United States Court of Appeals
FOR THE EIGHTH CIRCUIT
__________
No. 99-2795
___________
Larry Kells, *
*
*
Appellant, *
*
vs. * Appeal from the United
* States District Court
Sinclair Buick - GMC Truck, Inc., * for the Eastern District
* of Missouri.
*
Appellee. *
*
__________
Submitted: March 13, 2000
Filed: April 27, 2000
__________
Before McMILLIAN and HEANEY, Circuit Judges, and BOGUE,1 District Judge.
_________
BOGUE, District Judge.
1
The Hon. Andrew W. Bogue, Senior United States District Judge for the
District of South Dakota, sitting by designation.
This is an employment discrimination case. The Plaintiff, Larry Kells charged
the Defendant with discrimination on account of age and disability. The district court2
granted the Defendant’s motion for summary judgment on each count of the Plaintiff’s
Complaint. For the reasons set forth below, we affirm in part and reverse in part.
I. BACKGROUND
In April 1993, Defendant Sinclair Buick-GMC Truck, Inc. (“Sinclair-Buick”)
acquired Art Haack Buick, where Larry Kells worked as a used car salesman. Part
owner Dave Sinclair Jr. became the dealership’s new manager, and in March 1994 he
offered Kells the opportunity to work as a finance and insurance (“F&I”) manager.
Kells accepted. He joined Greg Gorham, the other F&I manager.
The F&I department was responsible for selling car buyers additional services
such as financing, insurance, and extended warranties. Sometime in 1994, Dave
Sinclair Jr. was contacted by General Motors Holding Division, the investment
department at General Motors, which advised him that his F&I department was
underperforming. General Motors Holding Division recommended that he engage an
independent financing and consulting firm called Maximum Achievable Profits, Inc.
(“MAP”) to review the department and train the Sinclair-Buick F&I employees.
Sinclair Jr. hired MAP in December 1994.
Two MAP consultants arrived, Vern Hutson and Leo Norath. They reviewed
and trained Kells and his coworker, Gorham for an eight month period ending in
August 1995. MAP noted problems with both Gorham’s and Kells’ performance, but
believed that Kells exhibited a more serious attitude problem. On or about August 4,
2
Hon. Lawrence O. Davis, United States Magistrate Judge in the Eastern District
of Missouri, to whom the case was referred for final disposition by consent of the
parties. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.
2
Sinclair Jr. removed Kells from the F&I department and reinstated him in his former
position as a used car salesperson.
Subsequently, a September 8 MAP “letter of findings” from Leo Norath was
issued. The letter criticized the accuracy of Kells’ and Gorham’s “daily logs” and
made additional remarks concerning Kells’ performance. During a September 17
meeting between Sinclair Jr. and MAP consultant Hutson, Sinclair Jr. expressed his
concerns with regard to a possible lawsuit from Kells as well as community perceptions
surrounding Kells’ transfer. A second MAP “letter of findings” was generated
following this meeting which described how Kells would not use procedures properly
with customers, did not take a great interest in improving, and had a negative attitude.
This letter contained the first written MAP recommendation that Kells be removed from
his F&I position.
Kells’ new supervisor was Mike Ruhland, who was also critical of Kells’
abilities. Ruhland told Kells that he was “useless,” “done with the business” and that
he did not want Kells in the used car department because he could not wait on
customers fast enough or keep up with the other Sinclair-Buick employees. Kells has
muscular dystrophy and found some duties connected with his new position difficult.
Ruhland denied repeated requests for a ramp into the used car building, the use of a
cart, and authorization to use a canopy-covered parking space in order to accommodate
Kells’ disability.
Kells worked in the used car department for nearly five more months before
submitting a letter of resignation in December. In the letter, Kells complained that
despite his genuine dedication to Sinclair-Buick, he had been demoted “under dubious
pretexes” [sic] so that his income would decline and he would be forced to resign.
Following Kells’ resignation, Dave Sinclair Sr., Dave Sinclair Jr.’s father and a part
owner of the dealership, called Kells at home. Sinclair Sr. asked Kells how old he was.
3
“Fifty,” Kells replied. “When you get that age, those things happen to you in our
company,” Sinclair Sr. responded.
