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

_____________

Before BOWMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

_____________

FLOYD R. GIBSON, Circuit Judge.

Appellant Frederick Douglas Kneibert filed this lawsuit against his former

employers, appellees Thomson Newspapers, Inc. ("Thomson"), Freedom

Communications, Inc., and Freedom Newspapers, Inc. ("Freedom"), as well as his

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 violation
Kneibert does not appeal the summary judgment entered in favor of Shields;

1

thus, the opinion does not address this issue.

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of the Age Discrimination in Employment 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 for

filing a charge of discrimination by reprimanding him and threatening termination, and

Freedom retaliated against him because of his age discrimination lawsuit pending

against his former employer Thomson by terminating him, both in violation of the

ADEA, § 623(d) (1994), and the MHRA, § 213.070(2) (1994).

On appellees' motions for summary judgment, the district court granted Shields's

motion because individuals may not be held liable under the ADEA or the MHRA. The

district court also granted Thomson's and Freedom's motions on the age discrimination

claims because Kneibert failed to establish a genuine issue of material fact as to pretext

and granted Thomson's and Freedom's motions on the retaliation claims because

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 our conclusion that Kneibert failed to establish a genuine issue of

material 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 for

Thomson. However, we reverse the district court's judgment as to Freedom because

direct evidence exists of age discrimination sufficient to create a genuine issue of

material fact. In addition, Kneibert has established a prima facie case of retaliation by

Freedom by showing a causal link between Kneibert's filing suit and his later

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.
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I. BACKGROUND

Kneibert began working for The Sedalia Democrat, a newspaper based in

Sedalia, Missouri, in 1967 as managing editor. In 1971, Kneibert became the editor

and was ultimately accountable for delegating responsibilities within the news

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 responsibility for all departments and was

charged with ensuring that the newspaper was profitable through increased circulation.

Upon arriving at the newspaper, Shields expressed his concerns to Kneibert

about Kneibert's job performance. Specifically, Shields's concerns included the

newspaper's editorial quality and the existence of a competing weekly newspaper as

indications that Kneibert was not performing his job properly. Shields repeated his

dissatisfaction with Kneibert's performance on various occasions. In early 1994,

Thomson sent Bob Gallagher, a consultant, to review the newspaper and to help

Shields with these editorial problems. Gallagher concluded that the newspaper was

outdated, unaggressive, and an unappealing product under Kneibert's direction.

On July 12, 1994, Kneibert received a performance evaluation review from

Shields. In the evaluation, Shields highlighted four specific performance problems: (1)

Kneibert 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 were

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

Kneibert's supervision. Shields discussed his dissatisfaction with this feature over

several months and eventually issued written guidelines for Kneibert and the other

editors to follow. Nonetheless, Shields's dissatisfaction with this feature continued. In

addition, Shields discovered that Kneibert sent a letter on newspaper letterhead to

United States Senator Danforth purporting to reflect the editorial policy of the
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newspaper. Although both Shields and Kneibert were in charge of formulating the

newspaper's editorial policy, Kneibert failed to discuss the letter with Shields before

mailing it. Furthermore, Shields repeatedly admonished Kneibert for not following

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 December 1994, Shields officially reassigned Kneibert, who was then fiftyeight years old, from newspaper editor to a newly created "senior editor" position. As

senior editor, Kneibert had responsibility for editing the editorial page, writing a few

editorials and one column a week. Roger Morton, age forty-five at this time, replaced

Kneibert as the newspaper editor. Morton also had problems with Kneibert's

performance such as his poor editing skills, substandard page design, and failure to

follow scheduling procedures. In addition to these general performance problems,

Kneibert violated specific Thomson policies by running an unattributed story without

first attempting to encourage the source to be identified, by running the story without

allowing 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 with the Missouri Commission on Human Rights, alleging that his recent

