United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-4177

_____________ Frederick Douglas Kneibert, *
* Plaintiff - Appellant, * * Appeal from the United States
v. * District Court for the * Western District of Missouri. Thomson Newspapers, Michigan * Inc., doing business as * The Sedalia Democrat; Randall * Shields; Freedom Communications, * Inc.; Freedom Newspapers, Inc., *
* Defendants - Appellees. *

_____________ Submitted: June 12, 1997 Filed: November 6, 1997

_____________ Bef ore BOWMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD , Circuit Judges.

_____________ FLOYD R. GIBSON, Circuit Judge. Appella nt Frederick Douglas Kneibert filed this lawsuit against his forme r
em ployers, appellees Thomson Newspapers, Inc. ("Thomson"), Freedo m Commun ications, Inc., and Freedom Newspapers, Inc. ("Freedom"), as well as hi s former supervisor Randall Shields, in his individual capacity, claiming that Thomson and Shields demoted him and Freedom later fired him because of his age in violationKneib ert does not appeal the summary judgment entered in favor of Shields ; 1 thus, the opinion does not address this issue.
-2- of the Age Discrimination in Employmen t Act ("ADEA"), 29 U.S.C. § 623(a) (1994), and the Missouri Human Rights Act ("MHRA"), Mo. Rev. Stat. § 213.055.1(1)(a ) (1994). Also, Kneibert alleged that Thomson and Shields retaliated against him fo r filing a charge of discrimination by reprimanding him and threatening termination, and Fre edom retaliated against him because of his age discrimination lawsuit pendin g again sthis former employer Thomson by terminating him, both in violation of th e ADEA, § 623(d) (1994), and the MHRA, § 213.070(2) (1994).
On appellees' motions for summary judgment, the dis trict court granted Shields's motion because individuals may not be held liable under the ADEA or the M HRA. The district court also granted Thomson's a nd Freedom's motions on the age discrimination claims because Kneibert failed to establish a genuine issue of material fact as to pretext and gra nted Thomson's and Freedom's motions on the retaliation claims becaus e Kneibert could not demonstrate a causal link between the adverse employment actions and the filing of his charge and suit, respectively. This appeal followed. 1

Based on o ur conclusion that Kneibert failed to establish a genuine issue o f materia l fact as to pretext for age discrimination and a causal connection between his filing of a charge and later reprimands, we affirm the district court's judgment fo r Thomson. However, we reverse the district court's judgment as to Freedom because di rect evidence exists of age discrimination sufficient to create a genuine issue o f material fact. In addition, Kneib ert has established a prima facie case of retaliation by Fre edom by showing a causal link between Kneibert's filing suit and his late r termination by Freedom

that created a genuine issue of material fact regarding pretext for retaliation. Therefore, we also reverse the district court's judgment for Freedom on the retaliation claims and remand this issue for trial.-3-

I. BACKGROUND

Kneiber t began working for The Sedalia Democrat , a newspaper based i n Se dalia, Missouri, in 1967 as managing editor. In 1971, Kneibert became the edito r and was ultimately accountable for delegating responsibilities within the new s department. In 1986, Thomson purchased the newspaper from Dear Publications, Inc. In 1993, Shields, age forty-two at this time, became the publisher of the newspaper for Thomson. As publisher, Shields had overall res ponsibility for all departments and was charged with ensuring that the newspaper was pr ofitable through increased circulation.

Upon a rriving at the newspaper, Shields expressed his concerns to Kneiber t abo ut Kneibert's job performance. Specifically, Shields's concerns included th e
news paper's editorial quality and the existence of a competing weekly newspaper a s indications that Kneibert was not performing his job properly. Shields repeated hi s dis satisfaction with Kneibert's performance on various occasions. In early 1994 , Thomson s ent Bob Gallagher, a consultant, to review the newspaper and to hel p Shields with these editorial problems. Gallagher concluded that the newspaper wa s outdated, unaggressive, and an unappealing product under Kneibert's direction.

