1The Hon. Andrew W. Bogue, Senior United States District Judge for the

District of South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

__________

No. 99-2795

___________

Larry Kells, *

*

*

 Appellant, *

*

 vs. * Appeal from the United

* States District Court

Sinclair Buick - GMC Truck, Inc., * for the Eastern District

* of Missouri. 

*

 Appellee. * 

*

__________

Submitted: March 13, 2000

Filed: April 27, 2000 

__________

Before McMILLIAN and HEANEY, Circuit Judges, and BOGUE,1 District Judge.

_________

BOGUE, District Judge.
2Hon. Lawrence O. Davis, United States Magistrate Judge in the Eastern District

of Missouri, to whom the case was referred for final disposition by consent of the

parties. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

2

This is an employment discrimination case. The Plaintiff, Larry Kells charged

the Defendant with discrimination on account of age and disability. The district court2

granted the Defendant’s motion for summary judgment on each count of the Plaintiff’s

Complaint. For the reasons set forth below, we affirm in part and reverse in part.

I. BACKGROUND

In April 1993, Defendant Sinclair Buick-GMC Truck, Inc. (“Sinclair-Buick”)

acquired Art Haack Buick, where Larry Kells worked as a used car salesman. Part

owner Dave Sinclair Jr. became the dealership’s new manager, and in March 1994 he

offered Kells the opportunity to work as a finance and insurance (“F&I”) manager.

Kells accepted. He joined Greg Gorham, the other F&I manager. 

The F&I department was responsible for selling car buyers additional services

such as financing, insurance, and extended warranties. Sometime in 1994, Dave

Sinclair Jr. was contacted by General Motors Holding Division, the investment

department at General Motors, which advised him that his F&I department was

underperforming. General Motors Holding Division recommended that he engage an

independent financing and consulting firm called Maximum Achievable Profits, Inc.

(“MAP”) to review the department and train the Sinclair-Buick F&I employees.

Sinclair Jr. hired MAP in December 1994.

Two MAP consultants arrived, Vern Hutson and Leo Norath. They reviewed

and trained Kells and his coworker, Gorham for an eight month period ending in

August 1995. MAP noted problems with both Gorham’s and Kells’ performance, but

believed that Kells exhibited a more serious attitude problem. On or about August 4,
3

Sinclair Jr. removed Kells from the F&I department and reinstated him in his former

position as a used car salesperson. 

Subsequently, a September 8 MAP “letter of findings” from Leo Norath was

issued. The letter criticized the accuracy of Kells’ and Gorham’s “daily logs” and

made additional remarks concerning Kells’ performance. During a September 17

meeting between Sinclair Jr. and MAP consultant Hutson, Sinclair Jr. expressed his

concerns with regard to a possible lawsuit from Kells as well as community perceptions

surrounding Kells’ transfer. A second MAP “letter of findings” was generated

following this meeting which described how Kells would not use procedures properly

with customers, did not take a great interest in improving, and had a negative attitude.

This letter contained the first written MAP recommendation that Kells be removed from

his F&I position.

Kells’ new supervisor was Mike Ruhland, who was also critical of Kells’

abilities. Ruhland told Kells that he was “useless,” “done with the business” and that

he did not want Kells in the used car department because he could not wait on

customers fast enough or keep up with the other Sinclair-Buick employees. Kells has

muscular dystrophy and found some duties connected with his new position difficult.

Ruhland denied repeated requests for a ramp into the used car building, the use of a

cart, and authorization to use a canopy-covered parking space in order to accommodate

Kells’ disability. 

Kells worked in the used car department for nearly five more months before

submitting a letter of resignation in December. In the letter, Kells complained that

despite his genuine dedication to Sinclair-Buick, he had been demoted “under dubious

pretexes” [sic] so that his income would decline and he would be forced to resign.

Following Kells’ resignation, Dave Sinclair Sr., Dave Sinclair Jr.’s father and a part

owner of the dealership, called Kells at home. Sinclair Sr. asked Kells how old he was.
3The district court ruled that Kells’ MHRA claims should be dismissed because

they were untimely filed. See Mo. Rev. Stat. § 213.075.1 (complaints of discrimination

must be filed with the MCHR within 180 days of the alleged act of discrimination).

Kells has not appealed this determination. Thus, only his federal claims are before this

Court.

4

“Fifty,” Kells replied. “When you get that age, those things happen to you in our

company,” Sinclair Sr. responded. 

