The HONORABLE JAMES M. ROSENBAUM, United States District

1

Judge for the District of Minnesota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 95-4058

___________

Judith A. Feltmann, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Sieben, doing business as *

Plaza Motors Company, Inc., *

*

Appellant. *

___________

 Submitted: June 12, 1996

 Filed: March 20, 1997

___________

Before WOLLMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and 

ROSENBAUM, District Judge. 1

___________

WOLLMAN, Circuit Judge.

Sieben, Inc. (Sieben) appeals from the judgment entered against it

in Judith A. Feltmann's action alleging sex discrimination and retaliatory

discharge under the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e

et seq. (Title VII), the Missouri Human Rights Act, Mo. Rev. Stat. §

213.010 et seq. (MHRA), and Missouri common law. We reverse.
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I.

Plaza Infiniti is one of eight automobile franchises owned and

operated by Sieben and housed at Sieben's Plaza Motor Company (Plaza). Bob

Rich, then sales manager at Plaza Infiniti, hired Feltmann as a sales

consultant in September of 1991. Feltmann was the only female consultant

at any of the Plaza franchises. During 1992, Feltmann's only full year at

Plaza, Infiniti executives named her to the Pinnacle Club, an elite group

of consultants recognized for high sales and consumer satisfaction. 

In the summer of 1992, Infiniti instituted an incentive program that

awarded consultants bonuses for each car sold. Overall sales were high,

and Rich had little time to evaluate the consultants' selling methods.

When overall sales began to decline after the incentive program ended, Rich

felt pressured to increase sales and began evaluating consultants and

requesting them to increase sales. Feltmann's sales declined after the

incentive program, but she was still above half of all consultants for 1992

and, in December, tied with another consultant for the most sales that

month. Feltmann's average gross profit for December of 1992, however, as

well as January through April of 1993, was the lowest of all consultants.

Rich testified that Feltmann's low profits on each car resulted from her

failure to thoroughly explain the cars' features, a sales tactic that

results in a higher selling price. 

In November 1992, Feltmann's co-worker Mike Barnstead told her that

Gordon Anzalone, a Sieben employee who worked at a different franchise, had

called her an extremely vulgar name. Feltmann wrote a letter to Rich the

next day about the comment, and Rich reported the incident to Tony

Pandjiris, the manager of Plaza Motors. Feltmann ultimately met with John

and Tom Capps, Sieben's owners,
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who told Feltmann to report any future incidents. They also asked her if

she wanted Anzalone fired, but Feltmann said she did not. They reprimanded

Anzalone and told him that if anything like that happened again he would

be terminated. Feltmann never heard of any other vulgar comments about

her. In early January, however, Barnstead told Feltmann that she had

polarized herself from the rest of the sales department and was going to

have a thick personnel file. Feltmann assumed that this comment related

to her complaint about Anzalone.

On January 4, 1993, Rich sent Feltmann a personal memo regarding her

"work ethic." Rich's memo indicated he was unhappy with her method of

selling. She was allowing "guest drives"--permitting prospective buyers

to take an Infiniti for a short period of time without an accompanying

consultant--too often and too soon in the selling process. Rich also

thought she was not a "team player" and did not work well with other Plaza

employees.

In March 1993, Rich placed Feltmann and another consultant, Rick

Beutel, on probation because of their low sales performance in January and

February of 1993. Feltmann and Beutel consequently rebounded by the end

of March, and Feltmann sold more automobiles that month than all but one

other consultant. Despite her high March sales, Feltmann was not allowed

to participate in a sales competition in Chicago. Rich had offered the

opportunity to participate to the two top consultants at Plaza Infiniti.

When they declined he did not offer the opportunity to Feltmann or to any

of several male consultants who wanted to go. 

