery clean the shafts with end- remove operator present- chine. who him reset, gears, crimp drive and reassemble the unit. Glossenger, ed it supervisor, to John another approved pack. who pack” sample 13. A "check is a test run of forms ¶ 30; App. Aff. 16. Hindman prior prepared operator which is a collator beginning production pack run. The check ¶ 31; App. at 17. Hindman Aff. specified guidelines must meet in order production approved run. Dep. App. 18. Hindman 990 III. against Tran- DISCUSSION this suit initiated
Hindman
1996, alleging
violation
September
skrit in
employer from
prohibits
an
ADEA
Employment
Age
Discrimination
“any
otherwise dis-
discharging
individual or
(hereinafter ADEA),
§
et
29 U.S.C.
621
Act
any
re-
criminat[ing] against
with
individual
1997,
July
the district
seq. On
terms, conditions,
spect
compensation,
to his
judgment against Hind-
summary
entered
such
privileges
employment,
because of
or
man,
make
finding
Hindman could not
623(a)(1).
§
age.”
29
individual’s
U.S.C.
out a
facie case
protects
who are
The ADEA
individuals
from this decision.
appeals
§ 631.
forty years
29
least
old. See U.S.C.
ADEA,
a claim under the
To establish
REVIEW
II.
OF
STANDARD
he or she was
must show that
de
intentionally
against by the
discriminated
a district court’s
This court reviews
fendant,
Ziegler Bever
age.
v.
based
See
novo,
apply
de
grant of
F.3d
ly Enterprises-Minnesota,
133
ing
as the district court.
same standard
Cir.1998)
(citing Hutson
675
Co.,
Principal
Mut.
Ins.
Hanenburg
Life
Corp.,
F.3d
Douglas
(8th Cir.1997);
Barge v.
*5
(8th Cir.1995));
v. Inv.
see also Rothmeier
(8th
Inc.,
256,
Anheuser-Busch,
87
258
F.3d
(8th
Advisers, Inc.,
1328, 1331
Cir.
85 F.3d
Cir.1996).
summary
that
The court will find
1996).
judgment mo
summary
To survive a
the
judgment
properly granted
was
when
tion,
is
based
direct
in a case which
record,
light
in the
most favorable
viewed
discrimination,
the
of
evidence
intentional
nonmoving
giving
party
that
party,
the
and
Doug
plaintiff
rely on the McDonnell
must
inferences,
of all
the benefit
reasonable
three-stage
proof
presumpt
of
and
las
order
genuine
mate
is no
issue of
shows that there
Douglas
generally
ions.19 See
McDonnell
fact,
moving
party
rial
is entitled
and the
Green,
1817,
792,
Corp.
411 U.S.
93 S.Ct.
v.
judgment
a
as matter
law. Fed.R.Civ.P.
(1973),
progeny
668
and its
Texas
36 L.Ed.2d
States,
696,
56(c);
v.
31 F.3d
Walsh United
Burdine, 450
Dep’t Community
v.
Affairs
(8th Cir.1994);
City
v.
698
United States
1089,
248,
207
101
67 L.Ed.2d
U.S.
S.Ct.
Mo.,
(8th
Columbia,
151,
Cir.
914 F.2d
153
Hicks,
(1981);
v.
509
Mary’s Honor Ctr.
St.
1990);
Publ’g
v.
Co. Meredith
Woodsmith
502,
2742,
407
113
125 L.Ed.2d
U.S.
S.Ct.
Cir.1990).
1244,
(8th
Corp.,
F.2d
1247
904
(1993).
repeatedly
court has
cautioned
This
First,
plaintiff
a
the
must establish
seldom
that
should
prima
age
case
Gen
facie
employment ac
granted in the context of
erally,
plaintiff
by pro
the
establishes this
tions,
inherently fact
such actions
as
are
(1)
ducing
he or
is
evidence to show:
she
See, e.g.,
v.
Airlines
based.
Chock Northwest
(2)
age
or
protected
group;
of a
he
member
(8th
Inc.,
Cir.1997);
861,
Har
113 F.3d
863
(3)
held;
position
qualified for the
he
she was
262,
Corp.,
264
din v. Hussmann
45 F.3d
despite
qualifications,
she
his or her
he or
(8th Cir.1995);
Runyon,
v.
37
(4)
demoted;
replaced
he or she was
was
Crawford
1338,
judg
Summary
1341
person.
younger
Ziegler,
133 F.3d
776).
evi
appropriate
Hutson,
However,
ment
unless all the
is not
(citing
991 Douglas, 411 crimination was the motivation for the inflexible.20 See McDonnell ad- Rothmeier, employment at 802 n. 93 S.Ct. 1824 n. 13 verse action. U.S. 85 standard, (noting though a useful F.3d at 1337. necessarily applicable in
yardstick, “is not
correctly determined,
The district court
situations”);
every respect
differing factual
concedes,
Transkrit
Hindman met
Waters,
Corp. v.
