William E. Gagnon v. Sprint Corp. ( 2002 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 01-2505
    ___________
    William E. Gagnon, Jr.,                *
    *
    Appellant,                *
    *
    v.                               * Appeal from the United States
    * District Court for the Western
    Sprint Corporation, doing business     * District of Missouri.
    as Sprint Spectrum Finance             *
    Corporation, doing business as         *
    Sprint PCS,                            *
    *
    Appellees.                *
    ___________
    Submitted: December 13, 2001
    Filed: March 19, 2002 (Corrected 4/4/02)
    ___________
    Before MORRIS SHEPPARD ARNOLD, BEAM, RILEY, Circuit Judges.
    ___________
    BEAM, Circuit Judge.
    William Gagnon brought this reverse race discrimination and retaliation case
    under Title VII, 42 U.S.C. § 2000e et seq., the Missouri Human Rights Act
    ("MHRA"), and the Uniformed Services Employment and Reemployment Rights Act
    ("USERRA"). Gagnon appeals the district court's issuance of judgment as a matter
    of law ("JAML") at the close of plaintiff's case in favor of Sprint PCS on his
    discrimination and retaliation claims under Title VII and the MHRA. Gagnon also
    appeals the district court's grant of summary judgment in favor of Sprint PCS on his
    USERRA discrimination and retaliation claims1. Upon a de novo review of the
    record, we affirm in part, reverse in part, and remand for further proceedings
    consistent with this opinion.
    I.    BACKGROUND
    On January 31, 1997, Gagnon retired from the United States Army as a
    Lieutenant Colonel after serving more than twenty-one years. Gagnon then worked
    at Cubic Applications, Inc. ("Cubic"), a defense contractor. He was in Cubic's
    employ for three months prior to becoming associated with Sprint PCS.
    Gagnon began working for Sprint PCS in March 1997. Sprint PCS hired
    Gagnon as a curriculum developer in its training department ("TAPS") at a starting
    salary of $44,100 with a short-term incentive potential ("STI") of $3,000. Gagnon
    was directly supervised by Kathleen Wilder, the director of the department, from his
    initial starting date in March until his promotion. Gagnon was promoted in October
    1997 to CBT-Manager, a new management position in the department. At the time
    of Gagnon's promotion, Wilder was out of the office on maternity leave and Jim
    Keenan, the department manager, and Lynn Meredith-Ball, another manager in
    Wilder's department, assumed Wilder's responsibilities as director of the training
    group. In Wilder's absence, Vice-President Jim Mendenhall was instrumental in
    promoting Gagnon to the manager position.
    1
    We also note that there are two pending motions taken with the case.
    Appellant's Motion for Judicial Reassignment is denied. We do not question Judge
    Whipple's impartiality in this matter and find nothing in the record to otherwise
    suggest that he conducted the proceedings unfairly. Appellant's Motion for Waiver
    of Costs is granted pursuant to 38 U.S.C. § 4323(h).
    -2-
    Because Gagnon's position was new at Sprint PCS, it did not have a dollar
    figure assigned for compensation. Therefore, Gagnon submitted a job description for
    the position, with the assistance of Meredith-Ball, to the Human Resources
    Department ("HR") so that a compensation amount could be assigned. The Sprint
    PCS compensation group within HR established a market reference point ("MRP")
    of $66,000 with a STI of $9,500. The MRP is not a guaranteed salary point, but
    rather a targeted reference point for a tenured employee in that position.
    As a matter of procedure at Sprint PCS, when a salary increase greater than ten
    percent is sought, a Compensation Exception Request form stating the amount of the
    raise requested is completed, sent to HR for a recommendation, then forwarded to a
    vice president in charge of the department for a recommendation. Then, finally the
    appropriate chief officer or his designee reviews all recommendations and makes final
    decisions on salary increases. In conjunction with Gagnon's promotion, Meredith-
    Ball prepared a Compensation Request Form to raise Gagnon's salary from $44,100
    to $66,000, reflecting the full MRP established by the compensation group. HR did
    not support Meredith-Ball's proposed raise to the full $66,000 but instead proposed
    a salary at eighty-five percent of MRP, the equivalent of a twenty-five percent raise
    for Gagnon. Meredith-Ball and Julie Moylan, the HR Compensation Manager, signed
    the proposed compensation form on October 1, 1997. At that time, the form reflected
    Meredith-Ball's request for a base salary increase to $66,000 and Moylan's
    recommended twenty-five percent increase. Meredith-Ball submitted the request with
    both proposals to Vice-President Mendenhall for his approval. Mendenhall rejected
    both proposals on the compensation exception request form.
