IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
                                                                                        
No. 02-2447 
                                                                                          

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
 Plaintiff-Appellant,

v.

KOHLER COMPANY,
doing business as Sterling Plumbing Group,
 Defendant-Appellee.
                                                                                                                               
On Appeal from the United States District Court 
for the Eastern District of Arkansas
                                                                                                                                
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION AS THE APPELLANT
                                                                                                                                 
      NICHOLAS M. INZEO
      Acting Deputy General Counsel 

      PHILIP B. SKLOVER
      Associate General Counsel

      CAROLYN L. WHEELER
      Assistant General Counsel
 
      PAULA R. BRUNER
      Attorney

      EQUAL EMPLOYMENT OPPORTUNITY
      COMMISSION
      1801 L Street, N.W.  Rm. 7044
      Washington, D.C.  20507
      (202) 663-4731(w)
      (202) 663-7090 (fax)

SUMMARY OF THE CASE

 The Equal Employment Opportunity Commission (EEOC or Commission")
 brought this Title VII  action in the district court alleging that Kohler
 Company (Kohler) engaged in racial discrimination and retaliation
 when it terminated charging party John Reynolds.  The jury entered
 a verdict against the EEOC on the race discrimination claim and the
 district court entered judgment as a matter of law against the EEOC,
 setting aside the jury's favorable verdict on the retaliation claim.
 This appeal is from the district court's judgment as a matter of law
 on the EEOC's retaliation claim.  

 The EEOC is the agency charged by Congress with the enforcement of
 Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e et seq.
 This appeal requires this Court to determine whether, viewing the
 record in the light most favorable to the EEOC, evidence of temporal
 proximity between the discrimination complaint and the termination,
 along with evidence of inconsistent enforcement of company policies,
 and disparate discipline of policy violators was sufficient to support
 the jury's finding that Kohler's discharge of employee John Reynolds
 was retaliatory under Title VII.  The Commission believes that oral
 argument of 15 minutes for each party will assist the Court in its
 consideration of this question, which is critical to the Commission's
 mission of enforcing workplace nondiscrimination laws.

TABLE OF CONTENTS

SUMMARY OF THE CASE i

TABLE OF AUTHORITIES  iv

STATEMENT OF JURISDICTION 1

STATEMENT OF THE ISSUE  1

STATEMENT OF THE FACTS 2

 1.  The Plant's Operations and Policies 2
 2.  The Plant's Key Management Staff 6
 3.  Relevant Facts Pertaining to Reynolds and the Disciplinary Actions 8
 4.  The Proceedings of the Case 20
 5.  District Court's Decision 21

SUMMARY OF THE ARGUMENT 23

ARGUMENT:

THE DISTRICT COURT IMPROPERLY SET ASIDE THE JURY'S VERDICT FOR THE
COMMISSION ON THE RETALIATION CLAIM BECAUSE THERE WAS SUFFICIENT EVIDENCE
OF CAUSATION AND PRETEXT FROM WHICH THE FACTFINDER COULD AND DID CONCLUDE
THAT REYNOLDS WOULD NOT HAVE BEEN FIRED IF HE HAD NOT COMPLAINED OF
RACIAL DISCRIMINATION 25

A.  The Complaint was a Motivating Factor in the Discharge Decision 30

B.  Admission of Wrongdoing Was Not a Credible Reason for Dismissal 32

C.  Inconsistent and Lax Enforcement of Company Policies Suggest the
Proffered Reason was Pretextual 35


D.  Inconsistency in Disciplinary Actions Strongly Indicates that the
Proffered Reason for Reynolds' Termination was a Pretext 39
 
E.  Reynolds' Unique Production Requirements and Work Assignments Suggests
His Infraction was Neither a Serious nor Terminable Offense 43

CONCLUSION 46

CERTIFICATION OF WORD PROCESSING PROGRAM

CERTIFICATE OF SERVICE
  
ADDENDUM 


TABLE OF AUTHORITIES

CASES

Bassett v. City of Minneapolis,
 211 F.3d 1097 (8th Cir. 2000) 30

Bradley v. Widnall,
 232 F.3d 626 (8th Cir. 2000) 22

Brown v. Lester E. Cox Med. Ctrs, 
 286 F.3d 1040 (8th Cir. 2002) 25

Cosgrove v. Sears, Roebuck & Co.,
 9 F.3d 1033 (2d Cir. 1993) 30

Cummings v. Malone, 
 995 F.2d 817 (8th Cir. 1993) 47

Davenport v. Riverview Gardens School Dist.,
 30 F.3d 940 (8th Cir. 1994) 39

Dunn v. Nordstrom, Inc.,
 260 F.3d 778 (7th Cir. 2001) 46

Duty v. Norton-Alcoa Proppants, 
 2002 WL 1312197 (8th Cir. June 18, 2002)  26, 29

EEOC v. Avery Dennison Corp.,
 104 F.3d 858 (6th Cir. 1997) 27

English v. Colorado Dep't of Corrections,
 248 F.3d 1002 (10th Cir. 2001) 39

Harvey v. Anheuser-Busch, Inc.,
 38 F.3d 968 (8th Cir. 1994) 39


Hiatt v. Rockwell International Corp.,
 26 F.3d 761 (7th Cir. 1994) 39

Hocevar v. Purdue Frederick Co.,
 223 F.3d 721 (8th Cir. 2000) 27

Jackson v. Missouri Pacific R.R.,
 803 F.2d 401 (8th Cir. 1986) 46

Keathley v. Ameritech Corp., 
 187 F.3d 915 (8th Cir. 1999) 45

Kipp v. Missouri Highway Transp. Comm'n,
 280 F.3d 893 98th Cir. 2002) 25, 28

Kovacevich v. Kent State Univ.,
 224 F.3d 806 (6th Cir. 2000) 27

Long v. Eastfield College,
 88 F.3d 300 (5th Cir. 1996) 31

Lowery v. Hazelwood School Dist.,
 233 F.3d 654 (8th Cir. 2001) 32, 33

McDonald v. Santa Fe Trail Transp. Co.,
 427 U.S. 273 (1976) 35

McGill v. Munoz,
 203 F.3d 843 (D.C. Cir. 2000) 46

McKennon v. Nashville Banner Publishing Co., 
 513 U.S. 352 (1995) 34

Nichols v. American Nat. Ins. Co., 
 154 F.3d 875 (8th Cir. 1998) 46

Reeves v. Sanderson Plumbing Prods. Inc.,
 530 U.S. 133 (2000) 25, 26, 28, 29

Sarsha v. Sears, Roebuck & Co.,
 3 F.3d 1035 (7th Cir. 1993) 45

Sherman v. Runyon,
 235 F.3d 406 (8th Cir. 2000) 28, 30

Texas Dep't of Community Affairs v. Burdine,
 450 U.S. 248 (1981) 28

Waters v. Churchill,
 511 U.S. 661 (1994) 32

Wilking v. County of Ramsay,
 153 F.3d 869 (8th Cir. 1998) 23

Yates v. Rexton, Inc.,
 267 F.3d 793 (8th Cir. 2001) 25, 29

STATUTES AND RULES

28 U.S.C.  1291 1

28 U.S.C.  1331 1

28 U.S.C.  1343 1

28 U.S.C.  1345 1

42 U.S.C.  2000e-5(f)(3) 1

Fed. R. Civ. P. 50(a)(1) 25

STATEMENT OF JURISDICTION

 This is an appeal from the final order of the district court entering
 judgment as a matter of law on the EEOC's retaliation claim, setting
 aside the favorable jury verdict on that claim, and dismissing the EEOC's
 entire complaint with prejudice.   The district court had jurisdiction of
 this matter pursuant to 42 U.S.C.  2000e-5(f)(3) and 28 U.S.C.  1331,
 1343, and 1345.  This Court has jurisdiction pursuant to 28 U.S.C. 
 1291.

STATEMENT OF THE ISSUE

Whether the district court erred in setting aside a jury's favorable
verdict on the  EEOC's retaliation claim, where the record contains
substantial evidence showing that charging party was terminated shortly
after he complained of race discrimination and that it was more likely
than not that his alleged violations of company policies were not the
real reason for the termination.

Pertinent or Apposite Cases
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
Sherman v. Runyon, 235 F.3d 406, 410 (8th Cir. 2000).
Davenport v. Riverview Gardens School Dist., 30 F.3d 940, 945 (8th
Cir. 1994).
Keathley v. Ameritech Corp., 187 F.3d 915 (8th Cir. 1999).

STATEMENT OF THE FACTS<1>

 John Reynolds was terminated after being questioned about his failure
 to comply with a company policy governing work shifts and hours claimed
 for pay.  To evaluate the jury's conclusion that he was actually fired
 in retaliation for complaining that he was being singled out for these
 violations of procedures due to his race, it is necessary to explain
 the plant's policies and practices in some detail.

1.  The Plant's Operations and Policies

 Kohler Company, an international privately held company that does
 business as Sterling Plumber Group in Searcy, Arkansas, manufactures and
 markets plumbing fixtures such as stainless steel sinks.  Tr. I at 115,
 EA-17(Miller); Tr. III at 354, EA-143 (Davis).  The physical outlay of
 the plant spans approximately 207,000 square feet.  Tr. II at 197, EA-66;
 Tr. III at 354, EA-143.   From 1997 to 1998, the Sterling facility had
 300 employees and 15 foremen.   Tr. I at 116, EA-18; Tr. II at 219-20,
 EA-80-81 (Dickson). 