In March of the following year, Kells filed a charge of discrimination with the

Equal Employment Opportunity Commission (EEOC) and the Missouri Commission

on Human Rights (MCHR). He filed a four count Amended Complaint with the

District Court for the Eastern District of Missouri, alleging wrongful demotion,

harassment, and constructive discharge in violation of the Americans with Disabilities

Act (ADA), the Age Discrimination in Employment Act (ADEA), and comparable

provisions of the Missouri Human Rights Act (MHRA). In three separate orders, the

district court granted summary judgment on all counts of Kells’ Complaint.3 This

appeal followed.

II. DISCUSSION

We review a district court’s grant of summary judgment de novo. Rothmeier v.

Investment Advisers, Inc., 85 F.3d 1328, 1331 (8th Cir. 1996). Summary judgment may

issue only when “there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. “[S]ummary

judgment should seldom be granted in the context of employment actions, as such

actions are inherently fact based.” Hindman v. Transkirt Corp., 145 F.3d 986, 990 (8th

Cir. 1998). When the evidence would support conflicting conclusions, summary

judgment should be denied. See Johnson v. Minnesota Historical Soc’y, 931 F.2d

1239, 1244 (8th Cir. 1991) (“All the evidence must point one way and be susceptible
5

of no reasonable inferences sustaining the position of the nonmoving party [before

summary judgment is appropriate].”).

A. ADA Claim

 

The Defendant does not dispute that Kells is a qualified individual with a

disability within the meaning of the ADA. See 42 U.S.C. § 12102(2)(A) (defining a

disability as an impairment which substantially limits a major life activity). Kells has

insulin-dependent diabetes and muscular dystrophy, both recognized ADA

impairments. See Torcasio v. Murray, 57 F.3d 1340, 1354 (4th Cir. 1995), cert. denied,

516 U.S. 1071, 116 S.Ct. 772, 113 L.Ed.2d 724 (1996), citing 28 C.F.R. § 35.104

(muscular dystrophy); Burroughs v. City of Springfield, 163 F.3d 505, 507 (8th Cir.

1998) (diabetes). As a result of his muscular dystrophy, Kells has diminished use of

the muscles in the lower part of his body. He wears braces on both legs and walks

using two canes. Despite these mitigating devices, the Defendant concedes, Kells’

impairments substantially limit one or more of his major life activities, such as walking.

As such, Kells has a disability.

What the parties dispute is whether Kells was demoted and ultimately

constructively discharged because of his disability. See 42 U.S.C. § 12112(a)

(prohibiting discrimination because of disability in regard to “the hiring, advancement,

or discharge of employees”). In support of his claim, Kells points to statements by

Mike Ruhland, the used car department manager, that Kells was “useless,” “done with

the business,” and could not wait on customers fast enough or keep up with other

employees. In addition, Kells cites to instances in the record which suggest that

Sinclair Buick failed to provide reasonable accommodations for his disability. Kells

further attempts to create a genuine issue of material fact with regard to the timing of

MAP’s recommendation that he be transferred out of the F&I department. Before

reviewing the district court’s grant of summary judgment on Kells’ ADA claim, we first

examine these factual issues.
6

1. Timing of MAP Recommendation

The following facts are clearly undisputed. Kells was transferred back to the

used car department on August 4, 1995. On September 8, MAP issued a letter of

findings which contained criticisms of Kells, as well as criticisms of Greg Gorham. On

September 17, Vernon Huston met with Dave Sinclair Jr. and discussed Sinclair Jr.’s

concerns about a possible lawsuit from Kells. On September 27, MAP issued a second

letter of findings recommending Kells’ transfer.

What is not entirely clear is whether MAP consultants orally recommended that

Kells be transferred before Sinclair Jr. carried out Kells’ transfer. Sinclair-Buick’s

defense theory depends, in part, upon their reliance on MAP’s objective conclusions

concerning Kells’ professional shortcomings. Sinclair-Buick argues that its reliance on

MAP’s recommendation to transfer Kells out of the F&I department refutes Kells’

claim that it was motivated by any sort of discriminatory animus. In support of this

theory, Sinclair-Buick contends that the record plainly establishes that it received a

verbal recommendation to transfer Kells prior to taking that action. The district court

agreed, and found that this was the only reasonable reading of the record.