    Mendenhall's rejection of the initial compensation request is an important part
    of Gagnon's claim of discrimination. According to trial testimony, Mendenhall
    looked at the document with the attachments and threw it back across his desk at
    Meredith-Ball stating, "I'm not going to pay him that, he's a white guy, isn't he?"
    Mendenhall further allegedly stated, "If he were a woman or a minority, I would have
    -3-
    to pay him, but I don't have to pay him." Meredith-Ball recalls Mendenhall refusing
    to discuss his stated position and clearly stating, "I'm not going to pay him. He's just
    a white guy." Mendenhall also stated, "That's absurd. Nobody gets more than ten
    percent."
    After failing to obtain approval of either the full $66,000 salary for Gagnon or
    the proposed twenty-five percent increase recommended by Moylan, Meredith-Ball
    revised the compensation form to request an eleven percent raise followed by an
    automatic ten percent raise in six months. HR approved the eleven percent raise but
    did not endorse the automatic ten percent raise in six months, suggesting that Gagnon
    seek a ten percent raise in six months, dependent on his performance. Meredith-Ball
    took the revised compensation request form to Mendenhall who approved Meredith-
    Ball's recommendation in its entirety, including the automatic raise in six months. The
    form was then presented to Al Kurtze, the chief operating officer. Kurtze had the final
    vote on this compensation decision. Kurtze agreed with HR's recommendation and
    approved only the immediate eleven percent raise, with the suggestion that the
    automatic increase in six months be processed with separate approval action.
    Gagnon filed a claim with the Equal Employment Opportunity Commission
    ("EEOC") in April 1998 because he was dissatisfied with his compensation increases.
    Gagnon claims his workplace environment deteriorated after he filed his EEOC claim
    and it became difficult for him to timely complete work tasks because Wilder stopped
    seeking his advice and stopped discussing department issues with him.
    In August 1998, Gagnon and Meredith-Ball organized a discussion with four
    other Sprint PCS employees outside the training department building. Gagnon and
    Meredith-Ball informed the group of employees, all of whom possessed prior military
    experience, of Sprint PCS's growth outside Wilder's department. During that
    discussion, various statements indicated (although all parties are not in agreement) that
    Gagnon and Meredith-Ball advised the four employees that Wilder was uncomfortable
    -4-
    with the number of employees in her department with prior military experience and,
    therefore, would not promote anyone with such a background. However, the record
    also reflects that during a managers' meeting two months prior, Wilder stated there
    was a perception among some employees in the department that employees had to be
    retired military to advance. Gagnon responded at the managers' meeting that the
    perception was not true. Wilder also admitted at this managers' meeting that she was
    uncomfortable that some of her employees thought they were being treated differently
    because they were not military. Wilder later told Gagnon she was uneasy with the
    number of military employees in the department.
    As a result of the alleged statements made during the meeting outside the
    training department regarding Wilder's comfort, or lack thereof, Gagnon and
    Meredith-Ball were placed on written reminder, a form of reprimand. This written
    reminder prohibited Gagnon and Meredith-Ball from seeking a promotion or transfer
    without a vice president's approval for a period of six months. Gagnon claims the
    written reminder, in addition to Wilder's failure to give him a promised ten percent
    raise in July, and the continued isolation of Gagnon in his department constituted
    retaliation.
    Gagnon subsequently filed this lawsuit charging Sprint PCS with violating
    USERRA for setting his initial salary $1,000 lower due to his lack of corporate
    experience and for disciplining him following the meeting outside the Sprint PCS
    training department building. Gagnon also charged Sprint PCS with violating Title
    VII and the MHRA for denying his salary raise upon receiving the promotion to CBT
    Manager.