 Plaza Infiniti consultants were able to lease, at a low rate, a

"demo" Infiniti for personal use. Following the drop in sales after the

incentive program, Rich became concerned about costs at the dealership and

restricted consultants' use of demo cars to the
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St. Louis area. Despite this restriction, Feltmann continued her weekly

300-mile round trips to Marion, Illinois, to visit her husband. On

February 23, 1993, Rich sent Feltmann a personal memo reiterating that her

use of her demo was restricted to the St. Louis area. No males received

such a memo, even though Feltmann contends that they took their cars out

of the St. Louis area occasionally. Feltmann continued to take her demo

to Marion weekly until April 1993, two months after she received the

personal memo from Rich and six months after the first restriction. 

In January or February of 1993, Feltmann received her federal 1099

tax form, which included bonuses attributed to her from the summer 1992

incentive program. Her 1099 indicated more bonus income than she had

actually earned. Casey Jones's and Beutel's 1099s also indicated larger

bonuses than they had actually earned. Feltmann obtained copies of the

checks addressed to her and discovered that someone had forged her

signature for endorsement. The forgeries resulted from the system Plaza

Infiniti used to handle consultants' bonus checks. Pandjiris would sign

the consultants' checks, deposit them in a group account, and then issue

the consultant a check on that account. Some consultants had given Rich

and Pandjiris authority to sign their checks if the checks arrived in their

absence. Although Feltmann had not given her managers such authority,

they signed her name anyway. Feltmann also discovered that she had been

credited with sales she did not actually make. Feltmann complained to Rich

that her 1099 showed income in excess of what she actually earned. On

April 14, 1993, Sieben gave Feltmann a check covering her additional tax

liability, but required her to sign a release stating that she held Plaza

harmless for any claims relating to the incentive program. Sieben

eventually discovered that Jim Schlabach, who had been in charge of the

account, had been taking money from it, and terminated him. 
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Prior to April 9, 1993, Plaza Infiniti's guest drive policy provided

that consultants were to use their "best judgment" in permitting a customer

to guest drive a car. Feltmann allowed many more guest drives than any

other consultant: Sieben's guest drive log reveals that between July of

1992 and April of 1993 she permitted 107, while the highest male consultant

permitted forty-eight. In February of 1993, Rich reprimanded Feltmann when

she loaned two small Infinitis to Infiniti owners who did not want to drive

their own cars in a snowstorm. 

On April 9, 1993, Rich announced a new guest drive policy.

Consultants were not to loan out any cars without Rich's permission or

without logging the cars in the guest drive log book. Overnight guest

drives would no longer be permitted, and consultants had to accompany their

guests. Before Rich left for a trip the weekend of May 15, he reiterated

that no guests could drive the new Q45 without an accompanying consultant.

Despite the April 9 memo and Rich's specific instruction, however, Feltmann

permitted a customer to take a Q45 alone, and allowed another customer to

keep a J30 model for the entire weekend, without getting permission or

noting the guest drive in the log book.

The following Monday, May 17, 1993, Rich fired Feltmann because she

had allowed these guest drives contrary to his specific instructions.

Feltmann requested a meeting to review her discharge. She then met with

Rich, Pandjiris, and John and Tom Capps and alleged that she had been

discriminated and retaliated against. The Capps told her that they took

her allegations very seriously and would investigate her complaints.

Ultimately, the Capps found no merit in her allegations. John Capps,

however, considered Feltmann a "salvageable employee" and had Pandjiris

extend an offer of reinstatement to her. Feltmann declined the offer,

however, because Tom Capps refused her demand that he fire
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four male sales consultants, did not accord her complaints any merit, and

would make no changes at the showroom. She also refused a position in

another Sieben showroom. Feltmann subsequently worked at Lexus of St.

Louis for ten months and then at St. Louis Acura for four months, until

major depression, allegedly precipitated by her discharge from Plaza,

forced her to quit.

