United States Court of Appeals FOR THE EIGHTH CIRCUIT

____________________________________ Nos. 97-1973EM, 97-2061EM, 97-2598EM

____________________________________ Dee Lyoch, * * Appellant, * * On Appeal from the United v. * States District Court * for the Eastern District * of Missouri. Anheuser-Busch Companies, Inc., * * Appellee. *

___________ Submitted: November 17, 1997 Filed: March 20, 1998

___________ Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN and MAGILL, Circui t Judges.

___________ RICHARD S. ARNOLD, Chief Judge. Dee Lyo ch appeals the District Court’s entry of summary judgment in favor of Anheuser-Busch Comp anies, Inc., on her claims of employment discrimination on the basis of sex, age, and retaliation. We affirm in part and reverse in part.-2- I. Dee Lyoch began her career with Anheus er-Busch in April 1960, when she was hired as a secretary. After several promotions to other clerical positions, she received her first managerial position, as Sales Service Manager, at salary grade 17, in Ma y 1977. In 1982, Lyoch was promoted to the g rade-23 position of Manager, Wholesaler Equity A greement Operations, which required her to administer the contract tha t governed the relationship between Anheuser-Busch and its wholesalers. Evaluations of Lyoch’s p erformance in this position were very good. In 1986, 1987, and 1988 , Tom Sobbe , her superior, wrote that she was a “[v]ery dependable and conscientious employee” and recommended her for promotion to one of three positions: director of sales training; staff

assistant to a vice-president; or a position with Campbell-Taggart, a separate Anheuser-Busch company. Despite these favorable evaluations, Lyoch was not promoted beyond salar y grade 2 3 while she was employed at Anheuser-Busch, though she did receive regular meritr aises and annual bonuses. In 1987, Lyoch complained to Anheuser-Busc h ombudsman Camille Emig that she b elieved she had been discriminated against on the basis of sex by Tom Sobbe . This complaint produced a great deal of friction between Lyo ch and Sobbe. On July 17, 1992, Lyoch filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and the Missouri Commission on Human Rights, allegin g that she had been denied promotions and compensation on account o f her sex and age, and that Sobbe had retaliated against her because sh e complained about him. Ly och left Anheuser-Busch on December 31, 1993, when she accepted an early-retirement package.
On July 18, 1994, Lyoch filed this action in the District Court, alleging failure to pro mote, wage discrimination, and retaliation in violation of Title VII of the Civi l Righ ts Act of 1964, 42 U.S.C. § 2000 et seq . (1994); the Age Discrimination i n Employment A ct, 29 U.S.C. § 621 et seq . (1994); and the Missouri Fair Employment-3-

Practices A ct, Mo. Ann. Stat. § 213.010 et seq . (1996). The Court filed a memorandum

and opinion on February 21, 1997, granting Anheuser-Busch’s motion for s ummary judgment. Specifically, the Court held that Lyoch had failed to present
agenuine issue of material fact on her failure-to-promote claim because she failed to establi sh job responsibilities for any positions for which she was passed over, t o demonstrate her qualifi cations for the job, and to demonstrate the qualifications of the person who actually received the promotion. The District Court granted summary judgment on Lyoch’s wage discrimination claim because it held that Lyoch had no t established that higher-paid men performed substantially equal work. Fina lly, the Court heldthat summary judgment was appropriate for the retaliation claim because Lyoch “su fferedno decrease in title, salary or benefits” after she complained about he r problems with Tom Sobbe, and because she did not dem onstrate that she was qualified forany of

the positions which she claims she did not receive because of retaliation

. Lyoch now appeals.

II.
A. Summary judgment is approp riate if there are no genuine issues of material fact as to the essential elements of a party’s case. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). The elements of the prima facie case for a failureto-promote claim are

well established: The plaintiff must demonstrate “(1) that she is a member of a protected group; (2) that she was qualified and applied for a promotion to a position for which the employer was seeking applicants; (3) that despite he r qualifications, sh e was rejected; and (4) that other employees of similar qualifications who we re not members of a protected group were promoted at the time plaintiff’ s request for promotion was denied. ” Marzec v. Marsh , 990 F.2d 393, 395-96 (8th Cir. 1993). Under the McDonnell Douglas framework, after a plaintiff makes a prima facie showing of liability, the employer must produce evidence that it had a legitimate,-4-