    II.   DISCUSSION
    The grant of a judgment as a matter of law is reviewed de novo, applying the
    same standards used by the district court. Fogelbach v. Wal-Mart Stores, Inc., 270
    -5-
    F.3d 696, 700 (8th Cir. 2001). Pursuant to Rule 50, judgment as a matter of law
    should only be granted when a party has been fully heard on an issue and there is no
    legally sufficient evidentiary basis for a reasonable jury to find for that party on that
    issue. Fed. R. Civ. P. 50(a)(1). "In making this determination, the court must draw
    all reasonable inferences in favor of the nonmoving party without making credibility
    assessments or weighing the evidence." Phillips v. Collings, 
    256 F.3d 843
    , 847 (8th
    Cir. 2001).
    A.     Discrimination Claim
    Plaintiffs like Gagnon pursuing claims of discrimination under Title VII have
    two models under which they may proceed. First, a plaintiff can proceed under the
    three-stage, burden-shifting standard set forth in McDonnell Douglas Corp. v. Green,
    
    411 U.S. 792
    (1973). Under this standard, Gagnon must first establish a prima facie
    case of discrimination. Once the prima facie case is established, the burden shifts to
    Sprint PCS to articulate a non-discriminatory reason for the adverse employment
    action. St. Mary's Honor Ctr. v. Hicks, 
    509 U.S. 502
    , 507 (1993). If Sprint PCS
    articulates such a reason, Gagnon must respond with sufficient evidence that the
    proffered reason was really a pretext for intentional discrimination. 
    Id. At all
    times
    under this model, the burden of persuasion remains on Gagnon, the plaintiff. 
    Id. Alternatively, Gagnon
    can proceed under the mixed-motive standard set forth
    in Price Waterhouse v. Hopkins, 
    490 U.S. 228
    (1989), if he is able to produce "direct
    evidence that an illegitimate criterion . . . 'played a motivating part in [the]
    employment decision.'" Cronquist v. City of Minneapolis, 
    237 F.3d 920
    , 924 (8th Cir.
    2001) (alterations in original) (quoting Price 
    Waterhouse, 490 U.S. at 258
    ). Once
    Gagnon establishes such direct evidence, the burden shifts to Sprint PCS to
    demonstrate by a preponderance of the evidence that it would have reached the same
    employment decision absent any discrimination. 
    Cronquist, 237 F.3d at 924
    . As
    modified by section 107 of the Civil Rights Act of 1991, 42 U.S.C. § 2000e-5(g)(2),
    -6-
    the mixed-motive model allows for declaratory relief, injunctive relief, attorney's fees
    and costs once Gagnon meets his initial burden regarding direct evidence. 42 U.S.C.
    § 2000e-5(g)(2)(B)(i). Thus, Sprint PCS is liable for discrimination under this model
    upon direct evidence that it acted on the basis of a discriminatory motive. Breeding
    v. Gallagher and Co., 
    164 F.3d 1151
    , 1156 (8th Cir. 1999). Whether or not Sprint PCS
    satisfies its burden to show by a preponderance that it would have reached the same
    employment decision absent any discrimination is only relevant to determine whether
    the court may award full relief including damages, court ordered admissions,
    reinstatement, hiring, promotion or other such relief. Id.; 42 U.S.C. § 2000e-
    5(g)(2)(A) & (B)(ii). We apply this analysis to Gagnon's MHRA discrimination claim
    as well as his Title VII claim. Dorsey v. Pinnacle Automation Co., 
    278 F.3d 830
    , 836
    (8th Cir. 2002).
    Because this is a claim of reverse race discrimination, Gagnon additionally must
    show "that background circumstances support the suspicion that the defendant is that
    unusual employer who discriminates against the majority." Duffy v. Wolle, 
    123 F.3d 1026
    , 1036 (8th Cir. 1997) (quoting Murray v. Thistledown Racing Club, Inc., 
    770 F.2d 63
    , 67 (6th Cir. 1985)). However, if Gagnon fails to make this showing, he may
    still proceed by adducing sufficient evidence of intentional discrimination against him,
    in order to proceed beyond the prima facie case stage of litigation. 
    Id. In other
    words,
    he is clearly able to proceed in a reverse discrimination claim if there is direct
    evidence of discrimination.
