Paul J. Kiel v. Select Artificials, Inc.

H31 gun was in Potts’ bedroom. and next to ammunition on the floor found methamphetamine. See ephedrine and amid (sufficient readily weapon accessible if

id. Howard, nearby). Like ammunition and by relying Khmg mark misses the

Potts addition, Potts claims and Shields. gun be- court erred because

the district However,

longed the district to Maasen. clearly applying not err

court did she to Potts because

weapon enhancement and had not that Maasen Hickerson

stated night the trailer

entered her bedroom searched, Maasen and Hickerson in the kitchen had remained

stated night. The living district room by concluding not err therefore did

court weapon a sufficient nexus

that the had

crime.

III. CONCLUSION foregoing, we affirm the

Based on the

judgment of court. the district

AFFIRMED. KIEL, Appellant,

Paul J. ARTIFICIALS, INC., Appellee.

SELECT 97-2433.

No. Appeals, Court

United States

Eighth Circuit. Sept. 1998.

Submitted March

Decided

H33 Missouri, Louis, argued, Lynn, St. D. John appellant. Louis, Missouri, Gianoulakis, ar- St. John (Mark A. Bremer and David Castle- gued J. brief), Louis, Missouri, man, on the St. appellee. BOWMAN, Judge, Chief

Before McMILLIAN, HEANEY, BRIGHT, ARNOLD, FAGG, S. RICHARD LOKEN, HANSEN, BEAM, WOLLMAN, ARNOLD, SHEPPARD MORRIS KELLY,1 MURPHY, Judges, En Circuit Banc. argument following at the Kelly vote conference John D. died on October

1. The Honorable September opinion is with his consistent 1998. This WOLLMAN, Circuit J. TDD. him She told that Select would not purchase Visibly the device. frustrated and brought Paul Kiel this suit under upset, Fry, Kiel shouted at Ms. “You’re self- (ADA), Americans with Disabilities Act ish, you’re selfish .” He then slammed his § seq., et U.S.C. and the Missouri Hu- drawer, away desk and as Ms. walked (MHRA), Rights man Act Mo.Rev.Stat. purchase made a remark against § about her recent seq., employer, 213.010et (Select). Artificials, Inc. new Four The district court2 automobile. summary judgment granted favor Select were Kiel According when did this. appealed, on all employee witnesses, claims. divided to episode lasted panel of this court reversed and remanded “a few minutes.” Inc., Artificials, trial. See Kiel Select day, Fry Later that Ms. if asked Kiel he (8th Cir.1998). granted 142 F.3d 1077 We yelled realized that he had at her front of bane, petition rehearing en Select’s for vacat- employees. He said that he was not ing panel opinion. now the We affirm the aware apolo- that he had raised his voice and decision of the district court. gized doing for conferring so. After with Fry, Fry Mr. to decided terminate Kiel I. despite apology. insubordination his Kiel has been deaf since birth. He was employed billing a at Select as clerk from discriminatory Kiel raised claims of dis- January February to 1994. On several retaliatory charge, discharge, and failure to requested purchase occasions he that Select accommodate under the ADA and the (TDD) a telecommunications device that MHRA. The district court concluded that would him per- enable to make business and produce Kiel did not showing evidence that telephone provide sonal calls. did not Select non-discriminatory Select’s reason for termi- the device did because Kiel not need it to nating Kiel, insubordination, pretextual. perform billing his Al- duties as a clerk. It temporal also held that the connection though hearing employees occasionally com- between letter requesting a TDD and by telephone, municated with clients Select his termination was insufficient to demon- supervisor decided that Kiel’s could make retaliatory strate intent and that Select had client calls for him when were needed. not failed to accommodate Kiel. Kiel personal make allowed to calls dur- ing breaks those occasions when he II. brought his TDD from home. requested provide Kiel also that Select him grant We review a of summary judgment sign-language interpreter a for staff meet- Tool, de v. novo. Price S-B Power 75 F.3d ings gatherings. and social Select did not Cir.), denied, cert. 519 U.S. normally provide interpreter an because one (1996). 274,136 117 S.Ct. L.Ed.2d Sum perform was not needed to to enable Kiel his mary judgment appropriate is genuine if no