 The Arkansas facility operated with three standard shifts.  Generally,
 these shifts ran from 7 a.m. to 3:30 p.m., 3 p.m. to 11:30 p.m., and 11
 p.m. to 7:30 a.m.  Tr. II at 220, EA-81 (Dickson).  However, employees
 came and left at different hours and the foremen were authorized to
 make adjustments to the shift schedules.  Id. at 166, EA-51 (Miller).
 Absent permission, clocking in and out early was a violation of company
 policy.  Id. at 181, EA-62.  Because half of the employees were violating
 the rule with impunity and arriving 30 minutes to two hours early, in May
 1996, John Dickson, the plant manager, ordered all of the employees to
 clock in no earlier than 15 minutes prior to their assigned start time.
 Tr. III at 430-31, EA-158-159 (Froud); Pl. Ex. 11, TEA1-25.<2>  Despite
 this mandate, employees on the first shift continued to come in early
 without permission.  Id. at 431, EA-159.  After January 6, 1998, when
 John Reynolds was fired, the foremen were again advised to remind the
 employees to start work only at their assigned times.  Tr. II at 167,
 EA-52 (Miller).

 Kohler also had a company policy that required its employees to have
 their timecards signed by a foreman at the conclusion of their work
 but management knew that the employees did not always do it.  Tr. II
 at 233-34, EA-91-92 (Dickson);  id.  at 260, EA-107 (Davis); Tr. III at
 434, EA-161 (Froud).  One reason for this lapse was that, at one time,
 the company only required the employees to get their timecards signed
 if they worked overtime.  Tr. II at 233, EA-91 (Dickson); Tr. III at
 500-01, EA-189-190 (Reynolds).  Another reason was that sometimes it was
 difficult for the employees to find foremen to get the cards signed.
 Tr. II at 233-34, EA-91-92 (Dickson).  Accordingly, employees who did
 not get their timecards signed were rarely penalized even though it was
 a policy violation.  Id. at 235-36, EA-93-94; Tr. III at 434, EA-161
 (Froud). 

 On each shift, there were jobs that were straight time and others
 that had production quotas. Tr. II at 221, EA-82 (Dickson). Straight
 time employees were paid an hourly wage and were required to work the
 full eight hours of their shift at their work station.  Id. at 199,
 EA-67(Miller).  Production quotas represented the number of parts an
 employee was expected to complete per hour.  Id.  Under the company's
 Get Off Work Early Program, employees could be paid based on the hours
 they worked or by their production rate if their jobs had an established
 quota.  Id.  For example, if an employee had a production rate of 10
 sinks per hour, then over an eight-hour period, he was expected to
 complete 80 sinks.  Id.  If the employee completed 80 sinks in six
 hours, he could quit work and spend the remaining two hours of his
 shift in the breakroom playing cards, outside pitching horseshoes, or
 in his vehicle sleeping so long as he did not leave the plant premises.
 Id. at 199, 222, EA-67, 83 (Dickson).<3>  The employee also had the
 option of continuing to work, if authorized, and earning overtime pay.
 Id. at 200, EA-68 (Miller).<4>  To ensure production quotas were met,
 the foreman was responsible for knowing how much production his shift
 was to get out and for knowing if there were problems with equipment or
 an inadequate flow of parts.  Id. at 224, EA-84 (Dickson).  The foreman
 also was responsible for checking the timecards of the employees and
 calculating their production on a daily basis.  Id. at 260, EA-107
 (Davis); Tr. III at 403-04, EA-148-149 (Hulsey); id. at 433, 440, EA-166
 (Froud).

 To govern the employee's work conduct, Kohler and the employees' union
 set forth a list of prohibited conduct that was subject to discipline
 in their collective bargaining agreement (CBA).  Tr. I at 127, EA-24
 (Miller).  That agreement is published in the employee handbook.
 Pl. Ex. 12, TEA1-26.  The misconduct of cheating is not listed
 or defined in the CBA, but Kohler officials testified that it is a
 terminable offense particularly if it is cheating on pay.  Tr. I at
 129-130, EA-26-27 (Miller); Tr. II at 231, EA-89 (Dickson).  According to
 Kohler officials, cheating can include someone  claiming pay for work he
 did not perform or someone claiming overtime in parts or hours that he
 was not entitled to.  Id. at 127-28, EA-24-25 (Miller); Tr. II at 230,
 EA-88 (Dickson).   Cheating could also include falsifying company records
 such as timecards and production records or concealing defective work.
 Tr. II at 229, EA-87 (Dickson).  It also violated company policy if an
 employee clocked in or out for another employee.  Tr. II at 174, EA-56
 (Miller).  Purportedly, this conduct would result in the discipline of
 both employees.  Id.

2.  The Plant's Key Management Staff

 During the period of 1997-1998, John Dickson was the plant manager of the
 Sterling facility.  Tr. I at 141, EA-33 (Miller).  He had been employed
 with Kohler since 1985 and became plant manager in 1992, the position he
 held until he was fired in 1999 for failure to get along with the union.
 Tr. II at 217-18, EA-78-79 (Dickson).  As plant manager, Dickson held
 the highest position at the facility and was responsible for setting
 and enforcing production standards.  Id. at 219, EA-80.  He also handled
 some personnel matters and grievances.  Id. at 225, EA-85. 
 Rebecca Miller was the Human Resources (HR) manager for Kohler during
 the time in question.  Tr. I at 114, EA-16 (Miller).  She reported to
 John Dickson.  Id. at 120, EA-120.  Although Dickson preferred that
 Miller handle most of the personnel issues, and acknowledged that she
 had the authority to terminate an employee, he required that she consult
 him before anyone was fired and he retained the authority to overrule her
 decisions.  Tr. II at 226, EA-86 (Dickson).   Miller's position required
 that, inter alia,<5> she be responsible for the staffing needs of the
 facility, which included hiring, firing and disciplining employees.
 Tr. I at 120, EA-19 (Miller).  Miller explained that Kohler operated
 under a progressive discipline policy that can conclude with termination.
 Id. at 122, EA-21.  For example, a person who repeatedly violated a
 company rule usually first  received a verbal warning, then two written
 warnings, then a suspension and finally termination.  Id. at 125, EA-23;
 Tr. II at 213, EA-76.   However, a person who was caught sleeping on the
 job instead of working would receive a two-day suspension rather than a
 verbal or written warning because of the nature of the infraction and if
 a second offense occurred within a year of that suspension, that person
 would be terminated.  Tr. I at 122, 125, EA-21, 23.  Because of the
 progressive discipline policy, one foreman testified that he believed
 the only grounds for termination without prior warning would be for
 stealing company property, intoxication, and fighting.  Tr. III at 436,
 439, EA-163, 165 (Froud).  According to Miller, a foreman did not have
 any input in deciding what discipline was given, Tr. I at 121, EA-20,
 but he could suggest a discipline.  Tr. II at 156, EA-44.  Instead,
 when there was a violation of company policy, Miller consulted the
 manufacturing manager and/or the plant manager, and they decided the
 discipline based on the nature of the violation.  Tr. I at 120, 124,
 EA-19, 22.  If an employee was disciplined in writing, Miller had to
 sign the form and a copy of the action was kept in the employee's file.
 Tr. I at 121, 125, EA-20, 23; Tr. II at 155, EA-43.

3.  Relevant Facts Pertaining To Reynolds and the Disciplinary Actions
 John Reynolds, an African American, worked for Kohler from August
 1991 until he was terminated on January 6, 1998.  Tr. III at 449-50,
 EA-167-168 (Reynolds).  On May 13, 1996, Reynolds was assigned to
 work as a deck sander on the first shift from 7 a.m. to 3:30 p.m.
 Pl. Ex. 11, TEA1-25; Tr. II at 220, EA-81 (Dickson); Tr. III at 457,
 EA-170 (Reynolds).  Deck sanders use special machinery to clean the rough
 surface off the top of the sink and bring out the color in the metal.
 Tr. III at 450, EA-168 (Reynolds).  There were 8 or 9 machines run in
 the deck sander classification, which included three pre-sanders and
 a manual deck sander.  Id. at 456, EA-169. At some point, Reynolds
 began to clock in for work at 6 a.m. but he did not report to his
 work station until 7 a.m. Pl. Ex. 5, TEA1-14.  At the end of the day,
 Reynolds would clock-out at 2:30 p.m. and go home. Id. According to
 Reynolds, he had been working this modified shift for a while.  Id.
 He explained that he thought it was all right to come in and depart
 early because he had done it in the past without getting in trouble and
 because other employees were doing it.  Tr. III at 474, 478, EA-181,
 184; Pl. Ex. 5, TEA1-14 & Pl. Ex. 6, TEA1-15 (Miller's notes on the
 December and January meetings).

 As a deck sander, Reynolds was responsible for using a buffer to put a
 mirror finish on the sinks.  Tr. II at 238, EA-96 (Dickson); Tr. III
 at 459, EA-172.  Reynolds' production quota was 35 sinks per hour.
 Tr. II at 272, EA-117 (Davis).  Hence, over an eight-hour period, he was
 expected to produce 280 sinks.  Id.  Often there were not enough parts
 to enable Reynolds to meet his production quota.  Tr. II at 177, EA-58
 (Miller); id. at 272, EA-117 (Davis); Tr. III at 429, EA-157 (Froud).
 Because of this erratic flow, it was difficult to know when Reynolds
 would get parts during the day and thus he was required to be at his
 work station for the eight-hour period.  Tr. II at 239, EA-97 (Dickson).
 According to Dickson, because Reynolds' job was straight time, only
 a foreman could decide whether to relocate Reynolds to another job
 to  make his production and Reynolds could not initiate a relocation
 on his own.  Id.  James Froud, a third shift foreman, also testified
 that a deck sander (or buffer) rarely came and requested more work to
 do because, even if there were no parts, there was a lot of work to do
 on the buffing machine, which was high-maintenance, and in that work
 station area.  Tr. III at 429, EA-157.  
 
