### The HONORABLE JAMES M. ROSENBAUM, United States Distric t 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 i t in Judith A. Feltmann's action alleging sex disc rimination and retaliatory discharge under the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 e et seq . (Title VII), the Missouri Human Rights Act, Mo. Rev. Stat. § 213.010 et seq. (MHRA), and Missouri common law. We reverse.

### -2- I.

Plaza Infiniti is one of eight automobile franchises owned an d operated by Sieben and housed at Sieben's Plaza Motor Company (Plaza). Bo b Rich, then sales manager at Plaza Infiniti, hired Feltmann as a sale s consultant in Septemb er of 1991. Feltmann was the only female consultant at any of the Plaza franchises. During 1992, Fe ltmann's only full year at Plaza, Infiniti execu tives named her to the Pinnacle Club, an elite group of consultants recognized for high sales and consumer satisfaction.

In the summer of 1992, Infiniti inst ituted 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, Ric h felt p ressured to increase sales and began evaluating consultants an d req uesting them to increase sales. Feltmann's sales declined after th e incentive program, but she was still above half of all consultants for 199 2 and, in December, tied with another consultant for the most sales tha t month. Feltmann's av erage gross profit for December of 1992, however, as well as January throu gh 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 tha t results in a higher selling price.

In Novemb er 1992, Feltmann's co-worker Mike Barnstead told her that Gordon Anzalone, a Sieben employee who worked at a different franchise, ha d called her an extreme ly vulgar name. Feltmann wrote a letter to Rich the
nex t day about the comment, and Rich reported the incident to Ton y Pandjiris, the manager of Plaza Motors. Feltman n ultimately met with John and Tom Capps, Sieben's owners,

### -3-

who told Feltmann to report any future incidents. They also asked her if she wanted Anzalone fired, but Feltmann said she did not. They reprimande d Anzalone and told him that if anything like that happened again he would be terminated. Feltmann never heard of any other vulgar comments abou t her. In e arly January, however, Barnstead told Feltmann that she ha d 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 Feltma nn a personal memo regarding her "work ethic." Rich's memo indicated he was unhappy with her method o f selling. She was allowing "guest drives"--permitting prospective buyers to take an Infiniti for a short period of time without an accompanyin g consultant --too often and too soon in the selling process. Rich als o 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, Ric k Beutel, on probation because of their low sales performance in January and Februaryof 1993. Feltmann and Beutel consequently rebounded by the end of March, and Feltmann sold more automobiles that month than all but one other consultant. De spite her high March sales, Feltmann was not allowed to partic ipate in a sales competition in Chicago. Rich had offered th e opportunityto 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 c osts at the dealership and restricted consultants' use of demo cars to the

### -4-

St. Louis area. Despite this restriction, Feltmann continued her weekly 300-mile round trips to Marion, Illinois, to visit her husband. O n 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 M arion weekly until April 1993, two months after she received th e personal memo from Rich and six months after the first restriction.

In Janua ry or February of 1993, Feltmann received her federal 109 9 tax form, which included bonuses attributed to her from the summer 199 2 incentive program. Her 1099 indicated more bonus income than she ha d actuallyearned. Casey Jones's and Beutel's 1099s also indicated larger bonuses than they had actually earned. Feltmann obtained copies of th e checks a ddressed to her and discovered that someone had forged he r 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 thei r absence. Although Feltmann had not given her managers such authority , theysigned her name anyway. Feltmann also discovered that she had been credited with sales she did not actually make. Feltmann complained to Ric h that her 1099 showed income in excess of what she actually earned. O n April 14, 1993, Sieben gave Feltmann a check covering her additional tax liability, but requir ed her to sign a release stating that she held Plaza harmless for any claims relating to the incentive program. Siebe n eventually discovered that Jim Schlabach, who had been in charge of th e account, had been taking money from it, and terminated him.

### -5- Prior to April 9, 1993, Plaza Infini ti's guest drive policy provided that consultants were to use their "best judgment" in permitting a custome r to gues t drive a car. Feltmann allowed many more guest drives than an y oth er consultant: Sieben's guest drive log reveals that between July o f 1992 and April of 1993 she permitted 107, while the highest male consultan t permitted forty-eight. In February of 1993, Rich reprimanded Feltmann whe n she loaned two small Infinitis to Infiniti owners who did not want to driv e their own cars in a snowstorm.

