The Honorable Gary A. Fenner, United States District Judge for the Wester n 1 District of Missouri, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-4192

___________ Fred L. Sims, * * Appellant, * * v. * Appeal from the United States District * Court for the

Southern District of Iowa. Sauer-Sundstrand Co., * * Appellee. *

___________ Submitted: June 9, 1997 Filed: December 1, 1997

___________ Before LOKEN and ROSS, Circuit Judges, and FENNER, District Judge. 1

___________ ROSS, Circuit Judge. Appellant Fred Sims, age 54, was laid off by appellee Sauer-Sundstran d Company (Sauer-Sundstrand) after more than 27 years of service. S ims filed suit under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq . , claiming that Sauer-Su ndstrand (1) discriminatorily selected him for layoff because of his age, and (2) subsequently refused to rehire him in retaliation for the charge o f discrimination Sims filed as a result of his layoff. The jury found for Sauer-SundstrandThe Honorable Harold D. Vietor, United States District Judge for the Southern 2 District of Iowa. -2- on the age discr

imination claim and for Sims on the retaliatory refusal to rehire claim. However, the district court reversed the jury’s finding with respect to the retaliation 2 claim by granting Sauer-Sun dstrand’s motion for judgment as a matter of law, Fed. R. Civ. P. 50, and entered judgment for Sauer-Sundstrand on all claims. The only issue
onappeal is whether the district court erred in granting the motion for judgment as a matter of law in favor of Sauer-Sundstrand on the retaliation charge.

I. On March 22, 1965, at the age of 27, Sims wa s hired by Sauer-Sundstrand at its LaSalle, Illinois facility as an hourly-paid emplo yee. After various promotions, he was elevated to the position of process engineer in 1982 and senior process engineer i n 1988 or 1989. In late June, 1986, he was laid off in what was termed a permanen t reduction in force, but he was subsequently recalled in less than a month. Six year s later, in J une of 1992, Sims was laid off a second time in what was again called a permanent reduction in force , which significantly reduced the number of employees at the L aSalle facility. At the time of the June, 1992 layoff, Sims was 54 years of age

. Due to his years of service, if he had been working for Sauer-Sundstrand on his 55th birt hday he would have vested in lifetime medical benefits. Because of this medica l benefit, Si ms was interested in being recalled to work. At the time of the layoff , co mpany officials assured Sims that he would be considered for recall when jo b openings for which he was qualified became available, and accordingly Sims kept some contact with Sauer-Sundstrand’s human resource department. Sims filed a charge of discrimination with the EEOC on March 18, 1993, claiming t hat his selection for layoff had been for age-related reasons. He filed his lawsuit with respect to that claim o n March 24, 1994.-3-

InMarch, 1994, almost two years after Sims’s layoff and one year after th e EEOC claim was filed, Rick Brimeyer, manager of manufacturing at the LaSall e facility, interviewed Denis Bedingfield for an open position for process engineer at the Ames facility. Sims claims he neither knew about nor was he called to interview for this position. Bedingfield, like Sims, became a senior process engineer without having a college degree.
On April 4 , 1995, nearly three years after his layoff, Sims sent a letter an d attached a résumé to Gregory Wuhs, Sauer-Sundstrand’s vice president o f admin istration in Ames, Iowa, requesting consideration “for any job openings i n pr ocessing, supervision, tooling and trouble-shooting.” On May 15, 1995, Dori s Johnson, manager of human resources for the Ames facilit y, notified Sims by letter that he would not be invit

ed for an interview because he did not meet the requirements for any of the current open positions at the Ames, Iowa and Freeport, Illinois facilities , more particularly he did not hold a technical degree nor did he have heavy exposure to compu ter-directed machining or recent experience regarding current manufacturin g processes.
On Dec ember 12, 1995, Sims filed a new charge with the EEOC, this tim e claiming that Sauer-Sund strand’s refusal to consider him for open positions amounted to re taliation for his prior 1993 EEOC charge and his then pending lawsuit

. Subsequently, he was granted leave to amend his lawsuit to add the claim of retaliation. Sims liste d two charges of claimed retaliation, first that the award of the proces s engineer p osition at the Ames facility to Denis Bedingfield on May 2, 1994, was i n retaliation for his initial EEOC claim, and sec ond, that he was denied consideration for posi tions following the submission of his résumé on April 4, 1995, for retaliatory reasons. Nea

r the end of the trial, after noting concern that the Bedingfield issue was time b arred because no EEOC charge had been filed with regard to that claim, Sim s withdrew the Bedin gfield claim, leaving Sauer-Sundstrand’s response to Sims’s letter-4-

and résumé of April 4, 1995, the only instance of claimed retaliation submitted to the jury.

