Kneibert v. Thomson Newspapers, Michigan Inc.

See, warrant, disregard e.g., the rule. United Young’s guilty ate it should vacate Mr. (7th Kelly, 14 F.3d States v. Cir. plea grant suppress his motion to 1994), Marx, States v. and United well. Cir.1981). 436, 441 While these cases suppression deal with under Fed.R.Crim.P. 41(d)

41(d), purposes of Fed.R.Crim.P. 13.3(b) substantially P. are

and Ark. R.Crim. believe, therefore, that in

similar. We deter mining suppression is un whether warranted Douglas KNEIBERT, Frederick apply rule der the Arkansas we should Appellant, Plaintiff — same standard that our sister circuits have v. applied inquire, under the federal rule. We NEWSPAPERS, THOMSON MICHIGAN words, case, in other in this whether the INC., doing business as The Sedalia violation of the rule was deliberate. Democrat; Shields; Randall While it is conceded that none of the offi- Communications, Inc.; Freedom News present cers at the scene of the search ever papers, Inc., Appellees. Defendants — presented Young, the warrant to Mr. we are omission, by to hold that inclined No. 96 - 4177. itself, support a finding is sufficient to Appeals, United States Court of deliberately applica- the officers violated the Eighth Circuit. just ble Arkansas rule. Such omission is likely merely to have been inadvertent or Submitted June 1997. negligent, and therefore not deliberate. We Decided Nov. do, however, believe that a failure to show Rehearing Suggestion Rehearing Young the warrant to Mr. after he asked for En Banc Denied Jan. 1998.* rule, it be a deliberate violation would of the and, indeed, Young sup- Mr. testified at the

pression hearing repeatedly that he demand- warrant, but

ed to see the to no avail. The finding,

magistrate judge though, made no Young Mr. in fact

to whether asked the warrant,

officers to show no one Deputy Cossey suppression

ever asked at the

hearing Young whether Mr. asked to see it.

We therefore believe that a remand is neces-

sary so that the district can determine

whether the officers’ omission was a deliber- one. leave it to the We district court to

ate it wants to

decide whether make this deter- present

mination from the record or from the

present supplemented by record other evi-

dence.

III. indicated,

For the reasons we remand the

cases to the district court and direct it to guilty plea

vacate Mr. Schroeder’s and to

grant suppress. his motion to We also re-

mand for further consideration of Mr.

Young’s suppress. motion to If the district

court finds that the officers acted deliberate-

ly failing present Young Mr. with the

* Arnold, Judge Judge Judge Chief Murphy grant Richard S. Theodore sugges- Diana E. would McMillian, Arnold, Judge Sheppard Morris tion. Age in violation of the Discrimination Employment (“ADEA”), Act 29 U.S.C. 623(a) (1994),

§ and the Human Missouri (“MHRA”), Rights Act Mo.Rev.Stat. 213.055.1(1)(a) (1994). Also, § Kneibert al leged that Thomson and Shields retaliated him for charge of discrimina tion reprimanding him threatening termination, and Freedom retaliated because discrimination lawsuit pending employer his former Thom him, by terminating son both in violation of 623(d) ADEA, (1994); MHRA, § and the 213.070(2) § appellees’ summary On motions for judg- ment, granted the district court mo- Shields’s may because individuals not be held liable the ADEA or under the MHRA. The granted district court also Thomson’s and Freedom’s motions on the claims because Kneibert failed to establish a genuine pretext issue of fact material as to granted and Thomson’s and Freedom’s mo- tions on the retaliation claims because Knei- MO, Berry, City, J. Michael Jefferson ar- bert not could demonstrate a causal link gued, appellant. for between the adverse actions and Delaney, MO, Kansas-City, Michael F. ar- suit, filing charge the his respectively. and (Denise Clemow, gued Drake City, Kansas appeal This followed.1 MO, brief), appellee the for on Freedom. our Based on conclusion that Kneibert Sedaba, MO, Kempton, T. argued Mark genuine failed to establish a issue of material (Camille Olson, Cynthia Mooney and William fact as to for discrimination and IL, brief), Dugan, Chicago, appel- the a filing causal connection between his of a lee Thomson. charge reprimands, later and we affirm the judgment court’s for Thomson. BOWMAN, GIBSON, FLOYD Before R. However, we reverse district court’s ARNOLD, and MORRIS SHEPPARD judgment as to Judges. Freedom because direct evi- Circuit dence of age exists discrimination sufficient GIBSON, Judge. R. Circuit FLOYD genuine to create a issue material fact. In addition, Kneibert has established a Appellant Douglas Frederick Kneibert by case of retaliation Freedom show- employ- filed this lawsuit his former ing a link causal between Kneibert’s ers, appellees Newspapers, Thomson Inc. suit and his later termination Freedom (“Thomson”), Communications, genuine a Inc., (“Free- created issue of material fact Newspapers, and Freedom Inc. dom”), regarding pretext Therefore, for retaliation. supervisor as well his as former Shields, we also judgment Randall his reverse the district capacity, individual court’s claiming that Thomson and Shields Freedom on the retaliation demoted claims and him and Freedom later fired him because of remand this issue for trial. appeal summary judg- Kneibert does not ion does not issue. address this Shields; thus, opin- ment entered in favor of charge Shields Kneibert were of for- and

