United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1423

___________ Darrell Kempcke, * * Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Monsanto Company, * * Defendant - Appellee. *

___________ Submitted: October 21, 1997 Filed: January 6, 1998

___________ Before FAGG, WOLLMAN, and LOKEN, Circuit Judges.

___________ LOKEN, Circuit Judge.
Monsanto Company fired Darrel l Kempcke when he refused to return company documents that he believed reflected a pattern of age discriminati on against himself and oth ers. Kempcke now appeals the grant of summary judgment dismissing his ag e discrimination and retaliation claims under the Age Discr imination in Employment Act, 29 U.S.C. §§ 621-34, and the Missouri Human Rights Act, Mo. Ann. Stat. §§ 213.010 et seq . We reverse.-2-

We view the facts in the light most favorable to Kempcke. At the time i n question he was a forty-eight year old senior training manager in Monsanto’s Global Operations Division. Kempck e had been denied three manager positions after turning forty, the explanation being that Monsanto reserved these positions for “youn g promotables.” H e received a favorable performance review in 1992, with a comment that hi s work was “well above” Monsanto’s expectations. In early 1993, Monsant o assignedhim a personal computer previously used by Bud Garrison, a high-rankin g Human Resou rces officer. While deleting old files from the computer’s hard drive , Kempcke discovered two documents that led to this litigation. One was a June 1991 letter between

two Monsanto executives addressing the need to find opportunities for pro mising young employees. Another was an “Organization Upgrade Plan” for th e Global Operations Division, authored by Garrison.

Gar rison’s Upgrade Plan proposed a reduction in the number of Divisio n managers th

rough reassignment, retirement, and outplacement. It organized the fiftynine managers into four categories, “must keep,” “want to keep,” “close calls,” an d “remove from position.” Kempcke was listed in a subpart o f the “close calls” category labele d “probably will not make it.” All fifteen managers in this subcategory and the “remove from position” category were at least forty years old. The Plan noted that five of the n ine employees recommended for outplacement, including Kempcke, woul d likely “make age an issue” if this action was taken. By the time Kempcke found the document, three of the fifteen had been “downgraded” and six were “on their way out.” By August 1996, all fifteen had left the company or been demoted.
Kempcke showed the Upgrade Plan to Garrison and asked, “Does this mean I don’t have a job or a future here?” Dissatisfied wit h Garrison’s non-answer, Kempcke thencomplained to his supervisor, James Schafbuch, that the Upgrade Plan reflected age discrimination. Schafbuch dema nded that Kempcke return all documents found in the computer. Kempcke replied that Monsanto should deal with his attorney on that issue. Schafbuch responded with a memorandum stating that Kempcke would be-3-

te rminated

for insubordination unless he returned the documents by June 14, 1993

. Schafbuch fired Kempcke on June 14 when he failed to meet that deadline.

The d istrict court granted summary judgment dismissing Kempcke’s ag e di scriminationand retaliation claims, concluding that Monsanto fired him for a legitimate business reason -- refusing to return company property -- and tha t Kempcke’s refusal was not protected activity that could support a retaliation claim

. We r eview the grant of summary judgment de novo

. See Rothmeier v. Investmen t Advisers, Inc. , 85 F.3d 1328, 1331 (8th Cir. 1996).

I. Retaliation
The ADEA provides that it is “u nlawful for an employer to discriminate against any of his employees . . . because such individual . . . has opposed any practice made unla wfulby this section, or . . . participated in any manner in an investigation , proce eding, or litigation under this chapter.” 29 U.S.C. § 623(d). Kempcke’ s retaliation claim requires proof that he engaged in ADEA-protected activity, Monsanto took adver se employment action against him, and there was a causal connectio n between the two. See Montandon v. Farmland Ind., Inc. , 116 F.3d 355, 359 (8th Cir. 1997). At the summary judg ment hearing, supervisor Schafbuch testified that he fired Kempcke “for refusing to return all documents that he may have removed fro m Monsanto property,” including the Upgrade Plan and the 1991 letter that Kempcke had delivered to his attorney. The questi on, then, is whether Kempcke engaged in ADEAprotected activity when he delivered arguably incriminating company documents to his attor ney and then told Monsanto to contact his attorney for return of the documents , instead of complying with Monsanto’s demand to return the documents himself.

