United States Court of Appeals
FOR THE EIGHTH CIRCUIT

_____________ No. 96-2401

_____________ Janet Marie Hill, * * Plaintiff - Appellant, * Appeal from the United States * District Court for the
v. * Eastern District of Missouri. * St. Louis University, * * Defendant - Appellee, *

_____________ Submitted: January 15, 1997 Filed: September 4, 1997

_____________ Before BEAM, ROSS, and HANSEN, Circuit Judges.

_____________The H onorable Stephen N. Limbaugh, United States District Judge for th e 1 Eastern District of Missouri.
2 HANSEN, Circuit Judge.

Janet Marie Hill appeals the district court's grant of summary judgment to St. 1 Louis Universit

y on her employment discrimination claims arising under the Missouri Human R ights Act (MHRA), Mo. Ann. Stat. § 213.010 - .130 (West 1993 and Supp. 1996), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e - 2000e-17 (1994), and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 - 63 4 (1994). She also appeals the imposition of sanctions for her attorney's ex part e communication with a department chair at St. Louis University. We affirm.

I.
Viewed in the light most favorable to Hill, the record re veals the following facts.

Hi llis a former employee of the Parks College of St. Louis University (SLU) , where she served as the director of the Career Services department for many years

. When th e department underwent some reorganization in 1991, Hill's position a s "director" was reclassified as "coordinator" of the department. Although the change did not aff

ect her pay or her duties, Hill was assigned to new supervisors and he r budget was cut.

Hill' s performance evaluations declined significantly after the reorganization

. Accordin g to Hill, the new supervisors "overdocumented" her job performance an d reprimandedher for deficiencies that had no basis in fact. The documentation in the record indicates her performance was deemed deficient in five ways: "1) failure t o co[m]plete tasks and assignments; 2) complaints from prospective employers , administrators, students, faculty, and staff; 3) repeated cancellation of career3

de velopment

workshops; 4) failure to develop internship and cooperative educatio n opportunities; and 5) failure to timely post job vacancies from employ ers." (Appellant's App. at 6 44.) On December 1, 1993, Hill was informed she could either resign or be termina ted. She submitted her letter of resignation two days later, on December 3 , 1993.

On May 16, 1994, Hill went to the federal Equal Employment Opportunity Commiss ion(EEOC) office intending to file a complaint. There, she completed a n Intake Questionnaire, stating she had been forced to resign. An EEOC employee gave Hill a co mplaint form and told her to complete and return with it within about thre e weeks. Hill returned and formally fi led her verified complaint with the EEOC on June 9, 1994. This complai nt included, inter alia , claims of illegal discrimination under the ADEA, Title VII, and the MHRA. Litigation ensued.

Dur ing discovery, SLU learned that Hill's counsel had contacted Dr. Richar d Andres, Chair of the Aerospace Technology Department at the Parks College, about
aletter Dr. Andres and five other department chairs had signed concernin g dissatisfaction with Hill's performance. SLU's counsel sent Hill's counsel a lette r warning that this contact, absent permission from SLU or its counsel, would likel y violate Disciplinary Rule 7-104 of the Code of Professional Responsibilit y and Rule 4.2 of the Rules of Professional Conduct, which both prohibit direct, ex parte contact with
an adverse party that is represented by counsel. Despite this warning, Hill's counse l contacted and interviewed Dr. Andres, and obtained an affidavit from him. SLUfiled a motion for sanctions, seeking either a dismissal of the case o r disqualificat

ion of Hill's counsel from further participation in the case. On March 14, 1996, the district co urt granted the motion, but instead of dismissal or disqualification of counsel, the court struck Dr. Andres ' affidavit from the record as to SLU's summary judgment motion, declared the affidavit inadmissible at trial, forbade Hil l's counsel from calling Dr. Andres as a witness at trial unless he had been deposed prior to trial, and4

ordered Hill's counsel to pay all of SLU's attorney fees and costs in li tigating the motion for sanctions. The court did not quantify the attorney fees and costs in the order.

Inthe meantime, SLU had filed a motion for summary judgment on the merits of Hill's claims. The district court grant ed SLU's motion on April 19, 1996. The court found it lacked jurisdiction to consider the MHRA claims, because Hill had failed to file a formal complaint with the Missouri Commission on Human Rights within 18 0 days o f the alleged discriminatory acts. In addition, the district court found Hill' s disparate treatment claims under the ADEA and Title VII fail to raise a genuine issue of material fact as to whether SLU's proffered reason for terminating Hill (inadequate performance) was actually pretext for discrimination. On May 17, 1996, Hill filed a notice of appeal to this court.

II.