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 work

as the senior editor. Shortly after the sale to Freedom, Lyon discovered a file

maintained by Shields regarding Kneibert's performance. The file contained memos

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
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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 and

willingness to commit advertising dollars to the newspaper, Lyon discovered that

several members of the business community indicated that Kneibert was one of the

reasons that they did not advertise in or support the newspaper. Upon review of the

newspaper's organizational structure, Lyon became concerned about the 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 eliminating the "senior editor" position, Lyon decided to investigate

further whether Kneibert was performing at an acceptable level. Morton expressed

concern to Lyon about Kneibert's job performance. Lyon requested that Morton gather

information from the other editors before any decisions would be made regarding

Kneibert's employment. The three editors wrote written responses to Lyon that

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 organizational 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 continued

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 said

"[w]hat I need down there is three young editors." Kneibert App. at 100. Kneibert then

resigned and accepted the severance package.
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On November 8, 1995, Deborah Spencer, a Sedalia citizen, 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

termination. Spencer testified that Brown said "I can assure you that he was not

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. Brown had worked at the newspaper

since 1988 and was in a position to know about the quality of Kneibert's work. In

addition, Brown was one of the editors from whom Lyon solicited information in the

decision to terminate Kneibert.

Kneibert then filed an amended complaint which added age and retaliation

charges against Freedom. The district court granted both appellees' motions for

summary 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 to

establish a causal link between Kneibert's demotion and termination and his filing of a

discrimination claim.

On appeal, Kneibert asserts that he presented the district court with direct

evidence of Freedom's discriminatory motives regarding his age as well as direct

evidence that further negated both appellees' stated justifications for their actions against

him. In addition, Kneibert claims that direct evidence established that Freedom

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 and

threats of discharge by Thomson and ultimate termination by Freedom. Thus, Kneibert

argues that the district court erred in granting summary judgment for Thomson and

Freedom on the age discrimination claims because the record showed that a genuine

issue of material fact existed regarding whether 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 summary
Thomson 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 have

chosen to base our decision on the totality of the evidence based upon our independent

review of the entire record on appeal.

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judgment for Thomson and Freedom on the retaliation claims because the record

showed that a genuine issue of material fact existed regarding whether the appellees

established that there was no causal link between Kneibert's exercise of protected

activities and their respective decisions to demote and terminate him. In the alternative,

Kneibert argues that he presented sufficient evidence to establish a prima facie case of

age discrimination and retaliation and show that appellees' proffered reasons were

pretextual which, thereby, provided submissible age discrimination and retaliation

claims. 

II. DISCUSSION

We review de novo a grant of summary 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 exists 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 reasonable

2

inferences from the record in the light most favorable to the party opposing summary

judgment. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 775 (8th Cir. 1995).

A. The Age Discrimination Claims

We first address Kneibert's age discrimination claims against Thomson and

Freedom. We apply the same analysis in reviewing age discrimination claims brought
The MHRA is interpreted to mirror federal law including the ADEA. Therefore, 3

this Court's analysis applies to both Kneibert's ADEA claims and MHRA claims. See

Tart v. Hill Behan Lumber Co., 31 F.3d 668, 671 (8th Cir. 1994).

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under 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 "any

individual or otherwise discriminat[ing] against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual's age." 29 U.S.C. § 623(a)(1). The ADEA protects individuals that are at

least forty years old. See 29 U.S.C. § 631. The core issue in an ADEA disparatetreatment claim is whether the employer intentionally discriminated against the plaintiff

based upon the plaintiff's age. See Rothmeier, 85 F.3d at 1331.

Two methods exist by which a plaintiff can attempt to prove intentional

discrimination. First, the plaintiff may present direct evidence of employment

discrimination based on age. When an employee produces direct evidence that an

illegitimate criterion such as age "played a motivating part in [the] employment

decision," Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989), the burden-shifting

standards 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 decision even if it had not taken the [illegitimate criterion] into account."

Beshears v. Asbill, 930 F.2d 1348, 1353 (8th Cir. 1991) (quoting Price Waterhouse, 490

U.S. at 258).