Sinclair-Buick cites to affidavits by MAP consultants Leo Norath and Vernon

Hutson which it originally attached to its reply brief to Plaintiff’s brief in opposition to

Defendant’s motion for summary judgment. In the Norath affidavit, Norath swore that

he verbally advised Sinclair Jr. to remove Kells from the F&I department in

approximately April of 1995, some four months before Kells was finally transferred.

In the Hutson affidavit, Hutson stated that he verbally advised Sinclair Jr. to transfer

Kells as early as February 1995. Because Kells could offer no evidence to contradict

these assertions, the district court concluded that there was no genuine issue as to when

the MAP consultants recommended Kells’ transfer.
7

Part of the difficulty with the district court’s conclusion as to this aspect of the

record lies in Norath’s and Hutson’s prior deposition testimony. Hutson was asked

about his notes of the September 17 meeting:

A. It was one of my follow-up visits and, again, it was things we

discussed so I made notes.

Q. It goes on to state that, the very third sentence from the bottom, “We

then recommended dismissal. Dave’s thoughts on community standing

and concern of some type of lawsuit would not permit dismissal until he

had given ample warning and compile statistics to support his move and

decision.” That’s something that, your testimony was, that you discussed

in February of 1995. I’m wondering why you’re writing it down on

September 17th of 1995.

A. Because it was probably September then, I discussed it then. It was

five years ago.

Q. So this refreshes your recollection that it wasn’t in February, but it was

September of 1995 that you made the recommendation?

A. I wrote it on September of 1995. The actual conversation was

probably then. Mr. Sinclair was very concerned about public opinion and

that’s why I put it in my record.

Norath was questioned about the September 27 letter which was issued following the

meeting:

Q. Okay. Do you know of any other writing other than this September

27, 1995, letter that you recommend Mr. Kells be discharged from the

F&I department?

MR. GOFFSTEIN: Are you referring just to what Mr. Norath did?

MR. LOWE: Yes.

MR. GOFFSTEIN: Okay.

A. Repeat that question please.

Q. Yeah. Do you remember any other document where you recommend

Mr. Kells be changed from the F&I department –

A. No.
4Hutson explained that during his deposition, he became confused when he was

shown his notes from the September 17 meeting with Sinclair Jr.

8

Q. – other than this – you’ve got to let me finish my – other than this

September 27, 1995, letter?

A. No.

Q. And sitting here today you don’t have a recollection of making that

recommendation to Mr. Sinclair other than in this September 27th, 1995,

letter?

A. That’s correct. 

The court reasoned that Defendant Sinclair-Buick had offered uncontradicted evidence

that it had relied on MAP’s verbal recommendations in deciding to transfer Kells to the

used car department. The court focused on other portions of the MAP consultants’

deposition such as where Hutson testified that in roughly February 1995, he “probably”

recommended Kells’ termination, and Hutson’s handwritten notes of the September

1995 meeting where it was recited that dismissal was recommended as early as six

weeks into the MAP program.

We do not believe that the court’s conclusion can be reconciled with the

applicable standard for reviewing facts on a motion for summary judgment. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d

202 (1986) (citation omitted) (cautioning that in the context of a motion for summary

judgment, “[t]he evidence of the nonmovant is to believed, and all justifiable inferences

are to be drawn in his favor.”). The district court’s factual conclusion might have been

based on a logical, well-reasoned reading of the record, but it was not the only

reasonable conclusion which could have been drawn.

Hutson’s and Norath’s depositions did more than clarify their deposition

testimony, they contradicted it. Indeed, Hutson’s affidavit characterizes his prior

deposition testimony as “incorrect.”4 Granting, as we must, all reasonable inferences
9

in Kells’ favor, we cannot say that the record establishes whether MAP consultants

recommended Kells’ transfer before Sinclair-Buick acted. Instead, this is a question

best left to a jury. For summary judgment purposes, the district court should have

assumed that no MAP recommendation to transfer or remove Kells was articulated until

after the fact.

2. Reasonable Accommodation Evidence

Kells also argues that an inference of unlawful discriminatory intent arises from

the Defendant’s repeated denials of reasonable accommodations. When he presented

this evidence in resistance to Defendant’s motion for summary judgment, the court

disregarded the evidence as irrelevant. Kells urges us to reconsider this decision.

