## The Honorable David S. Doty, United States District Judge for the District of 1 

## Minnesota. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ Nos. 96-2802/2846

___________ Ruth C. Deneen, * Cross-Appellant/Appellee, * Appeals from the United States

v. * District of Minnesota. Northwest Airlines, Inc., a * Minnesota * corporation, * Appellant/Cross-Appellee. *

* District Court for the

*

*

___________ Submitted: May 22, 1997 Filed: January 6, 1998

___________ Before McMILLIAN, FAGG, and HANSEN, Circuit Judges.

___________ HANSEN, Circuit Judge.

Ajury a warded Ruth C. Deneen compensatory and punitive damages o n her cla im of pregnancy discrimination in employment against Northwes t Airlines, Inc. (NWA). NWA sought judgment as a matter of law, which the distri ct court granted in part by striking the jury’s award of punitiv e 1 damag es. NWA appeals, arguing that Mrs. Deneen did not prove unlawfu l discrimination and that her claims are precluded

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by the Railway Labor Act (RLA), 45 U.S.C. § 1 51 (1994). Mrs. Deneen crossappeals the distri ct court's partial grant of judgment as a matter of law, seeking to reinstate the jury’s verdict of punitive damages. We affirm.
I. Background

View ing the facts in the light most favorable to the jury verdict , Ryther v. Kare 11 , 108 F.3d 832, 836 (8th Cir.) (en banc), cert. denied , 117 S. Ct. 2510 (1997), a reasonable jury could h ave found the following facts. InJanuary 1990, Ruth C. Deneen began working as a customer service agent (CSA) for NWA. In general, CSAs perform thre e major job functions: ticket counter work, baggage service, and gate service. The job generally requ ires
re petitive lifting of luggage and boxes that average 24 pounds and ca n exceed 75 pounds, intermittent bending, and s tanding or walking during most of a shift. The general CSA job description also includes some non-lifting positions and duties, such as coordinating unaccompanied minors, handlin g the lost and found, processing damage claims, announcing flights, an d helping passengers board flights.

In Jan uary 1993, NWA laid off Mrs. Deneen as part of a reduction in force. She was pregnant at that time with an expected delivery date i n July, and she had informed NWA of her pregnancy. In April, the secretary to Steve Holme, director of ground operations, placed a telephone call to Mrs. Deneen, offering her a temporary part-time CSA position during the busy travel months of J une through September 1993. Mrs. Deneen orally accepted the position. The secretary inquired casually about Mrs. Deneen’ s pregna ncy. In late May, another NWA representative informed Mrs. Denee n that she would be working five-hour shifts, beginning on June 9, 1993.
On June 2, 1993, the doctor restr icted Mrs. Deneen to 48 hours of bed rest and relaxation due to pregnancy-induced hypertension. Mrs. Deneen' s husban d, who also worked as a CSA for NWA, took some time off work to b e with h er. On June 8, 1993, concerned about their family finances, Mr

. Deneen called Mr. Holme's office to inquire

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about ho w long a person must be “on the clock” at work to receive earne d benefits. (Appellant’s App. at 5.) The secretary knew of Mrs. Deneen's pre gnancy, and the office apparently knew that Mr. Deneen had taken som e leave t o be home with his wife. The secretary referred the call to Mr

. Hol me, who responded that Mrs. Deneen would not be allowed to return t o work, "because of her pregnancy complication." ( Id. at 6.) Mr. Deneen was surprised that anyone at NWA would even know whether or not Mrs. Deneen had sufferedcomplications. The conversation became heated, and Mr. Holm e conclu dedby stating that Mrs. Deneen could only return to work if sh e produced a doctor’s note verifying her fitness to work.

Mrs. Den een complied and obtained a doctor’s note releasing her t o work her fi ve-hour shift with light duty. When she reported to work a s sch eduledon June 9, 1993, Mrs. Deneen discovered that no time card wa s prepare d for her and her name had been crossed off the work list with a notation by Mark H orvath, the CSA manager, that she was on a medical leave of absence. Neither Mr. Holme nor Mr. Horvath had ever spoken to Mrs

. Deneen about her medical condition -- they were acting on an assumption that she had a pregnancy-related complication that would not allow her to per form her job functions.