Protec ted activity includes “oppos[ing] any practice made unlawful” by th e ADEA , § 623(d). Employer conduct that an employee opposes need not in fact b e unlawful. Rather, the employee must “demonst rate a good faith, reasonable belief that-4-

the underlying challenged act ion violated the law.” Wentz v. Maryland Cas. Co. , 869 F.2d 1153, 1155 (8th Cir. 1989).
Viewing the summary judgment evidence most favorably to Kempcke, a
reasona ble factfinder could conclude he had a good faith reasonable belief that th e documents found in his computer revealed an ongoing Monsanto plan to weed ou t senior managers, including K empcke, at least partially because of their ages. Standing alone, t he Upgrade Plan is quite innocuous, because an employer’s concern with possible age discrimination claims “should not be equated with an admission of agerel ated animus,” Bashara v. Black Hills Corp. , 26 F.3d 820, 824 (8th Cir. 1994), and because a document identifying the age of a group of employees is “not significantly probative” of age discrimination. Earley v. Champion Int’l Corp. , 9 07 F.2d 1077, 1082 (11t h Cir. 1990). But Kempcke, a twenty-two year employee with an excellen t perfo rmance record, nonetheless inferred that age was a factor underlying the Plan’s prop osed outplacements, based upon his interpretation of language in the Pla n doc ument, reinforced by Monsanto executives’ recurring references to “youn g promotables” and the 1991 letter declaring a need to find opportunities for younge r employ ees. Kempcke confronted his supervisor with these documents and requested an exp lanation. That is clearly protected activity. He also gave the documents to his attorne y and told his supervisor that Monsanto must deal with his attorney on th e que stion of whether the documents would be returned. This was at least arguabl y opposit ional or litigation activity, because it placed documents that might evidenc e discriminati onin the hands of a legal professional who would litigate the issue o n Kem pcke’s behalf if he could not resolve the matter informally with Monsanto. A n employee with a good faith reason to believe his employer is engaged in unlawful age discrimination “has a legitimate interest in preserving evidence of [his employer’s ] unlawful employment practices.” O’Day v. McDonnell Douglas Helicopter Co. , 7 9 F.3d 756, 763 (9th Cir. 1996).-5-

Evenif Kempcke’s conduct in delivering arguably incriminating documents to his attorney was generally consistent with opposing unlawful age discrimination, w e mustalso consider whether that conduct was so disruptive, excessive, or “generall y inimical to [ the] employer’s interests . . . as to be beyond the protection” of § 623(d). Hochstadt v. Worcester Fou ndation for Experimental Biology , 545 F.2d 222, 230 (1st Cir. 1976); see Jackson v. St. Joseph State Hosp. , 840 F.2d 1387, 1390-91 (8th Cir

. 1988). For example, an employee who steals confidential company documents, even documents that may evidence discrimination, has not engaged in protected activity that will support a retaliation claim if he is discharged for theft. See O’Day , 79 F.3d at 762- 64; Hornsby v. Conoco, Inc. , 777 F.2d 243, 246 (5th Cir. 1985). Cf. McKennon v

. Nashville Banner Publ’g Co. , 513 U.S. 352 (1995).
Here, Kempcke innocently acquired the documents, discovering them in a computer assi gned to him by Monsanto. This is akin to the employee who i s inadver tently copied on an internal memorandum, or who discovers a documen t mistakenly left in an office copier. Without question, employees in these situation s have a duty to safeguard t

he employer’s documents and confidential information. But when document s have been innocently acquired, and not subsequently misused, there has not been the kind of employee misconduct that would justify withdrawin g otherwise appropriate § 623(d) protection. Of course, employee insubordination i s ordinarily a legi timate non-discriminatory reason for adverse action, see, e.g. , Berg v. Bruce , 112 F.3d 322, 327 (8th Cir. 1997), and insubordination can include refusing to
re turnconfidential employer documents. But when the insubordination consists o f refus ing to cease what a jury could find to be reasonable ADEA-protected activity , such as retaining a document that may evidence on-going discrimination, summary judgment dismissing a retaliation claim is not appropriate.