In addition to prohibiting discrimination on account of disability, the ADA

imposes an affirmative duty on employers to provide “reasonable accommodations to

the known physical or mental limitations” of their employees. 42 U.S.C. §

12112(b)(5)(A). An accommodation is simply some change or modification in the

work environment which allows an individual with a disability to participate on an

equal footing with non-disabled employees. 29 C.F.R. § 1630.2(o)(1)(iii). Reasonable

accommodations might include special training, restructured work schedules, or

modifications of workplace equipment and devices. 42 U.S.C. § 12111(9)(B); see,

e.g., Valentine v. American Home Shield Corp., 939 F.Supp. 1376, 1399 (N.D. Iowa

1996) (listing part-time employment as a potential reasonable accommodation).

Proposed accommodations which would involve significant expense or difficulties upon

the employer’s operation of its business constitute an “undue hardship” and need not

be implemented. 42 U.S.C. §§ 12112(b)(5)(A), 12111(10).

Kells cites to three instances where he was allegedly denied a reasonable

accommodation by Sinclair-Buick. First, he claims, the Defendant refused to allow him

to park his vehicle in a covered parking spot during bad weather. Because the parking

lot was positioned on an incline, Kells’ disability made it difficult to maneuver when
10

the surface was wet or icy. Sales manager Mike Ruhland denied this request on ten or

more separate occasions. Second, Kells requested that a ramp be built to assist him in

climbing the stairs into the used car building following his transfer. Although Sinclair

Buick apparently made preliminary efforts to construct a ramp, it did not do so until the

time of Kells’ resignation in December 1995. Third, Kells repeatedly requested the use

of an electric cart which was kept at the dealership in order to go from the used car

building to the main building. Plaintiff needed to carry as many as ten or twelve files

across the uneven asphalt on a daily basis. On at least one occasion, Kells fell while

making this trip. Ruhland refused to permit Kells to use the cart because it reserved the

cart’s use for customers, saying, “It’s not my concern. Just get [the files] down there.

It’s your responsibility. Just take care of it.”

Kells presents a rather novel theory. Rather than stating a claim directly for

these purported denials of reasonable accommodations, he asked the district court to

consider the denials as evidence supporting his claim that his demotion and termination

were motivated by discriminatory animus. See Tart v. Behan Lumber Co., 31 F.3d

668, 673 (8th Cir. 1994) (noting that evidence of background incidents showing biased

climate can be indicative of motive or attitude of discrimination). The Defendant

characterizes Kells’ assertion as a red herring because all the events occurred after

Kells’ demotion to used car salesman. Kells admitted that he made no requests for

reasonable accommodations while in the F&I department because he did not need any

accommodations in that position. Because the alleged denials of reasonable

accommodations did not occur before or contemporaneously with his demotion, the

Defendant claims, they shed no light on the reason for Kells’ demotion.

We disagree. Kells claims that the demotion as well as the purported

constructive termination were motivated by his disability. He has clearly presented

prima facie evidence of the Defendant’s repeated denials of requests for reasonable

accommodations. If it is accepted that the Defendant conducted itself with a disregard

for its obligations to Kells under federal disability laws, this is relevant evidence of the
11

Defendant’s attitude towards Kells’ disability. Cf. 42 U.S.C. § 12112(b)(5)(B)

(including within the definition of discrimination under the ADA, the denial of

employment opportunities “if such denial is based on the need of [the] covered entity

to make reasonable accommodation”). From the evidence presented, a reasonable jury

could find that Sinclair-Buick viewed with derision Kells’ requests for reasonable

accommodations and from that infer that Sinclair-Buick’s reasons for transferring and

discharging Kells were also related to contempt towards his disability. Failing to

provide an employee with reasonable accommodations can tend to prove that the

employer also acted adversely against the employee because of the individual’s

disability. We therefore reject the district court’s conclusion that such evidence is

simply irrelevant. See F.R.E. 401 (defining “relevant evidence” as “evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.”).

The district court also disregarded Plaintiff’s evidence of verbal harassment by

Mike Ruhland, Plaintiff’s supervisor in the used car department. We likewise reject

the court’s conclusion that this evidence has no bearing on Plaintiff’s claim. Criticisms

of Kells’ slugishness in attending to customers could be read as directed towards the

fact that Kells mobility is restricted due to his disability. The court erred in failing to

consider this evidence in the context of Defendant’s motion.