Mr. Ho lme and Mr. Horvath met with Mrs. Deneen after she reported to work. Mr. H olme said, "It's been brought to my attention that you ar e having problems with your pregnancy, and we need you to bring in a note." (Appellant's App. at 47.) She then presented her note along with her own
ex planationthat she could perform most of the job functions, with th e exception of lifting bags. She had not previously been aware that she w ould have to comply with any particular lifting requirements. Mr. Horvath then presented Mrs. Den een with a letter outlining the physical requirements of the CSA job, including the ability to lift up to 75-pound bags of luggage onto a conveyor belt. Mrs. Deneen said that she never was able to lift 75- pound bags even when she was not pregnant, and she named many CSA duties and job functions that she could perform with her present limitation. Mr. H olme responded, "If I let you come

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back now, you would just go out and take your sick leave, and that would be preventing another person from working." ( Id

. at 49-50.) He told her that she could not come back to work unless she had a doctor's note verifyin g that she could perform all the listed job functions.
The next day, Mrs. Deneen received a letter notifying her th at she was not qualified to return to work because of he r medical restriction to light duty. The letter informed her that the decision could be reviewed if her doctor certified her as fit to perform all of the physical aspects of the job

. Four months later, after she had delivered her baby and full y recovered from the pregnancy, NWA again called Mrs. Deneen back to workbut did not ask if she was pregnant and there is no indication that NWA requ ired any certification that she could lift up to 75 pounds.

Mrs. D eneen brought suit against NWA, alleging that it discriminated against her on the basis of her sex, in violation of 42 U.S.C. § 2000(e)- 2(a) (1988), as am ended by the Pregnancy Discrimination Act of 1978 (PDA), 42 U.S.C. § 2000e(k) (1988), and on the basis of her disability, i n vio lationof 42 U.S.C. § 12112 (Supp. V 1993) of the Americans wit h Disabilit ies Act. She also alleged pendent state law claims o f discrimination on the basis of pregnancy and disability under the Minnesota Human Righ ts Act (MHRA), Minn. Stat. Ann. § 363.03, subd. 1 (West 1991 & Supp. 1997). The district court dismissed Mr s. Deneen’s disability claims, concluding that she is not an individual with a disability as defined i n either the ADA or the MHRA. NWA moved to dismiss the remaining claims for lack of subject matter jurisdiction, arguing that Mrs. Deneen’ s discriminationclaims were preempted by the Railway Labor Act, but th e district court rejected this contention.

The Pregnancy Discrimination Act claim proceeded to trial. Th e district court con cluded as a matter of law that Mrs. Deneen had submitted sufficient direct evidence of discrimination to justify submitting the case to the jury as a mixed-motives case. On this basis, the jury entered a special verdict finding that NWA "did not allow Ruth

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Deneen to return from layoff status on June 9 , 1993, and that her pregnancy was a motivating factor" in its decision. (Appellant's Adden. at AA4.) The jury also found th at NWA would not have made the same decision had she not been pregnant. Th e jury awarded Mrs. Deneen $3,500 in lost wages, $10,000 for other compensatory damages, and $10,000 in punitive damages.

The district court took the MHRA claims under advisement an d ultimatelyapplied the same analysis, noting that the MHRA mirrors th e language of the Pregnancy Discrimination Act. The district court found that Mrs

. Deneen's pregnancy was a motivating factor in NWA's decision not t o allow her to return from layoff status and th at NWA would not have required strict compliance with the lifting requirement had she not been pregnant. While NWA assertedthat its decision not to allow Mrs. Deneen back to work was based on a concern for her own safety, the district court concluded that such laudable reasons are no longer sufficient to justify an advers e employment action. The district court also found that the proof did no t support NWA's asse rtion that Deneen was not physically able to perform the
same work as other employees. The district court adopted the jury' s compensatorydamage awards, but concluded that an additional damage awar d would be duplicati ve. Thus, the court did not award any additional actual damages arising from the state cause of actio n and declined to award treble the actu al damages as allowed by state law. Additionally, the distric t court declined to award punitive damages under state law.

NWAfiled a post-judgment motion for judgment as a matter of law o r in the alternative for a new trial. The dist rict court granted this motion in par t, striking the jury award of punitive damages in the federa l discriminationclaim. The district court awarded attorneys' fees to Mrs. Deneenas the prevailing party. NWA appeals the verdict, and Mrs. Deneen cross-appeals the district court's decision t o strike the award of punitive damages.