A. MHRA Claim

When a com plaint is not filed within 180 days, the Missouri Commission o n Human Rights lacks jurisdiction to conduct any proceedings and the claim is barred. See Mo. Ann. Stat. § 213.075; Southwestern Bell Tel. Co. v. Comm'n on Huma n Righ ts , 863 S.W.2d 682, 684 (Mo. Ct. App. 1993). To meet this jurisdictiona l
re quirement, a complaint must be "verified" and must set forth the particulars of th e claim . Mo. Ann. Stat. § 213.075(1). The Missouri Commission and the EEOC have a work-share agreement, and a complaint filed with the EEOC is considered to be filed with the Missouri Commission on the same date. Id. § 213.075(2). The district court correctly found it l acked jurisdiction to consider Hill's MHRA claims. Sh e resigned from her position at SLU on December 3, 1993, but did not file her ver ified complaint with the EEOC (and thus, constructively, with the Missouri Commission) until June 9, 1994. Because her complaint was filed after the 180-day5

statutory period had expired, the district court had no jurisdiction to consider he r MHRA claims.

Hill strenuously argues that equitable estoppel should apply because someon e working for the EEOC misinformed her, leading her to file her complaint too late for purposes of the MHRA. Because the Missouri court s have held that the 180-day filing deadline is jurisdictional, however, the doctrine of equitable estoppel is inapplicable. Hill's citation to numer

ous cases applying equitable estoppel and waiver in the ADEA and Title VII contexts is unhe lpful, because unlike the MHRA, the filing deadlines for those federal statutes are not jurisdictional. Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 392-93 (1982) (holding that the filing deadline under Title VII "is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of li mitations, is subject to waiver, estoppel, and equitable tolling"); Anderson v

. Unisys Corp. , 47 F.3d 302, 305-06 (8th Cir.) (stating that the filing deadline for a n ADEAclaim was not jurisdictional and therefore subject to equitable tolling an d estoppel), cert. denied , 116 S. Ct. 299 (1995). Moreover, the Int ake Questionnaire that Hill completed, though filed within the 180-day period, does not suffice as a complaint, because this preli minary document was not verified and did not set out the particulars of Hill's complaint. See Mo. Ann. Stat. § 213.075(1); Hodges v. Northwest Airlines, Inc

. , 990 F.2d 1030 (8th Cir. 1993). In short, whether or not someone in the EEO C mi sinformed Hill, her estoppel argument fails under the MHRA because an equitable doctri ne simply cannot overcome a jurisdictional bar. We therefore hold that Hill' s claimunder the MHRA is barred for failure to file a complaint with the Missouri Commission or the EEOC within 180 days of the alleged discriminatory act.

B. ADEA and Title VII Claims

In her ADEA and Title VII claims, Hill alleges that her supervisors treated her dis parately from her younger and male counterparts in that she was subjected t o "overdocumentation" (Ap pellant's Br. at 10); she received reprimands for deficienciesWe note this is not a reduction-in-force case, for which the prima facie elements 2 differ from those we have enumerated. See Hol ley v. Sanyo Mfg. Co. , 771 F.2d 1161, 1165-66 (8th Cir. 1985).
6 that had no basis in fact; her budget was cut; and she was reclassified with a les s prestigious title, rendering her less effective in her job. She contends this disparat e treatment led to her constructive discharge. The district court granted SLU's motio n for summary judgment on these claims.

We rev iew a grant of summary judgment de novo, using the same standards of Fed eral Rule of Evidence 56(c) as applied by the district court. Rothmeier v

. Investment Advisors, Inc. , 85 F.3 d 1328, 1331 (8th Cir. 1996). Summary judgment is app ropriate when the evidence, viewed in the light most favorable to the nonmovin g party, demonstrates that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Hutson v. McDonnell Douglas Corp. , 63 F.3d 771, 775 (8th Cir. 1995). A disputed fact is n ot material unless it may affect the outcome of the suit under governinglaw. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986).
This is a pretext case, to which we apply the burden-shiftin g framework set forth by the Supr eme Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 80 2 (1973), and its progeny. See St. Ma ry's Honor Center v. Hicks , 509 U.S. 502, 506-07 (199 3); Texas Dep't of Community Affairs v. Burdine , 450 U.S. 248, 252-53 (1981); Ryther v. Kare 11 , 108 F.3d 832, 836-38 (8th Cir.) (en banc), cert. denied , 1997 WL 181004 (U.S. June 27, 1 997). We apply this analysis in both the ADEA and the Title VII contexts. Id. at 836. Under the burden-shift ing framework, Hill must establish the elements of a prima facie case: (1 ) that she is within the protected class of people; (2) that she was qualified to perform her job; (3) th at her employment was terminated; and (4) af ter her dismissal, she was replaced by someone younger (ADEA) or of th e opposite gender (sex discrimination under Title VII ). Rothmeier , 85 F.3d at 1332 n.7. 2The constructive discharge doctrine allows an e mployee who has resigned from 3
aposition to bring a wrongful discharge claim when the employee can prove that the employe r intentionally created a work environment so intolerable that the employe e was "essentially forced to leave the employment." Bradford v. Norfolk S outhern Corp. , 54 F.3d 1 412, 1420 (8th Cir. 1995). In this case, SLU concedes it essentiall y terminated Hill.
7 If Hill establishes a prima facie c ase, a rebuttable presumption of discrimination arises and the burden of production shifts to SLU to articula te a legitimate, nondiscriminatory