3. Summary Judgment

Having reviewed the record, we have concluded that the district court erred in

disregarding the evidence of reasonable accommodation denials and in holding that no

genuine issue existed regarding the timing of the MAP recommendation to transfer

Kells. It still remains for us to determine whether we should nonetheless affirm the

district court’s grant of summary judgment on Kells’ ADA claim. Summary judgment

is an appropriate remedy despite factual discrepancies unless genuine issues of material
12

fact remain. Fed. R. Civ. P. 56 (emphasis added). The evidence in support of Kells’

claim that he was demoted and constructively discharged because of his disability,

viewed in a light most favorable to him, can be summarized as follows: insensitive

comments by supervisor Ruhland in connection with Kells’ physical limitations,

repeated denials of reasonable accommodation requests, Kells being replaced by a nondisabled worker, and an inference that the MAP recommendation may have been

manufactured post-hoc to support a non-discriminatory explanation for Kells’

demotion. Granting Kells all reasonable inferences from these facts, we conclude that

a genuine issue has been presented as to whether the Defendant’s actions were

motivated by the existence of Kells’ disability. We will reverse the district court’s

grant of summary judgment on this claim. 

B. ADEA Claim

Kells was fifty years old during the time frame at issue. He asserted in count II

of his Complaint that he was demoted because of his age. See 29 U.S.C. §§ 623(a)(1),

631(a) (prohibiting employment discrimination against any individual over the age of

forty “because of such individual’s age”). In support of this claim, Kells relies on the

fact that after his demotion he was replaced by a 37-year-old individual, the subsequent

criticisms by Mike Ruhland, and a comment by Dave Sinclair Sr. during a telephone

conversation with Kells. 

After Kells resigned in December 1995, Dave Sinclair Sr. called Kells at his

home. Sinclair Sr. was not directly involved with the dealership’s management,

although his ownership interest is forty-nine percent. Kells complained to Sinclair Sr.

that he felt he had been mistreated by Sinclair Jr. and Mike Ruhland. Sinclair Sr. asked
5Kells’ deposition testimony was that Sinclair Sr. said, “You know, when you

start getting in the age you’re in, those things happen.” Subsequently, in an affidavit,

Kells modified this to include the phrase “those things happen in our company.” For

purposes of reviewing the district court’s summary judgment ruling, we assume that

Kells inadvertently misquoted Sinclair Sr. and corrected his error by affidavit.

13

Kells how old he was. “Fifty,” Kells replied. “When you get that age, those things

happen to you in our company,” Sinclair Sr. observed.5

Kells argues at some length that Dave Sinclair Sr.’s telephonic comment presents

direct evidence of age-related discriminatory animus. See Price Waterhouse v.

Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Direct evidence is

that which demonstrates a specific link between the challenged employment action and

the alleged animus. See, e.g., Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991)

(holding that a statement by a company president who actively participated in the

personnel decision at issue that “older employees have problems adapting to changes

and to new policies” constitutes direct evidence). The Sinclair comment is not direct

evidence because it presents no such link. No evidence was presented that Sinclair Sr.

“actively participated in the personnel decisions at issue.” Id. Moreover, Kells

presented no evidence that Sinclair Sr. was basing his comment on any direct

observations of Sinclair-Buick’s practices, policies or attitudes concerning older

employees. The court was correct in applying an indirect evidence framework to Kells’

ADEA claim.

McDonnell Douglas provides a framework for analyzing employment

discrimination charges which rely on inferential proof. McDonnell Dougas Corp. v.

Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Thus, utilizing this

familiar and often useful three-part burden-shifting scheme, we are persuaded that Kells

has presented a prima facie case of age discrimination. In response, Sinclair-Buick has

articulated a non-discriminatory explanation for its actions; Kells’ mistakes, his bleak

attitude and lackluster performance. Under the third prong of McDonnell Douglas, the
14

burden of production then shifts back to Kells to show that his employer’s explanation

is pretextual and that age was a determinative factor in Sinclair-Buick’s decision to

demote him. Id., 411 U.S. at 804-05, 93 S.Ct. at 1825-26; Rothmeier, supra, 85 F.3d

at 1336-37.

The Defendant argues that Kells’ claim is substantially weakened by the fact that

he was already over the age of forty when Sinclair Jr. promoted him seventeen months

earlier. Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173, 175 (8th Cir. 1992) (holding

that age discrimination was not shown where the plaintiff was hired by the same person

who shortly thereafter terminated him and where the plaintiff was in the protected age

group at the time he was hired). The holding of Lowe is limited to cases where no

evidence of overt discrimination has been presented. Madel, 116 F.3d at 1253. Here,

the Sinclair Sr. statement and other circumstances are inferential proof of overt

discrimination, which, coupled with the suspicions timing of the MAP recommendation,

raise an inference of illegal discrimination.

