Kiel v. Select Artificials, Inc.

• Citation: 1999 WL 107986,169 F.3d 1131
• Decision Date: 04 March 1999
• Docket Number: No. 97-2433,97-2433
• Parties: 9 A.D. Cases 149, 14 NDLR P 208 Paul J. KIEL, Appellant, v. SELECT ARTIFICIALS, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1131

169 F.3d 1131

9 A.D. Cases 149, 14 NDLR P 208

Paul J. KIEL, Appellant, v. SELECT ARTIFICIALS, INC., Appellee.

No. 97-2433.

United States Court of Appeals, Eighth Circuit.

Submitted Sept. 23, 1998.

Decided March 4, 1999.

John D. Lynn, St. Louis, Missouri, argued, for appellant.

John Gianoulakis, St. Louis, Missouri, argued (Mark J. Bremer and David A. Castleman, St. Louis, Missouri, on the brief), for appellee.

Before BOWMAN, Chief Judge, HEANEY, BRIGHT, McMILLIAN, RICHARD S. ARNOLD, FAGG, WOLLMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, MURPHY, and KELLY, ¹ Circuit Judges, En Banc.

WOLLMAN, Circuit J.

Paul Kiel brought this suit under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Missouri Human Rights Act (MHRA), Mo.Rev.Stat. § 213.010 et seq., against his employer, Select Artificials, Inc. (Select). The district court ² granted summary judgment in favor of Select on all claims. Kiel appealed, and a divided panel of this court reversed and remanded for trial. See Kiel v. Select Artificials, Inc., 142 F.3d 1077 (8th Cir.1998). We granted Select's petition for rehearing en banc, vacating the panel opinion. We now affirm the decision of the district court.

I.

Kiel has been deaf since birth. He was employed at Select as a billing clerk from January 1992 to February 1994. On several occasions he requested that Select purchase a telecommunications device (TDD) that would enable him to make business and personal telephone calls. Select did not provide the device because Kiel did not need it to perform his duties as a billing clerk. Although hearing employees occasionally communicated with clients by telephone, Select decided that Kiel's supervisor could make client calls for him when they were needed. Kiel was allowed to make personal calls during breaks on those occasions when he brought his TDD from home.

Kiel also requested that Select provide him a sign-language interpreter for staff meetings and social gatherings. Select did not normally provide an interpreter because one was not needed to enable Kiel to perform his job duties. On one occasion, however, Kiel requested an interpreter prior to a training session related to his position, whereupon Select provided one for him.

On February 17, 1994, Kiel photocopied a letter that he had drafted to Robert Fry, co-owner of Select, again requesting that the company purchase a TDD. After observing Kiel at the photocopier, Julie Fry, the other co-owner of Select, approached him at his work station to inquire about his use of the copier. Kiel informed Ms. Fry that he was requesting that the company purchase a TDD. She told him that Select would not purchase the device. Visibly frustrated and upset, Kiel shouted at Ms. Fry, "You're selfish, you're selfish ." He then slammed his desk drawer, and as Ms. Fry walked away he made a remark about her recent purchase of a new automobile. Four other employees were present when Kiel did this. According to the employee witnesses, the episode lasted "a few minutes."

Later that day, Ms. Fry asked Kiel if he realized that he had yelled at her in front of other employees. He said that he was not aware that he had raised his voice and apologized for doing so. After conferring with Mr. Fry, Ms. Fry decided to terminate Kiel for insubordination despite his apology.

Kiel raised claims of discriminatory discharge, retaliatory discharge, and failure to accommodate under the ADA and the MHRA. The district court concluded that Kiel did not produce evidence showing that Select's non-discriminatory reason for terminating Kiel, insubordination, was pretextual. It also held that the temporal connection between Kiel's letter requesting a TDD and his termination was insufficient to demonstrate retaliatory intent and that Select had not failed to accommodate Kiel.

II.

We review a grant of summary judgment de novo. Price v. S-B Power Tool, 75 F.3d 362, 364 (8th Cir.), cert. denied, 519 U.S. 910, 117 S.Ct. 274, 136 L.Ed.2d 197 (1996). Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, we view the evidence and draw all justifiable inferences in favor of the nonmoving party. See Miners v. Cargill Communications, Inc., 113 F.3d 820, 823 (8th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 441, 139 L.Ed.2d 378 (1997).