job occasion, however, duties. one On Kiel issue material fact moving exists and the requested interpreter prior training to a party judgment is to entitled as a matter of position, session whereupon related to his 56(c). law. ruling Fed.R.Civ.P. aon mo provided Select one for him. summary judgment, tion for we view the February 17, 1994, photocopied On a justifiable evidence and draw all inferences in Fry, letter that to he had drafted Robert co- favor of nonmoving party. the See Miners v. Select, again owner of requesting that the Communications, Inc., Cargill 113 F.3d company purchase observing a TDD. After — (8th Cir.), denied, -, cert. U.S. Fry, Kiel at the photocopier, Julie the other 441, 139 118 S.Ct. L.Ed.2d 378 Select, co-owner of approached him his at employment In an inquire work station to discrimination about his use of the copier. case, plaintiff initially present Kiel informed Ms. the must he was a requesting company purchase prima the facie case to survive motion for Adelman, souri, Terry 2. The presided Honorable I. United States who over the case consent of Magistrate 636(c). Judge pursuant parties § Eastern of Mis- District 28 U.S.C. having proffered a v. non-dis Lidge-Myrtil Select summary judgment. See Kiel, criminatory terminating Cir. reason for Deere & 1995) Douglas Corp. present (citing shifted to Kiel to evidence McDonnell burden Green, 792, 802-05, pretextual. 93 S.Ct. 411 U.S. that Select’s reason was See (1973)). employer essence, .must at 1311. In Lidge-Myrtil, L.Ed.2d presumption of discrimination required genuine then rebut Kiel was show a issue of articulating legitimate, non-diserimina- actually material fact as whether employment ac the adverse tory reason for disability. Id. Al him because of fired If 49 F.3d at 1310. Lidge-Myrtil, tion. See possible strong it of a though is evidence this, pro the burden employer does prima factual facie case also plaintiff demon to the duction shifts back pretext, issue on see Rothmeier Invest non-discriminatory employer’s strate that the Advisers, Inc., 1333-37 ment pretextual. is Id. reason (8th Cir.1996), question the ultimate presents evidence of plaintiff whether prima case To out a facie make by persons “conduct or statements involved ADA, required to Kiel was show under the decision-making employer’s] process in [the meaning of the within is disabled discriminatory attitude suffi reflective of ADA, perform the qualified that he jury to infer that cient to allow a reasonable he position, and that of his functions essential motivating a in [the attitude factor that was un employment action an adverse suffered plaintiff].” employer’s] [the decision to fire an inference giving rise to circumstances der (8th Sieben, 970, v. Feltmann Price, 75 F.3d at of unlawful discrimination. Cir.1997) (citing Penney Nelson v. J.C. plaintiff was Generally, that a evidence 365. (8th Cir.1996)). 343, employee by similarly replaced a situated support to is sufficient who not disabled any not submit evidence of Kiel did Id. did of Select inference discrimination. entirely pretext in He relied on this case. he that dispute Kiel was disabled or not that challenge prima facie ease Select’s non his to billing qualified perform his as duties was discriminatory assertion reason. bare clerk, re he was and Kiel established that hearing employee a to re hired Select Thus, hearing employee. a Kiel placed by genuine factual place did not raise a Kiel under McDonnell met his initial burden discriminatory in regarding issue Select’s Douglas. tent, point any conduct or for Kiel did not shifted production of then The burden Frys permit a that would statements legitimate, to articulate a nondis to Select jury to find that insubordination reasonable criminatory reason for Kiel’s termination. pretext termination. Nor a mere for his that it terminated Kiel because Select stated disciplined Frys did he demonstrate that his draw Fry, slammed desk he insulted Ms. severely hearing employees for insubor less er, a sarcastic remark about and made As for Kiel’s assertion dinate conduct. presence Fry in the of four co-workers. Our shouting, he himself he realize he was did not repeatedly have held that insubordina cases shout, shout,” I testified that “If want legit company policy are tion and violation of testi which is with the co-workers’ consistent Ward v. for termination. See imate reasons mony never heard him raise had Co., 111 Paper & Prods. Procter Gamble short, simply no In evi his voice. there Cir.1997) (employee termi F.3d motivating awas dence that discrimination co-worker); Price, 75 striking a nated in termination. factor Kiel’s (employee terminated for ex at 365-66 F.3d contends that his discrimina Kiel absenteeism); Lidge-Myrtil, F.3d cessive discharge within the mixed- tory claim falls (employee pro not chosen at 1310-11 Hop analysis of Price Waterhouse motive poor relationship co with motion because 248-50, kins, 109 S.Ct. 490 U.S. company policy); violation of workers and trigger To Price 104 L.Ed.2d Agency, Dev. Miner v. Bi-State however, analysis, plaintiff a (8th Cir.1991) Waterhouse (employee termi 913-14 impermissible motive show that “an violating must vari nated for insubordination motivating part in an adverse em- played a company policies). ous ployment presented Id. at decision.” 109 S.Ct. no evidence con interpreted require have a We this permit duct statements that would a rea minimum, plaintiff present, at a some di jury actually sonable find that Select fired discriminatory rect evidence motive. See Indeed, him he requested because a TDD. Bank, Thomas First Nat’l 65- requested had a TDD on numerous occa (8th Cir.1997); Hutson v. McDonnell sions, employ but he suffered no adverse Douglas Corp., 63 F.3d 780-81 Cir. abusive, engaged ment action- until he 1995). entirely on Because Kiel relied cir derogatory conduct employer. towards his cumstantial evidence to establish the exis Kiel allege disciplined did not that Select discriminatory tence aof motive on Select’s harshly less for insubordi part, the district court correct review nate history conduct. Nor did he a show solely ing Kiel’s claim under McDonnell discrimination at present Select that would Douglas light In framework. of Kiel’s fail genuine factual retaliatory issue on intent. genuine ure to factual establish issue on Rather, the record showed that Select has pretext, properly granted the district court employees, hired a of deaf number has al judgment the discrimina job tered duties to accommodate deaf em tory discharge claim. ployees, satisfactory has maintained working relationship employees. with deaf III. sum, simply there is no evidence from prima To facie case of jury which a reasonable could find that Se retaliation, plaintiff must show that he en lect terminated Kiel in retaliation conduct, protected gaged in that he suffered exercising any rights granted to him the action, employment an adverse and that the ADA. causally adverse action was linked to the argues summary judg protected conduct. See Montandon v. ment improper jury was because a should Indus., Inc., 355, Farmland 116 F.3d 359 decide whether egregious his conduct was (8th Cir.1997); City, Evans v. Kansas Mo. enough to warrant termination. In the ab Dist., (8th Cir.1995). Sch. 65 F.3d 100 any sence of evidence discriminatory of in Although contesting employment an unlawful tent, however, prerogative it is not the of the conduct, practice protected is the anti-dis jury judgment courts or a in to sit employ of crimination do statutes not insulate an em management Montandon, ers’ decisions. See ployee discipline violating from the em 116 F.3d at 360. employment-dis “[T]he ployer’s disrupting workplace. rules or the Evans, crimination laws have not vested in (quoting See 65 F.3d 102 the fed Booker v. authority eral courts super- the to sit Brown & Williamson as Tobacco 879 F.2d (6th Cir.1989)); personnel departments reviewing 1312 Mercy Valdez v. the wisdom Hosp., Cir.1992); or judgments 1403 fairness of the business made Joseph Hosp., Jackson v. employers, except St. State to the extent that those (8th Cir.1988). Generally, judgments 1390 more involve intentional discrimina temporal pro Hutson, than a connection between the tion.” 63 F.3d at 781. employment tected conduct and-the adverse required