In March of the following year, Kells filed a charge of discrimination with the
Equal Employment Opportunity Commission (EEOC) and the Missouri Commission
on Human Rights (MCHR). He filed a four count Amended Complaint with the
District Court for the Eastern District of Missouri, alleging wrongful demotion,
harassment, and constructive discharge in violation of the Americans with Disabilities
Act (ADA), the Age Discrimination in Employment Act (ADEA), and comparable
provisions of the Missouri Human Rights Act (MHRA). In three separate orders, the
district court granted summary judgment on all counts of Kells’ Complaint.3 This
appeal followed.
II. DISCUSSION
We review a district court’s grant of summary judgment de novo. Rothmeier v.
Investment Advisers, Inc., 85 F.3d 1328, 1331 (8th Cir. 1996). Summary judgment may
issue only when “there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. “[S]ummary
judgment should seldom be granted in the context of employment actions, as such
actions are inherently fact based.” Hindman v. Transkirt Corp., 145 F.3d 986, 990 (8th
Cir. 1998). When the evidence would support conflicting conclusions, summary
judgment should be denied. See Johnson v. Minnesota Historical Soc’y, 931 F.2d
1239, 1244 (8th Cir. 1991) (“All the evidence must point one way and be susceptible
3
The district court ruled that Kells’ MHRA claims should be dismissed because
they were untimely filed. See Mo. Rev. Stat. § 213.075.1 (complaints of discrimination
must be filed with the MCHR within 180 days of the alleged act of discrimination).
Kells has not appealed this determination. Thus, only his federal claims are before this
Court.
4
of no reasonable inferences sustaining the position of the nonmoving party [before
summary judgment is appropriate].”).
A. ADA Claim
The Defendant does not dispute that Kells is a qualified individual with a
disability within the meaning of the ADA. See 42 U.S.C. § 12102(2)(A) (defining a
disability as an impairment which substantially limits a major life activity). Kells has
insulin-dependent diabetes and muscular dystrophy, both recognized ADA
impairments. See Torcasio v. Murray, 57 F.3d 1340, 1354 (4th Cir. 1995), cert. denied,
516 U.S. 1071, 116 S.Ct. 772, 113 L.Ed.2d 724 (1996), citing 28 C.F.R. § 35.104
(muscular dystrophy); Burroughs v. City of Springfield, 163 F.3d 505, 507 (8th Cir.
1998) (diabetes). As a result of his muscular dystrophy, Kells has diminished use of
the muscles in the lower part of his body. He wears braces on both legs and walks
using two canes. Despite these mitigating devices, the Defendant concedes, Kells’
impairments substantially limit one or more of his major life activities, such as walking.
As such, Kells has a disability.
What the parties dispute is whether Kells was demoted and ultimately
constructively discharged because of his disability. See 42 U.S.C. § 12112(a)
(prohibiting discrimination because of disability in regard to “the hiring, advancement,
or discharge of employees”). In support of his claim, Kells points to statements by
Mike Ruhland, the used car department manager, that Kells was “useless,” “done with
the business,” and could not wait on customers fast enough or keep up with other
employees. In addition, Kells cites to instances in the record which suggest that
Sinclair Buick failed to provide reasonable accommodations for his disability. Kells
further attempts to create a genuine issue of material fact with regard to the timing of
MAP’s recommendation that he be transferred out of the F&I department. Before
reviewing the district court’s grant of summary judgment on Kells’ ADA claim, we first
examine these factual issues.
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1. Timing of MAP Recommendation
The following facts are clearly undisputed. Kells was transferred back to the
used car department on August 4, 1995. On September 8, MAP issued a letter of
findings which contained criticisms of Kells, as well as criticisms of Greg Gorham. On
September 17, Vernon Huston met with Dave Sinclair Jr. and discussed Sinclair Jr.’s
concerns about a possible lawsuit from Kells. On September 27, MAP issued a second
letter of findings recommending Kells’ transfer.
What is not entirely clear is whether MAP consultants orally recommended that
Kells be transferred before Sinclair Jr. carried out Kells’ transfer. Sinclair-Buick’s
defense theory depends, in part, upon their reliance on MAP’s objective conclusions
concerning Kells’ professional shortcomings. Sinclair-Buick argues that its reliance on
MAP’s recommendation to transfer Kells out of the F&I department refutes Kells’
claim that it was motivated by any sort of discriminatory animus. In support of this
theory, Sinclair-Buick contends that the record plainly establishes that it received a
verbal recommendation to transfer Kells prior to taking that action. The district court
agreed, and found that this was the only reasonable reading of the record.