After exhausting her administrative appeals, Feltmann brought this

action alleging sex discrimination in violation of Title VII and the MHRA;

retaliatory discharge in violation of Title VII and the MHRA; and

retaliatory discharge under Missouri common law for reporting the forged

checks. The jury found in favor of Feltmann and awarded her $112,661 in

back pay, $20,072.24 in compensatory damages, and $25,000 in punitive

damages on her Title VII sex discrimination claim. Sieben filed a motion

for judgment as a matter of law (JAML) or, in the alternative, for a new

trial or remittitur. The district court denied the motion and awarded

Feltmann front pay of $72,668.38 for a two year period, together with costs

and attorneys' fees.

II.

Sieben contends that the district court erred in failing to grant

Sieben's motion for JAML on Feltmann's discrimination claims, both because

Feltmann failed to establish her prima facie case and because she failed

to introduce evidence sufficient to support a finding of discrimination.
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We review de novo a district court's denial of a motion for JAML,

applying the same standard used by that court. See Triton Corp. v.

Hardrives, Inc., 85 F.3d 343, 345 (8th Cir. 1996). We must consider the

evidence in the light most favorable to Feltmann, assume that all conflicts

were resolved in her favor, give her the benefit of all reasonable

inferences, and then deny the motion for JAML if reasonable persons could

differ regarding the conclusions to be drawn from that evidence. See,

e.g., Ryther v. Kare 11, No. 94-3622, slip. op. at 25-26 (8th Cir. Mar. 6,

1997) (en banc); Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051, 1056

(8th Cir. 1993). 

In a discrimination case, the plaintiff bears the initial burden of

establishing a prima facie case, which gives rise to a presumption of

unlawful discrimination. See Ryther, slip. op. at 6. Once the plaintiff

establishes the prima facie case, the burden shifts to the employer to

produce evidence that its complained-of action was based on a legitimate,

nondiscriminatory reason. See id. Upon the employer's satisfactory

production of such evidence, the presumption of discrimination drops out,

and the only remaining issue is the ultimate question of whether the

employer intentionally discriminated against the plaintiff. See id.

When reviewing the denial of a motion for JAML on a discrimination

claim, however, we need not "re-engage in the [prima-facie step] analysis

. . ., but instead limit our review to the ultimate factual issue of

whether [the defendant] intentionally discriminated on the basis of [the

plaintiff's] sex." Karcher v. Emerson Elec. Co., 94 F.3d 502, 507 (8th

Cir. 1996), petition for cert. filed, 65 U.S.L.W. 3587 (Feb. 5, 1997); see

also Kehoe v. Anheuser-Busch, Inc., 96 F.3d 1095, 1101 (8th Cir. 1996);

Parrish v. Immanuel Med. Ctr., 92 F.3d 727, 733 (8th Cir. 1996); Nelson v.

Boatmen's Bancshares, Inc., 26 F.3d 796, 800-01 (8th Cir. 1994). 
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Thus, we must determine whether Feltmann adduced evidence "`capable of

proving that the real reason for h[er] termination was discrimination based

on [gender].'" Nelson v. J.C. Penney Co., Inc., 75 F.3d 343, 345 (8th

Cir.) (quoting Boatmen's Bancshares, 26 F.3d at 801), cert. denied, 117 S.

Ct. 61 (1996). Feltmann was required to produce evidence of conduct or

statements by persons involved in Sieben's decision-making process

reflective of a discriminatory attitude sufficient to allow a reasonable

jury to infer that that attitude was a motivating factor in Sieben's

decision to fire Feltmann. See J.C. Penney, 75 F.3d at 345; Kehoe, 96 F.3d

at 1102; Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173, 174 (8th Cir.

1992). "We do not sit to determine if this reason is based on sound

principles of business judgment . . . . Rather, the relevant inquiry is

whether [Sieben's] decision was based on [gender]." Lidge-Myrtil v. Deere

& Co., 49 F.3d 1308, 1312 (8th Cir. 1995). Giving Feltmann the benefit of

all reasonable inferences, we find no conduct or statements by persons

involved in Sieben's decision to fire Feltmann from which a jury could

reasonably infer that a discriminatory attitude was a motivating factor in

Sieben's decision to discharge Feltmann. 