 Generally, when Reynolds arrived at work, there were no sinks waiting
 for him.  Tr. III at 458, 464, EA-171, 177 (Reynolds).  Reynolds would
 then get the sinks off the wash line which was managed by Jerry Burkett.
 Id. at 459, EA-172.  Burkett reported for work at 7 a.m.  Id.  As a
 matter of process, sinks usually would come first to Burkett, then go
 to Howard Bailey for manual deck sanding, and then to Reynolds to be
 run through the buffer.  Tr. III at 362, EA-146 (Davis); id. at 459,
 463-64, EA-172, 176-77 (Reynolds).  Since Burkett did not report to
 work until 7a.m., Reynolds said that Bailey would not have work to do
 at 6 a.m.   Id. at 464-65, EA-177-178 (Reynolds).  Reynolds also said
 that there were days that Bailey would clock in at 6 a.m. and then walk
 out of the building and go to his truck rather than his work station.
 Id. at 475, EA-182.  He testified that on five or ten occasions,
 either Charles Davis, his immediate supervisor, or Richard May, the
 general foreman,<6> would send him to look for Bailey and he would find
 him asleep in his truck.  Id. at 475-76, EA-182-183.  James Froud,
 a third shift foreman, also said he would see first shift employees
 such as Howard Bailey sitting in the breakroom before starting work.
 Tr. III at 435, EA-162 (Froud).<7> 

 With respect to the beginning of the shift, Reynolds testified that
 when he clocked in at 6 a.m., he would see other first shift employees,
 Michael Senko and Jeremy Askins, clock in at 6 a.m.  Tr. III at 479,
 EA-185 (Reynolds); id. at 530, EA-194 (Senko); id. at 540, EA-201
 (Askins); Def. Ex. 22, TEA2-234-294 (Senko's  timecards); Def. Ex. 24,
 TEA2-295-352 (Askins' timecards).  He said that after clocking in, they
 would leave the building and either go to their trucks or visit with
 other employees rather than immediately going to work.  Tr. III at 479,
 EA-185 (Reynolds).  Senko and Askins were sprayers who received sinks
 that had gone through Reynolds' buffing process and the trim press.
 Id. at 464, EA-177 (Reynolds).  Spraying was one of the last steps in
 the sink process, id. at 529, EA-193 (Senko), and according to Reynolds,
 there were often no sinks for Senko and Askins to spray at 6:00 a.m.
 Id. at 464, EA-177 (Reynolds).<8>  During Reynolds' tenure at Kohler,
 neither Senko nor Askins were written up by Davis for clocking in at 6
 a.m. and leaving at 2:30 p.m.  Id. at 534, EA-198 (Senko); id. at 543,
 EA-202 (Askins).  Senko stated that it was not until he received a
 write-up in September 1998 that he learned clocking in and out early
 was prohibited conduct.  Id. at 535, EA-199.  Similarly, Askins said
 he did not know that leaving the plant premises before the end of his
 shift was prohibited by the CBA and, although he eventually received a
 verbal warning, he was never written up for coming in or leaving early.
 Id. at 543-44, EA-202-203.

 Most days at the plant, the supply parts came to Bailey and Reynolds
 very slowly.  Tr. III at 465, EA-178.  Reynolds testified that four out
 of five days or even 95 percent of the time he would finish his work
 before 2:30 p.m.  Id. at 459-60, EA-172-173.  On those days, he would do
 nothing for the last hour of his shift and never got into trouble for it.
 Id. at 460, EA-173.  During the earlier hours of the work day, however,
 Davis or May would assign Reynolds to work other machines, such as the
 wash line and the annealer, which are in different job classifications
 and would not contribute to Reynolds' production quota on the buffer.
 Id. at 461-63, EA-174-176.  In fact, Reynolds claimed that these other
 assignments caused him to lose the production time he had gained on
 the buffer when he completed his sinks in less time than required.
 Id. at 460, 463, 493, EA-173, 176, 188.  He also said that when he was
 placed on straight time assignments such as changing the buffing pads,
 it would affect his production numbers dramatically because it took a
 long time to change the pads.  Id. at 467, EA-179.

 In  July 1997, Charles Chuck Davis became Reynolds' immediate
 supervisor on the first shift.   Tr. I at 136, EA-29 (Miller); Tr. II at
 256, EA-104 (Davis).  There were 45-50 employees under his supervision.
 Tr. II at 267, EA-113; Tr. III at 357, EA-144.  As foreman, he was
 responsible for managing production, insuring the quality of the sinks
 run, and making sure his shift employees followed the company rules,
 including working their assigned shifts and having their timecards
 signed.  Tr. II at 258, 260, EA-106-107 (Davis).  Davis testified
 that he usually reported to work before 6 a.m.  Tr. II at 257, EA-105.
 He said that when he got to work around 6 a.m., he would walk around
 and count parts to see how much the preceding shift accomplished and
 what his shift would need to do.  Id.  He also said he would meet with
 the third-shift foreman to find out if any equipment had problems.
 Id. at 257-58, EA-105-106.

 On August 28, 1997, Davis issued a written warning to Reynolds for
 failure to have his area cleaned and his timecards signed after a second
 shift employee or foreman complained that the area was not adequately
 cleaned.  Pl. Ex. 4, TEA1-13; Tr. I at 134, EA-28 (Miller); id. at 261,
 EA-108; Tr. III at 361, EA-145 (Davis).  The warning indicated that
 Reynolds had already received a verbal warning about these infractions.
 Pl. Ex. 4, TEA1-13.  Despite the warning, Reynolds got his timecards
 signed only four times during the period of September 1, 1997 to December
 10, 1997.  Tr. II at 204, EA-72 (Miller); Def. Ex. 34, TEA2-426-29
 (Reynolds' signed timecards).  Davis testified that prior to August 28
 he never had any problems with Reynolds' work performance and that he
 never left any sinks unfinished.  Tr. II at 260, 273, EA-107, 118.<9>
 See also Tr. III at 429, EA-157 (where foreman Froud testified that he
 never had a problem with Reynolds' job performance or the cleanliness
 of his work area when he supervised him).  However, around November
 or the first of December 1997, a foreman testified that he heard Davis
 refer to Reynolds as a dumb nigger. Tr. III at 408, 410, EA-151, 153
 (Hulsey).<10>

 In the late summer of 1997, Royce Hulsey, a second shift foreman, told
 Davis that he saw Reynolds departing the plant premises during Reynolds'
 assigned work hours.  Tr. II at 269, EA-114 (Davis); Tr. III at 406,
 EA-150 (Hulsey).  In December 1997, Davis informed Miller that there was
 a problem with Reynolds not being at work from 2:30 p.m. to 3:30 p.m.
 Tr. II at 204-05, EA-72-73 (Miller); id. at 269-70, EA-114-115 (Davis). 
 On December 10, 1997, Miller called a meeting with Reynolds, Davis,
 and union representative Tom Brennan to gather facts about Reynolds'
 work schedule.  Tr. II at 156, 205, EA-44, 73 (Miller); id. at 271,
 EA-116 (Davis).  In preparation for the meeting, Miller testified that
 she and Davis looked at about two months' worth of Reynolds' timecards.
 Tr. II at 156, 161, EA-44, 49.  His timecards confirmed that he had
 been clocking in and leaving early.  Id. at 157, EA-45.  During the
 December meeting, Miller took notes which she stated represent the
 most important matters discussed at the meeting.  Tr. I at 143, EA-35.
 She noted that Reynolds told her his shift was 7:00 a.m. to 3:30 p.m. but
 that he came in at 6:00 a.m. and left at 2:30 p.m.  Id. at 144, EA-36.
 She testified that Reynolds admitted no one gave him permission to come
 in at 6 a.m. Id. at 145, EA-37.  Her notes also indicated that Reynolds
 said he did not start work until 7 a.m. and suggested that he did not
 know clocking in and out early was a violation.  Pl. Ex. 5, TEA1-14.
 According to Miller, she would not have known Reynolds did not work for
 eight hours if he had not mentioned at the meeting that he did not start
 work until 7 a.m. since 7:00 a.m. to 2:30 p.m. is only seven hours.
 Tr. II at 165, 177, EA-50, 58.   In any event, Miller told Reynolds
 that John Dickson would have to be informed about the meeting and
 directed Reynolds to get his timecards signed and to work his assigned
 shift hours, which Reynolds agreed to do.  Tr. I at 145-46, EA-37-38
 (Miller); Tr. II at 271, EA-116 (Davis); Pl. Ex. 5, TEA1-14.  
 As the meeting was about to conclude, Reynolds stated that he believed
 Davis had singled him out because he is black since other people were
 also clocking in and out early. Tr. I at 142, EA-34 (Miller); Tr. III
 at 414, EA-154 (Brennan); Pl. Ex. 5, TEA1-14.  Brennan, the union
 representative, testified that he told Miller he too believed other
 employees were doing same thing.  Tr. III at 414, EA-154.  However,
 neither Reynolds nor Brennan provided the names of other employees who
 were committing these infractions.  Tr. I at 147, EA-39 (Miller); Tr. III
 at 505, EA-191 (Reynolds); Pl. Ex. 5, TEA1-14.  Miller asked Davis if any
 other employees were coming in and leaving early as Reynolds was, and
 Davis said that he was not aware of anyone doing this.  Tr. II at 159,
 EA-47.  Miller stated that she was aware Reynolds was complaining of race
 discrimination, but she did not attempt to have a private conversation
 with Reynolds about his allegation out of Davis' presence or present his
 complaint for investigation by senior management officials. Tr. I at 148,
 EA-40; Tr. II at 159-60, EA-47-48. She explained that she understood
 his complaint to be that he had been singled out for the meeting by
 Davis because of his race and she knew Davis was not responsible for
 the meeting since she had called it.  Tr. I at 148, EA-40; Tr. II at
 158, EA-46.  Moreover, Miller said she exercised her discretion not to
 conduct an investigation because Reynolds did not provide any names
 and his foreman had no knowledge of other transgressors.  Tr. II at
 160-61, EA-48-49.  Miller claims that by the close of this meeting,
 she had decided Reynolds should be fired.  Tr. II at 216, EA-77.
 Between December 10, 1997 and January 6, 1998, Miller and Davis reviewed
 Reynolds' timecards to confirm when he clocked in and out and noticed
 that he was not getting his timecards signed.  Tr. II at 208, EA-74.
 They also reviewed the timecards of Howard Bailey, a white employee,
 whose clock-in times were either the same minute or within a minute of
 Reynolds' clock-in times.   Id.  at 173, EA-55. When the plant manager,
 John Dickson, returned to work, Miller informed him of the December
 meeting and recommended that Reynolds be terminated.  Id. at 208-09,
 EA-74-75 (Miller).  Dickson then looked at the timecards of Reynolds
 and Bailey.  Id. at 237-38, EA-96-97 (Dickson).