On Ju ly 12, 1994, Kneibert received a performance evaluation review fro m Shields. In the evaluation, Shields highlighte d four specific performance problems: (1) Knei bert had below average organizational skills; (2) he was not a "team player"; (3)

a negative tone permeated the news product; and (4) Kneibert's personal views wer e reflected in the paper. Specifically , Shields was unhappy with the manner in which the call-in feature, a feature that included transcribed public comments, was edited under Kneiber t's supervision. Shields discussed his dissatisfaction with this feature ove r several m onths and eventually issued written guidelines for Kneibert and the othe r editors to follow. Nonetheless, S hields's dissatisfaction with this feature continued. In addit ion, Shields discovered that Kneibert sent a letter on newspaper letterhead t o United States Senator Danforth purporting to reflect the editorial policy of the-4-

newsp aper. Although both Shields and Kneibert were in charge of formulating th e newspa per's editorial policy, Kneibert failed to discuss the letter with Shields befor e mailing it. Furthermore, Shields repeatedly admonished Kneibert for not followin g Shields's express directive to emphasize local as opposed to national stories and for not following instructions regarding the format of the editorial page.

In Dece mber 1994, Shields officially reassigned Kneibert, who was then fifty

eight years old, from newspaper editor to a newly created "senior editor" position. As senior ed itor, Kneibert had responsibility for editing the editorial page, writing a fe w editorials and on e column a week. Roger Morton, age forty-five at this time, replaced Kn eibert as the newspaper editor. Morton also had problems with Kneibert' s perfor mance such as his poor editing skills, substandard page design, and failure t o follow sc heduling procedures. In addition to these general performance problems , Kneibert violated specific Thomson policies by running an unattributed story withou t first attempting to encourage the source to be identified, by running the story without

a l lowing Morton to view it before publication, and by writing a column suggesting an economic boycott.

In March 1995, Kneibert filed a charge of discrimination against Thomson and Shields wi th the Missouri Commission on Human Rights, alleging that his recen t demotion was based on his age. In June 1995, Kneibert filed suit against Thomson and Shields, claiming age discrimination and retaliation regarding his demotion to "senior editor" and the continued criticism of his job performance.

In October 1995, Freedom purchased the newspaper from Thomson. Frank Lyon , age fifty at this time, became the newspaper's publisher. Kneibert continued to wor k

as the senior editor. Shortly after the sale to Freedom, Lyon discovered a fil e main tained by Shields regarding Kneibert's performance. The file contained memo s detailing Kneibert's publication of an unattributed story, his endorsement of an economic boycott, the paper's formal written policy on issues such as abortion and-5-

euthanasia and Kneibert's disagreement with that policy, and copies of front pages that illustrated the

newspaper's international and national emphasis and lack of local news.

After investigating community business owners' and citizens' input an d willingn ess to commit advertising dollars to the newspaper, Lyon discovered tha t several me mbers of the business community indicated that Kneibert was one of th e
reasons that they did not advertise in or support the newspaper. Upon review of th e newspaper's organizational structure, Lyon became concerned about th e existence of the "senior editor" position because Freedom does not recognize this position at any of its other newspapers. Kneibert also acknowledged that this title is not commonly used in the newspaper business.

Before e liminating the "senior editor" position, Lyon decided to investigat e furt her whether Kneibert was performing at an acceptable level. Morton expresse d concern to Lyon about Kneibert's job perfo rmance. Lyon requested that Morton gather informati on from the other editors before any decisions would be made regardin g Kneiber t's employment. The three editors wrote written responses to Lyon tha t expressed several specific concerns such as Kneibert's failure to work as a team with the other employees, lack of computer skills, substandard editorial page designs , reluctance to cover local news, lack of organizat ional skills, sloppy editing, and general failure to contribute to the newspaper at an acceptable level.