action is IV. genuine factu Feltmann, al issue on retaliation. See 108 requires The ADA employers to 977; Nelson, F.3d at 75 F.3d at 346-47. make reasonable accommodations to allow perform disabled individuals to the essential requests Kiel’s pro for TDD were positions. functions of their tected See U.S.C. Insulting communications. (8) (9). § 12111 A indulging and reasonable angry in an in accommoda outburst the — presence co-workers, however, provide tion should the disabled individual an were cer tainly not, equal employment opportunity, right including the ADA confers no to be an rude. intervening unprotected opportunity per con to attain the same level formance, duct any benefits, eroded causal connection that privileges and is suggested by temporal the proximity of similarly available to situated who protected conduct and his termination. § are not disabled. See 29 C.F.R. 1630.9

H37 Accordingly, respectfully for trial. mand than one accom- If more (Appendix) per- dissent. allow the individual would modation position, of the functions the essential

form recognized difficulty have the “Courts accommodation providing the employer “the discriminatory or retal disposing of issues of to choose between has ultimate discretion the iatory summary judgment intent at the accommodations, may and choose effective spar stage: ‘Summary should be judgments the ac- expensive accommodation the less only in those rare in ingly and then used provide.” it that is easier commodation dispute there no fact stances where Id. only All there exists one conclusion. where provided Kiel a reasonable accom- way point be evidence must one restructuring billing clerk modation sus susceptible of no reasonable inferences a TDD Although providing Kiel position. taining position nonmoving par of the ” an effective ac- also have constituted would Inc., Fleming Companies, v. ty.’ Davis commodation, to have Kiel’s su- Select chose (8th Cir.1995) 1369, 1371 (quoting John F.3d of client make the minimal number pervisor Soc’y, F.2d v. Minnesota Historical son required. This ac- telephone that were calls (8th Cir.1991)); v. also see Gill employ- equal Kiel an commodation allowed R-6, Reorganized Sch. Dist. F.3d interpreter An opportunity at Select. ment (8th Cir.1994) (reviewing summary judgment perform required for Kiel was not employment discrimination “with caution position, and on the of his essential functions inevitably ... because intent cases training that a session rele- one occasion issue”); & Keys Family Lutheran v. central provided him position, Select vant to Kiel’s Mo., 356, 358 Servs. Children’s summary judg- Accordingly, interpreter. Cir.1981) (noting in retaliation case that proper on Kiel’s failure accom- ment was motive, credibility key intent and are “where modate claim. inap generally summary judgment is factors the Mis claims under Additionally, Because Kiel’s the United States propriate.”) Rights premised Human Act are souri “[t]here has Supreme Court directed claims, they as his ADA same factual bases ‘eyewitness’ testimony as be will seldom Empiregas, Finley fail. See must also processes.” mental United employer’s (8th Cir.1992) Inc., (holding Ai Postal Serv. Bd. Governors States of employment discrimination deci that federal kens, 711, 1478, 716, U.S. S.Ct. for claims under the are authoritative sions formi Faced with this L.Ed.2d 403 MHRA); v. Missouri Midstate Oil Co. it, the the record before standard and dable 842, Rights, 679 Comm’n Human S.W.2d judg summary the court approached district banc) (en (same). (Mo.1984) 845-46 caution, stating: hearing ment with motion legitimate non-discrimi if there is a “I think judgment is The affirmed. termination], natory given [for reason ARNOLD, Circuit MORRIS SHEPPARD I think that this is a case that’s ... then Judge, dissents. Maybe it summary judgment. close for maybe grant it should be granted, be could HEANEY, Judge, with whom Circuit legitimate ed, non-discrimina but it’s not a if McMILLIAN, Judges Circuit BRIGHT and reason, obviously legitimate, tory then not join, dissenting. (Summ.J.Mot. goes jury.” the case the summary judg- majority that The asserts 40-41.) Hr’g Tr. at appropriately granted to Select ment was reason majority legitimate The finds that a matter was insubordinate as because Kiel as concluding insubordinate by Kiel was law, reasonably Kiel accommodated of Select pro- The ADA disagree. law. I matter of law, job and that Kiel’s in as a matter of his any “against individual hibits discrimination it must as matter of law because claim fail any opposed act has such individual my because by In unsupported direct evidence. was