Second, the plaintiff can rely on the three-stage order of proof and presumptions

and satisfy his burden of proof using circumstantial evidence. See generally St. Mary's

Honor Ctr. v. Hicks, 509 U.S. 502, 506-12 (1993); Texas Dep't of Community Affairs

v. Burdine, 450 U.S. 248, 252-56 (1981); McDonnell Douglas Corp. v. Green, 411

U.S. 792, 800-04 (1973). At the first stage, the plaintiff bears the burden of
The 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

plaintiff was respectively demoted and discharged, and (4) that the

employer did not take such action against nonmembers of the protected

class.

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

denied, 506 U.S. 1014 (1992).

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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

legitimate, nondiscriminatory reason for the adverse employment action. Id. at 253.

Provided the employer meets this burden of production, the presumption of unlawful

discrimination drops from the case. See id. at 255 n.10. Then, the plaintiff has the

burden, 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 adverse

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 withstand a summary judgment motion in Rothmeier, 85 F.3d at 1335-37. We

announced as the rule in this Circuit that an age-discrimination plaintiff can avoid

summary judgment only if "the evidence considered in its entirety (1) creates a fact

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 employment

decision." Id. at 1336-37; see also Ryther v. KARE 11, 108 F.3d 832, 837-38 (Lay,
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majority) and 848 (Loken, dissenting) (8th Cir. 1997) (en banc), cert. denied, 117 S.Ct.

2510 (1997) (adopting Rothmeier as the rule of this Circuit).

Turning to the present case, Kneibert asserts that direct evidence exists of

Freedom's discriminatory motives that negates both Freedom's and Thomson's stated

justifications for their respective actions against Kneibert. As such, Kneibert argues

that the district court erred in applying the McDonnell Douglas as opposed to the Price

Waterhouse analysis on the age and retaliation claims against Thomson and Freedom.

Kneibert contends that two statements indicate that his age and filing of a

discrimination claim motivated the adverse employment actions or, in the alternative,

reveal that the articulated reasons for demoting and firing him were pretextual under

McDonnell Douglas. The first statement apparently occurred 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. Spencer claims that Brown told her that "I can assure you that

he was not 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 Waterhouse analysis applies, it is necessary to

first define "direct evidence" which is sufficient to satisfy the Price Waterhouse

threshold. Price Waterhouse defines "direct evidence" in the negative to exclude

"stray remarks in the workplace," "statements by nondecisionmakers," or "statements

by decisionmakers 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 include 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 after

5

Thomson sold the newspaper to Freedom and referred to Freedom's reasons for

terminating Kneibert. Therefore, this statement does not shed light on Thomson's

alleged discriminatory motives regarding Kneibert's demotion. For this reason, we also

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Based upon our review of the case law and viewing the evidence in the light

most favorable to the nonmoving party, we conclude that Kneibert did present direct

evidence regarding his age discrimination claims against Freedom. The first statement

occurred in the context of the adverse employment decision, Kneibert's termination by

Freedom, and was made by the primary decisionmaker, Lyon. See id. Thus, this

statement constitutes more than a stray remark in the workplace and qualifies as direct

evidence of age discrimination by Freedom. However, this 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 other hand, we conclude that the second statement, allegedly made by

Brown to Spencer, does not constitute "direct evidence." Brown possessed neither

supervisory nor decisionmaking authority for Freedom. Despite Brown's memorandum

to Lyon that criticized Kneibert's job performance, Brown does not qualify as the

"decisionmaker" in Kneibert's discharge. Brown's opinions represented only one of

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 he

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 regarding the termination to Lyon. Therefore, since Brown was not an

"individual[] closely involved in employment decisions," id., this statement does not

qualify as "direct evidence" of age discrimination or retaliation to require applying the

Price Waterhouse analysis on the retaliation claims against Freedom or Thomson.5
reject Brown's statement as direct evidence as applied to Thomson.