    Gagnon first argues that judgment as a matter of law was improper because
    Mendenhall's statement "I'm not going to pay him. He's just a white guy," is direct
    evidence of unlawful reverse discrimination. See Price 
    Waterhouse, 490 U.S. at 270
    -
    73. The district court held that JAML was appropriate because Kurtze was the
    decision-maker, not Mendenhall, and there was no evidence that Kurtze knew of
    Mendenhall's comment or acted on it.
    -7-
    Direct evidence is evidence of conduct or statements by persons involved in the
    decision-making process that may be viewed as directly reflecting the alleged
    discriminatory attitude in such a way that the fact finder could infer that the attitude
    was more likely than not a motivating factor in the employer's decision. Walton v.
    McDonnell Douglas Corp., 
    167 F.3d 423
    , 426 (8th Cir. 1999). However,
    Not all comments that may reflect a discriminatory attitude are
    sufficiently related to the adverse employment action in question to
    support such an inference. For example, stray remarks in the workplace,
    statements by nondecisionmakers, or statements by decisionmakers
    unrelated to the decisional process itself will not suffice.
    
    Id. (internal quotations
    omitted).
    Courts look beyond the moment a decision was made in order to determine
    whether statements or comments made by other managerial employees played a role
    in the ultimate decisionmaking process. "An employer cannot escape responsibility
    for willful discrimination by multiple layers of paper review, when the facts on which
    the reviewers rely have been filtered by a manager determined to purge the labor force
    of [protected] workers." Gusman v. Unisys Corp., 
    986 F.2d 1146
    , 1147 (7th Cir.
    1993).
    While Kurtze's decision may have ultimately been free of any discriminatory
    animus, we cannot sterilize a seemingly objective decision when earlier discriminatory
    decisions lead to the adverse employment action. See Webb v. St. Louis Post-
    Dispatch, 
    51 F.3d 147
    , 149 (8th Cir. 1995) (finding that the employer's failure to
    accommodate the plaintiff's nervous condition possibly constituted discriminatory
    treatment even though Post's ultimate decision to terminate Webb was based upon his
    unexcused absenteeism); Stacks v. Southwestern Bell Yellow Pages, Inc., 
    27 F.3d 1316
    , 1318, 1324-25 (8th Cir. 1994) (finding a supervisor's comment that "women
    . . . were the worst thing" that had happened to the company to be direct evidence of
    -8-
    discrimination supporting an inference that an illegitimate criterion was a motivating
    factor in an employment decision, even though the division manager made the ultimate
    decision to terminate the plaintiff); Kientzy v. McDonnell Douglas Corp., 
    990 F.2d 1051
    , 1057-58 (8th Cir. 1993) (looking beyond the moment the decision to fire the
    plaintiff was made, which was free from discrimination, because the plaintiff's
    supervisor had treated her differently than her male counterparts).
    The district court stated that the evidence introduced at trial revealed that
    Kurtze, not Mendenhall, was the decisionmaker for Gagnon's October 1997 raise and
    potential fifty percent increase. We fail to find any evidence of this in the record.
    According to the trial testimony, Meredith-Ball submitted the proposal for the full
    base salary increase to $66,000 to Mendenhall and he rejected the proposal because
    Gagnon was "only a white guy." After this rejection, the proposal was amended to
    reflect an eleven percent increase followed by an automatic ten percent increase in six
    months. This second proposal was the only compensation increase put before Kurtze.
    Gagnon alleges discrimination based upon the fact that Mendenhall rejected the initial
    base increase proposal submitted by Meredith-Ball. That initial proposal was never
    before Kurtze because of Mendenhall's blanket rejection and alleged discriminatory
    comments. Thus, Mendenhall was the final decisionmaker as to the initial decision
    to deny Gagnon a base increase from $44,100 to $66,000 in October 1997.
    Without judging the credibility of these witnesses, we believe there is sufficient
    evidence to place before a jury Sprint PCS's reasons for rejecting Gagnon's initial
    salary increase in October 1997. Since there exists direct evidence of discrimination,
    Sprint PCS bears the burden of showing that it would have reached the same
    employment decision absent any discrimination. Price 
    Waterhouse, 490 U.S. at 258
    .