nondi scriminatory reason for its actions. If the employer meets this burden o f production, then the burden shifts to the plaintiff to show that the employer’s actions were a pretext for discrimination. Texas Department of Communi ty Affairs v. Burdine , 450 U.S. 248, 253-54 (1981); McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802- 03 (1973).
The District Court granted summary judgment on Lyoch’s claim that she wa s wrongfully denied promotions on th e basis of her age and sex because, the Court said, she f ailed to present evidence that she was qualified for any of the sixteen identifie d positions which were filled within the applicable period of lim itations. Specifically, the Court said that she did not identify any of the job responsibilities or qualifications for the pos itions, and did not demonstrate that she met any of these qualifications at th e time the positions were filled. Though it gr anted summary judgment for these reasons, the District Court noted that it would not have required Lyoch to show that she actually applied for any of the sixteen positions because, viewed in a light most favorable t o Lyoch, Anheuser-Busch’s promotions policy was “vague and secretive.” Di strict Court Op. at 10. See Winbush v. State of Iowa by Glenwood State Hosp. , 66 F.3d 1471 , 1481 (8th Cir. 1995). We believe that Lyoch has presented evidence su fficient to raise a genuine issue of material fact on her failur e-to-promote claim. The depositions of Luke Meatte and Ji m Hunter, two long-time Anheuser-Busch employees who served in severa l manag erial positions, support Lyoch’s argument that Anheuser-Busch’s promotion s policy was informal and subjective a nd, in the words of the District Court, “vague and secretiv e.” District Court Op. at 10. According to Meatte, he did not formally apply for new positions at Anheuser-Busch; he was simply asked if he would be interested
or info rmed that he would be promoted. Appellant’s App. at 315-16, 318. Hunte r described being promoted at Anheuser-Busch as “not a firm process . . . . I don’t recall the promotions proce ss ever being specifically formalized.” Appellant’s App. at 181.-5-

Anoth er court, faced with a subjective promotions process, has held that a plaintiff has a lighter burden when attempting to make a prima facie case of failure to promote than in a situation involving objective promotions criteria: [A] prima f

acie showing can be made through credible evidence that a plaintiff w a s qualified even if that evidence was disputed by the employer, and . . . this burden may be met through the plaintiff’s own testimony and that of co-workers who were in a position to know the plaintiff’s qualifications. Thomas v. Denny’s, Inc. , 111 F.3d 1506, 1510 (10th Cir.), cert. denied , 118 S. Ct. 626 (1997) (citation omitted). This lighter burden at the prim a facie stage is justified by the fact that subjective criteria for promotions “are particularly easy for an employer t o invent in an effort tosabotage a plaintiff’s prima facie case and mask discrimination.” Id. (citing Ellis v. United Airlines, Inc. , 73 F.3d 999, 1005 n.8 (10th Cir.), cert. denied , 116 S. Ct. 2500 (1996)). We ag ree; a plaintiff alleging a prima facie case of failure to promote should not bear the same burden when the criteria are subjective and th e process “ vague and secretive” as when the case involves “objective hiring criteri a applied to all applicants.” Id. The record includes deposition testimony and d ocuments from Anheuser-Busch, as well as Lyoch’s ow n affidavit, which pose a factual issue as to whether Lyoch was qualified for a promotion to a higher salary grade level. First, we find particularl y relevant Tom Sobbe’s eva luations of Lyoch’s performance, in which he described her
as a “[ v]ery dependable and conscientious employee” and recommended her fo r prom otions to positions including Director, Sales Training, and Staff Assistant to a Vice-President . The District Court did not find these evaluations convincing because the la test was made four years before some of the sixteen positions, including a n Executive Assistant to Vice-President, Sales, were filled. However, there is nothing in the record to indicate that Lyoch was less qualified in 1992 than she was in 1988, when Sobbe recommended her for a promotion “Now” to a position as a StaffThe District Court based its decision to grant summary judgment on Lyoch’ s 1 age disc rimination claim in part on its belief that Lyoch provided no evidence of th e ages of men who were promoted instead of her. District Court Op. at 14-15 . However, the record includes Anheuser-Busch documents listing the ages of seventeen younger male employees Lyoch claims were promoted to positio ns for which she was qualified. See Appellant’s App. at 234-37, 551-567. -6- Assi stant to a Vice-President. Thus, Anheuser-Busch’s own evaluations of Lyoch’ s performance raise an issue as to whether she was qualified for a promotion. 1
Ted Roden’s deposition also indicates that Lyoch was qualified for promotion. Roden w as an Anheuser-Busch distributor for approximately 35 years who worke d close ly with Lyoch when she served as Manager, Wholesaler Equity Agreemen t Oper ations. Roden gave Lyoch’s performance high marks, describing her as “th e umbili cal cord between the distributors and the Brewery” and saying that “she wa s ru nning [the Equity Operations] department.” Appellant’s App. at 149, 151. At th e very least, this testimonycreates a factual question as to whether Lyoch was qualified for promotion. The Dist