On A pril 9, 1993, Rich announced a new guest drive policy

. Consu ltants were not to loan out any cars without Rich's permission o r without logging the cars in the guest drive log book. Overnight gues t drives would no longer be permitted, and consultants had to accompany thei r guests. Before Rich left for a trip the weekend of May 15, he reiterated that no guests could drive the new Q45 without a n accompanying consultant. Despite the April 9 memo and Rich's specific instruction, however, Feltman n permitted a customer to take a Q45 alone, and allowed another customer to keep a J30 model for the entire weekend, without getting permission o r noting the guest drive in the log book. The follo wing Monday, May 17, 1993, Rich fired Feltmann because she had al lowed these guest drives contrary to his specific instructions

. Feltmann requested a meeting to review her discharge. She then met with Ric h, Pandjiris, and John and Tom Capps and alleged that she had bee n discriminated and retaliated against. The Capps told her that they took he r 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 Pandjiri s exten d an offer of reinstatement to her. Feltmann declined the offer , however, because Tom Capps refused her demand that he fire

### -6-

four male sales consu ltants, did not accord her complaints any merit, and would ma ke no changes at the showroom. She also refused a position i n another Sieben showroom. Feltmann subsequently worked at Lexus of St

. Louis f or ten months and then at St. Louis Acura for four months, unti l major d epression, allegedly precipitated by her discharge from Plaza , forced her to quit.

Afte r exhausting her administrative appeals, Feltmann brought thi s action alleging sex discrimination in violation of Title VII and the MHRA; retal iatorydischarge in violation of Title VII and the MHRA; an d retaliatorydischarge under Missouri common law for reporting the forged checks. The jury found in favor of Feltmann and awarded her $112,661 in back p ay, $20,072.24 in compensatory damages, and $25,000 in punitiv e 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 awarde d Feltmann front pay of $72,668.38 for a two year period, together with cost s and attorneys' fees.

II.

Siebe n contends that the district court erred in failing to gran t Sieben's motion for JAML on Feltmann's discrimin ation 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.

### -7- 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 conflict s
wer e resolved in her favor, give her the benefit of all reasonabl e inferences, and then deny the motion for JAML if reasonable persons could diffe r 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 disc rimination case, the plaintiff bears the initial burden of establishi ng a prima facie case, which gives rise to a presumption o f unlawful discriminati on. See Ryther , slip. op. at 6. Once the plaintiff estab lishes the prima facie case, the burden shifts to the employer t o produce evidence that its complained-of action was based on a legitimate, nondis criminatoryreason. See id. Upon the employer's satisfactor y production of such ev idence, the presumption of discrimination drops out, and the only remaining issue is the ultimate question of whether th e employer intentionally discriminated against the plaintiff. See id. When re viewing the denial of a motion for JAML on a discriminatio n claim, however, we ne ed not "re-engage in the [prima-facie step] analysis

. . ., but instead limit our review to the ultimate factual issue o f whether [the defendant] intentionally discriminated on the basis of [the plaintiff 's] sex." Karcher v. Emerson Elec. Co. , 94 F.3d 502, 507 (8t h 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).

### -8-

Thu s, we must determine whether Feltmann adduced evidence "`capable o f proving that the real reason for h[er] termination was discrimination base d
on [gend er].'" Nelson v. J.C. Penney Co., Inc. , 75 F.3d 343, 345 (8t h Cir.) (quoting Boatmen's Bancshares , 26 F.3d at 801), cert. denied , 117 S. Ct. 61 (1 996). Feltmann was required to produce evidence of conduct o r statements by persons involved in Sieben's decision-making proces s 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.3 d at 1102 ; Lowe v. J.B. Hunt Transport, Inc. , 963 F.2d 173, 174 (8th Cir

. 19 92). "We do not sit to determine if this reason is based on soun d 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). Givi ng Feltmann the benefit of all reasonable inferences, we find no conduct or statements by person s invol ved in Sieben's decision to fire Feltmann from which a jury coul d reasonably infer that a discriminatory attitude was a motivating factor in Sieben's decision to discharge Feltmann. Fel tmann claims that she was treated differently from similarl y 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 othe r consul tants whose work ethic Rich questioned but did not reprimand

. Similarly, the fact that Rich put Feltmann on probation does not sho w disc riminatorytreatment, since Rich also put Feltmann's male coworke r Casey Jones on probation for the same

### -9-

rea son--declining sales in January and February 1993. Feltmann' s contention that she was never given permission to allow a guest drive afte r 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 no t loggi ng out two cars but that males who failed to log cars out were no t reprimanded is unpersuasive. Feltmann was fired in part because she faile d 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 beentreated differently, they "canno t be considered similarly situated." Johnson v. Baptist Medica l Center , 97 F.3d 1070, 1073 (8th Cir. 1996). In addition, Rich believed, and Felt mann admitted, that by not logging cars out or asking fo r permission, Feltmann was attempting to hide her actions from Rich. Feltmann' s other examples of disparate treatment are without merit. Her allegation that R ich swapped one of her "house deals" (a deal brought in by a non-consultant and assigned to a consultant) with a less-profitabl e deal originally assigned to a male loses force when we consider tha t Feltma nn, and no other consultant, had been given forty-one client s belonging to a consultant who left Plaza. Likewise, her claim that she wa s forced to drive her rear-wheel-drive Q45 in a snowstorm while the male s 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 Ric h sent Feltmann a perso nal 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 t o Rich's November