## -6- II. Discussion A. Proof of Discrimination

NWA as serts that the district court erred by not granting its motion for judgment as a matter of law, arguing that Mrs. Deneen failed to prove pre gnancydiscrimination. We review de novo the denial of a motion fo r judgment as a matter of law. Gardner v. Buerger , 82 F.3d 248, 251 (8th Cir. 1996). “Judgment as a matter of law is appropriate only when the nonmo ving party fails to present enough evidence to permit a reasonable jury to de cide in his [or her] favor.” Id.

Title VII declares it unlawful for an employer to discharge "o r otherwise to discriminate against any individual with respect to [her ] compensation, terms, conditions or privileges of employment" on the basi s of the indi vidual's sex. 42 U.S.C. § 2000e-2(a)(1). As amended by th e Pregnancy Discrimination Act, the sex discrimination proscribed by Title VII includes discrimin ation on the basis of "pregnancy, childbirth, or related medical conditions; and women affected by pre gnancy, childbirth, or related medical conditions shall be treated the same for all employment-relate d purposes, including receipt of benefits under fringe benefit programs, a s other persons not so affected but similar in their ability or inability to work." 42 U.S.C. § 2000e(k); see Lang v. Star Herald , 107 F.3d 1308, 1311 n.2 (8th Cir.) (explaining purpose and effect of Congress’s enactment of the PDA) , cert. denied , 118 S. Ct. 114 (1997). Thus, to prevail on he r pregnancy discrimination claim, Mrs. Deneen h ad the burden to show that she
was "treated differently because of her pregnancy" or a pregnancy-relate d
con dition. Geier v. Medtronic, Inc. , 99 F.3d 238, 241 (7th Cir. 1996)

. Consistent with Title VII, an employer may be held liable for dismissing an employee on the basis of a mixture of motives, including some legitimate and some illegitimate considerations. See Price Waterhouse v. Hopkins , 490 U.S. 228 (1989) . This point has been strengthened by the Civil Rights Act o f 1991, which states that an unlawful employmen t practice is established when an individual demonstrates

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that pregnancy or a pregnancy-related condition "was a motivating factor for anyemployment practice, even though other factors also motivated th e practic e." 42 U.S.C. § 2000e-2(m). See Robinson v. Southeastern Pa

. Transp. Auth. , 982 F.2d 892, 899 & n.8 (3d Cir. 1993) (noting the 1991 C ivil Rights Act “overru l[ed] that portion of Price Waterhouse that permitted an employer to avoid liability if it could demonstrate that it would have t aken the same action in the absence of discriminatory motive”).

1. Direct Evidence

NWAfirst challenges the trial judge’s conclusion that Mrs. Denee n presented direct evidence of discrimination. Direct evidence is that which demonstrates “a specific link between the all eged discriminatory animus and the challenged [em ployment] decision, sufficient to support a finding by a
reas onable fact finder that an illegitimate criterion actually motivate d [the employer’s] decision” to take the adverse employment action. Thomas
v. First Na t’l Bank of Wynne , 111 F.3d 64, 66 (8th Cir. 1997) (interna l quotations omitted). We conclude that the district court was correct inits determination that Mrs. Deneen presented dire ct evidence of discrimination: Without any real k nowledge of a physical limitation, Mr. Holme stated that Mrs. Deneen could not return to work from lay off status without a note from her physician because of her pregnancy-related condition.

NWAcont ends that “a statement that simply refers to an employee’ s protected status, but fails to express any bias against the employee bec ause of that status, is not direct evidence” of discrimination. (NWA’s Br. at 23.) T his principle may apply with regard to the secretary’s initia l inquiry as to whether Mrs. Deneen was pregnant. There is evidence, howe ver, that NWA did more than merely refer to Mrs. Deneen’s pregnant status in this manner. Mr. Holme’s initial statement that she could not return to workwas expresslybased on her pregnancy-related condition, a condition he onl y assume d to exist, and was made before Mr. Holme knew of any pregnancy

related physical

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restrictions. He did not simply refer to her pregnant status but made an adverse employment decision on the basis of his discriminatory judgmen t abo ut her abilities or her propensity to use earned sick leave benefits