 On January 6, 1998, Dickson met with Reynolds to discuss his work
 schedule.  In attendance were Miller, Davis, and Brennan.  Tr. II at 171,
 EA-53 (Miller).  Miller took notes of this meeting as well.  Pl. Ex. 6,
 TEA1-15.   During the meeting, Dickson asked Reynolds why he left at 2:30
 p.m. and Reynolds responded that he did it because other employees were
 leaving at 2:30.  Tr. II at 172, EA-54.  Dickson also asked Reynolds
 if he was clocking in and out for Bailey and Reynolds denied doing so.
 Id. at 173, 175, EA-55, 57.  Dickson then accused Reynolds of cheating
 the company by only working seven hours since he admitted he did not
 start work until 7 a.m. but clocked out at 2:30 p.m. and since he had
 not produced eight hours' worth of parts to justify the early departure.
 Id. at 177, EA-58.  Reynolds complained to Dickson that he believed the
 reason he could not get away with working a modified schedule was because
 he is black.  Tr. II at 239, EA-97 (Dickson).  Dickson became upset and
 told Reynolds that was not the reason.  Id. at 240, EA-98 (Dickson);
 Tr. III at 416, EA-155 (Brennan).   Dickson then asked Reynolds to
 produce the names of other violators and Reynolds again refused.  Id.
 Reynolds offered to repay the money, but his offer was rejected.
 Tr. III at 416, EA-155 (Brennan); id. at 480-81,  EA-186-187 (Reynolds).
 According to Miller's notes, Dickson closed the meeting by telling
 [Reynolds] he was going to consider the facts and . . . get back with
 him.  Pl. Ex. 6, TEA1-15.  Later, Dickson informed Reynolds that he
 was fired.  Tr. II at 246, EA-102 (Dickson).

 The next day, Miller issued Reynolds' termination paper.  Pl. Ex. 3,
 TEA1-12.  In that document, she wrote that Reynolds was terminated for
 clocking in and out at hours other than [his] assigned shift [which]
 resulted in [his] working only 7 hrs per day rather than the 8 [he was]
 compensated for.  Id.  Miller noted that Reynolds had confirmed these
 facts to management on two separate occasions.  Id.  She added that
 management has also established that on a routine basis [Reynolds was]
 not getting [his] production in this 7 hr period of work, and leaving
 the plant 1 hr early.  Id.

 After Reynolds was terminated, the union filed a grievance on his
 behalf alleging unjust termination.  Tr. II at 179, EA-60 (Miller).
 Union representative Tom Brennan drew Miller's attention to the fact that
 two employees who also worked the day shift, Michael Senko and Jeremy
 Askins, had been clocking in and out early.  Id.   Miller reviewed their
 cards and determined that, even though they clocked in early, most of
 the time Senko and Askins worked over eight hours and met production.
 Id. at 180, EA-61.  She further noted that when they exceeded their
 required clock hours, they only claimed pay for eight hours.  Id.
 Hence, she concluded that they had not engaged in the same conduct as
 Reynolds.  Id. at 181, EA-62.  Notwithstanding, well after Reynolds'
 termination, both Senko and Askins were disciplined for not working
 their assigned shifts.  Davis gave Askins a verbal warning and Senko was
 issued a written warning on September 3, 1998 because he had previously
 received a verbal warning.  Id. at 182, 188, EA-63, 65; Pl. Ex. 9,
 TEA1-17 (Senko's written warning).   4.  The Proceedings of the Case
 On July 8, 1999, the EEOC filed this Title VII action, alleging that
 Kohler discharged Reynolds because of his race and in retaliation for
 complaining of race discrimination.  In the course of this action,
 EEOC's claims survived summary judgment and, during trial, two requests
 for directed verdict. R.54 (summary judgment order); Tr. III at 524,
 EA-192; Tr. IV at 581, EA-209.  At the conclusion of the trial, the jury
 returned a verdict in Kohler's favor on the EEOC's race discrimination
 claim and against Kohler on the retaliation claim.  R.79, Judgment as
 a Matter of Law (JAMOL) Order at 1, EA-215.  It then awarded $40,000
 in compensatory damages and $50,000 in punitive damages to Reynolds,
 and the district court entered judgment on the verdict.  Id.
 On March 12, 2001, Kohler moved for judgment as a matter of law or for
 a new trial on the retaliation claim.  R. 64.  In the alternative, it
 sought a remittitur on the punitive damages award.  Id.  Kohler argued
 that the evidence at trial was insufficient to sustain the jury's
 verdict on the retaliation claim because it failed to establish a
 causal connection between Reynolds' race discrimination complaint and
 his termination.  JAMOL Order at 1-2, EA-215-216.  In Kohler's view, the
 jury's verdict rested on speculation and conjecture.  Id. at 2, EA-216.
 Kohler further argued that even if the court upheld the jury's verdict,
 it should set aside the punitive damages award because there was no
 evidence to support the conclusion that John Dickson or Rebecca Miller
 engaged in retaliation with malice or reckless indifference to Reynolds'
 federally protected rights.  Id.

5.  District Court's Decision

 On March 27, 2002, the district court granted Kohler's JAMOL motion.
 R.79 (order), EA-215; R. 80, EA-221 (judgment).  In granting this motion,
 the district court held that the EEOC failed to prove that the adverse
 employment action occurred because of Mr. Reynolds' protected activity.
 JAMOL Order at 3, EA-217.  In the court's view, EEOC attempt[ed] to
 argue there was a temporal connection between the allegedly protected
 conduct and the adverse employment action and that this connection
 is evidence of retaliation.  Id.  The court observed, however, that
 when Mr. Reynolds was confronted about his work habits, he admitted
 his infractions and concluded that [t]hese admissions undermine the
 suggestion that Reynolds' termination was a result of his complaint of
 race discrimination.  Id.  Putting it differently, the court stated
 that Mr. Reynolds claimed he was being singled out, after he had
 been confronted and after he admitted wrongdoing.  Id. at 4, EA-218.
 According to the district court, [e]vidence of retaliation would more
 likely occur if a Plaintiff complained of racial discrimination and then
 the employer began to scrutinize him.  Id.  The court further noted that
 Reynolds repeatedly refused to identify a single employee who engaged in
 the same or similar conduct who was treated differently and it rejected
 those identified at trial as not being similarly situated either because
 they did not have the same supervisor or their conduct was different,
 or even if their conduct was the same, they did not engage in it with
 the same frequency as Reynolds.  Id.  

 In sum, the court decided that, absent other circumstantial evidence,
 more than a temporal connection between the allegedly protected conduct
 and the adverse employment action is required to create a fact issue as
 to causation. JAMOL Order at 4, EA-218 (citing Bradley v. Widnall, 232
 F.3d 626, 633 (8th Cir. 2000)).  In its view, if the timing of these
 events could create a causal connection without more, then employees
 could claim discrimination each and every time they were questioned
 about alleged infractions, because any subsequent adverse employment
 action based on the alleged infractions would provide the complaining
 parties with a prima facie case against their employers.  Id. at 5,
 EA-219.  Hence, it concluded that, [w]hile the jury may have thought
 that Kohler's termination was unfair, Title VII does not empower federal
 courts (sic) to sit as a super-personnel department that reexamines an
 entity's business decision.' Id. (quoting Wilking v. County of Ramsay,
 153 F.3d 869, 873 (8th Cir. 1998)).  The court therefore ordered that
 Kohler's JAMOL motion be granted, its alternative motions for new trial
 or remittur be dismissed as moot, and EEOC's complaint be dismissed
 with prejudice.  Id.; R.80, Judgment, EA-221.

SUMMARY OF THE ARGUMENT

 The district court improperly set aside the jury's verdict on the EEOC's
 retaliation claim because there was substantial evidence in the record
 to support it.  Kohler claims that it fired John Reynolds because he
 did not work his scheduled hours and because he cheated Kohler out
 of pay when he received wages for an 8-hour work day after he had
 only worked seven hours.   However, evidence in the record shows that
 Kohler's reason is pretextual and that it is likely Reynolds' complaint
 of race discrimination motivated the discharge.  Significantly, at the
 January 6, 1998 meeting, after John Reynolds complained to John Dickson,
 the plant manager and sole decisionmaker, that he was being singled
 out for clocking in and out early because of his race, Dickson became
 admittedly and noticeably upset by his complaint and shortly afterwards
 terminated Reynolds.  In addition, even though Reynolds admitted he was
 clocking in and out early purportedly in violation of company policy,
 substantial evidence in the record established that many employees were
 clocking in and out early, management was aware of it, two received
 warnings, but none of them were terminated.  Further, while Reynolds
 admittedly only worked seven hours but received compensation for 8 hours
 because he went to the break room for an hour before he commenced work,
 testimony in the record indicated that other employees who worked the
 same day shift as Reynolds and clocked in and out early with Reynolds,
 also hung out in the break room at the beginning or during the work
 day but they were not charged with cheating nor were they terminated.
 In that the jury could have credited this record evidence, along
 with other evidence of disparate discipline and lax enforcement of
 company policies, in reaching the conclusion that Reynolds would not
 have been fired for violating company policy had he not complained of
 race discrimination, it cannot be said that  there was no evidence in
 the record to support the verdict.  Hence, judgment as a matter of law
 in favor of Kohler was inappropriate and the district court's judgment
 entered in substitution for the credibility assessments and evidentiary
 valuation of the jury must be reversed.

