Paul J. Kiel v. Select Artificials

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 97-2433
___________

Paul J. Kiel, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Select Artificials, Inc., *
*
Appellee. *
___________

Submitted: September 23, 1998

Filed: March 4, 1999
___________

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 Judge.

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

1
The Honorable John D. Kelly died on October 21, 1998. This opinion is
consistent with his vote at the conference following argument on September 23, 1998.
district court2 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

2
The Honorable Terry I. Adelman, United States Magistrate Judge for the
Eastern District of Missouri, who presided over the case by consent of the parties
pursuant to 28 U.S.C. § 636(c).

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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 (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

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favor of the nonmoving party. See Miners v. Cargill Communications, Inc., 113 F.3d
820, 823 (8th Cir.), cert. denied, 118 S. Ct. 441 (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 (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, non-
discriminatory 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

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(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.

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 Kiel contends that his discriminatory discharge claim falls within the mixed-
motive analysis of Price Waterhouse v. Hopkins, 490 U.S. 228, 248-50 (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. 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., Inc., 116 F.3d 355, 359 (8th Cir. 1997); Evans v. Kansas City,
Mo. Sch. Dist., 65 F.3d 98, 100 (8th Cir. 1995). Although contesting an unlawful
employment practice is protected conduct, the anti-discrimination statutes do not
insulate an employee from discipline for violating the employer’s rules or disrupting
the workplace. See Evans, 65 F.3d at 102 (quoting Booker v. Brown & Williamson
Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989)); Valdez v. Mercy Hosp., 961 F.2d
1401, 1403 (8th Cir. 1992); Jackson v. St. Joseph State Hosp., 840 F.2d 1387, 1390
(8th Cir. 1988). Generally, more than a temporal connection between the protected
conduct and the adverse employment action is required to present a genuine factual
issue on retaliation. See Feltmann, 108 F.3d at 977; Nelson, 75 F.3d at 346-47.

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 Kiel’s requests for a TDD were protected communications. Insulting Ms. Fry
and indulging in an angry outburst in the presence of co-workers, however, were
certainly not, for the ADA confers no right to be rude. Kiel’s intervening unprotected
conduct eroded any causal connection that was suggested by the temporal proximity
of his protected conduct and his termination.

Kiel presented no evidence of conduct or statements that would permit a
reasonable jury to find that Select actually fired him because he requested a TDD.
Indeed, he had requested a TDD on numerous occasions, but he suffered no adverse
employment action until he engaged in abusive, derogatory conduct towards his
employer. Kiel did not allege that Select disciplined other employees less harshly for
insubordinate conduct. Nor did he show a history of discrimination at Select that
would present a genuine factual issue on retaliatory intent. Rather, the record showed
that Select has hired a number of deaf employees, has altered job duties to
accommodate deaf employees, and has maintained a satisfactory working relationship
with deaf employees. In sum, there is simply no evidence from which a reasonable
jury could find that Select terminated Kiel in retaliation for his exercising any rights
granted to him by the ADA.

Kiel argues that summary judgment was improper because a jury should decide
whether his conduct was egregious enough to warrant termination. In the absence of
any evidence of discriminatory intent, however, it is not the prerogative of the courts
or a jury to sit in judgment of employers’ management decisions. See Montandon,
116 F.3d at 360. “[T]he employment-discrimination laws have not vested in the
federal courts the authority to sit as super-personnel departments reviewing the
wisdom or fairness of the business judgments made by employers, except to the
extent that those judgments involve intentional discrimination.” Hutson, 63 F.3d at
781.

IV.

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 The ADA requires employers to make reasonable accommodations to allow
disabled individuals to perform the essential functions of their positions. See 42
U.S.C. § 12111(8)-(9). A reasonable accommodation should provide the disabled
individual an equal employment opportunity, including an opportunity to attain the
same level of performance, benefits, and privileges that is available to similarly
situated employees who are not disabled. See 29 C.F.R. § 1630.9 (Appendix) (1998).
If more than one accommodation would allow the individual to perform the essential
functions of the position, “the employer providing the accommodation has the
ultimate discretion to choose between effective accommodations, and may choose the
less expensive accommodation or the accommodation that is easier for it to provide.”
Id.

Select provided Kiel a reasonable accommodation by restructuring the billing
clerk position. Although providing Kiel a TDD would also have constituted an
effective accommodation, Select chose to have Kiel’s supervisor make the minimal
number of client telephone calls that were required. This accommodation allowed
Kiel an equal employment opportunity at Select. An interpreter was not required for
Kiel to perform the essential functions of his position, and on the one occasion that
a training session was relevant to Kiel’s position, Select provided him an interpreter.
Accordingly, summary judgment was proper on Kiel’s failure to accommodate claim.