On November 3, 1995, Lyon met with Kneibert to discuss his continue d employment. Lyon allegedly told Kneibert that the newspaper did not have use for a "senior editor" position and offered Kneibert the option of resigning with a severance package. Kneibert stated in his deposition that during this conversation, Lyon sai d "[w]hat I need down there is three young editors." Kneibert App . at 100. Kneibert then resigned and accepted the severance package.-6-

On November 8, 1995, Deborah Spencer, a Sedalia citize n, called the newspaper to express concerns about some changes in the format that had occurred. Spencer's call

was directed to Tony Brown, the news editor. Upon learning that Kneibert no longer worked at the newspaper, Spencer asked Brown about the reasons behind Kneibert' s termin ation. Spencer testified that Brown said "I can assure you that he was no t terminated becaus e of his ability or his quality of work but because of a [sic] litigation that he is involved in." Kneibert App. at 326. Brown had worked at the newspape r since 1988 a nd was in a position to know about the quality of Kneibert's work. I n addition , Brown was one of the editors from whom Lyon solicited information in th e decision to terminate Kneibert.

Knei bert then filed an amended complaint which added age and retaliatio n charges ag ainst Freedom. The district court granted both appellees' motions fo r
summa ry judgment on both the age and retaliation claims. The district court held that Kneibert failed to establish a genuine issue of material fact as to pretext and failed t o establish a c ausal link between Kneibert's demotion and termination and his filing of a discrimination claim.

On appe al, Kneibert asserts that he presented the district court with direc t

ev idence of Freedom's discriminatory motives regarding his age as well as direc t evidence that further negated both appellees' stated justifications for th eir actions against him. In addition, Kneibert claims that direct evidence established that Freedo m retaliated against him for suing the newspaper and that evidence existed showing that Kneibert's charge played a central role in the events leading to the reprimands an d threats of discharge by Th omson and ultimate termination by Freedom. Thus, Kneibert argu es that the district court erred in granting summary judgment for Thomson an d Freedo m on the age discrimination claims because the record showed that a genuin e issue of material fact existed regarding wh ether Thomson and Freedom established that they, respectively, demoted and discharged Kneibert for legitimate, non-discriminatory reasons. Kneibert also contends that the district court erred in granting summaryThomson argues that Kneibert's verified response does not comply with Fed. R. 2 Civ. P. 56 and Local Rule 13(G) and, therefore, we should disregard Kneibert's verified response and admit Thomson's Statement of Uncontested Facts. Instead, we hav e chosen to base our decision on the totality of t he evidence based upon our independent review of the entire record on appeal.
-7- judgment for Thomson and Freedom on the retaliation claims because the recor d showed t hat a genuine issue of material fact existed regarding whether the appellee s establishe d that there was no causal link between Kneibert's exercise of protecte d activities and their respective decisions to demote and terminate him. In the alternative, Kneibert argues that h e presented sufficient evidence to establish a prima facie case of age discr imination and retaliation and show that appellees' proffered reasons wer e pretextual which, thereby, provided submissible age discrimination and retaliatio n claims.

II. DISCUSSION

We review de novo a grant of summ ary judgment. The standard we apply is the

same as the district court applied: whether the record shows that no genuine issue as to any material fact e xists and that the moving party is entitled to judgment as a matter of law. See Rothmeier v. Investment Advisers, Inc. , 85 F.3d 1328, 1331 (8th Cir

. 1996 ); Fed. R. Civ. P. 56(c). We construe the factual record and all reasonabl e 2 inferences from the record in the light most favorable to the party opposing summar y judgment. See Hutson v. McDonnell Douglas Co rp. , 63 F.3d 771, 775 (8th Cir. 1995).

A. The Age Discrimination Claims

We fi rst address Kneibert's age discrimination claims against Thomson an d Freedom. We ap ply the same analysis in reviewing age discrimination claims broughtThe MHRA is interpreted to mirror federal law including the ADEA. There fore, 3 this Court's analysis appl ies to both Kneibert's ADEA claims and MHRA claims. See Tart v. Hill Behan Lumber Co. , 31 F.3d 668, 671 (8th Cir. 1994).
-8- u n der the ADEA and the MHRA. See Banks v. City of Independence, Mo. , 21 F.3d 3 809, 810 (8th Cir. 1994). The ADEA prohibits an employer from discharging "an y in dividual or otherwise discriminat[ing] against any individual with respect to hi s compe nsation, terms, conditions, or privileges of employment, because of suc h ind ividual's age." 29 U.S.C. § 623(a)(1). The ADEA protects individuals that are a t least forty ye ars old. See 29 U.S.C. § 631. The core issue in an ADEA disparate

treatment claim is whether the employer i ntentionally discriminated against the plaintiff based upon the plaintiff's age. See Rothmeier , 85 F.3d at 1331.