I. BACKGROUND policy, mulating newspaper’s editorial began working for The Sedalia Kneibert with Kneibert failed discuss letter Democrat, Sedalia, newspaper based Furthermore, mailing Shields it. before Missouri, managing as editor. In in 1967 repeatedly Shields admonished Kneibert for became the editor was directive, to following express Shields’s ultimately respon- delegating accountable for emphasize opposed local sto- national department. In the news sibilities within following ries and for re- instructions purchased newspaper Thomson page. garding the format of the editorial Publications, 1993, Shields, Dear Inc. In from time, forty-two pub- officially In reas- at this became December Shields Kneibert, signed fifty-eight then newspaper for Thomson. As who was lisher old, responsibility years newspaper newly had from editor publisher, Shields overall position. charged created “senior editor” As senior departments for all was editor, responsibility editing had ensuring newspaper profitable page, writing a few through circulation. editorial editorials increased Morton, Roger one column week. Upon arriving newspaper, at the Shields forty-five time, replaced at this expressed to Kneibert about his concerns newspaper editor. Morton had also job performance. Specifically, Kneibert’s problems performance with Kneibert’s such newspaper’s concerns included the Shields’s skills, poor editing page substandard com- quality editorial existence design, scheduling pro- failure to follow newspaper peting weekly as indications that general perfor- In addition to these cedures. job performing proper-' Kneibert was not problems, specific mance violated repeated his ly. Shields dissatisfaction with by running an unattributed policies performance on various occasions. story encourage attempting first without early Gallagher, Bob Thomson sent identified, by running to be source consultant, to review the story it allowing Morton view without Shields, problems. help these with editorial by writing publication, before and a column newspaper Gallagher concluded that the was boycott. suggesting an economic outdated, unappealing unaggressive, and an charge In filed a of product Kneibert’s March under direction. against and Thomson Shields 12, 1994, July per- Kneibert received a On on with the Missouri Commission Human In formance review from Shields. evaluation Rights, alleging that was his recent demotion evaluation, spe- four highlighted Shields age. based on his In June (1) performance problems: cific Kneibert had Shields, and filed suit (2) skills; average organizational below claiming age discrimination retaliation (3) player”; negative was not “team tone regarding his demotion to “senior editor” and (4) permeated product; news Knei- job perfor- his the continued- criticism of personal views reflected in the bert’s were mance. paper. unhappy was Specifically, Shields feature, purchased In call-in with the manner which the October ag newspaper Lyon, from Thomson. Frank public a feature that included transcribed e time, comments, fifty newspaper’s Kneibert’s su- at this became was edited under to publisher. Kneibert continued work pervision. Shields discussed dissatisfac- to Shortly after the sale with several months the senior editor. this feature over Freedom, Lyon discovered a file maintained eventually guidelines issued written perfor regarding Kneibert’s the other editors to follow. Shields Kneibert and n Nonetheless, detailing memos The file contained with mance. Shields’s dissatisfaction addition, an unattributed sto publication Kneibert’s of this feature continued. In Shields ry, boycott, of an economic that Kneibert sent letter on endorsement discovered policy paper’s formal on issues newspaper to States written letterhead United Sena- Knei- such abortion and euthanasia and purporting tor Danforth to reflect edito- policy, and Although disagreement bert’s with that policy newspaper. both rial of copies pages