Sinclair-Buick cites to affidavits by MAP consultants Leo Norath and Vernon
Hutson which it originally attached to its reply brief to Plaintiff’s brief in opposition to
Defendant’s motion for summary judgment. In the Norath affidavit, Norath swore that
he verbally advised Sinclair Jr. to remove Kells from the F&I department in
approximately April of 1995, some four months before Kells was finally transferred.
In the Hutson affidavit, Hutson stated that he verbally advised Sinclair Jr. to transfer
Kells as early as February 1995. Because Kells could offer no evidence to contradict
these assertions, the district court concluded that there was no genuine issue as to when
the MAP consultants recommended Kells’ transfer.
6
Part of the difficulty with the district court’s conclusion as to this aspect of the
record lies in Norath’s and Hutson’s prior deposition testimony. Hutson was asked
about his notes of the September 17 meeting:
A. It was one of my follow-up visits and, again, it was things we
discussed so I made notes.
Q. It goes on to state that, the very third sentence from the bottom, “We
then recommended dismissal. Dave’s thoughts on community standing
and concern of some type of lawsuit would not permit dismissal until he
had given ample warning and compile statistics to support his move and
decision.” That’s something that, your testimony was, that you discussed
in February of 1995. I’m wondering why you’re writing it down on
September 17th of 1995.
A. Because it was probably September then, I discussed it then. It was
five years ago.
Q. So this refreshes your recollection that it wasn’t in February, but it was
September of 1995 that you made the recommendation?
A. I wrote it on September of 1995. The actual conversation was
probably then. Mr. Sinclair was very concerned about public opinion and
that’s why I put it in my record.
Norath was questioned about the September 27 letter which was issued following the
meeting:
Q. Okay. Do you know of any other writing other than this September
27, 1995, letter that you recommend Mr. Kells be discharged from the
F&I department?
MR. GOFFSTEIN: Are you referring just to what Mr. Norath did?
MR. LOWE: Yes.
MR. GOFFSTEIN: Okay.
A. Repeat that question please.
Q. Yeah. Do you remember any other document where you recommend
Mr. Kells be changed from the F&I department –
A. No.
7
Q. – other than this – you’ve got to let me finish my – other than this
September 27, 1995, letter?
A. No.
Q. And sitting here today you don’t have a recollection of making that
recommendation to Mr. Sinclair other than in this September 27th, 1995,
letter?
A. That’s correct.
The court reasoned that Defendant Sinclair-Buick had offered uncontradicted evidence
that it had relied on MAP’s verbal recommendations in deciding to transfer Kells to the
used car department. The court focused on other portions of the MAP consultants’
deposition such as where Hutson testified that in roughly February 1995, he “probably”
recommended Kells’ termination, and Hutson’s handwritten notes of the September
1995 meeting where it was recited that dismissal was recommended as early as six
weeks into the MAP program.
We do not believe that the court’s conclusion can be reconciled with the
applicable standard for reviewing facts on a motion for summary judgment. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d
202 (1986) (citation omitted) (cautioning that in the context of a motion for summary
judgment, “[t]he evidence of the nonmovant is to believed, and all justifiable inferences
are to be drawn in his favor.”). The district court’s factual conclusion might have been
based on a logical, well-reasoned reading of the record, but it was not the only
reasonable conclusion which could have been drawn.
Hutson’s and Norath’s depositions did more than clarify their deposition
testimony, they contradicted it. Indeed, Hutson’s affidavit characterizes his prior
deposition testimony as “incorrect.”4 Granting, as we must, all reasonable inferences
Hutson explained that during his deposition, he became confused when he was
4
shown his notes from the September 17 meeting with Sinclair Jr.
8
in Kells’ favor, we cannot say that the record establishes whether MAP consultants
recommended Kells’ transfer before Sinclair-Buick acted. Instead, this is a question
best left to a jury. For summary judgment purposes, the district court should have
assumed that no MAP recommendation to transfer or remove Kells was articulated until
after the fact.
2. Reasonable Accommodation Evidence
Kells also argues that an inference of unlawful discriminatory intent arises from
the Defendant’s repeated denials of reasonable accommodations. When he presented
this evidence in resistance to Defendant’s motion for summary judgment, the court
disregarded the evidence as irrelevant. Kells urges us to reconsider this decision.
