1The Honorable John D. Kelly died on October 21, 1998. This opinion is

consistent with his vote at the conference following argument on September 23, 1998.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-2433

___________

Paul J. Kiel, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri.

Select Artificials, Inc., *

*

Appellee. *

___________

Submitted: September 23, 1998

Filed: March 4, 1999 

___________

Before BOWMAN, Chief Judge, HEANEY, BRIGHT, McMILLIAN, RICHARD

S. ARNOLD, FAGG, WOLLMAN, BEAM, LOKEN, HANSEN, MORRIS

SHEPPARD ARNOLD, MURPHY, and KELLY,1 Circuit Judges, En Banc.

___________

WOLLMAN, Circuit Judge.

Paul Kiel brought this suit under the Americans with Disabilities Act (ADA),

42 U.S.C. § 12101 et seq., and the Missouri Human Rights Act (MHRA), Mo. Rev.

Stat. § 213.010 et seq., against his employer, Select Artificials, Inc. (Select). The
2The Honorable Terry I. Adelman, United States Magistrate Judge for the

Eastern District of Missouri, who presided over the case by consent of the parties

pursuant to 28 U.S.C. § 636(c).

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district court2 granted summary judgment in favor of Select on all claims. Kiel

appealed, and a divided panel of this court reversed and remanded for trial. See Kiel

v. Select Artificials, Inc., 142 F.3d 1077 (8th Cir. 1998). We granted Select’s petition

for rehearing en banc, vacating the panel opinion. We now affirm the decision of the

district court.

I.

Kiel has been deaf since birth. He was employed at Select as a billing clerk

from January 1992 to February 1994. On several occasions he requested that Select

purchase a telecommunications device (TDD) that would enable him to make

business and personal telephone calls. Select did not provide the device because Kiel

did not need it to perform his duties as a billing clerk. Although hearing employees

occasionally communicated with clients by telephone, Select decided that Kiel’s

supervisor could make client calls for him when they were needed. Kiel was allowed

to make personal calls during breaks on those occasions when he brought his TDD

from home.

Kiel also requested that Select provide him a sign-language interpreter for staff

meetings and social gatherings. Select did not normally provide an interpreter

because one was not needed to enable Kiel to perform his job duties. On one

occasion, however, Kiel requested an interpreter prior to a training session related to

his position, whereupon Select provided one for him.

On February 17, 1994, Kiel photocopied a letter that he had drafted to Robert

Fry, co-owner of Select, again requesting that the company purchase a TDD. After
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observing Kiel at the photocopier, Julie Fry, the other co-owner of Select, approached

him at his work station to inquire about his use of the copier. Kiel informed Ms. Fry

that he was requesting that the company purchase a TDD. She told him that Select

would not purchase the device. Visibly frustrated and upset, Kiel shouted at Ms. Fry,

“You’re selfish, you’re selfish.” He then slammed his desk drawer, and as Ms. Fry

walked away he made a remark about her recent purchase of a new automobile. Four

other employees were present when Kiel did this. According to the employee

witnesses, the episode lasted “a few minutes.”

Later that day, Ms. Fry asked Kiel if he realized that he had yelled at her in

front of other employees. He said that he was not aware that he had raised his voice

and apologized for doing so. After conferring with Mr. Fry, Ms. Fry decided to

terminate Kiel for insubordination despite his apology.

Kiel raised claims of discriminatory discharge, retaliatory discharge, and failure

to accommodate under the ADA and the MHRA. The district court concluded that

Kiel did not produce evidence showing that Select’s non-discriminatory reason for

terminating Kiel, insubordination, was pretextual. It also held that the temporal

connection between Kiel’s letter requesting a TDD and his termination was

insufficient to demonstrate retaliatory intent and that Select had not failed to

accommodate Kiel. 

II.

We review a grant of summary judgment de novo. Price v. S-B Power Tool,

75 F.3d 362, 364 (8th Cir.), cert. denied, 519 U.S. 910 (1996). Summary judgment

is appropriate if no genuine issue of material fact exists and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In ruling on a motion

for summary judgment, we view the evidence and draw all justifiable inferences in
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favor of the nonmoving party. See Miners v. Cargill Communications, Inc., 113 F.3d

820, 823 (8th Cir.), cert. denied, 118 S. Ct. 441 (1997). 

In an employment discrimination case, the plaintiff must initially present a

prima facie case to survive a motion for summary judgment. See Lidge-Myrtil v.

