Kneibert v. Thomson Newspapers, Michigan Inc., 96-4177
| Citation | 129 F.3d 444 |
| Decision Date | 07 January 1998 |
| Docket Number | No. 96-4177,96-4177 |
| Parties | 75 Fair Empl.Prac.Cas. (BNA) 907, 155 A.L.R. Fed. 657 Frederick Douglas KNEIBERT, Plaintiff--Appellant, v. THOMSON NEWSPAPERS, MICHIGAN INC., doing business as The Sedalia Democrat; Randall Shields; Freedom Communications, Inc.; Freedom Newspapers, Inc., Defendants--Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Michael J. Berry, Jefferson City, MO, argued, for appellant.
Michael F. Delaney, Kansas City, MO, argued (Denise Drake Clemow, Kansas City, MO, on the brief), for appellee Freedom.
Mark T. Kempton, Sedalia, MO, argued (Camille Olson, Cynthia Mooney and William Dugan, Chicago, IL, on the brief), for appellee Thomson.
Before BOWMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
Appellant Frederick Douglas Kneibert filed this lawsuit against his former employers, appellees Thomson Newspapers, Inc. ("Thomson"), Freedom Communications, Inc., and Freedom Newspapers, Inc. ("Freedom"), as well as his former supervisor Randall Shields, in his individual capacity, claiming that Thomson and Shields demoted him and Freedom later fired him because of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a) (1994), and the Missouri Human Rights Act ("MHRA"), Mo.Rev.Stat. § 213.055.1(1)(a) (1994). Also, Kneibert alleged that Thomson and Shields retaliated against him for filing a charge of discrimination by reprimanding him and threatening termination, and Freedom retaliated against him because of his age discrimination lawsuit pending against his former employer Thomson by terminating him, both in violation of the ADEA, § 623(d) (1994), and the MHRA, § 213.070(2) (1994).
On appellees' motions for summary judgment, the district court granted Shields's motion because individuals may not be held liable under the ADEA or the MHRA. The district court also granted Thomson's and Freedom's motions on the age discrimination claims because Kneibert failed to establish a genuine issue of material fact as to pretext and granted Thomson's and Freedom's motions on the retaliation claims because Kneibert could not demonstrate a causal link between the adverse employment actions and the filing of his charge and suit, respectively. This appeal followed. 1
Based on our conclusion that Kneibert failed to establish a genuine issue of material fact as to pretext for age discrimination and a causal connection between his filing of a charge and later reprimands, we affirm the district court's judgment for Thomson. However, we reverse the district court's judgment as to Freedom because direct evidence exists of age discrimination sufficient to create a genuine issue of material fact. In addition, Kneibert has established a prima facie case of retaliation by Freedom by showing a causal link between Kneibert's filing suit and his later termination by Freedom that created a genuine issue of material fact regarding pretext for retaliation. Therefore, we also reverse the district court's judgment for Freedom on the retaliation claims and remand this issue for trial.
Kneibert began working for The Sedalia Democrat, a newspaper based in Sedalia, Missouri, in 1967 as managing editor. In 1971, Kneibert became the editor and was ultimately accountable for delegating responsibilities within the news department. In 1986, Thomson purchased the newspaper from Dear Publications, Inc. In 1993, Shields, age forty-two at this time, became the publisher of the newspaper for Thomson. As publisher, Shields had overall responsibility for all departments and was charged with ensuring that the newspaper was profitable through increased circulation.
Upon arriving at the newspaper, Shields expressed his concerns to Kneibert about Kneibert's job performance. Specifically, Shields's concerns included the newspaper's editorial quality and the existence of a competing weekly newspaper as indications that Kneibert was not performing his job properly. Shields repeated his dissatisfaction with Kneibert's performance on various occasions. In early 1994, Thomson sent Bob Gallagher, a consultant, to review the newspaper and to help Shields with these editorial problems. Gallagher concluded that the newspaper was outdated, unaggressive, and an unappealing product under Kneibert's direction.
