Clark v. Matthews Intern. Corp.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 10-1037
___________

Eddy Clark, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Matthews International Corporation, *
*
Defendant-Appellee. *
___________

Submitted: January 17, 2011
Filed: May 2, 2011
___________

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

1
The Art Department is just one of the departments within the St. Louis
Graphics Division. Other departments include the Customer Service, Plate Making,
Mounting, and Shipping departments.

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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).

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 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, Peek2 and Matthews's Vice-President
of Operations, Kerry Beaver, claimed that they compiled a list of

2
By the time of the RIF terminations, Peek had been promoted to Production
Manager at the St. Louis facility.

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 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

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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 Matthews, since diversity-of-
citizenship jurisdiction—not just supplemental jurisdiction—exists over Clark's
MHRA claim, 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.

II. Discussion

A. Diversity-of-Citizenship Jurisdiction over Clark's MHRA Claim

We first address Matthews's claim that diversity-of-citizenship jurisdiction
exists over Clark's MHRA claim pursuant to 28 U.S.C. § 1332(a)(1). That statute
provides that federal jurisdiction exists over "civil actions" between "citizens of
different States" where the amount in controversy exceeds "the sum or value of
$75,000." In his initial complaint, Clark alleged that diversity-of-citizenship
jurisdiction exists over his MHRA claim after alleging that he is a "citizen of the State
of Missouri" and that "Matthews is a Pennsylvania corporation with its principal
place of business in Pennsylvania." In its answer, Matthews admitted the truth of
Clark's allegations as to the parties' citizenship and also admitted that diversity-of-
citizenship jurisdiction exists over Clark's MHRA claim. "While it is true that
consent alone cannot confer subject matter jurisdiction," we take note of the parties'

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previous agreement on their diverse citizenship. Smith v. Ashland, Inc., 250 F.3d
1167, 1172 (8th Cir. 2001).

Despite this previous agreement, Clark now argues that the record never
established that diversity-of-citizenship jurisdiction exists over his MHRA claim.
Thus, Matthews is now the party asserting jurisdiction, so Matthews bears the burden
of proving by a preponderance of the evidence that diversity-of-citizenship
jurisdiction exists over Clark's MHRA claim. Bell v. Hershey Co., 557 F.3d 953, 956
(8th Cir. 2009); see also 4:20 Commc'ns, Inc. v. Paradigm Co., 336 F.3d 775, 779
(8th Cir. 2003). There is no question that the parties are citizens of different States;
the only question is whether the amount in controversy exceeds $75,000. Since Clark
did not allege a specific amount in controversy in his complaint, the amount in
controversy depends upon the value of the relief Clark seeks. See Usery v. Anadarko
Petroleum Corp., 606 F.3d 1017, 1018 (8th Cir. 2010).

Matthews notes that Clark seeks to recover a number of forms of relief if he is
successful on his MHRA claim. One form of relief Clark seeks is back pay. See
Pollock v. Wetterau Food Distribution Grp., 11 S.W.3d 754, 770 (Mo. Ct. App. 1999)
(noting back pay is recoverable under the MHRA). Back pay is calculated based
upon "the difference between the value of the compensation the plaintiff would have
been entitled to had he remained employed by the defendant and whatever wages he
earned during the relevant period." Hartley v. Dillard's, Inc., 310 F.3d 1054, 1062
(8th Cir. 2002). Generally, the "relevant period" runs from the date of termination
until the date of reinstatement or judgment. Morgan v. City of St. Louis, 154 S.W.3d
6, 12 (Mo. Ct. App. 2004); Nord v. U.S. Steel Corp., 758 F.2d 1462, 1472–73 (11th
Cir. 1985).