Deere & Co., 49 F.3d 1308, 1310 (8th Cir. 1995) (citing McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802-05 (1973)). The employer must then rebut the

presumption of discrimination by articulating a legitimate, non-discriminatory reason

for the adverse employment action. See Lidge-Myrtil, 49 F.3d at 1310. If the

employer does this, the burden of production shifts back to the plaintiff to

demonstrate that the employer’s non-discriminatory reason is pretextual. Id. at 1311.

To make out a prima facie case under the ADA, Kiel was required to show that

he is disabled within the meaning of the ADA, that he is qualified to perform the

essential functions of his position, and that he suffered an adverse employment action

under circumstances giving rise to an inference of unlawful discrimination. Price, 75

F.3d at 365. Generally, evidence that a plaintiff was replaced by a similarly situated

employee who is not disabled is sufficient to support an inference of discrimination.

Id. Select did not dispute that Kiel was disabled or that he was qualified to perform

his duties as billing clerk, and Kiel established that he was replaced by a hearing

employee. Thus, Kiel met his initial burden under McDonnell Douglas.

The burden of production then shifted to Select to articulate a legitimate, nondiscriminatory reason for Kiel’s termination. Select stated that it terminated Kiel

because he insulted Ms. Fry, slammed his desk drawer, and made a sarcastic remark

about Ms. Fry in the presence of four co-workers. Our cases have repeatedly held

that insubordination and violation of company policy are legitimate reasons for

termination. See Ward v. Procter & Gamble Paper Prods. Co., 111 F.3d 558, 560 (8th

Cir. 1997) (employee terminated for striking a co-worker); Price, 75 F.3d at 365-66

(employee terminated for excessive absenteeism); Lidge-Myrtil, 49 F.3d at 1310-11
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(employee not chosen for promotion because of poor relationship with co-workers

and violation of company policy); Miner v. Bi-State Dev. Agency, 943 F.2d 912, 913-

14 (8th Cir. 1991) (employee terminated for insubordination and violating various

company policies). 

Select having proffered a non-discriminatory reason for terminating Kiel, the

burden shifted to Kiel to present evidence that Select’s reason was pretextual. See

Lidge-Myrtil, 49 F.3d at 1311. In essence, Kiel was required to show a genuine issue

of material fact as to whether Select actually fired him because of his disability. Id.

Although it is possible for strong evidence of a prima facie case to also present a

factual issue on pretext, see Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328,

1333-37 (8th Cir. 1996), the ultimate question is whether the plaintiff presents

evidence of “conduct or statements by persons involved in [the employer’s] decisionmaking process reflective of a discriminatory attitude sufficient to allow a reasonable

jury to infer that that attitude was a motivating factor in [the employer’s] decision to

fire [the plaintiff].” Feltmann v. Sieben, 108 F.3d 970, 975 (8th Cir. 1997) (citing

Nelson v. J.C. Penney Co., 75 F.3d 343, 345 (8th Cir. 1996)).

Kiel did not submit any evidence of pretext in this case. He relied entirely on

his prima facie case to challenge Select’s non-discriminatory reason. The bare

assertion that Select hired a hearing employee to replace Kiel did not raise a genuine

factual issue regarding Select’s discriminatory intent, for Kiel did not point to any

conduct or statements by the Frys that would permit a reasonable jury to find that

insubordination was a mere pretext for his termination. Nor did he demonstrate that

the Frys disciplined hearing employees less severely for insubordinate conduct. As

for Kiel’s assertion that he did not realize he was shouting, he himself testified that

“If I want to shout, I shout,” which is consistent with the co-workers’ testimony that

they had never heard him raise his voice. In short, there is simply no evidence that

discrimination was a motivating factor in Kiel’s termination.
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Kiel contends that his discriminatory discharge claim falls within the mixedmotive analysis of Price Waterhouse v. Hopkins, 490 U.S. 228, 248-50 (1989). To

trigger Price Waterhouse analysis, however, a plaintiff must show that “an

impermissible motive played a motivating part in an adverse employment decision.”

Id. at 250. We have interpreted this to require a plaintiff to present, at a minimum,

some direct evidence of discriminatory motive. See Thomas v. First Nat’l Bank, 111

F.3d 64, 65-66 (8th Cir. 1997); Hutson v. McDonnell Douglas Corp., 63 F.3d 771,

780-81 (8th Cir. 1995). Because Kiel relied entirely on circumstantial evidence to

establish the existence of a discriminatory motive on Select’s part, the district court

was correct in reviewing Kiel’s claim solely under the McDonnell Douglas

framework. In light of Kiel’s failure to establish a genuine factual issue on pretext,

the district court properly granted Select summary judgment on the discriminatory

discharge claim. 