On July 12, 1994, Kneibert received a performance evaluation review from Shields. In the evaluation, Shields highlighted four specific performance problems: (1) Kneibert had below average organizational skills; (2) he was not a "team player"; (3) a negative tone permeated the news product; and (4) Kneibert's personal views were reflected in the paper. Specifically, Shields was unhappy with the manner in which the call-in feature, a feature that included transcribed public comments, was edited under Kneibert's supervision. Shields discussed his dissatisfaction with this feature over several months and eventually issued written guidelines for Kneibert and the other editors to follow. Nonetheless, Shields's dissatisfaction with this feature continued. In addition, Shields discovered that Kneibert sent a letter on newspaper letterhead to United States Senator Danforth purporting to reflect the editorial policy of the newspaper. Although both Shields and Kneibert were in charge of formulating the newspaper's editorial policy, Kneibert failed to discuss the letter with Shields before mailing it. Furthermore, Shields repeatedly admonished Kneibert for not following Shields's express directive to emphasize local as opposed to national stories and for not following instructions regarding the format of the editorial page.
In December 1994, Shields officially reassigned Kneibert, who was then fifty-eight years old, from newspaper editor to a newly created "senior editor" position. As senior editor, Kneibert had responsibility for editing the editorial page, writing a few editorials and one column a week. Roger Morton, age forty-five at this time, replaced Kneibert as the newspaper editor. Morton also had problems with Kneibert's performance such as his poor editing skills, substandard page design, and failure to follow scheduling procedures. In addition to these general performance problems, Kneibert violated specific Thomson policies by running an unattributed story without first attempting to encourage the source to be identified, by running the story without allowing Morton to view it before publication, and by writing a column suggesting an economic boycott.
In March 1995, Kneibert filed a charge of discrimination against Thomson and Shields with the Missouri Commission on Human Rights, alleging that his recent demotion was based on his age. In June 1995, Kneibert filed suit against Thomson and Shields, claiming age discrimination and retaliation regarding his demotion to "senior editor" and the continued criticism of his job performance.
In October 1995, Freedom purchased the newspaper from Thomson. Frank Lyon, age fifty at this time, became the newspaper's publisher. Kneibert continued to work as the senior editor. Shortly after the sale to Freedom, Lyon discovered a file maintained by Shields regarding Kneibert's performance. The file contained memos detailing Kneibert's publication of an unattributed story, his endorsement of an economic boycott, the paper's formal written policy on issues such as abortion and euthanasia and Kneibert's disagreement with that policy, and copies of front pages that illustrated the newspaper's international and national emphasis and lack of local news.
After investigating community business owners' and citizens' input and willingness to commit advertising dollars to the newspaper, Lyon discovered that several members of the business community indicated that Kneibert was one of the reasons that they did not advertise in or support the newspaper. Upon review of the newspaper's organizational structure, Lyon became concerned about the existence of the "senior editor" position because Freedom does not recognize this position at any of its other newspapers. Kneibert also acknowledged that this title is not commonly used in the newspaper business.
Before eliminating the "senior editor" position, Lyon decided to investigate further whether Kneibert was performing at an acceptable level. Morton expressed concern to Lyon about Kneibert's job performance. Lyon requested that Morton gather information from the other editors before any decisions would be made regarding Kneibert's employment. The three editors wrote written responses to Lyon that expressed several specific concerns such as Kneibert's failure to work as a team with the other employees, lack of computer skills, substandard editorial page designs, reluctance to cover local news, lack of organizational skills, sloppy editing, and general failure to contribute to the newspaper at an acceptable level.
On November 3, 1995, Lyon met with Kneibert to discuss his continued employment. Lyon allegedly told Kneibert that the newspaper did not have use for a "senior editor" position and offered Kneibert the option of resigning with a severance package. Kneibert stated in his deposition that during this conversation, Lyon said "[w]hat I need down there is three young editors." Kneibert App. at 100. Kneibert then resigned and accepted the severance package.
On November 8, 1995, Deborah Spencer, a Sedalia citizen, called the newspaper to express concerns about some changes in the format that had occurred. Spencer's call was directed to Tony Brown, the news editor. Upon learning that Kneibert no longer worked at the newspaper, Spencer asked Brown about the reasons behind Kneibert's termination. Spencer testified that Brown said "I can assure you that he was not terminated because of his ability or his quality of work but because of a[sic]...
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