newspaper, Spencer front illustrated the worked at of asked newspaper’s and national em- about international Brown the reasons behind Kneibert’s phasis and lack of local news. Spencer termination. testified that Brown can you said “I assure that he was not termi- investigating community After business ability quality nated because of his or his input willingness to owners’ and citizens’ litigation work because of that he is a[sic] but newspaper, advertising dollars to the commit App. in.” involved at 326. Brown Lyon several of the discovered that members newspaper had worked since 1988 and community indicated that Kneibert business position was about quality to know they reasons that did not was one of the addition, work. In Kneibert’s Brown was support newspaper. in or advertise Lyon one of the editors from whom solicited Upon newspaper’s organiza- review of the information in the decision to terminate structure, Lyon became concerned tional Kneibert. the “senior editor” about existence recognize Freedom does position because complaint then filed an amended position newspapers. any of its other charges which added and retaliation acknowledged Kneibert also that this title is against Freedom. granted The commonly newspaper busi- used appellees’ summary judg- both motions ness. ment both the and retabation claims. eliminating posi- Before the “senior The district court held that Kneibert to editor” failed tion, Lyon investigate genuine further decided establish issue material fact as an ac- performing whether Kneibert and failed establish a bnk causal ceptable expressed level. Morton concern between Kneibert’s demotion and termi- job Lyon performance. about Kneibert’s nation and his of a discrimination claim. Lyon requested gather that Morton informa- appeal, pre- On Kneibert asserts that he any tion from the other editors deci- before with the district court direct sented made sions would be discriminatory regard- Freedom’s motives employment. three writ- The editors wrote ing his as well as direct responses Lyon expressed several ten negated appellees’ justifi- further both stated specific concerns such Kneibert’s failure to for their cations actions him. employees, as a team the other work addition, Kneibert direct evi- skills, computer lack editorial substandard dence estabbshed that Freedom retabated news, page designs, reluctance cover local suing skills, of organizational sloppy editing, lack showing that evidence existed that Knei- general failure contribute to the news- charge played bert’s a central role in the paper at an acceptable level. leading reprimands events to the and threats 3, 1995, Lyon On November met with discharge by of Thomson and ultimate termi- employ- Kneibert to discuss his continued Thus, nation Freedom. argues Lyon ment. that allegedly told Kneibert the in granting that the district court erred sum- newspaper did not have use for a “senior mary judgment for Thomson and Freedom position op- editor” offered the on the discrimination claims the because resigning of a package. tion with severance that genuine record showed a issue of mate- deposition during in his stated that rial fact existed whether Thomson conversation, Lyon said I “[w]hat need they, Freedom that respec- estabbshed young down there is Knei- three editors.” tively, discharged demoted and Kneibert for App. resigned bert at 100. Kneibert then non-discriminatory legitimate, reasons. accepted package. the severance Kneibert also that the contends district court 8, 1995, On in Spencer, granting summary November Deborah a judgment erred citizen, Sedaba the called ex- on the retaliation press changes concerns about some the claims because the record a showed that Spencer’s format that call genuine had occurred. issue of fact regard- material existed Brown, Tony directed to the editor. ing appellees news whether the that estabbshed Upon learning longer that Kneibert no no there was causal bnk between Kneibert’s