III.

To present a prima facie case of retaliation, a plaintiff must show that he

engaged in protected conduct, that he suffered an adverse employment action, and

that the adverse action was causally linked to the protected conduct. See Montandon

v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997); Evans v. Kansas City,

Mo. Sch. Dist., 65 F.3d 98, 100 (8th Cir. 1995). Although contesting an unlawful

employment practice is protected conduct, the anti-discrimination statutes do not

insulate an employee from discipline for violating the employer’s rules or disrupting

the workplace. See Evans, 65 F.3d at 102 (quoting Booker v. Brown & Williamson

Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989)); Valdez v. Mercy Hosp., 961 F.2d

1401, 1403 (8th Cir. 1992); Jackson v. St. Joseph State Hosp., 840 F.2d 1387, 1390

(8th Cir. 1988). Generally, more than a temporal connection between the protected

conduct and the adverse employment action is required to present a genuine factual

issue on retaliation. See Feltmann, 108 F.3d at 977; Nelson, 75 F.3d at 346-47.
-7-

Kiel’s requests for a TDD were protected communications. Insulting Ms. Fry

and indulging in an angry outburst in the presence of co-workers, however, were

certainly not, for the ADA confers no right to be rude. Kiel’s intervening unprotected

conduct eroded any causal connection that was suggested by the temporal proximity

of his protected conduct and his termination.

Kiel presented no evidence of conduct or statements that would permit a

reasonable jury to find that Select actually fired him because he requested a TDD.

Indeed, he had requested a TDD on numerous occasions, but he suffered no adverse

employment action until he engaged in abusive, derogatory conduct towards his

employer. Kiel did not allege that Select disciplined other employees less harshly for

insubordinate conduct. Nor did he show a history of discrimination at Select that

would present a genuine factual issue on retaliatory intent. Rather, the record showed

that Select has hired a number of deaf employees, has altered job duties to

accommodate deaf employees, and has maintained a satisfactory working relationship

with deaf employees. In sum, there is simply no evidence from which a reasonable

jury could find that Select terminated Kiel in retaliation for his exercising any rights

granted to him by the ADA.

Kiel argues that summary judgment was improper because a jury should decide

whether his conduct was egregious enough to warrant termination. In the absence of

any evidence of discriminatory intent, however, it is not the prerogative of the courts

or a jury to sit in judgment of employers’ management decisions. See Montandon,

116 F.3d at 360. “[T]he employment-discrimination laws have not vested in the

federal courts the authority to sit as super-personnel departments reviewing the

wisdom or fairness of the business judgments made by employers, except to the

extent that those judgments involve intentional discrimination.” Hutson, 63 F.3d at

781. 

IV.
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The ADA requires employers to make reasonable accommodations to allow

disabled individuals to perform the essential functions of their positions. See 42

U.S.C. § 12111(8)-(9). A reasonable accommodation should provide the disabled

individual an equal employment opportunity, including an opportunity to attain the

same level of performance, benefits, and privileges that is available to similarly

situated employees who are not disabled. See 29 C.F.R. § 1630.9 (Appendix) (1998).

If more than one accommodation would allow the individual to perform the essential

functions of the position, “the employer providing the accommodation has the

ultimate discretion to choose between effective accommodations, and may choose the

less expensive accommodation or the accommodation that is easier for it to provide.”

Id.

Select provided Kiel a reasonable accommodation by restructuring the billing

clerk position. Although providing Kiel a TDD would also have constituted an

effective accommodation, Select chose to have Kiel’s supervisor make the minimal

number of client telephone calls that were required. This accommodation allowed

Kiel an equal employment opportunity at Select. An interpreter was not required for

Kiel to perform the essential functions of his position, and on the one occasion that

a training session was relevant to Kiel’s position, Select provided him an interpreter.

Accordingly, summary judgment was proper on Kiel’s failure to accommodate claim.

Because Kiel’s claims under the Missouri Human Rights Act are premised on

the same factual bases as his ADA claims, they must also fail. See Finley v.

Empiregas, Inc., 975 F.2d 467, 473 (8th Cir. 1992) (holding that federal employment

discrimination decisions are authoritative for claims under the MHRA); Midstate Oil

Co. v. Missouri Comm’n on Human Rights, 679 S.W.2d 842, 845-46 (Mo. 1984) (en

banc) (same).