In this case, the record indicates that at the time of his termination on January
31, 2007, Clark earned at least $42,000 annually as a Matthews employee. Had Clark
remained employed with Matthews at this same salary, he would have earned at least

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$168,000 from January 31, 2007, to the present. Although a proper calculation of
back pay would account for the earnings Clark received from any employment that
he held after his termination from Matthews, the record is unclear regarding these
earnings. The record indicates that Clark was employed part-time with a retail store
and that he worked as a security officer for at least two companies beginning at some
point prior to October of 2008. The record does not indicate, however, the dates
Clark was employed in these positions or the exact amounts that Clark earned in these
positions. The record does suggest, however, that Clark's earnings were probably
modest.3 As a result, although this question is not free from doubt, we believe it is
more likely than not that the back pay award that Clark seeks by itself exceeds
$75,000. Consequently, we believe Matthews has carried its burden of proving by
a preponderance of the evidence that diversity-of-citizenship jurisdiction exists over
Clark's MHRA claim.4

Our conclusion that diversity-of-citizenship jurisdiction exists over Clark's
MHRA claim requires us to revisit our disposition of this claim in our prior opinion.
In that opinion, we declined, pursuant to 28 U.S.C. § 1367(c)(1), to exercise
supplemental jurisdiction over Clark's MHRA claim because it "raises a novel or
complex issue of State law." Clark, 628 F.3d at 472 (citing § 1367(c)(1)). However,
the Supreme Court has indicated that, as a general rule, the novelty or complexity of
a state-law issue is not an appropriate basis upon which to remand a case when
diversity-of-citizenship jurisdiction exists. McNeese v. Bd. of Educ., 373 U.S. 668,
673 n.5 (1963); Meredith v. City of Winter Haven, 320 U.S. 228, 234–37 (1943); see

3
The record indicates that Clark worked eight hours per week and earned $7.75
per hour in his retail position. In one of his two positions as a security officer, the
record indicates that Clark worked thirty-five hours per week and earned $10 per
hour. The record does not indicate what Clark earned in his second position as a
security officer.
4
This conclusion is bolstered by the fact that, in addition to a back-pay award,
Clark seeks emotional-distress damages, punitive damages, and a front-pay award.

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also Chi., Burlington & Quincy R.R. Co. v. City of N. Kan. City, 276 F.2d 932, 937
(8th Cir. 1960). Although there may be exceptions to this rule, see, e.g., Hatfield v.
Bishop Clarkson Mem'l Hosp., 679 F.2d 1258, 1261 n.4 (8th Cir. 1982), we do not
believe an exception applies in this case. Therefore, we grant Matthews's petition for
a panel rehearing, vacate Section II.B of our prior opinion, and proceed to the merits
of Clark's MHRA claim.

B. Clark's MHRA Claim

On appeal, Clark argues that the district court erred when it granted Matthews's
motion for summary judgment on his MHRA claim. We review a district court's
grant of summary judgment de novo. Baker v. Silver Oak Senior Living Mgmt. Co.,
581 F.3d 684, 687 (8th Cir. 2009). "Summary judgment is appropriate if the
evidence, viewed most favorably to the nonmovant, shows no genuine issue of
material fact and that the movant is entitled to judgment as a matter of law." Schultz
v. Windstream Commc'ns, Inc., 600 F.3d 948, 951 (8th Cir. 2010). "A genuine issue
of material fact exists if a reasonable jury could return a verdict for the party opposing
the motion." Humphries v. Pulaski Cnty. Special Sch. Dist., 580 F.3d 688, 692 (8th
Cir. 2009).

The MHRA and the ADEA are worded similarly. Both statutes generally
prohibit employers from discriminating against their employees "because of" their
age. 29 U.S.C. § 623(a)(1); Mo. Ann. Stat. § 213.055(1). Under the ADEA, the
United States Supreme Court has stated that "the ordinary meaning of the ADEA's
requirement that an employer took adverse action 'because of' age is that age was the
'reason' that the employer decided to act." Gross v. FBL Fin. Servs., Inc., 129 S. Ct.
2343, 2350 (2009). Under the ADEA, "therefore, a plaintiff must prove that age was
the 'but for' cause of the employer's adverse decision." Id. In our prior opinion, we
explained that this meant that Clark had to "show that if it were not for his age, he

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would not have been terminated and he would have become a primary-packaging
designer." Clark, 628 F.3d at 469.