by ADA].” practice [the made unlawful view, or majority wrong respect, in the each 12203(a) (1998). determining § In U.S.C. the district and this court should reverse insubordinate, the employee was grant judgment and re- whether of court’s employee’s question company the conduct had been with the whether who for more excessive, disruptive, ‘generally years subject “was than two and had never been so employer’s disciplinary F’ebruary ... mimical to interests as to formal action. On [the] ” 17, 1994, Kiel, beyond protection’ requesting to be the the ADA. drafted a letter 442, provide Kempcke Fry employ- v. Monsanto 445 that Mr. Select’s deaf (8th Cir.1998) (quoting copies Hochstadt v. Worces with a TDD. Kiel made ees show Found., Experimental Biology, ter 545 the other at deaf Select. After for (1st Cir.1976)); copies, making F.2d see also Jen to his returned desk nings Tinley Community, put Fry Park and the letter his Ms. drawer. (7th Cir.1986) (applying approached a reason Kiel and chastised him for mak- “disloyal” ing personal copies ableness test to determine whether at the office notwith- provide legitimate standing could conduct basis for the fact that she had never told discharge every op copy form of because “almost Kiel that he could not use the machine (See employment practice position personal Fry to an is in some documents. Ms. 9.) disloyal” ‘disloyal’ Moreover, Dep. employ- sense and if “mere conduct at 9/29/95 legitimate provide a copier personal could basis dis ees used use and charge, protection by policy against extended did not have a [anti-dis such use. (See 38; severely Fry crimination be Dep. statutes] would limit Fritz at Mr. 9/20/95 ed”). 16.) Payne Dep. February v. McLemore’s Wholesale & at 1994 was 9/21/95 Stores, formally requested Retail the Fifth observed time Circuit first Kiel part TDD, it is Fry a defendant’s rebuttal case to and Ms. admitted that she was plaintiffs opposi form approached anyone establish “the aware not that Kiel had (See unprotected Fry tion request. statute.” 654 else with the same Ms. (5th Cir.1981) 36.) (citing Fry F.2d Dep. Rosser at Ms. refused Kiel’s 9/20/95 Union, request v. Laborers’ Int'l Local for a TDD as a reasonable accom- (5th Cir.1980); disability, 223-24 whereupon v. Har modation for his Kiel Jefferies Ass’n, County Community ris Action Shortly 615 stated that she was selfish. after (5th Cir.1980); exchange, 1035-37 this apologized Ho Kiel for his state- chstadt, 229-34). ment, Fry accepted 545 F.2d at apology. Courts have and his (See 50.) required oppositional employee Dep. conduct 9/20/95 circumstances, light “be of the reasonable majority The concludes that Kiel insu- employer’s right and have held that ‘the bordinate as a matter of characteriz- law against run his business must be balanced ing insulting, angry, Kiel’s statement as rights employee express of the jury might agree rude. aWhile with this ” grievances promote his own welfare.’ conclusion, certainly sup- the record does not Jefferies, (quoting 615 F.2d at 1036 Ho port the view that Kiel’s reaction to Ms. 233). chstadt, 545 F.2d at was insubordinate as matter law. Un- majority request majority, unwilling concedes that Kiel’s like am to declare protected activity, for the TDD was opposing but con- the a denial of reasonable ac- subsequent request by cludes that the declaring comment that commodation that an Fry employer was selfish was unreasonable as a is selfish is a unreasonable as mat- matter good employee of law.3 Kiel a of profanity was ter law.4 Kiel did' not use or position 3. Clearly, position This concession is at odds with the of counsel’s is the not law. If it argument. were, Select’s counsel oral Counsel con- person right no deaf would ever have the content, manner, ceded that the not the of Kiel’s oppose employer's requested to his a denial of comment constituted insubordination:- employee’s reasonable accommodation the Judge Heaney: your position it view, [I]s that the my deafness. In counsel’s concession spoken result would be he the same if had in a required alone that we reverse the district court’s well-modulated voice? summary judgment. grant of very clearly Mr. Gianoulakis: I it think prob- the content of what he said that was the that, cases, may 4. It be in certain the declaration president, lem here. If he had shouted at the employer that an is can selfish constitute insub- for, company "This is I've the best ever worked purposes judg- the of ordination for you're president and the best I've ever worked Nonetheless, I do not to ment. believe that be for,” you I submit to we wouldn't be here the case here. today.