The judgment is affirmed.
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MORRIS SHEPPARD ARNOLD, Circuit Judge, dissents.
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HEANEY, Circuit Judge, with whom BRIGHT and McMILLIAN, Circuit Judges

join, dissenting.

The majority asserts that summary judgment was appropriately granted to

Select because Kiel was insubordinate as a matter of law, Select reasonably

accommodated Kiel in his job as a matter of law, and that Kiel’s claim must fail as a

matter of law because it was unsupported by direct evidence. In my view, the

majority is wrong in each respect, and this court should reverse the district court’s

grant of summary judgment and remand for trial. Accordingly, I respectfully dissent.

“Courts have recognized the difficulty in disposing of issues of discriminatory

or retaliatory intent at the summary judgment stage: ‘Summary judgments should be

sparingly used and then only in those rare instances where there is no dispute of fact

and where there exists only one conclusion. All the evidence must point one way and

be susceptible of no reasonable inferences sustaining the position of the nonmoving

party.’” Davis v. Fleming Companies, Inc., 55 F.3d 1369, 1371 (8th Cir. 1995)

(quoting Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir.1991));

see also Gill v. Reorganized Sch. Dist. R-6, 32 F.3d 376, 378 (8th Cir.1994)

(reviewing summary judgment “with caution in employment discrimination cases .

. . because intent is inevitably the central issue”); Keys v. Lutheran Family &

Children’s Servs. of Mo., 668 F.2d 356, 358 (8th Cir. 1981) (noting in retaliation case

that “where motive, intent and credibility are key factors summary judgment is

generally inappropriate.”) Additionally, the United States Supreme Court has directed

that “[t]here will seldom be ‘eyewitness’ testimony as to the employer’s mental

processes.” United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716

(1983). Faced with this formidable standard and the record before it, the district court

approached the summary judgment motion hearing with caution, stating: “I think if

there is a legitimate non-discriminatory reason given [for Kiel’s termination], . . . then

I think that this is a case that’s close for summary judgment. Maybe it could be

granted, maybe it should be granted, but if it’s not a legitimate non-discriminatory
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reason, not legitimate, then obviously the case goes to the jury.” (Summ. J. Mot. Hr’g

Tr. at 40-41.)

The majority finds that legitimate reason by concluding Kiel was insubordinate

as a matter of law. I disagree. The ADA prohibits discrimination “against any

individual because such individual has opposed any act or practice made unlawful by

[the ADA].” 42 U.S.C. § 12203(a) (1998). In determining whether an employee was

insubordinate, the question is whether the employee’s conduct “was so disruptive,

excessive, or ‘generally inimical to [the] employer’s interests . . . as to be beyond the

protection’” of the ADA. Kempcke v. Monsanto Co., 132 F.3d 442, 445 (8th Cir.

1998) (quoting Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d

222, 230 (1st Cir. 1976)); see also Jennings v. Tinley Park Community, 796 F.2d 962,

968 (7th Cir. 1986) (applying a reasonableness test to determine whether “disloyal”

conduct could provide a legitimate basis for discharge because “almost every form

of opposition to an employment practice is in some sense disloyal” and if “mere

‘disloyal’ conduct could provide a legitimate basis for discharge, the protection

extended by [anti-discrimination statutes] would be severely limited”). In Payne v.

McLemores Wholesale & Retail Stores, the Fifth Circuit observed that it is part of a

defendant’s rebuttal case to establish that “the form of plaintiff’s opposition was

unprotected by the statute.” 654 F.2d 1130, 1142 (5th Cir. 1981) (citing Rosser v.

Laborers’ Int’l Union, Local 438, 616 F.2d 221, 223-24 (5th Cir. 1980); Jeffries v.

Harris County Community Action Ass’n, 615 F.2d 1025, 1035-37 (5th Cir. 1980);

Hochstadt, 545 F.2d at 229-34). Courts have required that oppositional employee

conduct “be reasonable in light of the circumstances, and have held that ‘the

employer’s right to run his business must be balanced against the rights of the

employee to express his grievances and promote his own welfare.’” Jeffries, 615 F.2d

at 1036 (quoting Hochstadt, 545 F.2d at 233).

The majority concedes that Kiel’s request for the TDD was protected activity,

but concludes that the subsequent comment that Ms. Fry was selfish was
3This concession is at odds with the position of Select’s counsel at oral

argument. Counsel conceded that the content, not the manner, of Kiel’s comment

constituted insubordination:

Judge Heaney: [I]s it your position that the result would be the

same if he had spoken in a well-modulated voice?