ARGUMENT

THE DISTRICT COURT IMPROPERLY SET ASIDE THE JURY'S FAVORABLE VERDICT ON
THE EEOC'S RETALIATION CLAIM BECAUSE THERE WAS SUFFICIENT EVIDENCE OF
CAUSATION AND PRETEXT FROM WHICH THE FACTFINDER COULD AND DID CONCLUDE
THAT REYNOLDS WOULD NOT HAVE BEEN FIRED IF HE HAD NOT COMPLAINED OF
RACIAL DISCRIMINATION

 Review of a judgment as a matter of law setting aside a jury verdict
 is de novo.  Brown v. Lester E. Cox Med. Ctrs, 286 F.3d 1040, 1044 (8th
 Cir. 2002); Kipp v. Missouri Highway Transp. Comm'n, 280 F.3d 893, 896
 (8th Cir. 2002). Judgment as a matter of law is appropriate only when
 all of the evidence points one way, and is susceptible of no reasonable
 inference sustaining the jury's verdict.   Kipp, 280 F.3d at 896.
 In fact, a court should not render judgment as a matter of law against
 a party unless that party has been fully heard on an issue and there
 is no legally sufficient evidentiary basis for a reasonable jury to
 find for that party on that issue. Fed. R. Civ. P. 50(a)(1).  Moreover,
 when determining whether a motion for judgment as a matter of law should
 be granted, the court must draw all reasonable inferences in favor of
 the nonmoving party, and it may not make credibility determinations or
 weigh the evidence.  Reeves v. Sanderson Plumbing Prods., Inc., 530
 U.S. 133, 150 (2000); Kipp, 280 F.3d at 896; see also Yates v. Rexton,
 Inc., 267 F.3d 793, 801 (8th Cir. 2001) (neither the court of appeals nor
 the district court is permitted to substitute its judgment concerning
 the weight of the evidence for that of the factfinder).  In addition,
 the reviewing court must disregard all evidence favorable to the moving
 party that the jury is not required to believe.  Reeves, 530 U.S. at 151;
 Duty v. Norton-Alcoa Proppants, 2002 WL 1312197 (8th Cir. June 18, 2002)
 (appellate court must disregard all evidence favorable to the moving
 party that the jury is not required to believe).

 Here, the district court granted Kohler's motion for judgment as a
 matter of law and set aside the jury's verdict in favor of the EEOC on
 the retaliation claim on the ground that the timing of his termination
 was insufficient to establish that his discharge was retaliatory.
 JAMOL Order at 3-5, EA-217-219.  Specifically, the court decided
 that there was no evidence of retaliation since Reynolds admitted he
 committed the charged infractions, attempted to justify these infractions
 by pointing out that he had worked in this manner for two years,<11>
 and none of the alleged comparators were similarly-situated.  Id. at 4,
 EA-218.  When the trial evidence is  viewed in the light most favorable
 to the EEOC, and all doubts and conflicts are  resolved in its favor,
 it is clear that the verdict was supported by evidence from which a
 reasonable jury could have concluded that retaliation had occurred and
 therefore, the district court's JAMOL was inappropriate.

 To establish a prima facie case of retaliation, the Commission needed
 to prove that (1) Reynolds engaged in protected activity; (2) Kohler
 took adverse action against him; and (3) there was a causal connection
 between the protected conduct and the adverse action.  Hocevar v. Purdue
 Frederick Co., 223 F.3d 721, 726 (8th Cir. 2000).  The Commission met
 this requirement by establishing that Reynolds was fired shortly after he
 complained of race discrimination and from this evidence a presumption
 of retaliation arose.<12>  The burden of production then shifted to
 Kohler to advance a legitimate reason for the discharge, which it did
 by stating that it fired Reynolds for cheating the company out of one
 hour of pay when he clocked in at 6 a.m., went to the breakroom for one
 hour, reported to his workstation at 7 a.m., clocked out at 2:30 p.m.,
 and claimed 8 hours of pay even though he only actually worked 7 hours.
 Since Kohler satisfied its burden, the Commission then needed to prove
 that Kohler's reason was merely a pretext for unlawful retaliation
 to prevail.   The district court stated that the Commission presented
 evidence showing only that there was a close temporal connection between
 Reynolds' firing and his complaint of discrimination to establish
 pretext.  This characterization of the Commission's evidence is infirm.
 As the district court correctly noted, the record contained evidence
 concerning the timing of the protected conduct and the adverse action,
 and timing alone is not enough to sustain the jury's verdict on the
 retaliation claim.  See Kipp, 280 F.3d at 897 (a mere coincidence
 of timing can rarely be sufficient to establish a submissible case
 of retaliatory discharge); Sherman v. Runyon, 235 F.3d 406, 410 (8th
 Cir. 2000) (timing, by itself, is arguably sufficient to establish a
 prima facie case but is inadequate for pretext purposes).  However,
 although temporal proximity alone is not enough to establish pretext,
 it is still relevant evidence from which a jury could decide that the
 termination was retaliatory.  See Reeves, 530 U.S. at 143 (the trier
 of fact may still consider evidence establishing the plaintiff's prima
 facie case and inferences properly drawn therefrom . . . on the issue
 of whether the defendant's explanation is pretextual) (quoting Texas
 Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)).  
 In this case, resolving all conflicts in favor of the Commission,
 the evidence showed that Reynolds was not terminated until after he
 complained of race discrimination, thereby establishing the requisite
 causal link between the protected conduct and the adverse action.
 First, contrary to the district court's suggestion, and testimony in
 the record, that Dickson fired Reynolds before he voiced his complaint
 of race discrimination at the January 6 meeting, see, e.g., JAMOL
 Order at 3-4, EA-217-218; Tr. II at 209, EA-75 (Miller), the record is
 incontrovertibly clear that Reynolds complained of race discrimination
 at the December 10 meeting, Tr. I at 142, EA-34 (Miller); Pl. Ex. 5,
 TEA1-14, that the possibility of his termination did not enter the
 picture until after that December meeting, and that Reynolds was not
 actually discharged until after the January 6 meeting.  Tr. II at 216,
 EA-77 (Miller); Pl. Ex. 6, TEA1-15.<13>  Hence, Reynolds' protected
 activity clearly preceded the adverse action taken against him and a
 reasonable jury was entitled to believe that there was a sufficiently
 close causal connection between Reynolds' complaint and his termination
 to infer that Kohler's termination of  Reynolds was retaliatory.
 Bassett v. City of Minneapolis, 211 F.3d 1097, 1105 (8th Cir. 2000)
 (finding a temporal connection between an EEOC charge and a negative
 evaluation sufficient to create an inference of retaliation).  Further,
 when the timing of Reynolds' discharge is evaluated in light of other
 evidence suggesting that the articulated reasons lacked credibility and
 that his complaint actually motivated the discharge decision, Sherman,
 235 F.3d at 410 (timing of discharge should be evaluated in light of
 other evidence or lack of evidence), the totality of the evidence,
 viewed in the light most favorable to the EEOC, was sufficient to
 sustain the jury's verdict. 

A.  The Complaint was a Motivating Factor in the Discharge Decision
 The record contained testimonial evidence from which a jury could have
 reasonably concluded that Reynolds' complaint of race discrimination was
 a motivating factor in Dickson's decision to terminate him.  See Cosgrove
 v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993) (retaliatory
 discharge in violation of Title VII occurs when "a retaliatory motive
 plays a part in [the discharge], . . . whether or not it was the sole
 cause . . . [or] when an employer is motivated by retaliatory animus,
 even if valid objective reasons for the discharge exist").  To begin
 with, Rebecca Miller testified that she did not contemplate  terminating
 Reynolds as a disciplinary action until after the December 10 meeting
 at which Reynolds first raised his complaint of racial discrimination.
 Tr. II at 216, EA-77.  Although Dickson was the actual decisionmaker,
 the jury could have believed that Miller's recommendation to terminate
 Reynolds was motivated by his race discrimination complaint given her
 abrupt reaction and refusal to investigate it, and that her retaliatory
 animus tainted her recommendation and ultimately influenced Dickson's
 discharge decision.  See Long v. Eastfield College, 88 F.3d 300, 307 (5th
 Cir. 1996) (if an official merely rubber stamped recommendations of the
 supervisors who possessed a retaliatory intent, the causal link between
 the employees' protected activities and their subsequent terminations
 would remain intact for purposes of a retaliatory discharge claim).   
 Next, both Davis and Brennan testified that, at the January 6 meeting,
 Dickson became noticeably upset after Reynolds stated that he was being
 singled out for not working his assigned schedule because of his race.
 Tr. II at 304, EA-138 (Davis); Tr. III at 416, EA-155 (Brennan).
 Significantly, Dickson himself admitted that Reynold's complaint
 of race discrimination upset him.  Tr. II at 240, EA-98.   In the
 Commission's view, this evidence combined with the temporal proximity of
 the discharge to the complaint could have permitted a reasonable jury
 to conclude that Reynolds' race discrimination complaint influenced
 the decision to discharge him and by itself is sufficient evidence of
 causation to support the jury's verdict and to preclude judgment as a
 matter of law.  Cf. Waters v. Churchill, 511 U.S. 661, 681-82 (1994)
 (genuine issue of fact as to whether employee's firing was actually
 based on disruptive speech, and thus not in violation of First Amendment
 rights, was presented by evidence that she was fired after criticizing
 cross-training policy, that she had previously criticized the program,
 that management had exhibited sensitivity about the criticism, and
 that supervisors were hostile to the employee); Lowery v. Hazelwood
 School Dist., 244 F.3d 654, 658 (8th Cir. 2001) (any credible evidence
 tending to establish that an employer acted adversely to an individual
 "on account of" his protected class will suffice to provide an inference
 of discrimination sufficient to avoid summary judgment; the necessary
 inference being that the adverse action was more likely than not based
 on a discriminatory criterion illegal under federal law). 

