Clark v. Matthews Int'l Corp..

• Decision Date: 02 May 2011
• Docket Number: No. 10–1037.,10–1037.
• Citation: 639 F.3d 391
• Parties: Eddy CLARK, Plaintiff–Appellant,v.MATTHEWS INTERNATIONAL CORPORATION, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

639 F.3d 391

112 Fair Empl.Prac.Cas. (BNA) 249

94 Empl. Prac. Dec. P 44,184

Eddy CLARK, Plaintiff–Appellant,

v.MATTHEWS INTERNATIONAL CORPORATION, Defendant–Appellee.

No. 10–1037.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 17, 2011.Filed: May 2, 2011.

Lawrence P. Kaplan, Joshua M. Avigad, St. Louis, MO, for appellant.Charles Edwin Reis IV, Amy L. Nixon, St. Louis, MO, for appellee.Before RILEY, Chief Judge, MELLOY and COLLOTON, Circuit Judges.MELLOY, Circuit Judge.

This case involves state and federal age-discrimination claims brought by Eddy Clark against his former employer, Matthews International Corporation (“Matthews”). A district court granted a motion for summary judgment in favor of Matthews on these claims, and Clark appealed. On December 27, 2010, we issued a panel opinion in this case. Clark v. Matthews Int'l Corp., 628 F.3d 462 (8th Cir.2010). We affirmed the district court's grant of summary judgment in favor of Matthews on Clark's federal claim under the Age Discrimination in Employment Act (“ADEA”), but we remanded the case and instructed the district court to dismiss without prejudice Clark's claim under the Missouri Human Rights Act (“MHRA”).

Matthews petitions for a panel or en banc rehearing to have our disposition of Clark's MHRA claim reconsidered. According to Matthews, diversity-of-citizenship jurisdiction exists over Clark's MHRA claim. As a result, according to Matthews, we must reach the issue raised in Clark's appeal regarding whether the district court erred in granting summary judgment in favor of Matthews on Clark's MHRA claim. We generally agree, so we grant Matthews's petition for a panel rehearing, vacate the portion of our prior opinion which disposed of Clark's MHRA claim, and reverse the district court's grant of summary judgment in favor of Matthews on Clark's MHRA claim. This grant of panel rehearing does not affect the portion of our prior opinion which affirmed the district court's grant of summary judgment in favor of Matthews on Clark's ADEA claim.

I. Background

We discussed the relevant facts of this case in our prior opinion, which we quote from extensively here:

Matthews is a Pennsylvania corporation whose Graphics Division offers graphic-design services to commercial vendors. The Graphics Division has facilities across the United States, including one in St. Louis. The St. Louis Graphics Division hired Eddy Clark, who was age forty-three at the time, to work as an artist in 1992. Clark was hired to design corrugated-cardboard packaging as a member of the St. Louis Graphics Division's Art Department. ¹

Corrugated-packaging design was the primary service that the St. Louis Graphics Division offered its clients when it hired Clark. By 2000, however, the market for corrugated-packaging design had become increasingly competitive. As a result, not only was Matthews's share of the corrugated-packaging-design market shrinking, but the profit margin for corrugated-packaging design was shrinking as well. Thus, Matthews sought to diversify its packaging-design services at the St. Louis Graphics Division. Specifically, although it had no plans of abandoning its design of corrugated packaging at that time, Matthews wanted to begin designing primary packaging at its St. Louis facility.

Primary packaging is substantially different from corrugated packaging. Primary packaging is the packaging that firms use to enclose their products; as a result, it is the packaging that consumers actually see. Primary packaging consists of the colorful labels and packages that are intended to catch a consumer's eye as they browse products in a retail store. Corrugated packaging, on the other hand, consists of the cardboard boxes that products are shipped and stored in.

In 2000, to spur development of its primary-packaging-design services at the St. Louis facility, Matthews hired a person with primary-packaging-design experience, Randall Peek, to be a manager within the site's Art Department and to oversee the nine artists who designed packaging. Peek formally divided the artists into three teams—Blue, Red, and Purple—with three artists per team. The Blue Team designed basic one- and two-color corrugated packaging, the Red Team designed intermediate-level corrugated packaging, and the Purple Team designed multi-color primary packaging.