H39 view, training. my the Parcel Service any that could be consid- engage in conduct by holding of law. The as a matter court erred Kiel had been ered unreasonable ignores requirement at the sum- majority reasonably the as a matter law. accommodated of viewing judgment stage of the evidence mary that, employee as The record reveals to justifiable inference Kiel’s drawing all meetings, provided not in- Kiel was with an Cargill Communica- favor. See Miners and, therefore, way a terpreter arguably (8th Cir.), Inc., tions, cert. 113 F.3d employee.5 meaningfully as an function — denied, -, 118 S.Ct. U.S. Also, immediately after Kiel’s termi- almost at the Kiel stated both L.Ed.2d 378 Fry prior litigation, asked nation but to this that he the incident and afterward time of Wendy to obtain a TDD for its remain- Sheu shouting. he Nonethe- realize did not employees. of ing deaf The reasonableness less, “If majority his cites statement the by request is illustrated the fact that Kiel’s ” shout, I I shout and concludes that want shortly TDD after his ter- obtained a Select simply inap- is lying. This conclusion he was majority, I am mination. Unlike the unable necessary There no inconsis- propriate. is any as matter of law to draw conclusions otherwise, being person, in a deaf or tency regarding from these facts reasonable accom- shouting they capable of when choose question of reasonable ac- modation. The shouting on a realizing that are not decide, jury not a commodation is for least, very the particular At the occasion. appeals-even sitting en court of one banc. resolve, jury not an is for a issue one majority incapable The holds that Kiel is benefit of live appellate court without the pro showing pretext because testimony. failed that Mr. Ms. duce direct evidence or majority ignores Payne line also The engaged conduct re made statements or cases, handicapped em- which hold that flecting discriminatory attitude and that may only discharged seeking ployee be an to dismiss such attitude motivated them accommodation when behavior reasonable Sieben, It Kiel. relies on Feltmann v. excessive, generally inimi- disruptive, is so (8th Cir.1997), and Nelson F.3d employer’s as to be be- cal to the interests (8th Penney Cir. J.C. That yond protection of the ADA. 1996), proposition. this believe that jury, to be determined not issue majority regard is in in this because error Accordingly, I of law. the court as a matter only not method for evidence is direct hold that the district court erred be- would inquiry in this satisfying the fundamental its failed to meet burden cause Select non-discriminatory legitimate, is whether Select establishing a case. The ultimate issue terminate Kiel. intentionally against for its decision to reason Kiel. See discriminated (8th Ryther v. KARE majority concludes as a matter also Cir.1997) (en banc); Kehoe v. Anheuser- reasonably accommodated law that Select Busch, Inc., Cir. majority disability. The states that Advisers, 1996); v. Investment Rothmeier job by eliminating from his did so Cir.1996). Inc., 1328, 1334 “The phone pro- business calls and need to make may proved requisite be interpreter causal connection one occa- viding him with an discharge circumstantially by proof that the participate in United sion so that he could going place, hearing, were to take summary judgment advance notice motion At requiring clairvoyant. be stated: him to Kiel's counsel 24.) (See Hr'g. (Summary also Kiel Tr. at J.Mot. deposition testified in his that Mr. Kiel ("I Dep. what at 40 wanted to know 9/20/95 going meetings going to were take didn’t know those equal meetings]. I wanted treat- [at they employees to- place until called all ("I ment.”); just my job at do until some- id. 41 meetings. gether did have the Who know to room, group go and I found one said in that going place? meetings take that the were [Terry talking what was Fritz] I asked .... planning company were knew that shrugged going her which] [s]he [to on.... arranged meeting an could have have only response. her That's the there, shoulders. That's given interpreter to be could have Mr. ("Well, response got.”); we had id. at if I 41-42 day's one and ask him if he wanted notice kept meeting, I to be informed say would like meeting. interpreter an for the But part going of the I’d like be timely request what’s on. put Kiel didn't in Mr. team.”)) meetings given interpreter he was not activity closely Additionally, protected so in followed would that Price hold Water- justify retaliatory time as to an inference of analysis applies house to retaliation claims. Inc., Research, v. motive.” Rath Selection Accordingly, I respectfully dissent. Cir.1992); see also Dole, v. Couty Cir. 1989) (including proof discharge that time of closely protected activity prima followed claim); retaliatory discharge facie. case of (same). Moreover,