rict Court discounted Roden’s deposition because he was not
an Anheuser-Busch employee, and Anheuser-Busch, in its brief, asserts that “[a]s a matter of law, the opinion of co-workers, customers, clients and other non

decis ionmakers is not relevant to the determination of an individual’s qualifications.” Appellee’s Br. at 25. On the contrary, Roden’s affidavit is relevant as long as it has “any te ndency to make the existence of any fact that is of consequence to th e determination of [this] action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. Certainly, the testimony of someone who worked closel y with Lyoch in her employment capacity would be relevant to the issue o f whet her she was qualified for promotion. The trier of fact is free to consider suc h evidence less persuasive than if it c ame from someone at Anheuser-Busch empowered to make decisions on promotion, but courts considering motio ns for summary judgment may not weigh evidence in this way.-7-

Lyoch has presented sufficient evidence to raise a factual iss ue as to whether she
was q ualified for promotion. We therefore reverse the District Court’s grant o f summary judgment on that issue. Lyoch’s claims of age and sex discrimination in the failure to promote her are sufficient to survive the summary-judgment stage.
B. We affirm the holding of the District Court on the plaintiff’ s wage discrimination claim. To make a prima facie cas e of wage discrimination, Lyoch must prove that she
was paid a lower wage than a younger employee or an employee of the opposite sex who was performing equal work on a job which required equal skill, effort, an d responsibility, and which was performed under similar working conditions. See Equal Employment

Opportunity Commission v. Delight Wholesale Co. , 973 F.2d 664, 669 (8th Cir. 199 2). Lyoch has not produced evidence that she was performing work substantially equal to that of younger employees or male emplo yees at Anheuser-Busch who were paid more. The District Court properly granted Anheuser-Busch’s motion for summary judgment on Lyoch’s wage discrimination claim.
C.
Withrespect to Lyoch’s claim of retaliation, we agree with the District Court, lar gely for the reasons stated in that Court’s opinion, that summary judgment wa s appropriate for defendant. Lyoch’s theory is that Anheuser-Busch retalia ted against her
onaccount of internal complaints of discrimination she had made about Tom Sobbe. In our view, the evidence in this record is not strong enough to raise a genuine issue of material fact as to whether any action by the company was causally connected to these internal complaints.-8- III.
A. Next, we address Lyoch’s a rgument that we should reverse the District Court’s decision to deny her req

uest to extend the discovery deadline to give her more time to cho ose and disclose an expert witness. A district court’s decisions managing th e discovery process are reviewable only for abuse of discretion. See Dabney v

. Montgomery Ward & Co. , 761 F.2d 494, 498 (8th Cir.), cert. denied , 474 U.S. 90 4 (1985)

. The District Court did not abuse its discretion in not extending the expert

disclosure deadline. Not only did Lyoch not comply with the de adline, she waited until four months after the deadline, and three weeks after the close of all discovery, t o request an extension of ti me. While the District Court may, if it chooses, grant Lyoch
more time aft er this case is remanded, we cannot say that it abused its discretion b y denying the extension.
B. Finally, we rev erse the District Court’s award of costs of $4,663.37 in favor of Anheuser-Bu sch. Federal Rule of Civil Procedure 54(d) provides that costs are to be awarded to the prevailing party as a matter of course unless t he court directs otherwise. The order of the Distri ct Court with respect to costs must now be vacated, since there is as yet no prevailing party in the case as a whole.
IV.
For the reasons discussed above, we affirm the judgment of the District Court in part, reverse in part, and remand for further proceedings not inconsistent with this opinion.-9-

It is so ordered. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.