Under the MHRA, however, Clark is not required to prove that age was the
"but for" cause of Matthews's adverse employment actions. According to the
Supreme Court of Missouri, "[n]othing in [the] statutory language of the MHRA
requires a plaintiff to prove that discrimination was a substantial or determining
factor in an employment decision; if consideration of age . . . contributed to the unfair
treatment, that is sufficient." Daugherty v. City of Md. Heights, 231 S.W.3d 814, 819
(Mo. 2007). The Missouri Court of Appeals has defined a "contributing factor" in
this context as one "that contributed a share in anything or has a part in producing the
effect." Williams v. Trans State Airlines, 281 S.W.3d 854, 867 (Mo. Ct. App. 2009)
(internal quotation marks omitted). Recent Supreme Court of Missouri case law
supports this definition. Fleshner v. Pepose Vision Inst., 304 S.W.3d 81, 94 (Mo.
2010) (noting that "cases involving . . . the MHRA . . . turn on whether an illegal
factor played a role in the decision to discharge the employee" (emphasis added)).
Essentially, as we noted in our prior opinion, "the difference between the ADEA and
the MHRA is that the former requires that age must have been 'the reason' for the
adverse employment action, while the latter merely requires that age was 'a reason'
for the action." Clark, 628 F.3d at 472; see also Baker, 581 F.3d at 689–90 (noting
that the Supreme Court of Missouri has "held that the MHRA is less demanding than
the ADEA").

In this case, Clark argues that he created a genuine issue of material fact
regarding whether his age was a contributing factor in Matthews's decisions to not
promote him to a primary-packaging-design position and to ultimately terminate him.
We agree. Generally, Matthews claims it made these decisions based upon Clark's
skills, his performance reviews, and because of changes in the packaging-design
market. However, there is evidence that Clark's skills as a corrugated-packaging
designer were adequate, and there is evidence that other Matthews employees had

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performance reviews comparable to Clark's reviews yet were not terminated.
Moreover, even though there is no evidence suggesting that Clark competently
designed primary packaging, there is evidence that virtually every primary-packaging
designer at Matthews was under the age of forty. Additionally, Clark has produced
evidence that Matthews sent AARP mailings to its employees on their fifty-sixth
birthday and that a Matthews official who made termination decisions made
retirement-related comments and jokes.5 Finally, and perhaps most importantly, Clark
has produced evidence, as we noted in our prior opinion, that he was part of a RIF at
Matthews that disproportionately affected older employees. Specifically, according
to Clark's evidence, there were between forty-two and fifty-three workers subject to
the RIF, and, after the RIF, the percentage of workers age forty and over in this pool
dropped roughly 4-5%. Clark, 628 F.3d at 468.

Clark's evidence, as we concluded in our prior opinion, does not create a triable
issue of fact regarding whether Clark suffered adverse employment actions "because
of" his age for purposes of the ADEA. It does not necessarily follow from this
conclusion, however, that Clark's evidence does not create a triable issue of fact
regarding whether Clark's age contributed to the adverse employment actions taken
against him for purposes of the MHRA. Clark's MHRA claim survives summary
judgment if there is a triable issue of fact regarding whether Clark's age played a part
in producing his inability to become a primary-packaging designer or his ultimate
termination, even if it is apparent that Clark's age was not a substantial, determining,
or but-for cause of these employment decisions. On this record, we cannot say that
it would be unreasonable for a jury to conclude that Clark's age played a part in

5
We questioned whether this evidence was truly probative of age
discrimination in our prior opinion, Clark, 628 F.3d at 470–71, and we continue to
do so here. Nonetheless, we cannot say that this evidence is completely irrelevant.
Instead, a jury should be allowed to weigh this evidence along with the rest of Clark's
evidence to decide whether Clark's age contributed to Matthews's decisions to not
promote Clark and to ultimately terminate him.

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producing the adverse employment actions he alleges. Therefore, the district court
erred when it granted summary judgment in favor of Matthews on Clark's MHRA
claim.

III. Conclusion

In sum, we grant Matthews's petition for a panel rehearing, vacate Section II.B
of our prior opinion, and reverse the district court's grant of summary judgment in
favor of Matthews on Clark's MHRA claim. We remand the case to the district court
for proceedings consistent with this opinion.

COLLOTON, Circuit Judge, dissenting.