Two m ethods exist by which a plaintiff can attempt to prove intentiona l discr imination. First, the plaintiff may present direct evidence of employmen t disc riminationbased on age. When an employee produces direct evidence that a n ille gitimate criterion such as age "played a motivating part in [the] employmen t decision," Price Waterhouse v. Hopkins , 490 U.S. 228, 258 (1989), the burden-shifting standard s of Price Waterhouse apply. As such, "the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same de cision even if it had not taken the [illegitimate criterion] into account. " Beshears v. Asbill , 930 F.2d 1348, 1353 (8th Cir. 1991) (quoting Price Water house , 490 U.S. at 258).
Second, the plaintiff can rely on the three-sta ge order of proof and presumptions and satisfy his burden of proof using circumstantial evidence. Se e generally St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 506-12 (1993); Texas Dep't of Community Affairs

v. Burdin e , 450 U.S. 248, 252-56 (1981); McDonnell Douglas Corp. v. Green , 41 1 U.S. 792, 800-04 (1973). At the first stage, the plaintiff bears the burden ofThe four basic elements of a prima facie case are: 4
(1) that the plaintiff is within a protected age group, (2) that the plaintiff met applicable job qualifications, (3) that despite these qualifications, the plaintif f was respectively demoted and discharged, and (4) that th e employer did not take such action against nonmembers of the protected class.

See Willi ams v. Valentec Kisco, Inc. , 964 F.2d 723, 726 n.2 (8th Cir. 1992), cert

. denied , 506 U.S. 1014 (1992).
-9- establishing a prima facie case of discrimination. See Burdine , 450 U.S. at 252-53

. 4 The prima facie

case creates a presumption of unlawful discrimination. See id. at 254. The employer, at the second stage, has the obligation to produce evidence of a legitima te, nondiscriminatory reason for the adverse employment action. Id. at 253

. Provided the employer meets this burden of production, the presumption of unlawful discrimina tion drops from the case. See id. at 255 n.10. Then, the plaintiff has th e bu rden, at the third stage, to show that the employer's proffered reason is merely a pretext for discrimination. See id. at 253. At all times, the plaintiff retains the burden of persuading the fact finder that intentional discrimination motivated the advers e employment action. See id.

In the context of an age discrimination case, we recently had the opportunity to clarify our position regarding whether "pretext-only" evidence is enough for a plaintiff to with stand a summary judgment motion in Rothmeier , 85 F.3d at 1335-37. W e
announc ed as the rule in this Circuit that an age-discrimination plaintiff can avoi d summary judgment only if "the evidence considered in its entirety (1) creates a fac t issue as to whether the employer's proffered reasons are pretextual and (2) creates a reasonable inference that age was a determinative factor in the adverse employmen t decision." Id. at 1336-37; see also Ryther v. KARE 11 , 108 F.3d 832, 837-38 (Lay,-10-

majority) and 848 (Loken, dissenting) (8th Cir. 1997) (en ban c), cert. denied , 117 S.Ct. 2510 (1997) (adopting Rothmeier as the rule of this Circuit).