B.  Admission of Wrongdoing Was Not a Credible Reason for Dismissal
 Inasmuch as Dickson's hostile reaction following Reynolds' complaint
 is evidence sufficient to sustain the jury's finding of retaliation,
 it also controverts the district court's determination that Reynolds'
 admission of wrongdoing motivated his discharge.  See JAMOL Order at
 4, EA-218.  Indeed, although Reynolds readily admitted that he worked
 irregular hours, Dickson did not make an immediate decision to terminate
 him.  Further, the  absence of any statement regarding termination in
 Miller's notes of the January meeting, and Dickson's statement that he
 would consider the facts and . . . get back with Reynolds, despite
 Reynolds' admission and the company's so-called policy of terminating
 employees who cheat for first offenses, strongly suggest that other
 factors were being weighed in the disciplinary decision at the close
 of that meeting. Combined with other salient facts demonstrating that
 Reynolds' discrimination complaint could have been one of those factors,
 the delayed discipline undermines the district court's conclusion that
 Reynolds' admission of wrongdoing was the real reason that Reynolds was
 fired and supports the jury's conclusion that Reynolds' discrimination
 complaint ultimately led to his dismissal.  See JAMOL Order at 3, EA-217;
 Pl. Ex. 6, TEA1-15.  Had Reynolds' damaging admissions been the reason
 for his discharge, given Kohler's alleged policy on cheating, it is more
 likely that Dickson would have terminated Reynolds immediately after he
 admitted his wrongdoing rather than taking additional time to consider
 the facts and determine his discipline.   Thus, because a reasonable
 jury could have inferred from Dickson's inaction following Reynolds'
 admission of wrongdoing that his termination was more likely than not
 based on a discriminatory criterion illegal under federal law, Lowery,
 244 F.3d at 658, the district court erred in substituting its judgment
 for that of the factfinder.

 The court's erroneous conclusion that Reynolds' admission of wrongdoing
 was clearly the basis for his termination is also compromised by
 the fact that the district court heavily relied on Reynolds' alleged
 trial testimony that he had worked a modified shift for two years.
 JAMOL Order at 4, EA-218.  Notably, none of the participants in the
 decisionmaking process knew that information at the time the discharge
 decision was recommended or made.  Miller's notes of the December
 and January meetings do not mention any specific period of time that
 Reynolds admitted to clocking in and out early. See Pl. Ex. 5, TEA1-14
 (indicating that he had been doing it for a long time); Pl. Ex. 6,
 TEA1-15 (no mention of or questions about the length of time he had
 been working an unauthorized schedule).   Miller testified that she
 and Davis had only reviewed two months of Reynolds' timecards before
 the December and January meetings.  Tr. II at 156, 161, EA-44, 49.
 The termination document does not indicate the frequency or duration of
 the alleged violation.  Pl. Ex. 3, TEA1-12.   Hence, since those persons
 who participated in the decisionmaking process could not and did not
 know about the two-year nature of Reynolds' violations, the district
 court's conclusion that the longevity of Reynolds' clocking in and out
 early motivated the discharge decision is unsupported by the record
 and contrary to the law.  See McKennon v. Nashville Banner Publishing
 Co., 513 U.S. 352, 360 (1995) (evidence acquired after the time of
 an employment decision cannot have been the motive for the challenged
 decision). Accordingly, the court's reliance on this information, which
 surfaced during discovery,<14> confirms that the court inappropriately
 substituted its view of the facts for that of the jury in contravention
 of the deferential review standards for jury verdicts. 

C.  Inconsistent and Lax Enforcement of Company Policies Suggests
 the Proffered Reason was Pretextual

 In any event, even if it would have been a legitimate justification for
 the discharge, Reynolds' admission of wrongdoing does not undermine the
 Commission's proof  that the company disparately enforced its so-called
 company policies and thus that his violation of company policy was
 not the real reason he was terminated.  Cf. McDonald v. Santa Fe Trail
 Transp. Co., 427 U.S. 273, 283 (1976) (while an employer may determine
 that certain misconduct is grounds for termination, the standard must be
 "applied, alike to members of all races").  To begin with, documentary
 and testimonial evidence revealed that Kohler's enforcement of the
 company policies was lax and inconsistent.  Kohler maintains that it
 had a company rule that timecards be signed daily, Tr. II at 233, EA-91
 (J. Dickson); id. at 260, EA-107 (Davis), and that it was the violation
 of this rule, among others, that led Miller to meet with Reynolds.
 Tr. I at 147, EA-39 (Miller). Yet, foremen often did not enforce this
 policy, Tr. III at 434, EA-161 (Froud), and employees other than Reynolds
 often did not get their timecards signed.  See, e,g., Tr. II at 261-65,
 EA-108-112 (Davis); Pl. Ex. 14, TEA1-56-68; Pl. Ex. 20, TEA1-212-233;
 Def. Ex. 22, TEA2-234-294 (Senko's signed and unsigned timecards);
 Def. Ex. 24, TEA2-295-352 (Askins' signed and unsigned timecards)
 Def. Ex. 32, TEA2-369-401 (Bailey's unsigned timecards).   Further,
 Reynolds testified, and John Dickson corroborated, that at one point
 timecards only had to be signed if the employee had overtime.  Tr. II
 at 233, EA-91 (J.Dickson); Tr. III at 500, EA-189 (Reynolds).  
 More significantly, Kohler claimed that employees were required to work
 their assigned shifts, another violation by Reynolds that was partly
 the basis for his termination. Tr. II at 301-02, EA-136-137 (Davis);
 Pl. Ex. 3, TEA1-12.  However, HR manager Miller and foreman Froud
 testified that Kohler employees regularly came and left at different
 hours other than their established shift times and that management was
 aware of these variances.  Tr. II at 166-67, EA-51-52 (Miller); Tr. III
 at 430, EA-158 (Froud).  In addition, although Davis and other foremen
 testified that it was the foreman's duty to monitor his subordinates'
 work hours and to check their timecards to be sure they were working
 their assigned shift times, Tr. II at 233-34, EA-91-92 (Dickson);
 id. at 258, 260, EA-106-107 (Davis); Tr. III at 403-04, EA-148-149
 (Hulsey); id. at 433, 440, EA-160, 166 (Froud), it was clear that they
 did not enforce this rule either.  Indeed, even though Davis stated
 he arrived at work before 6 a.m.,Tr. II at 257, EA-105, he had no
 knowledge that Reynolds or any other employee had been clocking in
 at 6 a.m. and leaving early, Tr. II at 290 & 292, EA-126-127, until
 Reynolds was reported and employees' timecards were reviewed.  Id. at
 269, 280, EA-114, 120.  Despite Hulsey's report in the late summer that
 he observed Reynolds leaving the plant early, Davis did not mention
 the infraction to human resources until December.  Tr. II at 204-05,
 EA-72-73 (Miller); id. at 269, EA-114 (Davis); Tr. III at 406, EA-150
 (Hulsey).  Jeremy Askins, Michael Senko, and Howard Bailey, who were
 also under Davis's supervision, typically clocked in and out early
 and did not work their assigned shift times without permission even
 after Reynolds was terminated. Tr. II at 285-89, EA-121-125 (Davis);
 Pl. Ex. 16, TEA1-81-188 (Bailey's, Senko's and Askins' timecards).
 The clock hour schedule of Howard Bailey, a white employee who also
 worked the day shift, was so similar to Reynolds' times that it caused
 Dickson to question Reynolds as to whether he clocked in and out for
 Bailey, but did not inspire any questioning of Bailey.  Tr. II at 173-75,
 EA-55-57 (Miller).  Although Bailey testified that he was authorized to
 come to work early because there were parts for him to work on, Tr. IV at
 577, 579, EA-206, 208, the third shift foreman stated  that there were
 no exceptions to the 7 a.m. start time for the day shift and that his
 third-shift buffer did not regularly leave sinks for Bailey to start on.
 Tr. III at 434, 438, EA-161, 164 (Froud).  And, despite Reynolds' and
 Brennan's assertion that other employees were working unassigned hours,
 no employees' timecards except Bailey's were checked until after Reynolds
 was terminated, when Brennan informed Miller that Askins and Senko were
 clocking in and out early.  Tr. II at 179, EA-60 (Miller). Lastly, no
 aggressive efforts were taken to enforce the attendance rules except
 for a meeting with the foremen at which Dickson asked them merely to
 remind the employees to work their assigned shift hours.  Id. at 167,
 EA-52 (Miller).

 Finally, while Kohler permitted its employees who had met their
 production quota to relax in the breakroom, play horseshoes in the
 parking lot, sleep in their vehicles, or work overtime, evidence
 established that the employees' compliance with this privilege varied.
 For example, Reynolds testified that Bailey would clock in early and
 go to his truck and sleep during work hours.  Tr. III at 475, EA-182.
 He further testified that Senko and Askins often spent time in the
 breakroom with him, in their trucks, or visiting other employees after
 they clocked in at 6 a.m. Id. at 479, EA-185.  Third shift foreman Froud
 testified that he saw Howard Bailey and other first shift employees
 in the breakroom before they started work.  Id. at 435, EA-162.
 Bailey admitted that he hung out in the breakroom during work hours
 when he had no parts to run.  Tr. IV at 581, EA-209.  In that this
 evidence indicates Kohler exercised leniency with regard to the policy
 violations, a jury was entitled to believe that Reynolds' violations
 generally would not have led to any disciplinary action. 