. Additionally, the cases cited by NWA in suppo rt of its contention that mere reference to a protected status is not direct evidence of discriminationare distinguishable. For example, in Philipp v. ANR Freight Sys., Inc. , 61 F.3d 669, 674 (8th Cir. 1995), the plaintiff claimed that one decision maker’s occasional reference to him as “the old man” amounted to direct evidence of age discrimination when he was terminated as part of the defendant’ s reductionin force. We held that these references were nothing more than strayremarks in the workplace, because no evidence linked the remarks to the challenged employment decision. Id. See also Geier , 99 F.3d at 242 (“To be probative of discrimination, isolated comments must be contemporaneou s wit hthe discharge or causally related to the discharge decision makin g process.”). In the present case, Mr. Holme’s remarks about Mrs. Deneen’s pregnancy-related complication were made contemporaneously and directly in connect ionwith the adverse employment decision. Her pregnancy-relate d condition wa s the reason Mr. Holme took her name off the duty list an d refused to permit her to return to work.

We con clude the district court correctly determined that Mrs. Deneen presented direct evidence of discrimination. Based on this conclusion, the district court committed no error by submitting the case to the jury on a mixed motives instruction.
2. Lifting Requirement

NWAc ontends that it prevented Mrs. Deneen from returning to wor k because she could not satisfy the 75-pound lifting requirement of the CSA job description, not because of a discriminatory motive. It is not unla wful for an employer to discriminate on the basis of sex or pregnancy "in those certaininstances" where sex "is a bona fide occupational qualificatio n reasonably necessary to the normal operation of that particular business or enterprise." 42 U.S.C. § 2000e-2(e)(1). The PDA “does not

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create substantive rights to preferential treatment.” Lang , 107 F.3d a t 1312. On the contrary, the PDA allows “emplo yers [to] treat pregnant women
as badly as they treat similarly affected but nonpregnant employees. ” Troupe v. May Dep’t Stores Co. , 20 F.3d 734, 738 (7th Cir. 1994). Th e opposite, however, is also true -- employers must treat pregnant women as well as they treat similarly affected employees. The PDA does not require an employer to ove rlook the work restrictions of pregnant women unless the employer overlooks the comparable work restrictions of other employees. Cf. id. (st ating, “[t]he PDA requires the employer to ignore an employee’ s pre gnancy, but . . . not her absence from work, unless the employe r overlooks the comparable absences of nonpregnant employees”).

While NWA ’s policy of requiring CSAs to be capable of lifting up t o 75 pounds is not discriminatory on its face, the evidence before the jury demonstratedthat it was not strictly applied across the board. The jury coul d conclude in this particular case that full compliance was onl y requiredof Mrs. Deneen because suspicions arose concerning a pregnancy

rel atedcondition. Mr. Holme testified, “I recall asking for a doctor’ s note because I wan ted to find out what she could do,” (NWA’s App. at 135), but the same was n ot routinely required of any other NWA employees who had beenon layoff status for less than six months. The offensive conduct in this c ase is not NWA’s policy of requiring fitness for duty, but NWA’ s actions in not permitting her to return to wo rk before it was aware of Mrs. Deneen ’s actual physical capabilities. NWA did not mention the physica l requirements of th e job until after Mr. Deneen called to inquire about the
use of earned benefits. NWA asserts that managers Holme and Horvat h required Mrs. Deneen to bring medical proof of fitness because they “lea rned that plaintiff was suffering ‘pregnancy complications’ that interfered with her ability to do the job.” (NWA’s Br. at 24 n.9.) There was no evidence, however, that they were privy to any such information when they took he r name o ff the duty list. A reasonable jury could conclude that NWA discriminatorilyassumed Mrs. Deneen was suffering a condition that woul d interfere with her job. Furthermore, Mrs. Deneen presented evidence that certain light duty job functions existed within the definition of

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the CSA position which she was capable of performing and which other CSAs were allowed to continue performing after they had been medically restri cted to light duty work . Because light duties existed within the CSA position, a jury could reaso nably conclude that the 75-pound lifting requirement was not a bona fide occupational qualification within the meaning of the sta tute and was discriminatorily invoked against Mrs. Deneen in an effort to pre vent her from having the opportunity to return to work and exercise her earned sick leave benefits.
3. NWA’s Treatment of Other Employees