451 forty years that are at least old. and their re- dividuals protected of activities exercise § core in an 29 U.S.C. 631. The issue terminate See spective decisions demote disparate-treatment is alternative, ADEA claim whether argues him. employer intentionally discriminated es- presented sufficient that plaintiff plaintiffs upon based age discrimina- a case of tablish facie Rothmeier, age. 85 F.3d at 1331. appellees’ See and show retaliation which, pretextual proffered were reasons methods which- a Two exist thereby, discrimi- provided submissible attempt prove plaintiff can intentional dis claims. nation and retaliation First, may plaintiff present crimination. evidence of direct II. DISCUSSION age. employee produces an on When based grant sum review de novo of We illegitimate evidence that an criterion direct apply The is mary judgment. standard we part “played motivating in [the] such applied: as the the same decision,” Price v. Waterhouse genuine record shows no whether the 228, 258, 1775, Hopkins, 490 U.S. 109 S.Ct. any material fact exists and issue 1795, (1989), 104 268 L.Ed.2d burden- party judgment is entitled to moving ap shifting of Price standards Waterhouse of v. Investment matter law. See Rothmeier such, may ply. As “the defendant avoid Advisers, Inc., 1328, 1331 Cir. 85 F.3d finding liability only by proving pre of by a 56(c). 1996); We construe Fed.R.Civ.P. it ponderance of the would and all reasonable inferences factual record2 if have made the same decision even it had most light from the favorable record ac [illegitimate criterion] not taken the into summary judgment. See party opposing Asbill, 1348, v. count.” Beshears Douglas Corp., v. F.3d Hutson McDonnell 63 (8th Cir.1991) (quoting 1353 Price Water (8th Cir.1995). 771, 775 1795). house, 258, 490 109 U.S. S.Ct. Age A. Discrimination Claims The Second, plaintiff rely can proof'and presump three-stage order We first address Kneibert’s satisfy proof using against Thomson and tions and burden generally apply analysis' same circumstantial evidence. See St. Freedom. We Hicks, 502, v. reviewing brought Mary’s Ctr. 509 U.S. age discrimination claims Honor , 506-12, 407 ADEA MHRA.3 113 S.Ct. 125 L.Ed.2d under the' and the See 2742 (1993); Mo., Community v. Dep’t City Independence, Banks v. Texas Affairs s (8th Cir.1994). Burdine, 248, 252-56, prohibit The ADEA 450 U.S. S.Ct. (1981); McDonnell employer discharging “any from individu 67 L.Ed.2d Green, any 411 U.S. 800- discriminat[ing] against Douglas Corp. v. al or otherwise 1817, 1823-25, respect compensation, 36 L.Ed.2d individual conditions, terms, stage, plaintiff At bears privileges employ the first ment, establishing prima case age.” such the burden of because individual’s Burdine, 623(a)(1). protects § in- See The ADEA of discrimination.4 U.S.C. prima case argues re- 4. The four elements of a 2. Thomson that Rneibert’s verified basic facie sponse comply and Fed.R.Civ.P. 56 are: and, therefore, 13(G) we disre- Local Rule should (1) plaintiff protected that is within a the gard response and admit Rneibert's verified (2) plaintiff applicable job group, that the met Statement of Uncontested Facts. In- Thomson's (3) qualifica- qualifications, despite these stead, our we have chosen to base decision tions, respectively plaintiff demoted the totality upon the the evidence based our inde- (4) employer discharged, and that the did appeal. pendent the review of entire record on not lake such action nonmembers protected the class. interpreted The is to mirror federal law 3. MHRA Inc., Kisco, Therefore, v. Valentec 964 F.2d See Williams including this anal- the ADEA. Court's Cir.1992), denied, 723, 726 2 rt. 506 n. ysis applies to both Rneibert's ADEA claims and ce 1014, 635, 121 L.Ed.2d 566 U.S. 113 S.Ct. See v. Hill Behan MHRA claims. Tart Lumber Co., 668, (8th Cir.1994). 