We therefore hold that, viewing the record in its entirety, Kells has presented a

triable issue of fact with regard to his ADEA claim. The Sinclair Sr. observation,

coupled with Kells’ other evidence, is sufficient to present a jury with Kells’ claim of

age discrimination. We will reverse the district court’s grant of summary judgment on

Kells’ ADEA claim.

C. Harassment

Finally, Kells appeals the district court’s grant of summary judgment on Kells’

claims of harassment. Kells’ Complaint alleges that the Defendant wilfully subjected

him to harassment on account of disability and age. The court dismissed these aspects

of the Plaintiff’s Complaint after concluding that Kells had failed to exhaust his

administrative remedies. The court reasoned that because Kells had not specifically

raised an allegation of harassment in his charge of discrimination filed with the EEOC-
6Kells’ charge read in full:

I. On August 4, 1995, I was removed from my position as Finance

Manager, and was given a “choice” of either resigning or accepting a

straight commission position as a used car salesperson. I had been

performing satisfactorily in the Finance Manager position but I was

viewed as a liability because of my disability and my worsening physical

condition.

II. I was not given a valid reason for the removal and demotion.

Management was aware of my disability and worsening physical

condition which would make it almost impossible for me to support

myself as a used car salesman. I believe their actions were taken in an

effort to force me to resign.

III. I believe I have been discriminated against because of my disability

in violation of the Americans with Disabilities Act.

IV. I was also replaced by a younger, non-disabled man.

15

MCHR, and because the allegations Kells did raise were not “like or reasonably related

to” a harassment charge, that the Plaintiff was limited to claims of wrongful demotion

and constructive termination. We review this ruling de novo. Nichols v. American

Nat’l Ins. Co., 154 F.3d 875, 886 (8th Cir. 1998) (citation omitted).

In the charge Kells submitted to the EEOC, he claimed that he had been removed

from his F&I position because of his disability and that the Defendant’s “actions were

taken in an effort to force me to resign.”6 Kells argues that his failure to specifically

reference harassment “should not sound the death knell” for his allegations. Shannon

v. Ford Motor Co., 72 F.3d 678, 685 (8th Cir. 1996). A harassment claim “reasonably

can be expected to grow out of” an investigation into the substance of his assertion that

the Defendant forced his resignation, Kells avers. EEOC v. Delight Wholesale Co.,

973 F.2d 664, 668 (8th Cir. 1992).

“In determining whether an alleged discriminatory act falls within the scope of

a [discrimination] claim, the administrative complaint must be construed liberally ‘in
16

order not to frustrate the remedial purposes of [the ADA and the ADEA]’ and the

plaintiff may seek relief for any discrimination that grows out of or is like or reasonably

related to the substance of the allegations in the administrative charge.” Nichols, 154

F.3d at 886-87 (citations and internal citation omitted). “Accordingly, the sweep of any

subsequent judicial complaint may be as broad as the scope of the EEOC ‘investigation

which could reasonably be expected to grow out of the charge of discrimination.’”

Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir. 1988) (citation omitted). Allegations

outside the scope of the EEOC charge, however, circumscribe the EEOC’s

investigatory and conciliatory role, and for that reason are not allowed. Williams v.

Little Rock Mun. Water Works, 21 F.3d 218, 223 (8th Cir. 1994) (citation omitted).

We agree with the district court that Kells’ claim that he was unlawfully subject

to verbal harassment by Mike Ruhland is not reasonably related to his claims of

discriminatory demotion and termination at the hands of Sinclair Jr. The EEOC charge

failed to put the Defendant on notice that Kells was claiming he was subject to

harassment. Even granting Kells’ pro se EEOC charge a liberal construction, we are

prohibited from “inventing ex nihilo, a claim which simply was not made.” Shannon,

72 F.3d at 685; see also Tart, 31 F.3d at 673 (claim of racial harassment is not

reasonably related to racially discriminatory discharge); Williams, 21 F.3d at 223

(claim of race discrimination separate and distinct from claim of retaliation three years

later). We will therefore affirm the district court’s ruling that Kells failed to exhaust

his administrative remedies with regard to his harassment claims.

III. CONCLUSION

For the foregoing reasons, we reverse the district court’s grant of summary

judgment on Kells’ ADA and ADEA claims. We affirm with respect to the court’s

dismissal of Kells’ harassment claims and remand for further proceedings consistent

with this opinion.
17

 A true copy.

 Attest:

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