Feltmann claims that she was treated differently from similarly

situated male consultants, an allegation which, if established by evidence,

would support a finding of sex discrimination. See Kientzy, 990 F.2d at

1060. The litany of incidents Feltmann recites, however, fails to support

an inference of disparate treatment. Although Feltmann alone received a

memo regarding her work ethic, Rich also talked to a male consultant about

his work ethic, and Feltmann does not offer evidence of any other

consultants whose work ethic Rich questioned but did not reprimand.

Similarly, the fact that Rich put Feltmann on probation does not show

discriminatory treatment, since Rich also put Feltmann's male coworker

Casey Jones on probation for the same
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reason--declining sales in January and February 1993. Feltmann's

contention that she was never given permission to allow a guest drive after

April 9, 1993, though male consultants were, is also unconvincing.

Feltmann could only specify one instance when Rich denied her permission

after April 9, and he denied permission to at least two male consultants

as well. Similarly, Feltmann's allegation that she was fired for not

logging out two cars but that males who failed to log cars out were not

reprimanded is unpersuasive. Feltmann was fired in part because she failed

to ask permission, yet she admitted that she knew of no instance when a

male consultant allowed a guest drive without getting permission. Thus,

even though these male consultants may have been treated differently, they

"cannot be considered similarly situated." Johnson v. Baptist Medical

Center, 97 F.3d 1070, 1073 (8th Cir. 1996). In addition, Rich believed,

and Feltmann admitted, that by not logging cars out or asking for

permission, Feltmann was attempting to hide her actions from Rich. 

Feltmann's other examples of disparate treatment are without merit.

Her allegation that Rich swapped one of her "house deals" (a deal brought

in by a non-consultant and assigned to a consultant) with a less-profitable

deal originally assigned to a male loses force when we consider that

Feltmann, and no other consultant, had been given forty-one clients

belonging to a consultant who left Plaza. Likewise, her claim that she was

forced to drive her rear-wheel-drive Q45 in a snowstorm while the males

could drive front-wheel-drive G20s is weakened by the fact that the male

consultants asked for permission, but Feltmann did not. The fact that Rich

sent Feltmann a personal memo reprimanding her for violating his November

demo car memo, while males were not reprimanded, is similarly unhelpful;

Feltmann drove her demo 300 miles every weekend until April of 1993, while

the males' use was occasional at most and chiefly took place prior to

Rich's November
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1992 memo. Feltmann's claim that Rich refused to switch tires on a car

Feltmann sold, although it "had been done in the past," proves nothing.

Rich explained that he would no longer switch tires for anyone because

tires are federally registered with a particular automobile and switching

them created problems. Feltmann's claim that she, and no males, had to pay

for the new, expensive Q45 brochures is likewise not persuasive; Feltmann

was the only person who expressed a desire to furnish her customers with

personal brochures, and she failed to prove that male consultants were

given free brochures. Finally, with regard to Feltmann's allegation that

Rich did not allow her to participate in the sales competition in Chicago,

we note that the two men Rich wanted to send were Plaza's "two best

salespeople," and he did not give the opportunity to any of several male

consultants who wanted to participate in the competition.

Feltmann claims that Rich approved one male consultant's deal that

yielded a lower profit than one of her deals that Rich denied. She also

claims that Rich would not get off the phone to sign service orders for

her, although he would for male consultants. Because she failed to

introduce any specific evidence to substantiate these vague and conclusory

claims, however, they are insufficient to support a claim of disparate

treatment. See Lidge-Myrtil, 49 F.3d at 1311-12; Davenport v. Riverview

Gardens Sch. Dist., 30 F.3d 940, 945 (8th Cir. 1994). 