31 F.3d 252-53, at employment 101 S.Ct. 1093-94. The tion claim motivated the adverse presumption of or, case creates a unlawful alternative, in the actions reveal that the 254, id. discrimination. See at S.Ct. at reasons demoting firing articulated for employer, at stage, 1094. The the second pretextual Doug were under McDonnell produce obligation has the evidence of a first apparently las. The statement occurred nondiscriminatory legitimate, reason for the Lyon when told Kneibert that he was termi 253, employment action. at adverse Id. Lyon nated. Kneibert claims that said that employer S.Ct. at 1093-94. Provided the Lyon and, no “had use for senior editor” production, pre this meets burden instead, young needed “three in editors” sumption drops unlawful department. news App. at 100. 10, 101 id. at from the case. 255 n. See S.Ct. transpired The allegedly second statement Then, plaintiff at n. 10. has the Spencer when called burden, stage, at the to show that third spoke with news Brown regarding, editor proffered merely pre employer’s reason is among topics, other Kneibert’s termination. 253, text discrimination. See id. at Spencer claims that Brown told her that “I times, plaintiff At all S.Ct. at 1093-94. you can assure that he was not terminated persuading retains burden the fact his ability quality because of or his of work finder intentional discrimination moti litigation but because of that he is a[sic] vated the adverse action. See App. in.” involved at 326. id. In the context of determining whether the Price case, recently had opportunity we analysis applies, necessary Waterhouse it is position our clarify regarding “pre whether to first define “direct evidence” which is suf text-only” enough plaintiff is evidence satisfy ficient the Price Waterhouse summary judgment to withstand a motion in Price threshold. Waterhouse defines “direct Rothmeier, 1335-37. We an negative evidence” “stray to exclude this nounced the rule Circuit that an workplace,” remarks in the “statements age-discrimination plaintiff can avoid sum nondecisionmakers,” or “statements deci if mary judgment only “the evidence consid (1) entirety pro sionmakers to the in its creates a fact issue unrelated decisional ered employer’s proffered Waterhouse, to whether the cess reasons itself.” Price 490 U.S. at (2) pretextual are creates a (O’Connor, reasonable J., 109 S.Ct. 1804-05 con inference was determinative factor Beshears, curring); accord F.2d the adverse decision.” Id. at However, may direct em include 1336-37; Ryther see also v. RARE 108 ployer a discriminatory remarks that “reflect (Lay, majority) 837-38 and 848 attitude,” Beshears, (quota 930 F.2d at 1354 (8th Cir.1997) (en (Loken, banc), dissenting) omitted), that demonstrate “dis — denied, —, cert. criminatory animus; pro in the decisional (1997) (adopting 138 L.Ed.2d 1013 Rothmeier cess.” Id. Circuit). rule of upon Based our review of the law case ease, Turning present viewing light in the most favor- direct Kneibert asserts that evidence exists party, able to the nonmoving we conclude discriminatory of Freedom’s motives that ne present that Kneibert did direct evidence gates both Freedom’s Thomson’s stated discrimination claims justifications respective their actions against Freedom. The first statement oc- such, Kneibert. As argues curred in the context employ- adverse applying the district erred in decision, ment by Kneibert’s termination Douglas opposed McDonnell as to the Price Freedom, by primary and was made the analysis Waterhouse on age and retalia decisionmaker, Thus, Lyon. tion See id. against claims this Thomson and Freedom. stray Kneibert contends that statement constitutes more than two statements indi a re- cate age that his of mark workplace qualifies a discrimina- in