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However, because the first statement constitutes direct evidence of age discrimination

by Freedom and creates a genuine issue of material fact as to Freedom's discriminatory

animus in the decisional process, we reverse and remand for trial on Kneibert's age

discrimination claims against Freedom.

Since Kneibert has produced direct evidence relating only to his age

discrimination claims against Freedom, we will apply the McDonnell Douglas threestage order of proof and presumptions on the remainder of Kneibert's claims against

Thomson and Freedom. Viewing the evidence in the light most favorable to the

nonmoving party, we find that Kneibert met his initial burden by establishing a prima

facie case of age discrimination against Thomson. "The burden of establishing a prima

facie case of disparate 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 Thomson, 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 senior editor; and (4)

Thomson replaced Kneibert with a younger editor. In the second stage, Thomson

offered Kneibert's failure to improve the newspaper's quality and his poor performance

level as legitimate nondiscriminatory 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 second

element of Kneibert's prima facie case, satisfactory job performance, was the same

question of fact as appellees' articulated justification for their adverse employment

actions, poor job performance. Kneibert contends that, by satisfying his burden of
The Ryther court more fully explained: 6

In sum, when the employer produces a nondiscriminatory reason

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 proffered explanation, they may permit the jury to find

for the plaintiff. This is not to say that, for the plaintiff to succeed, simply

proving pretext is necessarily enough. We emphasize that evidence of

pretext will not by itself be enough to make a submissible case if it is,

standing alone, inconsistent with a reasonable inference of age

discrimination.

Id. at 837 (emphasis added). Here, Kneibert must set forth sufficient evidence of

pretext so that a trier of fact could reasonably infer that age discrimination motivated

the adverse employment action. 

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showing that he met the second element, he necessarily showed that the appellees'

asserted defense of poor job performance was pretextual. However, we recently

rejected this same argument in Rothmeier, 85 F.3d at 1333. "[P]roof that the

defendant's articulated explanation is false or incorrect does not, standing alone, entitle

the plaintiff to [summary] judgment; instead, the showing must be that the explanation

is a pretext for discrimination." Id. at 1334 (quotation and citation omitted); accord

Ryther, 108 F.3d at 837 (Lay, majority) and 848 (Loken, dissenting). To establish

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

Having carefully reviewed the record, we conclude that Kneibert presented

neither direct evidence of age discrimination nor sufficient circumstantial evidence for

a reasonable fact finder to infer that Kneibert's age actually motivated Thomson's

decision to demote him. Undoubtedly, problems existed between Kneibert 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 that
Again, 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, 31

F.3d at 671.

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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 cannot

show that Thomson lied about his performance or the reasons behind his demotion and

that these reasons constituted a pretext for discrimination. For a year prior to his

demotion, Kneibert received repeated warnings about his performance and the need to

improve the newspaper's quality. Significantly, the only evidence Kneibert cites as

causing him to believe that Thomson demoted him because of his age was Shields's

alleged comment that Kneibert "was making too much money." Kneibert App. at 97.

However, evidence that an employer takes an adverse employment action against an

employee due to that employee's higher salary does not necessarily support an inference

of age discrimination. See Bialas 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 actionable 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 and Freedom. The

ADEA prohibits an employer from discriminating against an employee because the

employee opposed a practice made unlawful by the ADEA. See 29 U.S.C. § 623(d).

To establish 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
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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, the

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 Cir. 1993), cert. denied, 512

U.S. 1207 (1994). 

In the present case, the district court found that Kneibert failed to establish a

causal link between his discrimination claims and the adverse employment actions taken

against him by Thomson and Freedom. Kneibert contends that Thomson retaliated

against him for filing his age discrimination charge by falsely alleging that Kneibert

failed to properly exercise his editorial duties, increasing their reprimands of his

performance, threatening to terminate him, and, upon learning of his lawsuit, conspiring

with Freedom to terminate him.