NWAcontends that the district court committed evidentiary error by allowing Mrs. Deneen to introduce evidence of NWA’s treatment of othe r pregnant CSAs. As ide from her direct proof of discrimination, Mrs. Deneen pr esented circumstantial evidence also indicating a discriminatory animu s on the basis of her pregnancy-related condition. As already noted, Mrs

. Deneen presented t he testimony of Sally Goodsell and Sharla Burly, both of whomwere CSAs placed on layoff status and recalled while pregnant. They were not yet restricted to light duty because of their pregnancy at the time they were recalled , but when they became unable to lift bags and requested light duty assignm ents, NWA accommodated their request. NWA contends that this evidence was not relevant for two reasons. First, NWA argues that Mrs. Deneenmust compare herself to other nonpregnant employees of simila r ability, not other pregnant employees. Second, NWA argues that Title VII does no t require it to accommodate the restrictions of a person bein g recalled from layoff status.

On the first argument, we acknowledge our statement of the relevan t question in a pregnancy discrimination case i s whether the employer treated the pr egnant plaintiff “differently than nonpregnant employees . . . no t whether the [employer] could have made more concessions for [th e plaint iff].” Lang , 107 F.3d at 1313. This statement of the issu e emphas izes that the state of being pregnant is not itself a reason fo r distinguishing between employees. Employers must look to the employee’ s actual

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abilit ies. A comparison with other pregnant employees in most instance s will not give rise to an inference of discrimination on the basis o f pregnancy. In this particular case, however, where NWA suspected som e pregna ncy-relatedcomplication on the part of the plaintiff close to th e time when she was being recalled (and if she were not recalled, NWA would not have to give her earned sick leave benefits), a showing that th e employer gave better treatment to similarly r estricted pregnant persons who
were alre ady on the clock does support a finding of intentiona l discrimination. While the comparison group was similarly pregnant, ou r analysis is unaffected in this particular case because the distinguishin g feature is not the pregnancy alone but Mrs. Deneen’s pregnancy-relate d complication which NWA assumed existed before even talking with Mrs. Deneen and which could require her to exercise her earned benefits.

On the second argument, we agree that Title VII does not require NWA to specially accommodate every pregnancy-rela ted physical restriction. See Lang , 107 F.3d at 1312 (emphasizing that the PDA does not require employees to make accommodations for pregnant workers). Where an employe r accommodates for some pregnant women restrict ed to light duty, however, and att empts to strictly apply the rule to deny others their earned benefit s upon returning fro m layoff status, the comparison is relevant to resolving the question of wh ether the employer engaged in intentional discrimination and wh ether the physical requirement of the position is a bona fid e occupational qualification. We conclude that the comparison in this case constitutes valid circumstantial evidence that NWA engaged in discrimina tion on the basis of Mr s. Deneen’s pregnancy-related condition in an attempt to den yher earned benefits. The district court did not commit evidentiar y error.
4. Sufficiency of the Evidence

We view t he evidence in the light most favorable to the verdict an d will not reverse a jury’s verdict for insufficient evidence unless “w e conclude that no reasonable juror could have returned a verdict for the nonmoving party.” Ryther , 108

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F.3d at 836. The evidence presented at trial and summarized above included testimony from which a reasonable jury could find that Mr. Holme improperly and expressly considered Mrs. Deneen’s pregnancy-related complication i n placing her on an unrequested medical leave o f absence and demanding strict compliance with the lifting requirement when others with a simila r restriction were not treated in this manner. We do not question NWA’s r ight to hi re or recall only persons who are fit for the job. Mrs. Deneen , howev er, was not a new hire and she was not treated the same as othe r persons returning to work from less than six months of layoff status. She was recalled without being required to prove her fitness but then taken off the list and preve nted from returning to work on the basis of a pregnancyrelated complication that NWA assumed existed and assumed shortly woul d require the paymen t of earned benefits. NWA alleges a distinction between Mrs. Deneen, who w as under a light duty restriction when she was recalled, and CSAs who were on active duty when they be came restricted to light duty. Nonetheless, because she was treated differently from NWA’s usual policy for employees on recall status for less than six months, we believe the impact, if any, f rom this asserted distinction was a question for the jury t o consider as it determined the ultimate question of whether NWA intention ally discriminatedagainst Mrs. Deneen on the basis of her pregnancy-relate d conditio n. While this may be a close case on the facts, close cases ar e best left to the jury.