the as direct three-stage by Douglas order of Freedom. the McDonnell age discrimination evidence of presumptions on Lyon’s proof and the remainder However, alleged this statement against Kneibert’s claims Thomson Free- sold the Thomson occurred after light the evidence in the most Viewing dom. Freedom, no that evidence reveals to nonmoving party, we find favorable the decision to ter- participated Thomson in by initial that Kneibert met his burden estab- Thus, this direct evidence minate Kneibert. prima age case lishing discrimina- apply to Thomson. does facie against Thomson. “The burden of es- hand, we conclude that On the other disparate tablishing prima facie case of statement, by made Brown allegedly second Burdine, is treatment not onerous.” Spencer, not constitute “direct evi- (1) Here, possessed superviso- Brown neither dence.” Kneibert, age fifty-eight, pro- was within authority for Free- ry decisionmaking nor (2) class; his 1993 1994 bonuses tected Despite memorandum dom. Brown’s Thomson, newspaper awards from received job perfor- Lyon that criticized Kneibert’s leadership, under Kneibert’s and Universi- mance, “deci- qualify Brown does not profes- ty of Missouri School of Journalism discharge. in Kneibert’s sionmaker” regarding good Kneibert’s sor’s statements opinions represented only one Brown’s peers his reputation among establish Lyon making many considered in factors meeting employer’s legiti- Kneibert was Brown discharge Kneibert. decision (3) employment expectations; Thomson mate any- any regarding did not make decision (4) editor; Thom- to senior demoted one’s, he employment with Freedom nor did replaced younger with a son editor. Lyon any regarding have discussions stage, Thomson offered Knei- In second Lyon’s terminate Kneibert. final decision to improve newspaper’s failure to bert’s Moreover, authority Brown had no to discuss poor performance quality and his level or, personnel specifically, Kneibert’s issues legitimate nondiscriminatory reasons for his termination, public with the because Morton At to senior editor. third demotion questions staff direct all instructed the to offer stage, the burden shifted to Kneibert Lyon. termination to There- regarding the showing given that these reasons fore, not an “individual] since Brown was discrimina- Thomson were decisions,” closely involved tion. id., qualify this statement does not as “direct evidence” of retaliation that, by argues pre require applying the Price Waterhouse senting evidence to establish sufficient analysis claims on retaliation ease, summary he prima showed facie However, Freedom or Thomson.5 because improper. particular, judgment was first constitutes direct evidence statement element of Kneibert’s second age discrimination Freedom and creates ease, performance, satisfactory job was the ’ fact Free- genuine issue of material as to appellees’ fact as articulat question of same discriminatory animus the decisional dom’s justification their adverse ed trial on process, actions, we reverse and remand for poor job performance. Kneibert that, by satisfying his burden contends element, Freedom. showing that he met second necessarily appellees’ assert showed performance pre produced poor job di Kneibert has defense of Since ed However, rejected this recently we only to his textual. relating rect evidence discrim Rothmeier, Freedom, apply argument 'will same ination claims we discussed, discriminatory leged motives Knei- previously alleged state- 5. As Brown’s reason, reject sold the news- this we also ment also occurred For bert’s demotion.' after paper rea- applied to Freedom and referred Freedom’s as direct evidence Brown’s statement Therefore, terminating Kneibert. sons for to Thomson. light al- statement does shed Thomson's 454 However, that the employer “[P]roof