Tu rning to the present case, Kneibert asserts that direct evidence exists o f Freedom's discriminatory motives that negates both Freedom's and Thomson's stated ju stifications for their respective actions against Kneibert. As such, Kneibert argue s that the district court erred in applying the McDon nell Douglas as opposed to the Price Waterhouseanalysis on

the age and retaliation claims against Thomson and Freedom. Kneibert contends that two statements indicate that his age and filing of a discr imination claim motivated the adverse employment actions or, in the alternative,

re veal that the articulated reasons for demoting and firing him were pretextual unde r McDonnell Douglas . The first statement apparently occurre d when Lyon told Kneibert that he was terminated. Kneibert claims that Lyon said that Lyon "had no use for a senior editor" and, instead, needed "three young editors" in the news department

. Kneibert App. at 100. The second statement allegedly transpired when Spencer called the newspaper and spoke with news editor Brown regarding, among other topics , Kneibert's termination. Spenc er claims that Brown told her that "I can assure you that he was n ot terminated because of his ability or his quality of work but because of a [sic] litigation that he is involved in." Kneibert App. at 326.
In determining whether the Price Wa terhouse analysis applies, it is necessary to fi rst define "direct evidence" which is sufficient to satisfy the Price Waterhous e threshold. Price Waterhouse defines "direct evidence" in the negative to exclud e "stray remarks in the workplace," "statements by nondecisionmakers," or "statements by decision makers unrelated to the decisional process itself." Price Waterhouse , 490 U.S. at 277 (O'Connor, J., concurring) ; accord Beshears , 930 F.2d at 1354. However, direct evidence may i nclude employer remarks that "reflect a discriminatory attitude," Beshears , 930 F.2d at 1354 (quotation omitted), or that demonstrate a "discriminatory animus in the decisional process." Id.As previously discussed, Brown's alleged statement also occurred afte r 5 Tho mson sold the newspaper to Freedom and referred to Freedom's reasons fo r terminati ng Kneibert. Therefore, this statement does not shed light on Thomson' s alleged discriminatory motives regarding Kneibert's demotio n. For this reason, we also
-11- Based upon our review of the case law and viewing the evidence in the ligh t most favorable to the nonmoving party, we conclude that Kneibert did present direct evidence regarding his age discriminat ion claims against Freedom. The first statement occurred in the context of the a dverse employment decision, Kneibert's termination by Freedom, an d was made by the primary decisionmaker, Lyon. See id. Thus, thi s statement constitutes more than a stra y remark in the workplace and qualifies as direct evidence of age discrimination by Freedom. However, t his alleged statement of Lyon's occurred after

Thomson sold

the newspaper to Freedom, and no evidence reveals that Thomson participated in the decision to terminate Kneibert. Thus, this direct evidence does not apply to Thomson.

On the othe r hand, we conclude that the second statement, allegedly made b y Brown to S pencer, does not constitute "direct evidence." Brown possessed neithe r supervisory nor decisionmaking authority for Freedom. Despite Brown's memorandum to Lyon that criticized Kneibert's job performance, Brown does not qualify as th e "decisi onmaker" in Kneibert's discharge. Brown's opinions represented only one o f many factors that Lyon considered in making the decision to discharge Kneibert. Brown did not make any decision regarding anyone's employment with Freedom nor did h e have any discussions with Lyon regarding Lyon's final decision to terminate Kneibert. Moreover , Brown had no authority to discuss personnel issues or, specifically , Kneibert's termination , with the public because Morton instructed the staff to direct all questions r egarding the termination to Lyon. Therefore, since Brown was not a n "i ndividual[] closely involved in employment decisions," id. , this statement does no t qualify as " direct evidence" of age discrimination or retaliation to require applying the Price Waterhouse analysis on the retaliation claims against Freedom or Thomson. 5reject Brown's statement as direct evidence as applied to Thomson.
-12- However, be cause the first statement constitutes direct evidence of age discrimination by Freedom and creates a genuine i ssue of material fact as to Freedom's discriminatory animu s in the decisional process, we reverse and remand for trial on Kneibert's ag e discrimination claims against Freedom.