Upon examining the record, we conclude that Kneibert failed to produce

evidence to establish a causal connection between the filing of his charge and

Thomson's adverse employment actions against him. In fact, Kneibert admitted in his

deposition that the only evidence of retaliation by Thomson was the two memoranda

he received from Shields threatening Kneibert's dismissal and that, before the filing of

his complaint, Shields had never threatened him with dismissal. However, Kneibert

received repeated reprimands from Shields for his performance problems before

Kneibert filed the charge. After the filing of his charge, Kneibert continued to receive

reprimands for the same problems he exhibited before the charge. Kneibert's future

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

Kneibert's charge and the increasing seriousness of the reprimands is insufficient to

establish causality. See Valdez v. Mercy Hosp., 961 F.2d 1401, 1403 (8th Cir. 1992).

Simply 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 not

8

qualify as direct evidence to warrant the Price Waterhouse analysis regarding the

retaliation claims against Freedom. However, this statement constitutes sufficient

circumstantial evidence to create a genuine issue of material fact--whether Freedom's

legitimate, nondiscriminatory reasons are merely a pretext for retaliatory discharge. 

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St. Joseph State Hosp., 840 F.2d 1387, 1391 (8th Cir. 1988), cert. denied, 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 to Thomson. This

alleged conversation occurred after Thomson sold the newspaper to Freedom and does

not support the contention that Thomson agreed to "paper" Kneibert's file to allow

Freedom to terminate him at a later date. Significantly, Kneibert concedes that he did

not present any facts that Thomson conspired with Freedom to terminate Kneibert

because of 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 speculation, 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, we affirm the district court's order granting Thomson's motion

for summary judgment. 

However, regarding Kneibert's retaliation claims against Freedom, we conclude

that Kneibert established a prima facie case and created a genuine issue of material fact

as to pretext--whether Freedom terminated him for retaliatory as opposed to legitimate,

nondiscriminatory reasons. News editor Brown's alleged statement to Spencer, while

not qualifying as "direct evidence," does establish the requisite causal link between

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. Thus, this statement represents more than an individual employee's opinion
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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 "decisionmaker," did participate--albeit in a small part--in the decisionmaking

process.). Brown submitted a memorandum detailing his perception of Kneibert's work

performance which Lyon partly relied upon in making the decision to dismiss Kneibert.

This evidence from a person involved in the decisionmaking process may be viewed as

reflecting the alleged discriminatory attitude of an extent sufficient to permit a jury to

infer that 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. 1996), cert. denied,

117 S. Ct. 61 (1996). While Freedom may dispute Spencer's credibility, "[o]ur task at

the summary judgment stage . . . is not . . . to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for trial." O'Bryan

v. KTIV Television, 64 F.3d 1188, 1194 (8th Cir. 1995) (quotations omitted). As such,

we reverse the district court's grant of summary judgment for Freedom 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 to

Thomson and reversed as to Freedom, and the case 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 dissent 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 this respect the court has misread our precedents and, in particular, has

incorrectly 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 makes out a prima facie case and produces evidence that the employer's

proffered legitimate business reason for the adverse employment action complained of

was pretextual, unless that evidence is inconsistent with the kind of discrimination that

the plaintiff claims motivated the employment action. Here, Thomson claimed that

Mr. Kneibert was discharged for poor job performance, but there is plenty of evidence

in this record from which a reasonable person could conclude that he was indeed

performing his job satisfactorily. While the jury, of course, does not have to believe

Mr. Kneibert's evidence, it must be given the chance to reject or accept it. 

The court notes that Rothmeier held that proof of pretext does not entitle a

plaintiff to summary judgment. That is true, but it is also beside the point. In this case,

Mr. Kneibert is not asserting that he is entitled to summary judgment; he is merely

asserting that Thomson is not entitled to summary judgment. I agree with Mr. Kneibert

and therefore respectfully dissent from the court's judgment affirming the summary

judgment in favor of Thomson on the discrimination claim against it. I concur in the

judgment in all other respects.

A true copy.

Attest:

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