Because Kiel’s claims under the Missouri Human Rights Act are premised on
the same factual bases as his ADA claims, they must also fail. See Finley v.
Empiregas, Inc., 975 F.2d 467, 473 (8th Cir. 1992) (holding that federal employment
discrimination decisions are authoritative for claims under the MHRA); Midstate Oil
Co. v. Missouri Comm’n on Human Rights, 679 S.W.2d 842, 845-46 (Mo. 1984) (en
banc) (same).

The judgment is affirmed.

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MORRIS SHEPPARD ARNOLD, Circuit Judge, dissents.

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HEANEY, Circuit Judge, with whom BRIGHT and McMILLIAN, Circuit Judges
join, dissenting.

The majority asserts that summary judgment was appropriately granted to
Select because Kiel was insubordinate as a matter of law, Select reasonably
accommodated Kiel in his job as a matter of law, and that Kiel’s claim must fail as a
matter of law because it was unsupported by direct evidence. In my view, the
majority is wrong in each respect, and this court should reverse the district court’s
grant of summary judgment and remand for trial. Accordingly, I respectfully dissent.

“Courts have recognized the difficulty in disposing of issues of discriminatory
or retaliatory intent at the summary judgment stage: ‘Summary judgments should be
sparingly used and then only in those rare instances where there is no dispute of fact
and where there exists only one conclusion. All the evidence must point one way and
be susceptible of no reasonable inferences sustaining the position of the nonmoving
party.’” Davis v. Fleming Companies, Inc., 55 F.3d 1369, 1371 (8th Cir. 1995)
(quoting Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir.1991));
see also Gill v. Reorganized Sch. Dist. R-6, 32 F.3d 376, 378 (8th Cir.1994)
(reviewing summary judgment “with caution in employment discrimination cases .
. . because intent is inevitably the central issue”); Keys v. Lutheran Family &
Children’s Servs. of Mo., 668 F.2d 356, 358 (8th Cir. 1981) (noting in retaliation case
that “where motive, intent and credibility are key factors summary judgment is
generally inappropriate.”) Additionally, the United States Supreme Court has directed
that “[t]here will seldom be ‘eyewitness’ testimony as to the employer’s mental
processes.” United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716
(1983). Faced with this formidable standard and the record before it, the district court
approached the summary judgment motion hearing with caution, stating: “I think if
there is a legitimate non-discriminatory reason given [for Kiel’s termination], . . . then
I think that this is a case that’s close for summary judgment. Maybe it could be
granted, maybe it should be granted, but if it’s not a legitimate non-discriminatory

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reason, not legitimate, then obviously the case goes to the jury.” (Summ. J. Mot. Hr’g
Tr. at 40-41.)

The majority finds that legitimate reason by concluding Kiel was insubordinate
as a matter of law. I disagree. The ADA prohibits discrimination “against any
individual because such individual has opposed any act or practice made unlawful by
[the ADA].” 42 U.S.C. § 12203(a) (1998). In determining whether an employee was
insubordinate, the question is whether the employee’s conduct “was so disruptive,
excessive, or ‘generally inimical to [the] employer’s interests . . . as to be beyond the
protection’” of the ADA. Kempcke v. Monsanto Co., 132 F.3d 442, 445 (8th Cir.
1998) (quoting Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d
222, 230 (1st Cir. 1976)); see also Jennings v. Tinley Park Community, 796 F.2d 962,
968 (7th Cir. 1986) (applying a reasonableness test to determine whether “disloyal”
conduct could provide a legitimate basis for discharge because “almost every form
of opposition to an employment practice is in some sense disloyal” and if “mere
‘disloyal’ conduct could provide a legitimate basis for discharge, the protection
extended by [anti-discrimination statutes] would be severely limited”). In Payne v.
McLemores Wholesale & Retail Stores, the Fifth Circuit observed that it is part of a
defendant’s rebuttal case to establish that “the form of plaintiff’s opposition was
unprotected by the statute.” 654 F.2d 1130, 1142 (5th Cir. 1981) (citing Rosser v.
Laborers’ Int’l Union, Local 438, 616 F.2d 221, 223-24 (5th Cir. 1980); Jeffries v.
Harris County Community Action Ass’n, 615 F.2d 1025, 1035-37 (5th Cir. 1980);
Hochstadt, 545 F.2d at 229-34). Courts have required that oppositional employee
conduct “be reasonable in light of the circumstances, and have held that ‘the
employer’s right to run his business must be balanced against the rights of the
employee to express his grievances and promote his own welfare.’” Jeffries, 615 F.2d
at 1036 (quoting Hochstadt, 545 F.2d at 233).