Since K neibert has produced direct evidence relating only to his ag e di scrimination claims against Freedom, we will apply the McDonnell Douglas three

stage order of proof and presumptions on the remainder of Kneibert's claims agains t Thomson an d Freedom. Viewing the evidence in the light most favorable to th e nonmoving party, we find that Kneibert met his initial burden by establishing a prima facie case of age discrimination aga inst Thomson. "The burden of establishing a prima facie case of dis parate treatment is not onerous." Burdine , 450 U.S. at 253. Here, (1) Kneibert, age fifty-eight, was within the protected class; (2) his 1993 and 1994 bonuses from Tho mson, newspaper awards received under Kneibert's leadership, and a University of Missouri School of Journalism professor's statements regarding Kneibert's good reputation among his peers establish that Kneibert was meeting his employer' s legitimate employment expectations; (3) Thomson demoted him to s enior editor; and (4) Thomson replaced Kneibert with a younger editor. In the second stage, Thomso n offered Kneibert's failure to improve the newspaper's quality and his poor performance level as legitimate nondiscr iminatory reasons for his demotion to senior editor. At the third stage, the burden shifted to Kneibert to offer evidence showing that these reasons given by Thomson were a pretext for age discrimination.
Kneibert argues that, by presenting sufficient evidence to establish his prima facie
case, he showed that summary judgment was improper. In particular, the secon d eleme nt of Kneibert's prima facie case, satisfactory job performance, was the sam e qu estion of fact as appellees' articulated justification for their adverse employmen t actions, poor job performance. Kneibert contends that, by satisfying his burden ofThe Ryther court more fully explained: 6

In su m, when the employer produces a nondiscriminatory reaso n for its actions, the prima facie case no longer creates a legal presumption of unlawful discrimination. The elements of the prima facie case remain, however, and if they are accompanied by evidence of pretext and disbelief of the defendant's proffere d explanation, they may permit the jury to find for the plaintiff. This is not to say that, for the p laintiff to succeed, simply prov ing pretext is necessarily enough. We emphasize that evidence o f pretex t will not by itself be enough to make a submissible case if it is , standing alone, inconsistent with a reasonable inference of ag e discrimination.

Id. at 837 (emphasis added). Here, Kneibert must set forth sufficient evidence o f pretext so that a trier of fact could reasonably infer that age discrimination motivated the adverse employment action.
-13- sho wing that he met the second element, he necessarily showed that the appellees ' asserted defense of poor job performance was pretextual. However, we recentl y rejected thi s same argument in Rothmeier , 85 F.3d at 1333. "[P]roof that th e defendant's articulated explanati on is false or incorrect does not, standing alone, entitle the plaintiff to[summary] judgment; instead, the showing must be that the explanation is a p retext for discrimination." Id . at 1334 (quotation and citation omitted); accor d Ryther , 108 F.3d at 837 (Lay, majority) and 848 (Loken, dissenting). To establis h pretext, the plaintiff must show the reason is both false and that discrimination was the real reason. See Id. at 837 and 838 n.5 (citations omitted).

6

Havin g carefully reviewed the record, we conclude that Kneibert presente d neither direc t evidence of age discrimination nor sufficient circumstantial evidence for

a r easonable fact finder to infer that Kneibert's age actually motivated Thomson' s decision to demote him. Undoubtedly, problems existed between Kneiber t and Shields, but those problems concerned their business relationship as opposed to Kneibert's age. "Federal courts do not sit as a super-personnel department thatAgain, this Court's analysis applies to both Kneibert's ADEA claims and MHRA 7 claims of retaliation as the MHRA is interpreted to mirror federal law. See Tart , 3 1 F.3d at 671.
-14- reexamines an entity's business decisions." Harvey v. Anheuser-Busch, Inc. , 38 F.3d 968, 973 (8th Cir. 1994) (citations and internal quotations omitted). Kneibert canno t show that Thomson lied about his performance or the reasons behind his demotion and that t hese reasons constituted a pretext for discrimination. For a year prior to hi s demotion, Kneibert re ceived repeated warnings about his performance and the need to improve the newspaper's quality. Significantly, the only evidence Kneibert cites a s causing him to believe that Thomson demoted him because of his age was Shields' s allegedcomment that Kneibert "was making too much money." Kneibert App. at 97. How ever, evidence that an employer takes an adverse employment action against a n employee due to that employee's higher salary does not neces sarily support an inference of age discrimination. See Bia las v. Greyhound Lines, Inc. , 59 F.3d 759, 763 (8th Cir. 1995). As Kneibert can not establish a connection between his demotion and his age, he has no acti onable age discrimination claims against Thomson. As such, the district court correctly granted Thomson summary judgment on Kneibert's age discrimination claims.