We conclude that there is suffici ent evidence from which a reasonable jury could conclude that NWA intentionally discriminated against Mrs. De neen on the basis of her pregnancy-related medical condition in an attempt t o deny her earned benefits. Because the mixed motives analysis wa s appropriate in thi s case, we need not address the sufficiency of the proof under the pretext analysis set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973).

## -13- B. Punitive Damages

On cross appeal, Mrs. Deneen contends that the district court erre d by striking the ju ry’s award of punitive damages. Punitive damages may be awarded to a plain tiff under the Civil Rights Act when the plaintiff shows tha t the defendant engaged in a discriminatory practice “with malice o r reckless indifference” to the plaintiff’s federally protected rights. 4 2 U.S.C. § 1981a(b)(1) (Supp. V 1993); see Kimzey v. Wal-Mart Stores, Inc. , 107 F.3d 5 68, 575 (8th Cir. 1997). The district court concluded in thi s cas e that there was no evidence to support the jury’s grant of punitiv e damages and granted judgment as a matter of law on this issue. We review de novo the distri ct court’s grant of judgment as a matter of law, viewing the facts and resolving any conflicts in the light most favorable to th e juryverdict. Varner v. National Super Markets, Inc. , 94 F.3d 1209, 1212 (8th Cir. 1996), cert. denied , 117 S. Ct. 946 (1997).
We agree with the district court’ s conclusion that a punitive damages award is not supported by the evidence presen ted in this case. In spite of the direct evidence of discrimination Mrs. De neen presented, NWA maintained that it believed the contract required it to consider her pregnancy-related condition and ensure her fitness for duty before allowing her to return from lay off status. Additionally, Mr. Holme testified that he was concerne d about the health of Mrs. Deneen and her baby. While we have found th e evi dence sufficient for the jury to determine that NWA’s actions in thi s case we re illegally discriminatory, there is no evidence of malice o r reckless indifference. Accordingly, the district court did not err by striking the jury award of punitive damages.
C. Preemption

NWA contends that Mrs. Deneen’s discrimination claims shouldhave been dismissed for lack of subject matter jurisdiction because, as minor cont ract disputes, they are preempted by the Railway Labor Act. The Railway Labor Act provides that

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all minor disputes must be resolved in mandatory arbitration before th e Railway Labor Board and that federal and state courts lack jurisdiction over such claims . 45 U.S.C. § 151a (1994). Courts can resolve questions o f federal o r state law involving labor claims only if the issues do no t require the court to construe the collective bargaining agreement. Lingle
v. N orge Div. of Magic Chef, Inc. , 486 U.S. 399, 411 (1988). Th e disc riminationclaims at issue in this case arise independent of th e col lective bargaining agreement. Because federal and state law are th e source of the clai ms, not the collective bargaining agreement, the Railway Labo r Act does not preempt Mrs. Deneen’s discrimination claims. Se e Haw aiianAirlines, Inc. v. Norris , 512 U.S. 246, 256 (1994) (holding RL A do es not preempt causes of action to enforce rights independent of th e collective bargaining agreement); Taggart v. Trans World Airlines, Inc. , 40 F.3d 269, 274-75 (8th Cir. 1994) (holding state law discrimination claim not preempeted by RLA); Norman v. Missouri Pac. R .R. , 414 F.2d 73, 83 (8th Cir. 1969) (noting Congress did not intend to make railroads immune from Title VII liability for discrimination in employment).
D. Attorney Fees and Costs

Mrs. D eneen also contends that she is entitled to receive attorney’s fees and costs inc urred on appeal. Title VII provides that the court may, in its discretion, allow the prevailing plain tiff on appeal attorney’s fees and the costs of appeal. 42 U.S.C. § 2000e-5(k). Mrs. Deneen contends that
a fee award is necessary because the fees incurred at trial and on appeal will exceed her verdict. Mrs. Deneen is a prevailing party in NWA’s app eal, but she did not prevail on her own cross appeal. Her counsel should pro ceed to file her motionfor appellate attorney’s fees and costs pursuant to 8th Cir. R. 47(c) so that the matter can be considered.

III. Conclusion
Accordingly, we affirm the judgment of the district court.

## -15- A true copy.

Attest:

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