According to Peek, he formed the teams based upon the artists' previous work experiences. Peek placed the three artists who had already been designing primary packaging on the Purple Team. Peek selected Clark, age fifty-one at the time, for the Blue team. Although Clark had twenty-five years of experience in designing magazine advertisements, promotional brochures, flyers, catalogs, and corrugated packaging, Clark did not have the type of experience and training in primary packaging that the three Purple Team members had. After the division, the ages of the Purple Team members (27, 28, 37) were relatively lower than the ages of the members of the Red Team (31, 43, 50) and the Blue Team (35, 51, 54).

After the initial division in 2000, artists generally designed either corrugated or primary packaging exclusively. This is because, according to Peek, designing primary packaging requires different experience, training, and natural ability than designing corrugated packaging. During his deposition, Peek described the difference between designing these forms of packaging as similar to the difference between “drawing a cartoon and doing a Picasso.” As a consequence, primary-packaging designers generally need to use different computers and software than corrugated-packaging designers. Clark asked to join the Purple Team in 2005, but Peek did not feel Clark was sufficiently skilled to design primary-packaging.

Peek claims his reluctance to place Clark on the Purple Team was due in part to Clark's performance reviews. From 2000 onward, the St. Louis Graphics Division consistently tried to increase its sales-per-employee ratio. As a result, artists were required to produce better work at a quicker pace. However, Clark's performance reviews indicate he was unable to keep up with these rising expectations. In 2002, Clark's review indicates he was not meeting the company's standards for volume of work produced, that he needed to improve his work on VIP orders, and that he needed to reduce his number of errors. A 2004 review indicates that Peek told Clark that he would issue him a written warning if he did not begin working more quickly while committing fewer errors. Although Clark's review improved slightly in 2005, his review in 2006 again indicates that he was not meeting the company's productivity standards.

Matthews also tried to boost its sales-per-employee ratio at the St. Louis Graphics Division by routinely conducting reductions-in-force (“RIF”). The terminations for the RIF relevant to this case occurred from August 18, 2006, through January 31, 2007. Prior to the RIF, Matthews officials determined how many employees needed to be cut at the St. Louis Graphics Division. Then, Peek ² and Matthews's Vice–President of Operations, Kerry Beaver, claimed that they compiled a list of employees who should be cut at the St. Louis facility based upon the fit between their skills and the future work to be performed with a reduced staff. They then sent this list to the Regional Human Resources Manager, who claimed she reviewed the list to compare those selected for the RIF with those who were not selected to ensure terminations were based upon job performance.

Clark, age fifty-seven at the time, was selected for the RIF and terminated on January 31, 2007. According to Peek, Clark was chosen, at least in part, because he did not have the skills for primary-packaging design, which had a greater profit margin than corrugated-packaging design. Additionally, Peek claimed Clark's performance reviews indicating poor productivity contributed to his termination.

For a number of reasons, however, Clark believes his selection for the RIF was due to his age, not his abilities. First, fourteen of the fifteen employees terminated from August 18, 2006, to January 31, 2007, were over the age of forty. Second, Clark alleges that, shortly before his termination, Peek asked him and another employee if they were “just trying to make it to retirement” and suggested to the other employee that “he could always get a job at Wal–Mart as a greeter.” Third, Clark claims that Matthews sent employees unsolicited mailings from AARP when they turned fifty-six years old. Finally, Clark claims that Matthews retained employees who were younger than him even though they also received poor performance reviews.

After his termination, Clark received notices of his right to sue Matthews from the U.S. Equal Employment Opportunity Commission and the Missouri Commission on Human Rights. Clark then brought this action against Matthews in the United States District Court for the Eastern District of Missouri. Clark alleged that Matthews violated both federal and Missouri anti-age-discrimination laws. Matthews brought a motion for summary judgment, and the district court granted the motion on all of Clark's claims.

Clark, 628 F.3d at 464–66. Clark appeals the district court's grant of summary judgment in favor of Matthews. In Section II.A of our prior opinion, we affirmed the district court's grant of summary judgment in favor of Matthews on Clark's claim under the ADEA. Id. at 469–72. However, in Section II.B of the opinion, since we had disposed of Clark's federal claim, we declined to exercise supplemental jurisdiction to decide whether the district court properly granted summary judgment in favor of Matthews on Clark's MHRA claim. Thus, we remanded the case and instructed the district court to dismiss Clark's MHRA claim without prejudice. Id. at 472.

Matthews now petitions for a panel or en banc rehearing to have us reconsider our disposition of Clark's MHRA claim. According to...