We recognize that a jury may discredit or disbelieve whatever alleged

facts are inconsistent with its conclusion, including the employer's

proffered reason for the plaintiff's discharge, as long as evidence

supports the jury's verdict. See Lavender v. Kurn, 327 U.S. 645, 653

(1946), quoted in Ryther, slip. op. at 27. As this statement presupposes,

however, sufficient evidence must still exist to form a basis upon which

a reasonable jury could rest its
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conclusion that the employer's decision stemmed from intentional

discrimination. See Ryther, slip. op. at 8-10, 25. Because there was an

absence of such evidence, the district court should have granted Sieben's

motion for JAML on Feltmann's discrimination claims.

III.

Sieben next asserts that Feltmann failed to establish a prima facie

case that she was retaliated against for reporting Anzalone's profane,

harassing comment. To establish a prima facie case of retaliation,

Feltmann must show that she complained of the harassing comment, that

Sieben took adverse action against her, and that the adverse action was

causally linked to her complaint. See Marzec v. Marsh, 990 F.2d 393, 396

(8th Cir. 1993). 

We conclude that Feltmann failed to establish the necessary

connection between her report and her discharge. Anzalone had no input

into Sieben's termination decisions and worked at a different franchise on

the Plaza Motors premises. The only evidence of retaliation Feltmann

offered was Barnstead's comment that Feltmann had "polarized" herself from

the rest of the salespeople and that she was going to have a "thick"

personnel file. Barnstead, however, had no input into Sieben's firing

decisions, and Feltmann offered no evidence that Barnstead's remark even

related to her report. Anzalone's and Barnstead's remarks are

"insufficiently serious" to support an inference of Sieben's retaliatory

intent. See Johnson, 97 F.3d at 1073. Feltmann also alleged that her

coworkers treated her "unfairly" and that her managers "singled her out."

Such conclusory and unsubstantiated allegations, however, fail to support

Feltmann's claim of retaliation. See Davenport, 30 F.3d at 945.
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Furthermore, Rich, who ultimately discharged Feltmann, was concerned

about Anzalone's comment and was principally responsible for bringing it

to the Capps' attention. Similarly, the Capps' concern in dealing with the

incident suggests, if anything, that Sieben was willing to confront and

rectify Feltmann's harassment claims. Feltmann herself admitted that her

complaint was handled efficiently and to her satisfaction. Finally, Rich

did not discharge Feltmann until six months after she reported Anzalone's

comment. The fact of termination six months after an incident is by itself

insufficient to support a claim of causal connection. See Rath v.

Selection Research, Inc., 978 F.2d 1087, 1090 (8th Cir. 1992). Because

Feltmann failed to adduce any evidence capable of proving a causal

connection between her report and discharge, the district court erred in

not granting JAML on this count of Feltmann's complaint.

IV.

We conclude that the same failure of proof exists with respect to

Feltmann's allegation that she was fired for reporting the problems with

the incentive bonus account. Sieben terminated Schlabach upon discovering

that he had been taking money from the bonus account, which suggests that

Sieben was not trying to protect itself or Schlabach. Moreover, Schlabach

was not Feltmann's superior and was not involved in the decision to fire

Feltmann. Although Feltmann notes that Rich discharged her six weeks after

the complaint, mere temporal proximity is insufficient to link Feltmann's

report to her discharge. See J.C. Penney, 75 F.3d at 346-47 (plaintiff

fired a month after he filed age discrimination charge failed to establish

causal link without evidence in addition to temporal proximity); Caudill

v. Farmland Indus., Inc., 919 F.2d 83, 86-87 (8th Cir. 1990) (close

proximity between plaintiff's
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filing of charges and plaintiff's discharge was a mere "slender reed of

evidence"; any conclusion of temporal proximity would be "rank

speculation"). Accordingly, the district court should have granted

Sieben's motion for JAML on this count.

V.

Because Feltmann's claims find no support in the evidence, her claim

for punitive damages must perforce also fail.

The judgment is reversed, and the case is remanded to the district

court with directions to enter judgment in favor of Sieben, Inc.

A true copy.

Attest:

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