The majority concedes that Kiel’s request for the TDD was protected activity,
but concludes that the subsequent comment that Ms. Fry was selfish was

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unreasonable as a matter of law.3 Kiel was a good employee who had been with the
company for more than two years and had never been subject to formal disciplinary
action. On February 17, 1994, Kiel drafted a letter requesting that Mr. Fry provide
Select’s deaf employees with a TDD. Kiel made copies to show the other deaf
employees at Select. After making the copies, he returned to his desk and put the
letter in his drawer. Ms. Fry approached Kiel and chastised him for making personal
copies at the office notwithstanding the fact that she had never told Kiel that he could
not use the copy machine for personal documents. (See Ms. Fry 9/29/95 Dep. at 9.)
Moreover, other employees used the copier for personal use and Select did not have
a policy against such use. (See Fritz 9/20/95 Dep. at 38; Mr. Fry 9/21/95 Dep. at 16.)
February 17, 1994 was the first time Kiel formally requested a TDD, and Ms. Fry
admitted that she was not aware that Kiel had approached anyone else with the same
request. (See Ms. Fry 9/20/95 Dep. at 36.) Ms. Fry refused Kiel’s request for a TDD
as a reasonable accommodation for his disability, whereupon Kiel stated that she was
selfish. Shortly after this exchange, Kiel apologized for his statement, and Ms. Fry
accepted his apology. (See Kiel 9/20/95 Dep. at 50.)

3
This concession is at odds with the position of Select’s counsel at oral
argument. Counsel conceded that the content, not the manner, of Kiel’s comment
constituted insubordination:

Judge Heaney: [I]s it your position that the result would be the
same if he had spoken in a well-modulated voice?
Mr. Gianoulakis: I think very clearly it was the content of what
he said that was the problem here. If he had shouted at the president,
"This is the best company I’ve ever worked for, and you’re the best
president I’ve ever worked for," I submit to you we wouldn’t be here
today.

Clearly, counsel’s position is not the law. If it were, no deaf person would ever have
the right to oppose his employer's denial of a requested reasonable accommodation
for the employee's deafness. In my view, counsel’s concession alone required that we
reverse the district court’s grant of summary judgment.

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 The majority concludes that Kiel was insubordinate as a matter of law by
characterizing Kiel’s statement as insulting, angry, and rude. While a jury might
agree with this conclusion, the record certainly does not support the view that Kiel’s
reaction to Ms. Fry was insubordinate as a matter of law. Unlike the majority, I am
unwilling to declare that opposing the denial of a reasonable accommodation request
by declaring that an employer is selfish is unreasonable as a matter of law.4 Kiel did
not use profanity or engage in any conduct that could be considered unreasonable as
a matter of law. The majority ignores the requirement at the summary judgment stage
of viewing the evidence and drawing all justifiable inference in Kiel’s favor. See
Miners v. Cargill Communications, Inc., 113 F.3d 820, 823 (8th Cir.), cert. denied,
118 S. Ct. 441 (1997). Kiel stated both at the time of the incident and afterward that
he did not realize he was shouting. Nonetheless, the majority cites his statement that
“If I want to shout, I shout,” and concludes that he was lying. This conclusion is
simply inappropriate. There is no necessary inconsistency in a person, deaf or
otherwise, being capable of shouting when they choose to and not realizing that they
are shouting on a particular occasion. At the very least, the issue is one for a jury to
resolve, not an appellate court without the benefit of live testimony.

The majority also ignores the Payne line of cases, which hold that a
handicapped employee may only be discharged for seeking a reasonable
accommodation when his behavior is so disruptive, excessive, or generally inimical
to the employer’s interests as to be beyond the protection of the ADA. That is an
issue to be determined by the jury, not by the court as a matter of law. Accordingly,
I would hold that the district court erred because Select failed to meet its burden of
establishing a legitimate, non-discriminatory reason for its decision to terminate Kiel.

4
It may be that, in certain cases, the declaration that an employer is selfish can
constitute insubordination for the purposes of summary judgment. Nonetheless, I do
not believe that to be the case here.

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 The majority also concludes as a matter of law that Select reasonably
accommodated Kiel’s disability. The majority states that Select did so by eliminating
from his job the need to make business phone calls and providing him with an
interpreter on one occasion so that he could participate in United Parcel Service
training. In my view, the court erred by holding that Kiel had been reasonably
accommodated as a matter of law. The record reveals that, as to employee meetings,
Kiel was not provided with an interpreter and, arguably therefore, a way to function
meaningfully as an employee.5 Also, almost immediately after Kiel’s termination but
prior to this litigation, Fry asked Wendy Sheu to obtain a TDD for its remaining deaf
employees. The reasonableness of Kiel’s request is illustrated by the fact that Select
obtained a TDD shortly after his termination. Unlike the majority, I am unable to
draw any conclusions as a matter of law from these facts regarding reasonable
accommodation. The question of reasonable accommodation is for a jury to decide,
not a court of appeals–even one sitting en banc.