In addition to prohibiting discrimination on account of disability, the ADA
imposes an affirmative duty on employers to provide “reasonable accommodations to
the known physical or mental limitations” of their employees. 42 U.S.C. §
12112(b)(5)(A). An accommodation is simply some change or modification in the
work environment which allows an individual with a disability to participate on an
equal footing with non-disabled employees. 29 C.F.R. § 1630.2(o)(1)(iii). Reasonable
accommodations might include special training, restructured work schedules, or
modifications of workplace equipment and devices. 42 U.S.C. § 12111(9)(B); see,
e.g., Valentine v. American Home Shield Corp., 939 F.Supp. 1376, 1399 (N.D. Iowa
1996) (listing part-time employment as a potential reasonable accommodation).
Proposed accommodations which would involve significant expense or difficulties upon
the employer’s operation of its business constitute an “undue hardship” and need not
be implemented. 42 U.S.C. §§ 12112(b)(5)(A), 12111(10).
Kells cites to three instances where he was allegedly denied a reasonable
accommodation by Sinclair-Buick. First, he claims, the Defendant refused to allow him
to park his vehicle in a covered parking spot during bad weather. Because the parking
lot was positioned on an incline, Kells’ disability made it difficult to maneuver when
9
the surface was wet or icy. Sales manager Mike Ruhland denied this request on ten or
more separate occasions. Second, Kells requested that a ramp be built to assist him in
climbing the stairs into the used car building following his transfer. Although Sinclair
Buick apparently made preliminary efforts to construct a ramp, it did not do so until the
time of Kells’ resignation in December 1995. Third, Kells repeatedly requested the use
of an electric cart which was kept at the dealership in order to go from the used car
building to the main building. Plaintiff needed to carry as many as ten or twelve files
across the uneven asphalt on a daily basis. On at least one occasion, Kells fell while
making this trip. Ruhland refused to permit Kells to use the cart because it reserved the
cart’s use for customers, saying, “It’s not my concern. Just get [the files] down there.
It’s your responsibility. Just take care of it.”
Kells presents a rather novel theory. Rather than stating a claim directly for
these purported denials of reasonable accommodations, he asked the district court to
consider the denials as evidence supporting his claim that his demotion and termination
were motivated by discriminatory animus. See Tart v. Behan Lumber Co., 31 F.3d
668, 673 (8th Cir. 1994) (noting that evidence of background incidents showing biased
climate can be indicative of motive or attitude of discrimination). The Defendant
characterizes Kells’ assertion as a red herring because all the events occurred after
Kells’ demotion to used car salesman. Kells admitted that he made no requests for
reasonable accommodations while in the F&I department because he did not need any
accommodations in that position. Because the alleged denials of reasonable
accommodations did not occur before or contemporaneously with his demotion, the
Defendant claims, they shed no light on the reason for Kells’ demotion.
We disagree. Kells claims that the demotion as well as the purported
constructive termination were motivated by his disability. He has clearly presented
prima facie evidence of the Defendant’s repeated denials of requests for reasonable
accommodations. If it is accepted that the Defendant conducted itself with a disregard
for its obligations to Kells under federal disability laws, this is relevant evidence of the
10
Defendant’s attitude towards Kells’ disability. Cf. 42 U.S.C. § 12112(b)(5)(B)
(including within the definition of discrimination under the ADA, the denial of
employment opportunities “if such denial is based on the need of [the] covered entity
to make reasonable accommodation”). From the evidence presented, a reasonable jury
could find that Sinclair-Buick viewed with derision Kells’ requests for reasonable
accommodations and from that infer that Sinclair-Buick’s reasons for transferring and
discharging Kells were also related to contempt towards his disability. Failing to
provide an employee with reasonable accommodations can tend to prove that the
employer also acted adversely against the employee because of the individual’s
disability. We therefore reject the district court’s conclusion that such evidence is
simply irrelevant. See F.R.E. 401 (defining “relevant evidence” as “evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.”).
The district court also disregarded Plaintiff’s evidence of verbal harassment by
Mike Ruhland, Plaintiff’s supervisor in the used car department. We likewise reject
the court’s conclusion that this evidence has no bearing on Plaintiff’s claim. Criticisms
of Kells’ slugishness in attending to customers could be read as directed towards the
fact that Kells mobility is restricted due to his disability. The court erred in failing to
consider this evidence in the context of Defendant’s motion.