reason fo r terminating her. Ryther , 108 F.3d at 836. Once SLU produces such a reason, th e presumption disappears and Hill bears the burden of proving that SLU' s proffere d reason was pretextual and the real reason for her discharge wa s discrimination. Id.

We agree with the district court's thorough and well-reasoned opinion, finding that Hill's ADEA and Title VII claims fail as a matter of law. Assum ing, arguendo, that Hill established a pr

ima facie case, and this is no small assumption on these facts, she did no t adduce evidence raising a genuine issue as to whether SLU's proffere d legitimate reason

for terminating Hill -- her poor work performance -- was pretextual. Moreove r, the only evidence even remotely probative of a prohibited discriminatory intent is a statement Hill's supervisor made a week after Hill resigned, noting that he wanted to hire someone new to bring "fresh blood" to the position. This obtus e commentis simply not sufficient to give rise to an inference of discrimination base d upon either age or gender.

Hill claims the district court erred in construing her claim as a wrongfu l discharge claim, rather than a constru ctive discharge. This alleged error is immaterial, because the fighting issue is not whether there was an adverse employment action, that is, whether she was actually or constructively discharged. Instead, this case turns on 3 whether Hill adduced evidence supporting an inference that SLU's proffered reasons for discharging her (either actually or constructively) were false and that SLU in fact8

based it s decision upon her age or gender. She failed to create any genuine issue o f material fact on those questions. Hill points to what she deems are numerous factual errors by the district court. For example, she complains that the district court misst ated the facts when it noted that SLU's reasons for terminating Hill "included but we re not limited to" five areas of poor performanc e, (Appellant's App. at 644), because the record indicates only the fiv e areas, not any mo re. We do not see how this argument furthers her case. As to Hill's claims of "overdocumentation," fa ilure to inform her of what was expected of her, and reprim ands for alleged job deficiencies, these claims appear to attack SLU's business practices and do not evidence a disc riminatory animus based upon age or gender. Her cl aims of falsified job performance evaluations are unsupported allegations no t
com petent

to defeat summary judgment. Given the district court's thorough analysi s of Hill' s claims, we simply state that we have carefully reviewed this record an d conclude, as did the district court, that the facts of this case do not support a reasonable inference of sex or age discrimination.

We re mind Hill that the ADEA and Title VII are not meant to transform "at will " employment

into perpetual employment where equal treatment is guaranteed to al l employees and termination is legal only "for cause." Nor do these statutes entitl e court s to "sit as super-personnel departments," second-guessing the wisdom o f businesses' personne l decisions. Hutson , 63 F.3d at 781. Rather, these statutes serve the narr ow purpose of prohibiting discrimination based on certain, discree t classifications such as age, gender, or race. These st atutes do not prohibit employment decisions based upon poor job performance, erroneous evaluations, personal conflicts between employees, or even unsound business practices. Because Hill's evidence does not rai se an inference of prohibited discriminatory intent under either the ADEA o r Title VII, her causes of action for disparate treatment must fail.9

C. Attorney Sanctions
Finally, Hill contends the district court erred in imposing sanctions for he r counsel 's violation of Rule 4.2 of the Model Rules of Professional Conduct an d Disciplinary Rule 7-104(A)(1). SLU responds that the issue is not properly before this court, because Hill did not file her notice of appeal within 30 days of the sanction s order and, alternative ly, that the district court did not abuse its discretion by imposing the sanctions.
We must first address SLU's jurisdictional argument. We begin with the general proposition that a "sanction[s order] against prese nt counsel to a party [is] immediately appealable as a final decision under [28 U.S.C.] § 1291 and under the Cohen collateral order doctrine." Crookham v. Crookham , 914 F.2d 1027, 1029 n.4 (8th Cir. 1990 ) (internal quotations and citations omitted). Thus, as a general matter, a notice of appeal from a sanctions order must be filed within 30 days from the entry of the order. See Fed. R. App . P. 4(a)(1). "Timely filing is not merely a procedural requirement, but is mandatory

and jurisdictional." United States v. Fitzgerald , 109 F.3d 1339, 1342 (8th Cir. 1997) (internal quotations omitted).
Like other orders, however, a particular sanctions order may not be final in that it may leave something for the court to do besides execute the judgment. See Union Pacific R.R. v. United Transp. Union , 3 F.3d 255, 258 (8th Cir. 1993) (citing Catlin v. UnitedStates , 324 U.S. 229, 233 (1945)), cert. denied , 510 U.S. 1072 (1994). With this princi ple in mind, we have held that a judgment awarding attorney fees for ba d faith dama ges, but not fixing the amount of the fees, is not a final, appealable order