1333. defendant’s articulat- that an an takes not, explanation ed is false incorrect against adverse action an em- alone, standing plaintiff entitle the to ployee employee’s higher salary [sum- due instead, mary] judgment; showing must necessarily support does not an inference of is a explanation pretext be that the dis- age Grey- discrimination. See Bialas v. for (quotation cita- Lines, Inc., crimination.” Id. and hound 59 F.3d omitted); Ryther, Cir.1995). accord 108 F.3d at As Kneibert can not a establish (Lay, (Loken, majority) and 848 dissent- age, connection between his demotion and his ing). pretext, plaintiff To establish must age he has no actionable show the reason is both false and that dis- such, against Thomson. As the dis- crimination was real reason.6 See Id. at correctly granted trict court Thomson sum- (citations omitted). and n. 5 mary judgment age on Kneibert’s discrimina-

tion claims.

Having carefully reviewed the record, presented we conclude that Kneibert B. The Retaliation Claims neither direct evidence of nor sufficient circumstantial evidence for a We next turn to Kneibert’s retal reasonable fact finder to infer that Kneibert’s iation claims Thomson and Freedom. age actually prohibits motivated The employer Thomson’s decision to ADEA an from dis Undoubtedly, problems criminating him. employee demote existed because the Shields, employee opposed practice between Kneibert but a those made unlawful problems by 623(d). concerned § their business relation ADEA. See 29 U.S.C. To ship opposed prima age. Kneibert’s establish “Federal case of retaliation super-personnel depart MHRA,7 courts do not sit under the ADEA and the Kneibert (1) entity’s participated ment that reexamines an must establish that: business in a (2) Harvey Anheuser-Busch, Inc., v. protected activity; decisions.” employ an adverse (8th Cir.1994) (citations him; (3) 38 F.3d ment action was taken omitted). quotations internal can causal connection exists between the two that Thomson lied perfor show about his events. See v. GTE Directories Wiehoff (8th Cir.1995) Corp., mance or the reasons behind his demotion 597-98 (citations omitted). pretext that these reasons constituted a employee only The need year prior discrimination. For retaliatory to his show that the motive was “a con demotion, repeated received tributing opposed warn factor” as to the sole rea ings performance about his son for the need adverse action. Id. improve Then, newspaper’s quality. Signifi at 598. production burden cantly, only employer Kneibert cites as shifts to a legiti to establish mate, causing him to nondiseriminatory believe that Thomson demot reason for the ad ed him because of his Upon doing, Shields’s verse action. so employee alleged making comment that Kneibert “was prove has the burden to the reason money.” too App. much 97. pretext constitutes for retaliation. See Ma- Ryther fully 6. explained: is, alone, The court more standing make a submissible case it if inconsistent with a reasonable sum, employer produces inference when the a non- discrimination. actions, discriminatoiy prima reason for its Here, added). (emphasis Id. at 837 longer legal presump- facie case no creates a pretext must set forth sufficient evidence of so tion of unlawful The discrimination. elements reasonably remain, however, that a trier of fact could infer that of the facie case if accompanied employ- they discrimination motivated the adverse pretext are evidence of ment action. and disbelief proffered of the ex- defendant’s planation, they may permit jury find that, Again, plaintiff. say analysis applies 7. this Court's This is not to both succeed, plaintiff simply proving pretext is ADEA claims and MHRA claims of necessarily enough. emphasize interpreted We that evi- retaliation as the MHRA is to mirror Tart, dence enough will be federal law. See itself