    In other words, Sprint PCS must show the proffered raise from $44,100 to $66,000
    would have been reduced to an eleven percent increase absent Mendenhall's
    discriminatory remarks. This determination must be made by the finder of fact, and
    therefore judgment as a matter of law was inappropriate.
    -9-
    B.     Retaliation Claim
    Gagnon claims Sprint PCS unlawfully retaliated against him after his EEOC
    claim in April 1998 by issuing a reprimand in the form of a written reminder and by
    failing to approve additional compensation increases as Wilder had allegedly
    promised. Gagnon claims this constituted a hostile work environment and affected
    Gagnon's future career prospects at Sprint PCS. "Title VII of the Civil Rights Act of
    1964, 42 U.S.C. § 2000e-3, makes it unlawful for an employer to discriminate against
    an employee, for among other things, 'because [s]he has opposed any practice made
    an unlawful employment practice by this subchapter.'" Buettner v. Arch Coal Sales
    Co., 
    216 F.3d 707
    , 713 (8th Cir. 2000) (alteration in original) (quoting 42 U.S.C. §
    2000e-3). Absent direct evidence of discrimination invoking the mixed-motive
    analysis of Price Waterhouse, the burden-shifting analysis of McDonnell Douglas
    applies to claims of retaliation. 
    Buettner, 216 F.3d at 713
    .
    To establish a prima facie case of retaliatory discrimination, a plaintiff
    must show: (1) [he] engaged in activity protected by Title VII; (2) an
    adverse employment action occurred; and (3) a causal connection existed
    between participation in the protected activity and the adverse
    employment action.
    
    Id. at 713-14
    (citations omitted). Effectively, the same standards apply to Gagnon's
    MHRA retaliation claims.2 
    Id. at 714.
    2
    We recognize that Missouri Revised Statute § 213.070(2) prohibits retaliation
    "in any manner against any person" and that this language is broader than that found
    under Title VII, section 2000e-3. Mo. Rev. Stat. § 213.070(2) (emphasis added). See
    Keeney v. Hereford Concrete Prods., Inc., 
    911 S.W.2d 622
    , 625-26 (Mo. 1995).
    However, we do not reach the outer boundaries of section 213.070 in this matter as
    Gagnon is a person who falls within both provisions, as does the alleged manner of
    retaliation. Thus, we reach the same conclusion under both Title VII and the MHRA
    in this case.
    -10-
    Gagnon introduced evidence at trial regarding his account of the poor treatment
    he received from Wilder and others in his department after he filed a charge with the
    EEOC. He also received a written reminder on August 27, 1998, which Gagnon
    claims further evidences the hostile environment because it was issued one month after
    Sprint PCS filed its response to his EEOC claim. The district court held that Gagnon
    failed to establish that either of these actions rose to the level of actionable retaliation
    under controlling Eighth Circuit authority.
    "An adverse employment action is a tangible change in working conditions that
    produces a material employment disadvantage." Spears v. Missouri Dep't of Corr. and
    Human Res., 
    210 F.3d 850
    , 853 (8th Cir. 2000) (citation omitted). "Termination,
    reduction in pay or benefits, and changes in employment that significantly affect an
    employee's future career prospects meet this standard . . .." 
    Id. (citation omitted).
    It is well-settled in this circuit that ostracism and rudeness by supervisors and
    co-workers do not rise to the level of an adverse employment action. Scusa v. Nestle
    U.S.A. Co., 
    181 F.3d 958
    , 969 (8th Cir. 1999) (finding general allegations of co-
    worker ostracism are not sufficient to rise to the level of an adverse employment
    action); Manning v. Metropolitan Life Ins. Co., 
    127 F.3d 686
    , 693 (8th Cir. 1997)
    (holding that disrespect and ostracism did not rise to the level of actionable adverse
    employment action because there was no tangible change in duties or working
    conditions). Gagnon failed to establish that the alleged ostracism by Wilder and co-
    workers rose to the level of actionable retaliation. Gagnon's testimony reflects that
    Wilder ignored him and that it became difficult for him to function as a member of her
    team, but provides no evidence that this behavior had any impact on his job title,
    salary, benefits, or any other material aspect of his employment. See 
    Spears, 210 F.3d at 854
    (finding the plaintiff's transfer to a new location merely an inconvenience and
    not actionable under Title VII because there was no evidence that her transfer had any
    -11-
    impact on her job title, salary, benefits, or any other material aspect of her
    employment).3
    Gagnon further alleges the August 1998 written reminder significantly affected
    his future career prospects because it limited his ability to seek promotions or
    transfers. In fact, Gagnon alleges that as a result of the written reminder, his future
    career prospects were eliminated altogether. We question whether the effect of the
    written reminder constitutes an adverse employment action but note that even
    unfavorable evaluations might be actionable if the employer subsequently uses them
    as a basis to detrimentally alter the terms or conditions of employment. 