D.  Inconsistency in Disciplinary Actions Strongly Indicates that the
Proffered Reason for Reynolds' Termination was a Pretext
  
 Equally important, there was substantial evidence to support the jury's
 belief that Reynolds would not have been terminated merely for violating
 company policies because the record reveals that few employees who
 violated company policies were disciplined and even fewer were actually
 terminated.  See Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th
 Cir.1994) ("[to be probative evidence of pretext, the misconduct of
 more leniently disciplined employees must be of 'comparable seriousness'
 "); Davenport v. Riverview Gardens School Dist., 30 F.3d 940, 945 (8th
 Cir.1994) (evidence that similarly situated white employees committed
 the same infractions and yet were not discharged is highly relevant to
 the issue of pretext); also see English v. Colo. Dep't of Corrections,
 248 F.3d 1002, 1009 (10th Cir. 2001) (a plaintiff can show pretext by
 submitting evidence that the company acted contrary to an unwritten
 policy or to company practice when it treated plaintiff differently
 from other similarly-situated employees who violated work rules
 of comparable seriousness); Hiatt v. Rockwell International Corp.,
 26 F.3d 761, 770 (7th Cir. 1994) (a plaintiff can show pretext by
 presenting evidence that employees outside the protected class were
 involved in disciplinary violations of comparable seriousness and were
 not discharged).   For example, Miller testified that many employees
 failed to work their assigned shift times but recalled giving only
 one employee a written warning.  Tr. II at 167, EA-52.  In addition,
 Askins, Senko and Bailey routinely clocked in and out early and did
 not work their assigned shift times without disciplinary action being
 taken even though these acts were considered serious offenses and the
 clock-in times appeared on the timecards, some of which were reviewed
 before and after Reynolds' discharge. Tr. II at 174, 181, EA-56, 62
 (Miller). In fact, documentary evidence established that Michael Senko
 clocked in and out early 62 times and Jeremy Askins also did so 56 times
 in contrast to Reynolds' 35 times and neither of them were terminated.
 Pl. Ex. 16, TEA1-81-188 (timecards of Senko, Askins, and Reynolds).
 Further, despite suspicion that Bailey and Reynolds may have punched each
 other's timecards in violation of company policy, Tr. II at 173, EA-55
 (Miller); Pl. Ex. 12 at 5, TEA1-31 (employee handbook), at Dickson's
 direction, Bailey was never questioned about clocking in and out for
 Reynolds even though Reynolds was asked if he clocked in for Bailey.
 Tr. II at 173-75, 181, EA-55-57, 62 (Miller).  Moreover, although Senko
 and Askins received verbal warnings after Reynolds was fired, Senko
 continued to violate the clock-in policy for several months and did not
 receive a written warning until September 3, 1998.  Pl. Ex. 9, TEA1-17
 (Senko's write-up); Tr. II at 292, EA-127 (Davis).  In like manner,
 Bailey also repeatedly violated the company's policy requiring that
 timecards be signed at least 18 times between July 7 and August 28,
 Tr. II at 265, EA-112 (Davis), but he was never disciplined for these
 infractions.   See Pl. Ex. 14, TEA1-56-68; Pl. Ex.20, TEA1-212-233;
 Def. Ex. 32, TEA2-369-401 (Bailey's unsigned timecards).   In addition,
 Bailey was never disciplined for sleeping in his truck during work hours
 when he had not met production even though such conduct was a violation
 of company policy warranting suspension without pay.   See Tr. I at 122,
 125, EA-21, 23 (Miller); Tr. III at 475-76, EA-182-183 (Reynolds).
 Next, even though Kohler claimed it strictly enforced its rule and
 uniformly terminated employees for the first offense of cheating on
 their time cards, Pl. Ex. 10 at 2, TEA1-19 (Kohler's position statement
 dated March 6, 1998); Tr. II at 230-32, EA-88-90 (Dickson), evidence
 revealed that Alan Dickson, son of Kohler's plant manager John Dickson,
 had been charged with clocking out early and being paid for time not
 worked, Pl. Ex. 13, TEA1-55 (A. Dickson's write-up dated May 16, 1995),
 but was not terminated.  Tr. II at 243, EA-99 (Dickson).  Instead,
 Alan Dickson was permitted to repay the money improperly received
 and warned that a second violation would result in termination, Id.;
 Pl. Ex. 13,TEA1-55<15> a remedy that was refused Reynolds when he offered
 to reimburse the company for his overpayments.  Tr. III at 416, EA-155
 (Brennan); id. at 480-81, EA-186-187 (Reynolds).   Hence, a jury could
 have reasonably concluded from Kohler's treatment of Dickson's violation
 that Kohler neither strictly enforce[d] nor uniformly terminate[d]
 employees for their first offense of cheating on the timecards.<16>
 See Pl. Exs. 1, 10 at 2-3, TEA1-1-11, 19-20.  

 Additionally, if the jury believed Reynolds' testimony that Bailey,
 Askins and Senko did not immediately go to work when they clocked in at
 6 a.m., Tr. III at 475, 479, EA-182, 185, and Froud's testimony that
 he saw Bailey in the breakroom at the beginning of his shift, id. at
 435, EA-162, given Bailey's admission that he hung out in the breakroom
 during work hours when he had no parts to work on, Tr. IV at 581, EA-209,
 the fact that their timecards showed they clocked out after eight hours
 on days they did not meet production would further justify the jury's
 conclusion that Kohler did not always terminate employees who cheated
 on their timecards.  See Tr. II at 292-300, EA-127-135 (Davis); Tr. IV
 at 578, EA-207 (Bailey); Pl. Ex. 18, TEA1-199-200 (Senko's timecards);
 Pl. Ex. 19, TEA1-201-211 (Askins' timecards); Def. Ex. 32, TEA2-368-401,
 Def. Ex. 33, TEA2-402-424 (Bailey's timecards).  Hence, evidence of
 Kohler's inconsistent application of its disciplinary policies was
 sufficient for the jury to have decided  that Kohler's defense was
 simply a pretext for retaliation. 

E. Reynolds' Unique Production Requirements and Work Assignments Suggests
His Infraction was Neither a Serious nor Terminable Offense

 Finally, despite Kohler's assertion that Reynolds was fired for
 improperly receiving eight hours of compensation for seven labor hours,
 and that this offense alone would have justified his dismissal, the jury
 could have decided that Reynolds' abbreviated work hours would not have
 led to his termination absent his complaint of discrimination because
 testimony in the record suggested that Reynolds' actual labor hours
 were not that significant.  For example, Kohler officials admitted that
 if Reynolds had met production, and only worked seven hours, he would
 have only received a written warning.  Tr. II at 202-203, EA-70-71
 (Miller); id. at 247, EA-103  (Dickson).<17>  Considering that Kohler
 knew that Reynolds regularly did not and could not meet production,
 Tr. II at 178-79,183, EA-59-60, 64 (Miller), and that his failure to do
 so was beyond his control, id. at 200-01, EA-68-69 (Miller); Tr. III at
 460-63, EA-173-176 (Reynolds), a reasonable jury could have believed that
 Reynolds' production rate was not the pivotal factor leading to his being
 fired rather than receiving a warning about his early departures.  Next,
 the fact that Reynolds routinely finished work before 2:30 p.m. four out
 of five days of the week, regularly did nothing for the last hour of his
 shift, and never was disciplined for it, Tr. III at 459-60, EA-172-173,
 and that Kohler did not require Reynolds to work eight hours even though
 he did not meet production between the December and January meetings, see
 Tr. III at 417, EA-156 (Brennan), a jury could have reasonably concluded
 that Reynolds' failure to work eight hours was not the real reason for
 his dismissal.  Thus, the jury was entitled to believe that Reynolds
 was not fired because he allegedly cheated the company out of pay.

F.  The Combined Evidence of Causation and Pretext is Sufficient to Bar
Judgment as a Matter of Law

 In sum, taking into consideration all of the variances, inconsistencies,
 and contradictions in the company's policies and enforcement efforts,
 a jury could have considered Kohler's alleged reliance on Reynolds'
 violation of such company policies as a basis for his discharge to be
 implausible. See Keathley v. Ameritech Corp., 187 F.3d 915, 922 (8th
 Cir. 1999) (testimony that employee never saw written policy on tardiness
 enforced by management is relevant to pretext issue); Sarsha v. Sears,
 Roebuck & Co. 3 F.3d 1035, 1040 (7th Cir. 1993)(when the existence of
 a rule or a uniform policy is in doubt, it cannot serve as a reason
 for terminating an employee).  The record shows that management,
 the foremen and the employees routinely disregarded company policies
 governing shift assignments, clock-in schedules, and timecards; hence,
 a reasonable jury could have disbelieved Kohler's assertion that it
 actually considered violations of these policies to be serious, let
 alone terminable, offenses.  Moreover, the cumulative nature of this
 evidence could have led a jury to believe that Reynolds would not have
 been fired merely for claiming eight hours of pay and only working seven
 hours if he had not complained that he was being singled out because
 of his race.  That evidence along with Dickson's hostile reaction to
 Reynolds' discrimination complaint and the close proximity of Reynolds'
 discharge following his complaint is sufficient evidence of causation
 and pretext to sustain the jury's verdict on the retaliation claim.  
 In short, while Kohler arguably would have been justified in firing
 Reynolds for cheating the company of one hour of pay had it equitably
 and consistently enforced its company policies,<18> the jury's decision
 to believe that Reynolds' violation was a pretext for retaliation
 because he complained of racial discrimination cannot be said to be
 completely contrary to the evidence.  Accordingly, judgment as a matter
 of law on the retaliation claim was entirely inappropriate and should
 be reversed. 

CONCLUSION
 This case turned on whose story the jury believed.  Nichols v. American
 Nat. Ins. Co., 154 F.3d 875, 890 (8th Cir. 1998)(quoting Cummings
 v. Malone, 995 F.2d 817, 825 (8th Cir. 1993)).  A reasonable jury
 could have accepted Kohler's excuse for why it terminated Reynolds.
 However, after assessing the credibility of the witnesses and weighing
 the evidence, this one did not.  Hence, given the deference due jury
 verdicts that are supported by evidence, this Court should reverse the
 district court's judgment, reinstate the jury's verdict and $90,000
 damages award on the retaliation claim, and remand the case for further
 proceedings concerning equitable and other appropriate relief.

      Respectfully submitted,

      NICHOLAS M. INZEO   
      Acting Deputy General Counsel

      PHILIP B. SKLOVER
      Associate General Counsel
      
      CAROLYN L. WHEELER
      Assistant General Counsel

                                                       
      PAULA R. BRUNER 
      Attorney   
      Equal Employment Opportunity Commission
      1801 L Street, N.W.  Rm. 7044
      Washington, D.C.  20507  
     (202) 663-4731 (w); (202) 663-7090 (fax)

July 29, 2002

CERTIFICATE OF WORD PROCESSING PROGRAM
 Pursuant to 8th Cir. R. 28A(c) and Fed. R. App. Proc. 32(a)(7(C),
 the undersigned certifies that the brief complied with the type-volume
 limitations.