3. Summary Judgment
Having reviewed the record, we have concluded that the district court erred in
disregarding the evidence of reasonable accommodation denials and in holding that no
genuine issue existed regarding the timing of the MAP recommendation to transfer
Kells. It still remains for us to determine whether we should nonetheless affirm the
district court’s grant of summary judgment on Kells’ ADA claim. Summary judgment
is an appropriate remedy despite factual discrepancies unless genuine issues of material
11
fact remain. Fed. R. Civ. P. 56 (emphasis added). The evidence in support of Kells’
claim that he was demoted and constructively discharged because of his disability,
viewed in a light most favorable to him, can be summarized as follows: insensitive
comments by supervisor Ruhland in connection with Kells’ physical limitations,
repeated denials of reasonable accommodation requests, Kells being replaced by a non-
disabled worker, and an inference that the MAP recommendation may have been
manufactured post-hoc to support a non-discriminatory explanation for Kells’
demotion. Granting Kells all reasonable inferences from these facts, we conclude that
a genuine issue has been presented as to whether the Defendant’s actions were
motivated by the existence of Kells’ disability. We will reverse the district court’s
grant of summary judgment on this claim.
B. ADEA Claim
Kells was fifty years old during the time frame at issue. He asserted in count II
of his Complaint that he was demoted because of his age. See 29 U.S.C. §§ 623(a)(1),
631(a) (prohibiting employment discrimination against any individual over the age of
forty “because of such individual’s age”). In support of this claim, Kells relies on the
fact that after his demotion he was replaced by a 37-year-old individual, the subsequent
criticisms by Mike Ruhland, and a comment by Dave Sinclair Sr. during a telephone
conversation with Kells.
After Kells resigned in December 1995, Dave Sinclair Sr. called Kells at his
home. Sinclair Sr. was not directly involved with the dealership’s management,
although his ownership interest is forty-nine percent. Kells complained to Sinclair Sr.
that he felt he had been mistreated by Sinclair Jr. and Mike Ruhland. Sinclair Sr. asked
12
Kells how old he was. “Fifty,” Kells replied. “When you get that age, those things
happen to you in our company,” Sinclair Sr. observed.5
Kells argues at some length that Dave Sinclair Sr.’s telephonic comment presents
direct evidence of age-related discriminatory animus. See Price Waterhouse v.
Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Direct evidence is
that which demonstrates a specific link between the challenged employment action and
the alleged animus. See, e.g., Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991)
(holding that a statement by a company president who actively participated in the
personnel decision at issue that “older employees have problems adapting to changes
and to new policies” constitutes direct evidence). The Sinclair comment is not direct
evidence because it presents no such link. No evidence was presented that Sinclair Sr.
“actively participated in the personnel decisions at issue.” Id. Moreover, Kells
presented no evidence that Sinclair Sr. was basing his comment on any direct
observations of Sinclair-Buick’s practices, policies or attitudes concerning older
employees. The court was correct in applying an indirect evidence framework to Kells’
ADEA claim.
McDonnell Douglas provides a framework for analyzing employment
discrimination charges which rely on inferential proof. McDonnell Dougas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Thus, utilizing this
familiar and often useful three-part burden-shifting scheme, we are persuaded that Kells
has presented a prima facie case of age discrimination. In response, Sinclair-Buick has
articulated a non-discriminatory explanation for its actions; Kells’ mistakes, his bleak
attitude and lackluster performance. Under the third prong of McDonnell Douglas, the
5
Kells’ deposition testimony was that Sinclair Sr. said, “You know, when you
start getting in the age you’re in, those things happen.” Subsequently, in an affidavit,
Kells modified this to include the phrase “those things happen in our company.” For
purposes of reviewing the district court’s summary judgment ruling, we assume that
Kells inadvertently misquoted Sinclair Sr. and corrected his error by affidavit.
13
burden of production then shifts back to Kells to show that his employer’s explanation
is pretextual and that age was a determinative factor in Sinclair-Buick’s decision to
demote him. Id., 411 U.S. at 804-05, 93 S.Ct. at 1825-26; Rothmeier, supra, 85 F.3d
at 1336-37.
The Defendant argues that Kells’ claim is substantially weakened by the fact that
he was already over the age of forty when Sinclair Jr. promoted him seventeen months
earlier. Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173, 175 (8th Cir. 1992) (holding
that age discrimination was not shown where the plaintiff was hired by the same person
who shortly thereafter terminated him and where the plaintiff was in the protected age
group at the time he was hired). The holding of Lowe is limited to cases where no
evidence of overt discrimination has been presented. Madel, 116 F.3d at 1253. Here,
the Sinclair Sr. statement and other circumstances are inferential proof of overt
discrimination, which, coupled with the suspicions timing of the MAP recommendation,
raise an inference of illegal discrimination.