Two recent decisions illustrate the rather subtle distinctions that must be made in thes e kinds of retaliation cases. In Bullock v. American Tel. & Tel. Co. , 50 Fai r Empl. Prac. Cas. (BNA) 407, 1989 WL 13242 (N.D. Ill. 1989), an equal employment-6-

compliance officer upset with his salary complained that his analysis of the company’s salary programs sh owed an adverse impact on older employees. The employer asked to see the analysis and underlying data. The employee refused, was fired fo r in subordination, and sued, claiming unlawful retaliation against his protected activity in investigating age discrimination. The court granted summary judgment for th e employer. Because it was plaintiff’s job to ensure that the employer’s personne l deci sions were free of discrimination, his refusal to share his discrimination analysi s with t he employer was a fundamental breach of a job duty that justified his discharge for insubordin ation. On the other hand, in Grant v. Hazelett Strip-Casting Corp. , 880 F. 2d 1564 (2nd Cir. 1989), the company president asked plaintiff to recruit a youn g man to fill p laintiff’s former position. Plaintiff wrote a memorandum setting forth the yo ung man criteria, and the president signed his approval on the memorandum

. Plaintif f’s supervisor later edited the incriminating criteria out of the document , demanded that plaintiff surrender his copy of the ori ginal version, and fired plaintiff for insub ordination when he refused. A jury upheld plaintiff’s retaliation claim, and th e Second Circuit upheld the jury’s verdict. The court rejected defendant’s contentio n that this was improper conduct unworthy of ADEA protectio n because, even if plaintiff had an ulterior motive in asking the president to sign the document, the jury could find this condu ct protected because “Grant’s memo did not create the appearance o f discrimination but, as Grant testified, merely documented a discriminatory practice that already existed.” 880 F.2d at 1570.
In support of its holding that Kempcke’ s conduct was not protected activity, the district court cited O’Day and Jefferies v. Harris County Community A ction Ass’n , 615 F. 2d 1025 (5th Cir. 1980), cases involving improper dissemination of an employer’ s documents to third parties oth er than the plaintiff’s attorney. Here, there is a genuine disput e whether Kempcke disseminated the documents or their contents to person s other than his attorney, conduct that might well be unworthy of protection. Fo r
sum mary judgment purposes, we must accept Schafbuch’s testimony that he fire d Kempcke simply for refusing to return all c opies of the documents, leaving issues such-7-

as wr ongful dissemination to others to develop at trial. On this record, a reasonabl e jury could fin d that it was protected activity for Kempcke to deliver the documents to his attorney and tell Monsanto to deal wit h the attorney regarding their return, and that it was unlawful retalia

tion to fire Kempcke for engaging in this activity. Accordingly, the district court erred in granting summary judgment dismissing the retaliation claim.
II. Age discrimination

An age discrimination claim requires proof that the employer intentionall y discriminated against an employee over the age of forty on account of his age. See 29 U.S.C. §§ 623(a)(1), 631. Age discrimination may be proved indirectly by showin g that the employer’s profferred explanat ion is “unworthy of credence” and a pretext for intentional discrimination. Texas Dep’t of Community Affairs v. Burdine , 450 U.S

. 248, 256 (1981).
In this case, Kempcke discovered an Upgrade Plan recommending elimination of fifteen division manager positions. The Plan noted that the fifteen were over ag e for ty and predicted that five would complain of age discrimination if outplaced

. Kem pcke complained that the Plan reflected age discrimination, first to Plan autho r Ga rrison and then to supervisor Schafbuch. Rather than provide an explanation , Schafbuch r

esponded with a peremptory demand that Kempcke return the documents or be fired for insubordination, even though Schafbuch knew that Kempcke had given the documents to his attorney.

If th ere was no more to the incident than that, a reasonable factfinder coul d
co nclude that Monsanto’s action in firing Kempcke for giving innocently acquire d doc uments to his attorney, rather than returning them himself, was such an extrem e
overreac tion as to be pretextual, that is, “unworthy of credence.” And if Monsanto’s
reas onfor firing was pretextual, that tends to support the inference that the Upgrad e Plan w as in fact a plan to terminate Kempcke and others on account of their ages. In-8-

these circumstances, we conclude on the record before us that Kempcke presente d sufficient evidence to avoid summary judgment dismissing his age dis crimination claim. See general ly Ryther v. Kare 11 , 108 F.3d 832, 836-38 (8th Cir. 1997), cert. denied , 117 S. Ct. 2510 (1997); Rothmeier , 85 F.3d at 1332.
For the foregoing reasons, the ju dgment of the district court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
FAGG, Circuit Judge, dissenting.
Kempcke was fired because he took his employer's documents and refused t o give them back. I believe there is a big difference between ou t-and-out insubordination and prot ecting one's civil rights when age discrimination is afoot in the workplace

. Although unintended, the court's decision not only opens up another avenue of on-thejob mischi ef but puts employers in a position where they can't do anything about it. I would affirm the district court.
A true copy.

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