1.  Exclusive of the exempted portions in
Fed. R. App. Proc. 32(a)(7)(B)(iii), the brief contains 12,191 words.

2.  The brief was prepared in proportionally spaced typeface using Corel
Wordperfect 9, Times Roman, 14 point.

3.  If the Court so requests, the undersigned will provide an electronic
version of the brief and/or a copy of the work or line printout.

4.  The undersigned understands a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits
in Fed. R. App. Proc. 32(a)(7(C) may result in the court's striking the
brief and imposing sanctions against the person signing the brief.



      _________________________________

        Paula R. Bruner
                   
CERTIFICATE OF SERVICE

 This is to certify that on July 29, 2002, two copies  of the foregoing
 brief and a computer diskette along with the certificate of service was
 mailed first class, postage prepaid, to the following counsel of record:


    Steven W. Quattlebaum, Esq.
    E.B. Chip Chiles, IV, Esq.
    QUATTLEBAUM, GROOMS, TULL& BURROW,PLLC
    111 Center Street, Suite 1900 
    Little Rock, Arkansas 72201


                                                        
      PAULA R. BRUNER
      Attorney

      EQUAL EMPLOYMENT OPPORTUNITY
      COMMISSION
      1801 L Street, N.W.  Rm. 7044
      Washington, D.C.  20507
      (202) 663-4731
      
    
July 29, 2002   

ADDENDUM

1.  Jury Verdicts (2/23/01)

2.  District Court's Order on Judgment as a Matter of Law (3/27/02)

3.  District Court's Judgment as a Matter of Law (3/27/02)
1  The statement of facts is partially derived from testimony given
at the trial conducted from February 20 through February 23, 2001.
Citations to the transcripts of these proceedings will be to the volume
number and page number (e.g. Tr. I at 52) and then to the EEOC's appendix
and page number (e.g. EA-2), in which the trial testimony is compiled.

2  All exhibits admitted into evidence at trial are compiled in a
separate appendix.  Citation for these exhibits will be to specific
exhibit and page number, if relevant, and then to the trial exhibit
appendix (TEA), volume number, and the relevant page number(s)
associated with that exhibit (e.g. Pl. Ex. 5, TEA1-14).

3  Plant manager John Dickson also noted that there used to be a company
rule that permitted employees to leave the premises after they completed
their eight-hour quota, but he said that rule was off and on.  Tr. II
at 222, EA-83.

4 At one time, the plant had a policy that required the employee's clock
hours to be equivalent to his or her production.  Consequently, if an
employee produced 10 hours' worth of parts in an eight-hour period, he was
required to stay an extra two hours on the job to obtain his overtime pay.
Tr. I at 129, EA-26 (Miller); Tr. II at 222, EA-83 (Dickson).  That policy
was revoked after the plant manager's son, Alan Dickson, was disciplined,
required to repay the money, and threatened with termination if he
violated the rule again.  Tr. II at 243, EA-99 (Dickson).


5  Miller was also responsible for ensuring that employment discrimination
did not occur at the Kohler plant.  Tr. I at 137, EA-30.  According to
Miller, discrimination was not tolerated at Kohler and if anyone believed
they had been subjected to discrimination, that employee could notify
his foreman, Miller, the plant manager or any member of management and an
investigation would be conducted.  Id. at 137-38, EA-30-31.  She stated
that an investigation would include interviewing the putative victim.
Id. at 139, EA-32.

6  Richard May, the general foreman, supervised all foremen and employees.
In 1997-98, he worked on the first shift along with Charles Davis.
Tr. III at 456, EA-169 (Reynolds).  May and Davis had the authority
to reassign first shift employees to machines in different job
classifications.  Id. at 465, 470, EA-178, 180 (Reynolds).

7  In contrast, Bailey testified that in 1997, he was scheduled
to begin the first shift at 6 a.m.  Tr. IV at 577, EA-206 (Bailey).
He claimed that he always went directly to work after he clocked in and
only went to sleep in his truck or to the breakroom after he had met his
production quota.  Id. at 577-78, EA-206-207.  Bailey also stated that
third shift would try to leave 30 sinks for him to begin work on and that
once he finished those, the first shift would have prepared more sinks
for him to sand.  Id. at 579, EA-208.  He admitted, however, that if
there were no sinks to run during the day, he would go to the breakroom.
Id. at 581, EA-209.

8  In rebuttal, Senko testified that he came in at 6 a.m. without
permission because there were always lots of parts for the sprayers to
work on.  Tr. III at 530-31, 536, EA-194-195, 200.  Senko and Askins also
testified that when they clocked in at 6 a.m., they always went directly
to work and did not sit in the breakroom or their trucks.    Id. at
532-33, EA-196-197 (Senko); id. at 540, 544, EA-201, 203 (Askins).  

9 Howard Bailey, a manual deck sander under Davis' supervision, also
did not get his time cards signed eighteen times between July 7 and
August 22, 1997, and Davis did not write him up. Pl. Ex. 14, TEA1-56-68
(Bailey's unsigned timecards); Tr. II at 261-65, EA-108-112 (Davis).
Other than Reynolds, Davis could not recall writing up any other employee
for failing to have his or her timecards signed.  Id. at 267, EA-113.

10  Davis denied using that epithet.  Tr. II at 308-09, EA-139-140.

11  The district court's assertion that Reynolds told Kohler officials
he had been working a modified schedule for two years is not supported by
the record.  Actually, the two-year duration of Reynolds' early work hours
was not known to Kohler at the time of its decision to fire Reynolds.
See infra at 33-34.

12  Notably, the language of the district court's order suggests that
the EEOC failed to establish even a prima facie case of retaliation.
JAMOL Order at 4-5, EA-218-219.  However, once a trial has been held,
the issue of whether the plaintiff met its prima facie case is moot and
the ultimate  question is whether discrimination actually occurred. See
Kovacevich v. Kent State Univ., 224 F.3d 806, 825 (6th Cir. 2000) (after a
trial on the merits, a court should not focus on the elements of the prima
facie case but should assess the ultimate question of discrimination);
EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.1997) (noting
that "a prima facie case is defined as 'sufficient evidence ... to get
plaintiff past a motion for directed verdict in a jury case ...; it is
the evidence necessary to require defendant to proceed with his case'
") (internal quotation omitted).


13  Even if Dickson, as the decisionmaker, was not aware that Reynolds
had initially registered his discrimination complaint at the December 10
meeting, his decision to consider the facts and get back with Reynolds
following the January 6 meeting at which Reynolds re-registered his
discrimination complaint still supports the jury's belief that the
discharge followed and thus was motivated by the protected conduct.
Thus, the fact that the district court reached a contrary conclusion
evidences its misapplication of the rule governing judgment as a matter
of law because the court failed to disregard all evidence favorable to the
moving party that the jury was not required to believe and failed to draw
all reasonable inferences in favor of the EEOC.  Reeves, 530 U.S. at 151;
Duty v. Norton-Alcoa Proppants, 2002 WL 1312197; Yates, 267 F.3d at 801.

14  The record reflects that Reynolds' first mention that he had been
working a modified schedule for two years occurred during his deposition
on May 13, 2000, well after his termination in January 1998.  See R.24,
Ex. A at 32, EA-11 (Reynolds' deposition).

15 Superficially, Alan Dickson's violation seems distinguishable from
Reynolds'  violation since Dickson had put in eight hours on the clock
and exceeded his production quota, but since the company rule at that
time required employees to stay on the clock for a period equivalent to
their quota overage in order to receive overtime pay, Tr. II at 244,
EA-100 (J.Dickson), and Alan Dickson deliberately refused to stay on
the clock but accepted payment for the overtime production, Pl. Ex. 13,
TEA1-55 his receipt of money for time not worked is essentially the same
transgression for which Reynolds was terminated.  Indeed, even though
the plant manager argued that Alan Dickson had not cheated the company
out of pay, Tr. II at 245, EA-101, the fact remains that Kohler treated
Alan Dickson's conduct seriously, required him to reimburse it for
the overtime  pay he had received, and threatened him with termination
if he did it again.  Pl. Ex. 13, TEA1-55. 

16 Incidentally, in an attempt to establish that it uniformly terminates
employees who cheat the company in compensation, Kohler claimed to have
fired Sean Mathis, Bradley Johnson, Caleb Dixon, and Keith Evans for
cheating on their timecards in 1996.  Pl. Ex. 10 at 3, TEA1-20 (Kohler's
position statement).  This is evidence that the jury could have chosen
to disbelieve since the company's records indicate that of those four
employees, Caleb Dixon and Keith Evans actually resigned from Kohler,
Pl. Ex. 1 at 3-4, TEA1-3-4,and Kohler's bare assertion that those four
persons were terminated for cheating was not supported by any documentary
evidence or any other independent neutral source.  Compare Pl. Ex. 1,
TEA1-1 (employee roster) with Pl. Ex. 10, TEA1-18 (Kohler's position
statement). 

17  Miller actually testified that if Reynolds had met production,
the issue of his going to the breakroom for an hour at the beginning of
his shift would have been unorthodox and a policy violation, but it
would not have merited his termination because there would have been no
financial harm to the company.  Tr. II at 203, EA-71.

18  Cf. Jackson v. Missouri Pacific R.R., 803 F.2d 401, 406 (8th Cir.1986)
(finding no discrimination or pretext where the employer fired every
employee, regardless of race, who missed five consecutive days of work
and lied about the reason for the absences); see also Dunn v. Nordstrom,
Inc., 260 F.3d 778, 788 (7th Cir. 2001) (where Nordstrom's sudden decision
to implement its previously unenforced weapons policy was accomplished
in a non-discriminatory manner, plaintiff failed to establish a material
issue of fact with regard to whether he was terminated for discriminatory
reasons);  McGill v. Munoz, 203 F.3d 843, 848 (D.C.Cir.2000) (holding
that if the disciplinary action "complied with the written sick leave
policy ..., there is no evidence to support [the] contention that it
was mere pretext.").