We therefore hold that, viewing the record in its entirety, Kells has presented a
triable issue of fact with regard to his ADEA claim. The Sinclair Sr. observation,
coupled with Kells’ other evidence, is sufficient to present a jury with Kells’ claim of
age discrimination. We will reverse the district court’s grant of summary judgment on
Kells’ ADEA claim.
C. Harassment
Finally, Kells appeals the district court’s grant of summary judgment on Kells’
claims of harassment. Kells’ Complaint alleges that the Defendant wilfully subjected
him to harassment on account of disability and age. The court dismissed these aspects
of the Plaintiff’s Complaint after concluding that Kells had failed to exhaust his
administrative remedies. The court reasoned that because Kells had not specifically
raised an allegation of harassment in his charge of discrimination filed with the EEOC-
14
MCHR, and because the allegations Kells did raise were not “like or reasonably related
to” a harassment charge, that the Plaintiff was limited to claims of wrongful demotion
and constructive termination. We review this ruling de novo. Nichols v. American
Nat’l Ins. Co., 154 F.3d 875, 886 (8th Cir. 1998) (citation omitted).
In the charge Kells submitted to the EEOC, he claimed that he had been removed
from his F&I position because of his disability and that the Defendant’s “actions were
taken in an effort to force me to resign.”6 Kells argues that his failure to specifically
reference harassment “should not sound the death knell” for his allegations. Shannon
v. Ford Motor Co., 72 F.3d 678, 685 (8th Cir. 1996). A harassment claim “reasonably
can be expected to grow out of” an investigation into the substance of his assertion that
the Defendant forced his resignation, Kells avers. EEOC v. Delight Wholesale Co.,
973 F.2d 664, 668 (8th Cir. 1992).
“In determining whether an alleged discriminatory act falls within the scope of
a [discrimination] claim, the administrative complaint must be construed liberally ‘in
6
Kells’ charge read in full:
I. On August 4, 1995, I was removed from my position as Finance
Manager, and was given a “choice” of either resigning or accepting a
straight commission position as a used car salesperson. I had been
performing satisfactorily in the Finance Manager position but I was
viewed as a liability because of my disability and my worsening physical
condition.
II. I was not given a valid reason for the removal and demotion.
Management was aware of my disability and worsening physical
condition which would make it almost impossible for me to support
myself as a used car salesman. I believe their actions were taken in an
effort to force me to resign.
III. I believe I have been discriminated against because of my disability
in violation of the Americans with Disabilities Act.
IV. I was also replaced by a younger, non-disabled man.
15
order not to frustrate the remedial purposes of [the ADA and the ADEA]’ and the
plaintiff may seek relief for any discrimination that grows out of or is like or reasonably
related to the substance of the allegations in the administrative charge.” Nichols, 154
F.3d at 886-87 (citations and internal citation omitted). “Accordingly, the sweep of any
subsequent judicial complaint may be as broad as the scope of the EEOC ‘investigation
which could reasonably be expected to grow out of the charge of discrimination.’”
Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir. 1988) (citation omitted). Allegations
outside the scope of the EEOC charge, however, circumscribe the EEOC’s
investigatory and conciliatory role, and for that reason are not allowed. Williams v.
Little Rock Mun. Water Works, 21 F.3d 218, 223 (8th Cir. 1994) (citation omitted).
We agree with the district court that Kells’ claim that he was unlawfully subject
to verbal harassment by Mike Ruhland is not reasonably related to his claims of
discriminatory demotion and termination at the hands of Sinclair Jr. The EEOC charge
failed to put the Defendant on notice that Kells was claiming he was subject to
harassment. Even granting Kells’ pro se EEOC charge a liberal construction, we are
prohibited from “inventing ex nihilo, a claim which simply was not made.” Shannon,
72 F.3d at 685; see also Tart, 31 F.3d at 673 (claim of racial harassment is not
reasonably related to racially discriminatory discharge); Williams, 21 F.3d at 223
(claim of race discrimination separate and distinct from claim of retaliation three years
later). We will therefore affirm the district court’s ruling that Kells failed to exhaust
his administrative remedies with regard to his harassment claims.
III. CONCLUSION
For the foregoing reasons, we reverse the district court’s grant of summary
judgment on Kells’ ADA and ADEA claims. We affirm with respect to the court’s
dismissal of Kells’ harassment claims and remand for further proceedings consistent
with this opinion.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
17