In an employment discrimination case, the plaintiff must initially present a prima facie case to survive a motion for summary judgment. See Lidge-Myrtil v. Deere & Co., 49 F.3d 1308, 1310 (8th Cir.1995) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). The employer must then rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for the adverse employment action. See Lidge-Myrtil, 49 F.3d at 1310. If the employer does this, the burden of production shifts back to the plaintiff to demonstrate that the employer's non-discriminatory reason is pretextual. Id. at 1311.

To make out a prima facie case under the ADA, Kiel was required to show that he is disabled within the meaning of the ADA, that he is qualified to perform the essential functions of his position, and that he suffered an adverse employment action under circumstances giving rise to an inference of unlawful discrimination. Price, 75 F.3d at 365. Generally, evidence that a plaintiff was replaced by a similarly situated employee who is not disabled is sufficient to support an inference of discrimination. Id. Select did not dispute that Kiel was disabled or that he was qualified to perform his duties as billing clerk, and Kiel established that he was replaced by a hearing employee. Thus, Kiel met his initial burden under McDonnell Douglas.

The burden of production then shifted to Select to articulate a legitimate, nondiscriminatory reason for Kiel's termination. Select stated that it terminated Kiel because he insulted Ms. Fry, slammed his desk drawer, and made a sarcastic remark about Ms. Fry in the presence of four co-workers. Our cases have repeatedly held that insubordination and violation of company policy are legitimate reasons for termination. See Ward v. Procter & Gamble Paper Prods. Co., 111 F.3d 558, 560 (8th Cir.1997) (employee terminated for striking a co-worker); Price, 75 F.3d at 365-66 (employee terminated for excessive absenteeism); Lidge-Myrtil, 49 F.3d at 1310-11 (employee not chosen for promotion because of poor relationship with co-workers and violation of company policy); Miner v. Bi-State Dev. Agency, 943 F.2d 912, 913-14 (8th Cir.1991) (employee terminated for insubordination and violating various company policies).

Select having proffered a non-discriminatory reason for terminating Kiel, the burden shifted to Kiel to present evidence that Select's reason was pretextual. See Lidge-Myrtil, 49 F.3d at 1311. In essence, Kiel was required to show a genuine issue of material fact as to whether Select actually fired him because of his disability. Id. Although it is possible for strong evidence of a prima facie case to also present a factual issue on pretext, see Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1333-37 (8th Cir.1996), the ultimate question is whether the plaintiff presents evidence of "conduct or statements by persons involved in [the employer's] decision-making process reflective of a discriminatory attitude sufficient to allow a reasonable jury to infer that that attitude was a motivating factor in [the employer's] decision to fire [the plaintiff]." Feltmann v. Sieben, 108 F.3d 970, 975 (8th Cir.1997) (citing Nelson v. J.C. Penney Co., 75 F.3d 343, 345 (8th Cir.1996)).

Kiel did not submit any evidence of pretext in this case. He relied entirely on his prima facie case to challenge Select's non-discriminatory reason. The bare assertion that Select hired a hearing employee to replace Kiel did not raise a genuine factual issue regarding Select's discriminatory intent, for Kiel did not point to any conduct or statements by the Frys that would permit a reasonable jury to find that insubordination was a mere pretext for his termination. Nor did he demonstrate that the Frys disciplined hearing employees less severely for insubordinate conduct. As for Kiel's assertion that he did not realize he was shouting, he himself testified that "If I want to shout, I shout," which is consistent with the co-workers' testimony that they had never heard him raise his voice. In short, there is simply no evidence that discrimination was a motivating factor in Kiel's termination.

Kiel contends that his discriminatory discharge claim falls within the mixed-motive analysis of Price Waterhouse v. Hopkins, 490 U.S. 228, 248-50, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). To trigger Price Waterhouse analysis, however, a plaintiff must show that "an impermissible motive played a motivating part in an adverse employment decision." Id. at 250, 109 S.Ct. 1775. We have interpreted this to require a plaintiff to present, at a minimum, some direct evidence of discriminatory motive. See Thomas v. First Nat'l Bank, 111 F.3d 64, 65-66 (8th Cir.1997); Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 780-81 (8th Cir.1995). Because Kiel relied entirely on circumstantial evidence to establish the existence of a discriminatory motive on Select's part, the district court was correct in reviewing Kiel's claim solely under the McDonnell Douglas framework. In light of Kiel's failure to establish a genuine factual issue on pretext, the district court properly granted Select summary judgment on the discriminatory discharge claim.

III.

To present a prima facie case of retaliation, a plaintiff must show that he engaged in protected conduct, that he suffered an adverse employment action, and that the adverse action was causally linked to the protected conduct. See Montandon v. Farmland Indus.,...