Keys, 668 F.2d at 358 properly initial is

Kiel’s evidence considered

in evaluating explanation Select’s for its ac

tion. See Dep’t Community Texas Affairs BERG, Appellant, Rebecca A. Burdine, n. 450 U.S. 101 S.Ct. (1981) (Initial 67 L.Ed.2d 207 “evidence properly and inferences drawn therefrom may be considered the trier of fact on the CORPORATION, Appellee. NORAND issue explanation of whether the defendant’s 98-1232. No. pretexted”). is Select is not to sum entitled mary judgment simply because it declared Appeals, United States Court of Rather, that Kiel was insubordinate. Eighth Circuit. question is jury whether a reasonable could intentionally conclude that Select discrimi Submitted Oct. 1998. against view, my nated Kiel. In a reasonable Decided March jury construing the facts and all reasonable light inferences therefrom in the most favor

able Kiel could conclude that Select inten

tionally against discriminated Kiel. this

case, good employee Kiel was a who had years

worked Select for more than two subject

and had never been to formal disci

plinary juryA action. could conclude from fact used the office

copier personal incurring items without

management’s attention that Kiel was held to Additionally, different standard.

termination followed on the heels of his vocal

opposition denied accommodation re

quest. Accordingly, majority errs

concluding as a matter of law that Kiel can genuine

not establish a issue material fact pretext.

on the issue of majority analyzing have followed the pursuant

this Douglas. case to McDonnell

question, however, analysis whether this

appropriate in retaliation eases. I rather analysis

believe that the mixed-motive

Price used Waterhouse should be in retalia-

tion judgment cases and that motive, intent,

inappropriate when and credi-

bility Keys, are the central issues. See

F.2d at 358. above,

For the reasons stated I would grant

reverse the district court’s

judgment and remand trial on all claims.

Case Details

Case Name: Paul J. Kiel v. Select Artificials, Inc.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Mar 4, 1999

Citation: 169 F.3d 1131

Docket Number: 97-2433

Court Abbreviation: 8th Cir.