Mr. Gianoulakis: I think very clearly it was the content of what

he said that was the problem here. If he had shouted at the president,

"This is the best company I’ve ever worked for, and you’re the best

president I’ve ever worked for," I submit to you we wouldn’t be here

today.

Clearly, counsel’s position is not the law. If it were, no deaf person would ever have

the right to oppose his employer's denial of a requested reasonable accommodation

for the employee's deafness. In my view, counsel’s concession alone required that we

reverse the district court’s grant of summary judgment.

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unreasonable as a matter of law.3 Kiel was a good employee who had been with the

company for more than two years and had never been subject to formal disciplinary

action. On February 17, 1994, Kiel drafted a letter requesting that Mr. Fry provide

Select’s deaf employees with a TDD. Kiel made copies to show the other deaf

employees at Select. After making the copies, he returned to his desk and put the

letter in his drawer. Ms. Fry approached Kiel and chastised him for making personal

copies at the office notwithstanding the fact that she had never told Kiel that he could

not use the copy machine for personal documents. (See Ms. Fry 9/29/95 Dep. at 9.)

Moreover, other employees used the copier for personal use and Select did not have

a policy against such use. (See Fritz 9/20/95 Dep. at 38; Mr. Fry 9/21/95 Dep. at 16.)

February 17, 1994 was the first time Kiel formally requested a TDD, and Ms. Fry

admitted that she was not aware that Kiel had approached anyone else with the same

request. (See Ms. Fry 9/20/95 Dep. at 36.) Ms. Fry refused Kiel’s request for a TDD

as a reasonable accommodation for his disability, whereupon Kiel stated that she was

selfish. Shortly after this exchange, Kiel apologized for his statement, and Ms. Fry

accepted his apology. (See Kiel 9/20/95 Dep. at 50.) 
4

It may be that, in certain cases, the declaration that an employer is selfish can

constitute insubordination for the purposes of summary judgment. Nonetheless, I do

not believe that to be the case here.

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The majority concludes that Kiel was insubordinate as a matter of law by

characterizing Kiel’s statement as insulting, angry, and rude. While a jury might

agree with this conclusion, the record certainly does not support the view that Kiel’s

reaction to Ms. Fry was insubordinate as a matter of law. Unlike the majority, I am

unwilling to declare that opposing the denial of a reasonable accommodation request

by declaring that an employer is selfish is unreasonable as a matter of law.4 Kiel did

not use profanity or engage in any conduct that could be considered unreasonable as

a matter of law. The majority ignores the requirement at the summary judgment stage

of viewing the evidence and drawing all justifiable inference in Kiel’s favor. See

Miners v. Cargill Communications, Inc., 113 F.3d 820, 823 (8th Cir.), cert. denied,

118 S. Ct. 441 (1997). Kiel stated both at the time of the incident and afterward that

he did not realize he was shouting. Nonetheless, the majority cites his statement that

“If I want to shout, I shout,” and concludes that he was lying. This conclusion is

simply inappropriate. There is no necessary inconsistency in a person, deaf or

otherwise, being capable of shouting when they choose to and not realizing that they

are shouting on a particular occasion. At the very least, the issue is one for a jury to

resolve, not an appellate court without the benefit of live testimony.

The majority also ignores the Payne line of cases, which hold that a

handicapped employee may only be discharged for seeking a reasonable

accommodation when his behavior is so disruptive, excessive, or generally inimical

to the employer’s interests as to be beyond the protection of the ADA. That is an

issue to be determined by the jury, not by the court as a matter of law. Accordingly,

I would hold that the district court erred because Select failed to meet its burden of

establishing a legitimate, non-discriminatory reason for its decision to terminate Kiel.
5At the summary judgment motion hearing, Kiel’s counsel stated:

Mr. Kiel testified in his deposition that he didn’t know those meetings

were going to take place until they called all the employees together to

have the meetings. Who did know that the meetings were going to take

place? The company knew that they were planning to have a meeting

and could have arranged an interpreter to be there, or could have given

Mr. Kiel one day’s notice and ask him if he wanted an interpreter for the

meeting. But to say that Mr. Kiel didn’t put in a timely request for an

interpreter for meetings that he was not given advance notice were going

to take place, is requiring him to be clairvoyant.