B. The Retaliation Claims
We next turn to Kneibert's retaliation claims against Thomson a nd Freedom. The AD EA prohibits an employer from discriminating against an employee because th e employee opposed a practice made unlawful by the ADEA. See 29 U.S.C. § 623(d). To es tablish a prima facie case of retaliation under the ADEA and the MHRA, 7 Kneibert must establish that: (1) he participated in a protected activity; (2) an adverse employment action was taken against him; and (3) a causal connection exists between the two events. See Wiehoff v. GTE Directories Corp

. , 61 F.3d 588, 597-98 (8th Cir. 1995) (citations omitted). The employee need only show that the retaliatory motive-15-

was "a contributing factor" as opposed to the sole reason for the adverse employment action. Id. at 598. Then, the burden of production shifts to the employer to establish

a legitimate, nondiscriminatory reason for the adverse action. Upon so doing, th e employee has the burden to prove that the reason constitutes a pretext for retaliation. See Maness v. Star-Kist Foods, Inc. , 7 F.3d 704, 707 (8th Ci r. 1993), cert. denied , 512 U.S. 1207 (1994).

In the pre sent case, the district court found that Kneibert failed to establish a causal link between his discrimination claims and the adverse employment actions taken against hi m by Thomson and Freedom. Kneibert contends that Thomson retaliate d against hi m for filing his age discrimination charge by falsely alleging that Kneibert failed to properly exercise his editorial duties, increasing their reprimands of hi s performance, threatening to terminate him, and, upon lea rning of his lawsuit, conspiring with Freedom to terminate him.

Upon examining the record, we conclude that Kneibert failed to produc e evidence t o establish a causal connection between the filing of his charge an d Thomson's adverse employment actions against him. In fact, Kneibert admitted in his de position that the only evidence of retaliation by Thomson was the two memorand a he received f

rom Shields threatening Kneibert's dismissal and that, before the filing of hi s complaint, Shields had never threatened him with dismissal. However, Kneiber t received repeated reprimands from Shields for his performance problems befor e Kneibert file d the charge. After the filing of his charge, Kneibert continued to receive

re primands for the same problems he exhibited before the charge. Kneibert's futur e with Thomson was deemed "uncertain" in July, 1994--well in advance of the filing of his charge on March 22, 1995. The mere sequential relationship between the filing of Kne ibert's charge and the increasing seriousness of the reprimands is insufficient t o establish causality. See Valde z v. Mercy Hosp. , 961 F.2d 1401, 1403 (8th Cir. 1992). Sim ply filing a discrimination charge does not "clothe the complainant with immunity for past and present inadequacies, [and] unsatisfactory performance . . . ." Jackson v.As we previously addressed, Brown's alleged statement to Spencer does no t 8 qualify as direct evidence to warrant the Price Waterhouse analysis regarding th e retali ation claims against Freedom. However, this statement constitutes sufficien t circums tantial evidence to create a genuine issue of material fact--whether Freedom's legitimate, nondiscriminatory reasons are merely a pretext for retaliatory discharge.
-16- St. Joseph State Hosp. , 840 F.2d 1387, 1391 (8th Cir. 1988), cert. den ied , 488 U.S. 892 (1988).
Moreover, as we discussed previously, Brown's alleged statement to Spencer that Kneibert was terminated because of pending litigation does not apply t o Thomson. This alleged conversation occurred after Thomso n sold the newspaper to Freedom and does not suppor t the contention that Thomson agreed to "paper" Kneibert's file to allo w Freedom to terminate him at a later date. Significantly, Kneibert concedes that he did not prese nt any facts that Thomson conspired with Freedom to terminate Kneiber t because o f his age. To survive Thomson's motion for summary judgment, Kneibert must provide sufficient, probative evidence which would permit a fact finder to rule in his favor as opposed to engaging in "mere s peculation, conjecture, or fantasy." Wilson v. International Bus. Mach. Corp. , 62 F.3d 237, 241 ( 8th Cir. 1995) (citations omitted). Because Kneibert fails to establish the third element (a causal connection) of the prima facie case of retaliation, w e affirm the district court's order granting Thomson's motion for summary judgment.
However, regarding K