. Maristuen v. National States Ins. Co. , 57 F.3d 673, 678-79 (8th Cir. 1995). Nor is a determinationof liability in contract normally final until controversial determinations of damages have been made. See St. Mary's Health Ctr. of Jefferson City v. Bowen , 821 F.2d 493, 497-98 (8th Cir. 1987) (noting that if the determination of damages i s "mechanical and uncontroversial," immediate appeal is allowed).10

In the instant case, the district court entered its sanctions order on March 14 , 1996, but did not quantify the amount of the sanctions. On April 19, 1996, the district court entered a judgment granting SLU's summary judgment motion, thus triggering the 30-day period for filing the notice of ap peal on the merits of her case. Fed. R. App. P. 4(a)(1); Fed. R. Civ. P. 58. Hill filed her n otice of appeal on May 17, 1996, from both the sanctions order and the g rant of summary judgment. The district court had not yet reduced the sanctions to a sum certain, however, and thus, we hold that the sanctions order was not yet final. Accord Discon, Inc. v. Nynex Co rp. , 4 F.3d 130, 132 (2d Cir. 1993) (holding sanctions order not final where the amount of sanctions had not yet been determined).

On Au gust 27, 1996, the court ordered payment of $1,921.85 for the attorne y fees owed under the sanctions order, rendering the sanctions order a final, appealable order. At that time, Hill's notice of appeal from the sanctions order became effective. Fed. R. App. P. 4(a)(2) ("A notice of appeal filed after the court announces a decision or order but befo re the entry of the judgment or order is treated as filed on the date of and after the entry."). Hill's notice of appeal from the sanctions order was therefor e then timely, and we c onsequently have jurisdiction to review her claim. We now turn to the merits of Hill's appeal from the sanctions. Ru le 4.2 of the Missouri Supreme Court Rules of Professional Conduct states: "In repres enting a client, a lawyer shall not communicate about the subject of th e representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." Missouri Supreme Court Rules, Rule 4.2 (1996); see also id. , Cod e Comparison (noting that Disciplinary Rule 7-107(A)(1) is substa ntially identical). Rule 4.2 is "meant `to prevent lawyers from taking advantage of uncounselled lay persons and to p reserve the integrity of the lawyer-client relationship.'" Graham v. Unite d States , 96 F.3d 446, 448 (9th Cir. 1996) (quoting the Model Rules o f Prof. Conduct 4.2 (1) cmt. (19 92)). Rule 4.2 protects not only individual parties but also organizational11

parties, such as SLU. The commentary to Rule 4.2 sets out three categories of people withwhom opposing counsel may not communicate when an organization is a party: (1) persons having managerial resp onsibility on behalf of the organization, (2) persons whose acts or omissions i n connection with the matter litigated may be imputed to the organization, and (3) persons whose statements may constitute an admis sion on the part of the organization. The Supreme Court of Missouri adopted this commentary and its three-category test in State ex rel Pitts v. Roberts , 857 S.W.2d 200, 202 (Mo. 1993) (en banc).

The distric t court held that Dr. Andres falls within the group of people Hill' s attorney was prohibited from contacting, be cause Dr. Andres' position as a department chairreq uires him to perform managerial duties. We agree with the district court' s
asses sment

and find no abuse of discretion in the court's imposition of sanctions fo r violating the ethical rules. Cooter & Gell v. Hartmarx Corp. , 49 6 U.S. 384, 405 (1990) (standard of review).

Hill does not dispute the district court's conclusion that Dr. Andres ha d managerial resp onsibilities; instead, she contends that his responsibilities were totally unrelated to Hill's job and that even with these responsibilities, he functi oned essentially
as a faculty member not a manager. We disagree. Dr. Andres' manageria l responsibilitie s place him squarely within the first category of persons protected from communication by opposing attorneys. That he was no t Hill's supervisor is immaterial. Therefore, a

ny ex parte communication by Hill's counsel with Dr. Andres was a clear violation of the ethical rules, and the district court did not abuse its discretion i n imposing the sanctions it did.

III.
For the above reasons, we affirm the judgment of the district court.12

A true copy.

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