### -10-

1992 me mo. Feltmann's claim that Rich refused to switch tires on a ca r Feltmann sold, although it "had been done in the past," proves nothing

. Rich explained that he would no longer switch tires for anyone becaus e tires are federally r egistered with a particular automobile and switching them created problems. Feltmann's claim that she, and no males, had to pa y 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 wer e given free brochures. Finally, with regard to Feltmann's allegation that Rich did not allow her to participate in the sal es competition in Chicago,
we note tha t the two men Rich wanted to send were Plaza's "two bes t 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 tha t 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 fo r her, alth ough he would for male consultants. Because she failed t o introduce any specific evidence to substantiate these vague and conclusory claims, however, they are insufficient to support a claim of disparat e 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 a lleged fa cts are inconsistent with its conclusion, including the employer' s proffe red reason for the plaintiff's discharge, as long as evidenc e sup ports the jury's verdict. See Lavender v. Kurn , 327 U.S. 645, 65 3 (1946), quoted in Ryther , slip. op. at 27. As t his statement presupposes, however, sufficient evidence must still exist to form a basis upon which a reasonable jury could rest its

### -11-

concl usion that the employer's decision stemmed from intentiona l discrimination. See Ryther , slip. op. at 8-10, 25. Because there was an absence of such evide nce, the district court should have granted Sieben's motion for JAML on Feltmann's discrimination claims.

III.

Sieben ne xt asserts that Feltmann failed to establish a prima facie
case t hat she was retaliated against for reporting Anzalone's profane , harassing comment. To establish a prima facie case of retaliation , Feltman n must show that she complained of the harassing comment, tha t Sieben took adverse action against her, and that the adverse action wa s causally linked to her complaint. See Marzec v . Marsh , 990 F.2d 393, 396 (8th Cir. 1993).

We conc lude that Feltmann failed to establish the necessar y connection between her report and her discharge. Anzalone had no inpu t into Sieben's termination decisions and worked a t a different franchise on the Pla za Motors premises. The only evidence of retaliation Feltman n offered was Barnstead's comment that Feltmann ha d "polarized" herself from the rest o f the salespeople and that she was going to have a "thick " personnel file. Barnstead, however, had no input into Sieben's firin g decisions, and Feltmann offered no evidence that Barnstead's remark even relate d to her report. Anzalone's and Barnstead's remarks ar e "insufficientlyserious" to support an inference of Sieben's retaliatory intent. See Johnson , 97 F.3d at 1073. Feltmann also alleged that he r coworkers treated her "unfairly" and that her managers "singled her out." Such conclusory and u nsubstantiated allegations, however, fail to support Feltmann's claim of retaliation. See Davenport , 30 F.3d at 945.

### -12- Furthermore, Rich, who ultimately di scharged 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 th e inc ident suggests, if anything, that Sieben was willing to confront an d rectify Feltmann's ha rassment claims. Feltmann herself admitted that her complaint was handledefficiently and to her satisfaction. Finally, Rich did not discharge Fel tmann until six months after she reported Anzalone's comment. The fact of termination six months after an incident is by itsel f ins ufficient to support a claim of causal connection. See Rath v

. Selection Research, Inc. , 978 F.2d 1087, 1090 (8th Cir. 1992). Becaus e Feltmann failed to adduce any evidence capable of proving a causa l 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 t o 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 taki ng money from the bonus account, which suggests that Sieben was not trying to protect itself or Schla bach. 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 afte r the complaint, mere t emporal proximity is insufficient to link Feltmann's report to her discharge. See J.C. Penney , 75 F.3d at 346-47 (plaintif f fired a month after he filed age discrimination charge failed to establish causal link without evidence in addition to temporal proximity); Caudill

v. Farmla nd Indus., Inc. , 919 F.2d 83, 86-87 (8th Cir. 1990) (clos e proximity between plaintiff's

### -13-

filing of charges and plaintiff's discharge was a mere "slender reed o f evid ence"; any conclusion of temporal proximity would be "ran k specu lation"). Accordingly, the district court should have grante d Sieben's motion for JAML on this count.

V.

Because Feltmann's claims find no su pport in the evidence, her claim for punitive damages must perforce also fail.

The jud gment is reversed, and the case is remanded to the distric t court with directions to enter judgment in favor of Sieben, Inc.

A true copy.

Attest:

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