neibert's retaliation claims against Freedom, we conclude that Kneibert established a prima facie case and cre ated a genuine issue of material fact as to pretext--whether Freedom terminated him for retaliatory as opposed to legitimate, nondisc riminatory reasons. News editor Brown's alleged statement to Spencer, while not quali fying as "direct evidence," does establish the requisite causal link betwee n 8 Kneibert's pending discrimination suit and Freedom's termination of Kneibert. As news editor , Brown was in a position to know the reasons behind Kneibert's termination by Freedom. Thu s, this statement represents more than an individual employee's opinion-17-

of an action taken by the employer. Cf. Morgan v. Arkansas Gazette , 897 F.2d 945, 950 (8th Cir. 1990) (Unlike the employees in Morgan , Brown, despite not qualifying

as a "d ecisionmaker," did participate--albeit in a small part--in the decisionmakin g process.). Brown submitted a memorandum detailing his perception of Kneibert's work performance which Lyon partly relied upon in mak ing the decision to dismiss Kneibert. This evidence from a person involved in th e decisionmaking process may be viewed as reflecting the alleged discriminatory attitude of an extent sufficient to permit a jury to inferthat this attitude was more likely than not a motivating factor in the employer' s decision. See Nelson v. J.C. Penney Co. , 75 F.3d 343, 345 (8th Cir. 19 96), cert. denied , 117 S. Ct. 61 (1996). Wh ile Freedom may dispute Spencer's credibility, "[o]ur task at the summary judgment stage . . . is not . . . to weigh the evidence and determine th e truth of the matter but to determine wh ether there is a genuine issue for trial." O'Bryan v. KTIV Television , 64 F.3d 1188, 1194 (8th Cir. 1995) (quo tations omitted). As such, we reverse the district court's grant of summary judgment for Fr eedom on the retaliation claims and remand the issue for trial.

III. CONCLUSION

For the reasons discussed, the order of the district court is affirmed as t o Thomson and reversed as to Freedom, and the cas e is remanded to the district court for further proceedings consistent with this opinion.

AFFIRMED IN PART AND REVERSED IN PART.
MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting in part.

I d issent from so much of the judgment in this case as affirms the summary judgment in favor of Thomson on the discrimination claim against it, because I believe that in thi s respect the court has misread our precedents and, in particular, ha s incorrectl y applied the principles that we announced in Ryther v. KARE 11 , 108 F.3d-18-

832 (8th Cir. 1997) ( en banc ), cert. denied , 117 S. Ct. 2510 (1997). In that case, we held that a plaintiff makes a submissible case in an employment discrimination case if he or she ma kes out a prima facie case and produces evidence that the employer' s proffered legitimate bus iness reason for the adverse employment action complained of was pretextual, unless that evi dence is inconsistent with the kind of discrimination that the plain tiff claims motivated the employment action. Here, Thomson claimed tha t Mr. Kneibert was discharged fo r poor job performance, but there is plenty of evidence in this record from which a reasonable person could conclude that he was indee d perfor ming his job satisfactorily. While the jury, of course, does not have to believ e Mr. Kneibert's evidence, it must be given the chance to reject or accept it.

The c ourt notes that Rothmeier held that proof of pretext does not entitle a plaintiff to summary judgment. That is true, but i t is also beside the point. In this case, Mr. Kneibe rt is not asserting that he is entitled to summary judgment; he is merel y asserting that Thomson is not entitled to summary ju dgment. I agree with Mr. Kneibert and ther efore respectfully dissent from the court's judgment affirming the summary judgme nt in favor of Thomson on the discrimination claim against it. I concur in th e judgment in all other respects.

A true copy.

Attest:

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