There is considerable irony in the court’s resolution of the petition for
rehearing and Eddy Clark’s claim under the Missouri Human Rights Act (“MHRA”).
In a prior opinion, this panel affirmed the district court’s dismissal of Clark’s age-
discrimination claim under the federal Age Discrimination in Employment Act and
directed the district court to dismiss the state-law claim without prejudice. Clark v.
Matthews Int’l Corp., 628 F.3d 462 (8th Cir. 2010) (“Clark I”). Clark, who included
a conclusory assertion of diversity jurisdiction in his complaint, nonetheless opposed
Matthews International Corporation’s call for this court to recognize federal
jurisdiction over the state-law claim, arguing that the panel’s disposition was
reasonable in light of the record concerning amount in controversy. Whatever the
merits of Clark’s position – likely formed on a prudent assumption that the panel
would follow the reasoning of the prior opinion to its logical conclusion and affirm
the district court’s dismissal of the MHRA claim – it appeared quite sound as a
tactical matter. Imagine the surprise of both parties to see that the court has granted
the petition for rehearing, yet discerned a submissible claim of discrimination under
the MHRA.

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 The best resolution at this juncture would be to accept Clark’s position that the
petition for rehearing should be denied. To invoke the jurisdiction of a federal court
under 28 U.S.C. § 1332, a plaintiff must allege that the amount in controversy
exceeds $75,000. Clark’s complaint alleged no amount in controversy for his MHRA
claim. R. Doc. 1, at 1-4. “[I]t is the burden of the party who seeks the exercise of
jurisdiction in his favor clearly to allege facts demonstrating that he is a proper party
to invoke judicial resolution of the dispute.” FW/PBS, Inc. v. City of Dallas, 493 U.S.
215, 231 (1990) (internal citation and quotations omitted). If the plaintiff in a
putative diversity case “fails to make the necessary allegations he has no standing.”
McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936). Clark’s
complaint was therefore insufficient to invoke the jurisdiction of a federal court under
§ 1332.

Given that Clark has disavowed any present desire to invoke federal
jurisdiction on the state-law claim, there is no need for this court to consider treating
his defective complaint as amended on appeal. Cf. Barclay Square Props. v. Midwest
Fed. Sav. & Loan Ass’n of Minneapolis, 893 F.2d 968, 969 (8th Cir. 1990). The court
addresses the petition for rehearing as though the case is in federal court on removal
from state court pursuant to 28 U.S.C. § 1441, ante, at 7 (citing Bell v. Hershey Co.,
557 F.3d 953, 956 (8th Cir. 2009)), or as though Matthews were the plaintiff, id.
(citing 4:20 Commc’ns, Inc. v. Paradigm Co., 336 F.3d 775, 779 (8th Cir. 2003)), but
the case is not in either posture. If Clark were to refile an MHRA claim in state court
after dismissal of his federal complaint, then a question of removal jurisdiction may
be presented based on whatever complaint is then filed, but this case is before us only
on a federal complaint filed by Clark with a defective allegation of jurisdiction under
§ 1332. The original disposition was sound on the record presented.

Nonetheless, the majority having elected to assert jurisdiction over Clark’s
MHRA claim, and the district court having properly exercised supplemental
jurisdiction under 28 U.S.C. § 1367 to address the claim, I would affirm the district

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court’s dismissal. Although the MHRA, like the ADEA, makes it an unlawful
employment practice for an employer to discharge any individual “because of” such
individual’s age, 29 U.S.C. § 623(a); Mo. Rev. Stat. 213.055(1), the Supreme Court
of Missouri has opined that if an employer’s consideration of age “contributed to . . .
unfair treatment” of an employee, even if age was not a substantial or determining
factor in an employment decision, then the employer has violated the MHRA.
Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 819 (Mo. 2007). This court
has expressed uncertainty about how Missouri courts would apply their “contributing
factor” analysis where it is established, at a minimum, that the employer would have
taken its adverse action regardless of the employee’s age. See EEOC v. Con-Way
Freight, Inc., 622 F.3d 933, 938 (8th Cir. 2010). But whatever the circumstances in
which evidence might add up to a violation of the state statute without showing a
violation of federal law, zero plus zero still equals zero under the MHRA.