II. In reviewing a motion for judg ment as a matter of law, a court must analyze the
ev idence in the light most favorable to the prevailing party, resolve all conflicts o f evid ence in favor of that party, give the prevailing party the benefit of all favorabl e inferences which may reason ably be drawn from the facts, and deny the motion, if, in light of the foregoing, re asonable jurors could differ as to the conclusion that could be drawn from the evidence. Summit v . S-B Power Tool , 121 F.3d 416, 420-21 (8th Cir. 1997). On review the matter is considered de nov o on the legal question as to whether the d istrict court properly concluded that there was no legally sufficient evidence t o support the jury’s verdict. To establish a prima facie case of retaliation, a plaintiff must show participation in a prot ected activity, subsequent adverse action by the employer, and a causa l connection between the two. Evans v. Kansas City, Mo. Sc hool Dist. , 65 F.3d 98, 100 (8th Cir. 1995), cert. denied , 116 S. Ct. 1319 (1996) . The distri ct court granted SauerSun dstrand’s motion for judgment as a matter of law, concluding that the evidenc e pres entedwas not sufficient to permit a reasonable jury to find a causal connectio n between Sims’s age disc rimination complaint and the much later adverse employment
ac tion. We agree that Sims failed to establish the necessary connection between hi s EEOC c laim and Sauer-Sundstrand’s subsequent failure to consider Sims for ope n positions.
The ad verse employment action, namely the failure of Sauer-Sundstrand t o consider Sims fo r available positions following the submission of his résumé on April 4, 1995, occurred more than two years after the filing of the EEO C complaint and more than one year after filing this lawsuit. We have held that “[t]he passage of time-5-

between events does not by itself foreclose a claim of retaliation; rather, it weakens the inference of retaliation that arises when a retaliatory act occurs shortly after a complaint.” Smith v. St. Louis Univ. , 109 F.3d 1261, 1266 (8th Cir. 1997). Doris Johnson, the manager of human resources, stated in her letter in response to Sims’s rés umé that he would not be considered for the two open positions because he did not hold the requisite degree for the positions, nor did he possess the alternative recent experience. Sims’s evidence at trial to suppo rt the element of causal connection consisted of his claim that other persons, including himself, had previously been hired for engineer positions without having a degree, and that therefore the new requirement of a degree for subsequent open positions was imposed in order to disqualify him as a candidate in retaliation for his EEOC complaint. Also in connection with this claim, Sim s argues the causal element is established because Sauer-Sundstrand refused t o consider his 27 years of employment with the company as an al ternative to the required degree.
The simple fact of not being hired or asked to interview for a position after an EEOC filing is, by itself, insuffici ent to prove causal connection, particularly when the inc ident occurred more than two years after the protected activity. Cf. Feltmann v

. Sieben , 108 F.3d 970, 977 (8th Cir. 1997). Further, proof of causal connection in this case fails where no showing was made that persons without a degree were eventually hiredfor the two open positions at the Ames and Freeport facilities, or at any similar position following the imposition of the degree requirement. Finally, the addition of
a degree requirement for the open positions at the Ames and Freeport facilities in the
are aof manufacturing engineering does not, by itself, support a claim of causa l
co nnectionwhere Sims failed to produce evidence that his experience as a proces s engineer at th e LaSalle facility three years earlier was sufficient to qualify him for the positions in manufacturing engineer ing open at the Ames and Freeport facilities. With these failures of proof, Sims was unable satisfy his burden of proving a causal-6-

connectio n between his discrimination complaint and Sauer-Sundstrand’s subsequent failure to consider him for open positions which occurred after the EEOC filing.

Even if we were to conclude that Sims satisfied his burden of establishing a prima fa cie case of discrimination, he would nevertheless fail because Sauer

Sundstrand set forth legitimate, non-discriminatory reasons for its imposition of a degree requirement for the Ames and Freeport facilities, specifically that the assembly processing conducted at those facilities involved a significant increased level o f complex ity than the machine processing conducted at the LaSalle facility, thu s explaining the need for a degree or an advanced level of expertise. Si ms failed to prove that these articulated reasons were mere pretext for discrimination. Sauer-Sundstrand offer ed evidence showing that the engineering work performed at the Ames an d Freeport faci lities required more complex engineering skills. Sims failed to rebut this testimony with any evidence regarding the actual duties of the open positions, wha t qualifications competing applicants posses sed, or whether those persons actually hired for the positions were less qualified. In fact, there was no evidence presented that the pos itions were ever filled. Sims’s only evidence that he had the requisite skills t o perform the duties of the open positions at Ames or F reeport was the testimony of Vito Straznickas, who testified that Sims had do ne and could do the work that was required of a process engineer at the Ame s facility. However, Straznickas also testified that he ha d not visited the Ames facility since 1989, six years prior to the date of Sims’ s applicatio n

and long before the plant had introduced its current assembly processes

. Evenwhen viewed in the light most favorable to Sims, this evidence was inadequate to show that Sauer-Sundstrand’s stated reasons for requiring a degree for the ope n positions was pretext for discrimination. Th erefore, we conclude that the district court properly granted judgment as a matter of law in favor of Sauer-Sundstrand. The judgment of the district court is affirmed.-7-

A true copy.

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