438
see also Furnco Constr.
the first
prima
and third elements of the
567, 577,
2943, 2949, 57
98 S.Ct.
L.Ed.2d
U.S.
facie ease of
discrimination: he was a
(1978),
prima
(emphasizing that the
facie
protected age
member of
group
and he
“rigid”
is neither
“mechanized” and
case
nor
Further,
was demoted.22
the district court
always
primary
that the
focus is
whether an correctly
genuine
was a
concluded there
is-
employer
favorably
employee
treats an
less
sue of material fact
toas whether Hindman
impermissible
an
employees
than other
(i.e.,
qualified
was
position
for the
he held
he
reason);
Davenport
accord
Riverview Gar
performed level that
at a
met Tran-
Dist.,
Sch.
Cir.
dens
legitimate expectations).23
skrit’s
1994). Further,
Supreme
Court has held
appeal
The sole issue on
is whether or
establishing
prima
“[t]he
burden of
not Hindman met the fourth element of the
disparate
ease of
facie
treatment is not oner
case,
replaced.24
facie
whether
Burdine,
ous.”
450 U.S.
S.Ct. at
The district court found:
No evidence
from which
conclude that
plaintiff
pri-
Once the
establishes a
younger
work-
discrimination,
ma facie case of
the burden of
er. Plaintiff submits no evidence in sup-
employer
production shifts to
to articu
port of his bare contention that after his
legitimate, non-diseriminatory
late
reason
demotion, “younger” workers —both colla-
Hutson,
employment
decision.21
operators
performed
tor
trainees —
*6
employer provides
at
If
the
job
dates,
provided
duties. He has not
the
reason,
non-discriminatory
presumption
the
times,
persons
ages
names or
of
who “tem-
disappears,
plaintiff
discrimination
and the
of
porarily”
job
performed his
after his demo-
only
summary judgment
can
avoid
if he or
tion;
identify any person
he cannot
who
presents
in
she
evidence that considered
its
assigned
job.
plaintiff’s
was
(1)
entirety,
question
creates a
of material
9, 10;
Op.
App.0593-
See Dist. Mem.
at
Ct.
proffered
as to
fact
whether the defendant’s
94.
(2)
pretextual
are
and
reasons
creates
rea
age
sonable inference
was a determina
This
of the
that
characterization
record is
above,
employment
tive factor
the
deci
erroneous. As
“[t]he
adverse
stated
burden of
Kneibert,
(citing
establishing
prima
disparate
sion. See
992
traditionally
Although the
stated elements
performed Hind-
temporarily
persons who
prima facie
tend to indicate Hind-
demotion and dates
of a
case
job
after his
man’s
duties
Hindman,
they
required
in his affi-
was actu
so.
man was
to show that he
which
did
davit,
times
by
number of dates and
replaced
or that his
ally
lists
one individual
individuals took over his
specific
open
where
Transkrit was
position was still
and
shift,
his
working on
and
cover-
by
duties
seeking
similarly qualified applicant, this
absentee,
acting
rather
as an
ing
but
for an
recognized
pri-
that the
previously
court has
Additionally,
depo-
in his
collator.
additional
varies
facie case in discrimination suits
ma
testimony, Hindman lists the names
sition
specific facts
each case.
with the
somewhat
operators from other shifts
younger collator
Kneibert,
675;
See, e.g., Ziegler,
F.3d at
133
4
run machine number
stepped
who
Williams,
F.2d at
1993 and and that these same individ intentionally manipulated
uals his work negatively impact
schedule order to
performance rating. Accordingly, the court holding
finds that the erred in district court
Hindman did not the fourth establish ele
ment of the facie case of discrimi
nation.
IV. CONCLUSION above,
For the reasons discussed the order reversed,
of the district court is and the case
is proceedings remanded for further consis-
tent opinion. with this
LOKEN, Judge, concurring. Circuit
I concur in the result. MIDDLETON, Appellant,
Kenneth G. SPRINGS, MISSOURI;
CITY OF BLUE Chief, Brown, Springs
Howard Blue Po Link, Department; Sgt., lice Dave Blue Middleton, Appellant Kenneth G. Pro Se. Springs Department, Appellees. Police Baker, MO, City, argued, David S. Kansas No. 98-1360. Appellees. Appeals, United States Court Eighth Circuit. BOWMAN, Judge, Before Chief WOLLMAN, and MORRIS SHEPPARD May Submitted *8 ARNOLD, Judges. Circuit Decided June
PER CURIAM. Middleton, prison-
Kenneth G. a Missouri er, subject-matter sought juris- to establish diversity citizenship. diction based on He appeals from the dismissal the District acknowledges age- juries.” 26. The Court some of excessive Estes v. these mistrust of Dick Smith Ford, 1988). derogatory approximately made statements were Cir. demotion, statements, years prior three er, to Hindman’s howev- Such even if not themselves action able, may may background we find that such statements relevant. be deemed relevant as plaintiff's ability may prove proven "A discrimination indi- evidence which if assist Hindman in rectly, circumstantially, crippled by proving must not be the ultimate issue evidentiary keep rulings probative Honeywell, out evi- See White v. 1275-76 dence notions of because of crabbed relevance or