The court says that “perhaps most importantly,” Clark’s claim is supported by
evidence that a reduction-in-force (“RIF”) implemented by Matthews reduced the
percentage of workers aged forty and over by “roughly 4-5%.” Ante, at 11. Our prior
opinion, however, in terms applicable to the MHRA, cited circuit precedent that “a
4% drop in the employment rate of over-age-forty employees is not sufficient for
purposes of establishing that age was a factor in a termination decision.” Clark I,
628 F.3d at 469 (emphasis added). See Stidham v. Minn. Mining & Mfg., Inc., 399
F.3d 935, 938 (8th Cir. 2005) (concluding that a 4% decline in the work force over
age forty and a half-year decrease in the average age of the work force after a
reduction-in-force was “not statistically significant” in a case arising under the
MHRA). The statistical evidence is no more persuasive on rehearing than it was in
Clark I.

The court relies on the fact that “other Matthews employees had performance
reviews comparable to Clark’s reviews yet were not terminated.” Ante, at 10-11. As
explained in our prior opinion, however, “there was a very important difference”

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between Clark and the others: “these two employees had primary-packaging design
experience, whereas Clark did not.” 628 F.3d at 471. Clark does not dispute that
Matthews hoped the RIF would boost the company’s profits, or that Matthews
planned to emphasize the more profitable primary packaging design activities after
the RIF. Id. at 470. That Matthews retained two employees with experience in the
area of planned emphasis rather than Clark, who lacked such experience, does not
support an inference that age was a contributing factor in the company’s decision to
discharge Clark. That Clark may have displayed “adequate” skills in designing a
different type of packaging does not advance his claim when, as the court
acknowledges, “there is no evidence suggesting that Clark competently designed
primary packaging.” Ante, at 10-11 (emphasis added).

The court cites evidence that “virtually every primary-packaging designer at
Matthews was under the age of forty,” ante, at 11, but never explains how that fact
supports an inference that Matthews discriminated against Clark. Clark does not
dispute that primary packaging had a higher profit margin than other work, and that
the shift to primary packaging was motivated by a desire for higher profits. Clark I,
628 F.3d at 470. The decision to retain primary-packaging designers flows naturally
from the company’s undisputed legitimate business motives. If the court means to
suggest that the company might have considered age as a factor in excluding Clark
from the team of employees that designed primary packaging before the reduction-in-
force, such a suggestion is foreclosed by our prior conclusion that “Clark has failed
to create a triable issue of fact regarding his own qualifications to join the Purple
Team.” Id. at 472.

Finally, the court mentions evidence that Matthews sent AARP mailings to its
employees on their fifty-sixth birthday and that a Matthews official made retirement-
related comments and jokes. The court “question[s] whether this evidence [i]s truly
probative of age discrimination,” but at the same time declares that it is not
“completely irrelevant” to Clark’s MHRA claim. Ante, at 11 n.5. Aside from the

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internal inconsistency of deciding that evidence is relevant while reserving judgment
on whether it is truly probative, see Fed. R. Evid. 401, the court’s apparent
assignment of weight to this evidence conflicts with our prior opinion and with
Missouri law. “Sending an AARP mailing is a reasonable way for an employer to try
to determine the retirement plans of employees, which an employer has a legitimate
interest in knowing,” Clark I, 628 F.3d at 470, and “inquiries into the retirement plans
of an employee who is of retirement age do not rise to the level of age discrimination”
under the MHRA. Stanley v. JerDen Foods, Inc., 263 S.W.3d 800, 804 (Mo. Ct. App.
2008). As to the retirement-related comments and jokes, we said before that
“although [the official] uttered the remarks, there is no showing that he made the
remarks in reference to a termination decision,” and that “[g]enerally, an isolated
joke, without more, is insufficient to prove age discrimination.” Clark I, 628 F.3d at
471. This was a correct statement of Missouri law as well. See Daugherty, 231
S.W.3d at 818 n.4; Stanley, 263 S.W.3d at 804.

The evidence presented by Clark is insufficient to create a submissible case of
age discrimination under the Missouri Human Rights Act. I would therefore affirm
the judgment of the district court in its entirety.
______________________________

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