(Summary J. Mot. Hr’g. Tr. at 24.) (See also Kiel 9/20/95 Dep. at 40 (“I wanted to

know what was going on [at the meetings]. I wanted equal treatment.”); id. at 41 (“I

just do my job until someone said go in that room, and I found a group was talking

. . . . I asked [Terry Fritz] what was going on . . . . [to which] [s]he shrugged her

shoulders. That’s her response. That’s the only response I got.”); id. at 41-42 (“Well,

if we had a meeting, I would like to be kept informed of what’s going on. I’d like to

be part of the team.”))

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The majority also concludes as a matter of law that Select reasonably

accommodated Kiel’s disability. The majority states that Select did so by eliminating

from his job the need to make business phone calls and providing him with an

interpreter on one occasion so that he could participate in United Parcel Service

training. In my view, the court erred by holding that Kiel had been reasonably

accommodated as a matter of law. The record reveals that, as to employee meetings,

Kiel was not provided with an interpreter and, arguably therefore, a way to function

meaningfully as an employee.5 Also, almost immediately after Kiel’s termination but

prior to this litigation, Fry asked Wendy Sheu to obtain a TDD for its remaining deaf

employees. The reasonableness of Kiel’s request is illustrated by the fact that Select

obtained a TDD shortly after his termination. Unlike the majority, I am unable to

draw any conclusions as a matter of law from these facts regarding reasonable

accommodation. The question of reasonable accommodation is for a jury to decide,

not a court of appeals–even one sitting en banc.
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The majority holds that Kiel is incapable of showing pretext because he failed

to produce direct evidence that Mr. or Ms. Fry made statements or engaged in conduct

reflecting a discriminatory attitude and that such an attitude motivated them to

dismiss Kiel. It relies on Feltmann v. Sieben, 108 F.3d 970, 975 (8th Cir. 1997), and

Nelson v. J.C. Penney Co., 75 F.3d 343, 345 (8th Cir. 1996), for this proposition. I

believe that the majority is in error in this regard because direct evidence is not the

only method for satisfying the fundamental inquiry in this case. The ultimate issue

is whether Select intentionally discriminated against Kiel. See Ryther v. KARE 11,

108 F.3d 832, 838 (8th Cir. 1997) (en banc); Kehoe v. Anheuser-Busch, Inc., 96 F.3d

1095, 1101 (8th Cir. 1996); Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328,

1334 (8th Cir. 1996). “The requisite causal connection may be proved

circumstantially by proof that the discharge followed the protected activity so closely

in time as to justify an inference of retaliatory motive.” Roth v. Selection Research,

Inc., 978 F.2d 1087, 1090 (8th Cir. 1992); see also Couty v. Dole, 886 F.2d 147, 148

(8th Cir. 1989) (including proof that time of discharge closely followed protected

activity in prima facie case of retaliatory discharge claim); Keys, 668 F.2d at 358

(same). Moreover, Kiel’s initial evidence is properly considered in evaluating

Select’s explanation for its action. See Texas Dep’t of Community Affairs v.

Burdine, 450 U.S. 248, 255 n.10 (1981) (Initial “evidence and inferences properly

drawn therefrom may be considered by the trier of fact on the issue of whether the

defendant’s explanation is pretextual”). Select is not entitled to summary judgment

simply because it declared that Kiel was insubordinate. Rather, the question is

whether a reasonable jury could conclude that Select intentionally discriminated

against Kiel. In my view, a reasonable jury construing the facts and all reasonable

inferences therefrom in the light most favorable to Kiel could conclude that Select

intentionally discriminated against Kiel. In this case, Kiel was a good employee who

had worked at Select for more than two years and had never been subject to formal

disciplinary action. A jury could conclude from the fact that other employees used

the office copier for personal items without incurring management’s attention that

Kiel was held to a different standard. Additionally, Kiel’s termination followed on
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the heels of his vocal opposition to the denied accommodation request. Accordingly,

the majority errs by concluding as a matter of law that Kiel cannot establish a genuine

issue of material fact on the issue of pretext.

I have followed the majority in analyzing this case pursuant to McDonnell

Douglas. I question, however, whether this analysis is appropriate in retaliation

cases. I rather believe that the mixed-motive analysis of Price Waterhouse should be

used in retaliation cases and that summary judgment is inappropriate when motive,

intent, and credibility are the central issues. See Keys, 668 F.2d at 358. 

For the reasons stated above, I would reverse the district court’s grant of

summary judgment and remand for trial on all claims. Additionally, I would hold that

Price Waterhouse analysis applies to retaliation claims. Accordingly, I respectfully

dissent.

A true copy.

Attest:

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