455 704, Hosp., Foods, Inc., Joseph v. F.2d 7 707 State 840 F.3d Jackson St. v. ness Star-Kist (8th denied, 1387, Cir.1988), denied, 1207, (8th cert. 488 Cir.1993), cert. U.S. 892, 228, (1994). 102 L.Ed.2d 218 2678, 129 109 S.Ct. L.Ed.2d ease, the district court present In the to Kneibert failed establish

found that Moreover, as previous we discussed claims link between his discrimination causal alleged Spencer to ly, Brown’s statement taken actions adverse was terminated because of that Kneibert by and Freedom. against him Thomson apply does not Thom pending litigation to Thomson retaliated contends that Kneibert alleged This son. conversation occurred af filing him for his discrimination newspaper to Thomson sold the Freedom ter falsely charge by alleging that support and does not the contention editorial properly failed exercise his to “paper” to file agreed duties, his increasing reprimands of their allow to terminate him at Freedom him, threatening to terminate performance, Significantly, date. Kneibert concedes later lawsuit, and, conspiring upon learning of his present any facts Thom that he did not him. to terminate with Freedom conspired with Freedom terminate son age. of survive Kneibert because his To record, examining the we Upon summary judgment, for Thomson’s motion produce failed to evi conclude that Kneibert sufficient, provide probative Kneibert must be connection to establish a causal dence permit a fact which would finder evidence filing charge of and Thomson’s tween the his opposed to engaging rule in his favor as against him. employment actions adverse fantasy.” speculation, conjecture, or “mere fact, deposition that in his admitted v. Business Machines Wilson International by Thomson only of retaliation Cir.1995) (cita (8th Corp., 62 F.3d from the two memoranda received was omitted). fails to tions Because Kneibert threatening Kneibert’s dismissal Shields (a causal connec establish the third element that, complaint, filing before tion) retaliation, prima case facie him with dis never threatened Shields had granting order we affirm the court’s However, re received missal. summary judgment. Thomson’s motion per for his peated reprimands from Shields problems Kneibert filed formance However, regarding Kneibert’s before Knei charge. filing charge, of his Freedom, we con claims retaliation After reprimands bert continued receive established a clude problems he exhibited before same genuine issue of material and created ease charge. Kneibert’s future with Thomson termi fact as to —whether July, “uncertain” in 1994—well opposed legiti deemed retaliatory nated charge filing on March mate, advance of the News edi nondiscriminatory reasons. relationship sequential Spencer, 1995. The mere alleged statement tor Brown’s evidence,”8 charge of Kneibert’s between the qualifying as “direct while increasing reprimands of the seriousness causal link be requisite establish the does causality. Val suit pending to establish See is insufficient tween Kneibert’s Mercy Hosp., As dez v. Freedom’s termination Kneibert. Cir.1992). editor, position know Simply filing a Brown news was in complainant with termination charge the reasons behind Kneibert’s not “clothe does Thus, represents this statement past present inadequacies, Freedom. immunity for employee’s opinion than an individual unsatisfactory performance....” more [and] addressed, genuine alleged to create a cient circumstantial evidence previously Brown’s 8. As we Spencer qualify legiti- as direct statement to of material Freedom's issue fact—whether analy- mate, merely to warrant the Price Waterhouse nondiscriminatory reasons are Free- sis the retaliation retaliatory discharge. pretext for However, suffi- dom. this statement constitutes and, employer. particular, taken incorrectly action applied has Cf. Gazette, Morgan principles v. Arkansas in Ryther we announced v. (8th Cir.1990) (Unlike (8th Cir.1997) (fin KARE employees in — banc), denied, U.S. —, Brown, Morgan, despite qualifying not cert. as a S.Ct. “decisionmaker,” case, participate in 138 L.Ed.2d 1013 In did —albeit we plaintiff held that a makes part decisionmaking process.). small submissive —in employment case in an if Brown discrimination case detailing submitted a memorandum he or she makes out perception perfor case and of Kneibert’s work produces employer’s prof evidence that the upon Lyon partly mance which relied in mak legitimate fered business reason for the ad ing the decision to dismiss Kneibert. This complained verse action of was person in evidence from a involved the deci- pretextual, unless evidence is inconsis process sionmaking may be viewed as reflect tent with the kind of discrimination that the ing alleged discriminatory attitude of an plaintiff claims motivated the permit jury extent sufficient to to infer that Here, action. Thomson claimed that Mr. likely this attitude was more than not a discharged poor job perfor motivating employer’s in .Kneibert factor decision. mance, plenty but there is this Co., Penney Nelson v. J.C. See F.3d — person record from which a reasonable could denied, Cir.1996), cert. conclude that he performing was indeed —, 61, — L.Ed.2d — (1996). job course, satisfactorily. jury, While the may Spencer’s dispute While Freedom credi does not have believe Mr. Kneibert’s evi bility, summary judgment task at the “[o]ur dence, it given reject must be the chance to stage weigh ... is not ... the evidence accept it. and determine the truth the matter but to a genuine determine whether there is issue The court notes that Rothmeier held that Television, O’Bryan for trial.” v. KTIV proof plaintiff entitle a (8th Cir.1995) (quotations summary judgment. true, That is but it is omitted). such, As we reverse the district case, also point. beside the this Mr. grant summary, judgment court’s for Free asserting is not that he is entitled on the retaliation claims and dom remand 'the summary judgment; merely he is assert- issue for trial. ing summary Thomson is entitled to

judgment. agree I with Mr. Kneibert and III. CONCLUSION respectfully therefore dissent from the court’s judgment affirming summary discussed, For the reasons the order of the judgment in favor of Thomson on the dis- court is as to affirmed Thomson and crimination claim it. I concur in the Freedom, reversed as to and the case is judgment respects. in all other court remanded the district for further proceedings opinion. consistent with this

AFFIRMED IN PART AND RE-

VERSED IN PART. ARNOLD,

MORRIS SHEPPARD Circuit

Judge, dissenting part.

I dissent from so judgment much summary judgment case as affirms the

in favor of Thomson on the discrimination it,

claim I because believe that in this

respect the precedents our has misread

Case Details

Case Name: Kneibert v. Thomson Newspapers, Michigan Inc.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Nov 6, 1997

Citation: 129 F.3d 444

Docket Number: 96-4177

Court Abbreviation: 8th Cir.