United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-2401

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Janet Marie Hill, *

*

Plaintiff - Appellant, * Appeal from the United States

* District Court for the

v. * Eastern District of Missouri.

*

St. Louis University, *

*

Defendant - Appellee, *

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Submitted: January 15, 1997

 Filed: September 4, 1997 

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Before BEAM, ROSS, and HANSEN, Circuit Judges.

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The Honorable Stephen N. Limbaugh, United States District Judge for the

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Eastern District of Missouri.

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HANSEN, Circuit Judge.

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

Louis University on her employment discrimination claims arising under the Missouri

Human Rights 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 - 634

(1994). She also appeals the imposition of sanctions for her attorney's ex parte

communication with a department chair at St. Louis University. We affirm.

I.

Viewed in the light most favorable to Hill, the record reveals the following facts.

Hill is 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 the department underwent some reorganization in 1991, Hill's position as

"director" was reclassified as "coordinator" of the department. Although the change

did not affect her pay or her duties, Hill was assigned to new supervisors and her

budget was cut.

Hill's performance evaluations declined significantly after the reorganization.

According to Hill, the new supervisors "overdocumented" her job performance and

reprimanded her for deficiencies that had no basis in fact. The documentation in the

record indicates her performance was deemed deficient in five ways: "1) failure to

co[m]plete tasks and assignments; 2) complaints from prospective employers,

administrators, students, faculty, and staff; 3) repeated cancellation of career 
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development workshops; 4) failure to develop internship and cooperative education

opportunities; and 5) failure to timely post job vacancies from employers." (Appellant's

App. at 644.) On December 1, 1993, Hill was informed she could either resign or be

terminated. 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

Commission (EEOC) office intending to file a complaint. There, she completed an

Intake Questionnaire, stating she had been forced to resign. An EEOC employee gave

Hill a complaint form and told her to complete and return with it within about three

weeks. Hill returned and formally filed her verified complaint with the EEOC on June

9, 1994. This complaint included, inter alia, claims of illegal discrimination under the

ADEA, Title VII, and the MHRA. Litigation ensued. 

During discovery, SLU learned that Hill's counsel had contacted Dr. Richard

Andres, Chair of the Aerospace Technology Department at the Parks College, about

a letter Dr. Andres and five other department chairs had signed concerning

dissatisfaction with Hill's performance. SLU's counsel sent Hill's counsel a letter

warning that this contact, absent permission from SLU or its counsel, would likely

violate Disciplinary Rule 7-104 of the Code of Professional Responsibility 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 counsel

contacted and interviewed Dr. Andres, and obtained an affidavit from him.

SLU filed a motion for sanctions, seeking either a dismissal of the case or

disqualification of Hill's counsel from further participation in the case. On March 14,

1996, the district court 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 Hill's counsel from

calling Dr. Andres as a witness at trial unless he had been deposed prior to trial, and
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ordered Hill's counsel to pay all of SLU's attorney fees and costs in litigating the motion

for sanctions. The court did not quantify the attorney fees and costs in the order.

In the meantime, SLU had filed a motion for summary judgment on the merits

of Hill's claims. The district court granted 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 180

days of 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 complaint is not filed within 180 days, the Missouri Commission on

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 Human

Rights, 863 S.W.2d 682, 684 (Mo. Ct. App. 1993). To meet this jurisdictional

requirement, a complaint must be "verified" and must set forth the particulars of the

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 lacked jurisdiction to consider Hill's MHRA

claims. She resigned from her position at SLU on December 3, 1993, but did not file

her verified complaint with the EEOC (and thus, constructively, with the Missouri

Commission) until June 9, 1994. Because her complaint was filed after the 180-day 
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statutory period had expired, the district court had no jurisdiction to consider her

MHRA claims. 

Hill strenuously argues that equitable estoppel should apply because someone

working for the EEOC misinformed her, leading her to file her complaint too late for

purposes of the MHRA. Because the Missouri courts have held that the 180-day filing

deadline is jurisdictional, however, the doctrine of equitable estoppel is inapplicable.

Hill's citation to numerous cases applying equitable estoppel and waiver in the ADEA

and Title VII contexts is unhelpful, 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 limitations, 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 an

ADEA claim was not jurisdictional and therefore subject to equitable tolling and

estoppel), cert. denied, 116 S. Ct. 299 (1995). Moreover, the Intake Questionnaire that

Hill completed, though filed within the 180-day period, does not suffice as a complaint,

because this preliminary 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 EEOC

misinformed Hill, her estoppel argument fails under the MHRA because an equitable

doctrine simply cannot overcome a jurisdictional bar. We therefore hold that Hill's

claim under 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

disparately from her younger and male counterparts in that she was subjected to

"overdocumentation" (Appellant's Br. at 10); she received reprimands for deficiencies
We note this is not a reduction-in-force case, for which the prima facie elements 2

differ from those we have enumerated. See Holley v. Sanyo Mfg. Co., 771 F.2d 1161,

1165-66 (8th Cir. 1985).

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that had no basis in fact; her budget was cut; and she was reclassified with a less

prestigious title, rendering her less effective in her job. She contends this disparate

treatment led to her constructive discharge. The district court granted SLU's motion

for summary judgment on these claims.

We review a grant of summary judgment de novo, using the same standards of

Federal Rule of Evidence 56(c) as applied by the district court. Rothmeier v.

Investment Advisors, Inc., 85 F.3d 1328, 1331 (8th Cir. 1996). Summary judgment is

appropriate when the evidence, viewed in the light most favorable to the nonmoving

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 not material unless

it may affect the outcome of the suit under governing law. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). 