5
At the summary judgment motion hearing, Kiel’s counsel stated:

Mr. Kiel testified in his deposition that he didn’t know those meetings
were going to take place until they called all the employees together to
have the meetings. Who did know that the meetings were going to take
place? The company knew that they were planning to have a meeting
and could have arranged an interpreter to be there, or could have given
Mr. Kiel one day’s notice and ask him if he wanted an interpreter for the
meeting. But to say that Mr. Kiel didn’t put in a timely request for an
interpreter for meetings that he was not given advance notice were going
to take place, is requiring him to be clairvoyant.

(Summary J. Mot. Hr’g. Tr. at 24.) (See also Kiel 9/20/95 Dep. at 40 (“I wanted to
know what was going on [at the meetings]. I wanted equal treatment.”); id. at 41 (“I
just do my job until someone said go in that room, and I found a group was talking
. . . . I asked [Terry Fritz] what was going on . . . . [to which] [s]he shrugged her
shoulders. That’s her response. That’s the only response I got.”); id. at 41-42 (“Well,
if we had a meeting, I would like to be kept informed of what’s going on. I’d like to
be part of the team.”))

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 The majority holds that Kiel is incapable of showing pretext because he failed
to produce direct evidence that Mr. or Ms. Fry made statements or engaged in conduct
reflecting a discriminatory attitude and that such an attitude motivated them to
dismiss Kiel. It relies on Feltmann v. Sieben, 108 F.3d 970, 975 (8th Cir. 1997), and
Nelson v. J.C. Penney Co., 75 F.3d 343, 345 (8th Cir. 1996), for this proposition. I
believe that the majority is in error in this regard because direct evidence is not the
only method for satisfying the fundamental inquiry in this case. The ultimate issue
is whether Select intentionally discriminated against Kiel. See Ryther v. KARE 11,
108 F.3d 832, 838 (8th Cir. 1997) (en banc); Kehoe v. Anheuser-Busch, Inc., 96 F.3d
1095, 1101 (8th Cir. 1996); Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328,
1334 (8th Cir. 1996). “The requisite causal connection may be proved
circumstantially by proof that the discharge followed the protected activity so closely
in time as to justify an inference of retaliatory motive.” Roth v. Selection Research,
Inc., 978 F.2d 1087, 1090 (8th Cir. 1992); see also Couty v. Dole, 886 F.2d 147, 148
(8th Cir. 1989) (including proof that time of discharge closely followed protected
activity in prima facie case of retaliatory discharge claim); Keys, 668 F.2d at 358
(same). Moreover, Kiel’s initial evidence is properly considered in evaluating
Select’s explanation for its action. See Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 255 n.10 (1981) (Initial “evidence and inferences properly
drawn therefrom may be considered by the trier of fact on the issue of whether the
defendant’s explanation is pretextual”). Select is not entitled to summary judgment
simply because it declared that Kiel was insubordinate. Rather, the question is
whether a reasonable jury could conclude that Select intentionally discriminated
against Kiel. In my view, a reasonable jury construing the facts and all reasonable
inferences therefrom in the light most favorable to Kiel could conclude that Select
intentionally discriminated against Kiel. In this case, Kiel was a good employee who
had worked at Select for more than two years and had never been subject to formal
disciplinary action. A jury could conclude from the fact that other employees used
the office copier for personal items without incurring management’s attention that
Kiel was held to a different standard. Additionally, Kiel’s termination followed on

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the heels of his vocal opposition to the denied accommodation request. Accordingly,
the majority errs by concluding as a matter of law that Kiel cannot establish a genuine
issue of material fact on the issue of pretext.

I have followed the majority in analyzing this case pursuant to McDonnell
Douglas. I question, however, whether this analysis is appropriate in retaliation
cases. I rather believe that the mixed-motive analysis of Price Waterhouse should be
used in retaliation cases and that summary judgment is inappropriate when motive,
intent, and credibility are the central issues. See Keys, 668 F.2d at 358.

For the reasons stated above, I would reverse the district court’s grant of
summary judgment and remand for trial on all claims. Additionally, I would hold that
Price Waterhouse analysis applies to retaliation claims. Accordingly, I respectfully
dissent.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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