This is a pretext case, to which we apply the burden-shifting framework set forth

by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973), and its progeny. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07

(1993); 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, 1997). We apply this analysis in both the ADEA and the Title

VII contexts. Id. at 836. Under the burden-shifting 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) that her employment was terminated; and

(4) after her dismissal, she was replaced by someone younger (ADEA) or of the

opposite gender (sex discrimination under Title VII). Rothmeier, 85 F.3d at 1332 n.7.2
The constructive discharge doctrine allows an employee who has resigned from 3

a position to bring a wrongful discharge claim when the employee can prove that the

employer intentionally created a work environment so intolerable that the employee

was "essentially forced to leave the employment." Bradford v. Norfolk Southern Corp.,

54 F.3d 1412, 1420 (8th Cir. 1995). In this case, SLU concedes it essentially

terminated Hill.

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If Hill establishes a prima facie case, a rebuttable presumption of discrimination arises

and the burden of production shifts to SLU to articulate a legitimate, nondiscriminatory

reason for terminating her. Ryther, 108 F.3d at 836. Once SLU produces such a

reason, the presumption disappears and Hill bears the burden of proving that SLU's

proffered reason was pretextual and the real reason for her discharge was

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. Assuming, arguendo, that

Hill established a prima facie case, and this is no small assumption on these facts, she

did not adduce evidence raising a genuine issue as to whether SLU's proffered

legitimate reason for terminating Hill -- her poor work performance -- was pretextual.

Moreover, 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 obtuse

comment is simply not sufficient to give rise to an inference of discrimination based

upon either age or gender. 

Hill claims the district court erred in construing her claim as a wrongful

discharge claim, rather than a constructive 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 fact
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based its decision upon her age or gender. She failed to create any genuine issue of

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 misstated the facts when it noted that

SLU's reasons for terminating Hill "included but were not limited to" five areas of poor

performance, (Appellant's App. at 644), because the record indicates only the five

areas, not any more. We do not see how this argument furthers her case. As to Hill's

claims of "overdocumentation," failure to inform her of what was expected of her, and

reprimands for alleged job deficiencies, these claims appear to attack SLU's business

practices and do not evidence a discriminatory animus based upon age or gender. Her

claims of falsified job performance evaluations are unsupported allegations not

competent to defeat summary judgment. Given the district court's thorough analysis

of Hill's claims, we simply state that we have carefully reviewed this record and

conclude, as did the district court, that the facts of this case do not support a reasonable

inference of sex or age discrimination.

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

employment into perpetual employment where equal treatment is guaranteed to all

employees and termination is legal only "for cause." Nor do these statutes entitle

courts to "sit as super-personnel departments," second-guessing the wisdom of

businesses' personnel decisions. Hutson, 63 F.3d at 781. Rather, these statutes serve

the narrow purpose of prohibiting discrimination based on certain, discreet

classifications such as age, gender, or race. These statutes 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 raise an inference of prohibited discriminatory intent under either the ADEA or

Title VII, her causes of action for disparate treatment must fail.
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C. Attorney Sanctions

Finally, Hill contends the district court erred in imposing sanctions for her

counsel's violation of Rule 4.2 of the Model Rules of Professional Conduct and

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 sanctions

order and, alternatively, 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 present 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.

United States, 324 U.S. 229, 233 (1945)), cert. denied, 510 U.S. 1072 (1994). With

this principle in mind, we have held that a judgment awarding attorney fees for bad

faith damages, 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

determination of 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 is

"mechanical and uncontroversial," immediate appeal is allowed).
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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 appeal on the merits of her case. Fed. R. App. P.

4(a)(1); Fed. R. Civ. P. 58. Hill filed her notice of appeal on May 17, 1996, from both

the sanctions order and the grant 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 Corp., 4 F.3d 130, 132 (2d Cir.

1993) (holding sanctions order not final where the amount of sanctions had not yet been

determined). 

On August 27, 1996, the court ordered payment of $1,921.85 for the attorney

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 before 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 therefore

then timely, and we consequently have jurisdiction to review her claim. We now turn

to the merits of Hill's appeal from the sanctions.

Rule 4.2 of the Missouri Supreme Court Rules of Professional Conduct states:

"In representing a client, a lawyer shall not communicate about the subject of the

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., Code

Comparison (noting that Disciplinary Rule 7-107(A)(1) is substantially identical). Rule

4.2 is "meant `to prevent lawyers from taking advantage of uncounselled lay persons

and to preserve the integrity of the lawyer-client relationship.'" Graham v. United

States, 96 F.3d 446, 448 (9th Cir. 1996) (quoting the Model Rules of Prof. Conduct 4.2

(1) cmt. (1992)). Rule 4.2 protects not only individual parties but also organizational
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parties, such as SLU. The commentary to Rule 4.2 sets out three categories of people

with whom opposing counsel may not communicate when an organization is a party:

(1) persons having managerial responsibility on behalf of the organization, (2) persons

whose acts or omissions in connection with the matter litigated may be imputed to the

organization, and (3) persons whose statements may constitute an admission 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 district court held that Dr. Andres falls within the group of people Hill's

attorney was prohibited from contacting, because Dr. Andres' position as a department

chair requires him to perform managerial duties. We agree with the district court's

assessment and find no abuse of discretion in the court's imposition of sanctions for

violating the ethical rules. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)

(standard of review). 

Hill does not dispute the district court's conclusion that Dr. Andres had

managerial responsibilities; instead, she contends that his responsibilities were totally

unrelated to Hill's job and that even with these responsibilities, he functioned essentially

as a faculty member not a manager. We disagree. Dr. Andres' managerial

responsibilities place him squarely within the first category of persons protected from

communication by opposing attorneys. That he was not Hill's supervisor is immaterial.

Therefore, any 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 in

imposing the sanctions it did. 

 

III.

For the above reasons, we affirm the judgment of the district court.
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A true copy.

Attest:

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