    Id. "Papering" an
    employee's file with negative reports and reprimands may sufficiently support a
    claim of retaliation if they adversely affect or undermine an employee's position. Kim
    v. Nash Finch Co., 
    123 F.3d 1046
    , 1060 (8th Cir. 1997).
    In granting JAML to Sprint PCS on this issue, the district court relied on our
    decision in Flannery v. Trans World Airlines, Inc., 
    160 F.3d 425
    (8th Cir. 1998). The
    district court cited Flannery for the proposition that "an admonishment to an employee
    is not actionable retaliation." Our holding in Flannery was not so broad. We
    determined in Flannery that admonishment and removal of complimentary letters from
    an employee's personnel file did not constitute an adverse employment action in that
    case because the employee failed to allege that these actions resulted in reduced salary,
    benefits, seniority, or responsibilities, or any other materially significant disadvantage.
    
    Id. at 428.
    Gagnon, on the other hand, alleges that the written reminder resulted in the
    3
    We again note that Gagnon failed to establish that the alleged ostracism by
    Wilder and co-workers rose to the level of actionable retaliation under the MHRA
    because he failed to provide sufficient evidence as a matter of law that "as a direct
    result [of protected activity], he . . . suffer[ed] any damages due to [this] act of
    reprisal." Keeney, 9ll S.W.2d at 625; 
    Buettner, 216 F.3d at 715
    n.8; Cross v. Cleaver,
    
    142 F.3d 1059
    , 1076 (8th Cir. 1998).
    -12-
    outright closing of job openings to him and the loss of opportunity to compete for any
    position, which, if true, might support a claim of retaliation.
    Our final inquiry on Gagnon's claim of retaliation is whether he has raised
    sufficient evidence as a matter of law connecting the adverse employment action to his
    EEOC claim. The written reminder was issued after Sprint PCS investigated the
    circumstances surrounding the meeting outside of the department held by Gagnon and
    Meredith-Ball. On its face, the written reminder clearly sets forth the reasons for its
    issuance–because Gagnon, as a member of the management team, created a false
    perception of discrimination and Sprint PCS was concerned with his level of
    professionalism, personal effectiveness and team conduct. Gagnon places great
    emphasis on the fact that the written reminder was issued one month after Sprint PCS
    filed its response to his EEOC claim. But, "[g]enerally, more than a temporal
    connection . . . is required to present a genuine factual issue on retaliation." Kiel v.
    Select Artificials, Inc., 
    169 F.3d 1131
    , 1136 (8th Cir. 1999). Thus we look to
    Gagnon's remaining evidence to determine whether he has satisfied his burden as a
    matter of law.
    We find as a matter of law that Gagnon fails to prove any causal connection
    between his EEOC claim of discrimination and the issuance of the written reminder.
    Even though Gagnon did not violate a company policy when he gathered with his
    fellow employees outside of the building, Sprint PCS certainly had the authority to
    issue a reminder regarding the effect of that meeting, given the fact that Gagnon was
    in a management position. Sprint PCS clearly set forth its reason for the issuance of
    the reminder and identified several personal traits of Gagnon needing improvement.
    Contrary to Gagnon's argument, the fact that Wilder made a comment regarding her
    level of comfort with military employees in her department is not dispositive, as it was
    made to colleagues at a managers' meeting, and furthermore does not connect the
    issuance of the written reminder with the filing of Gagnon's EEOC claim.
    -13-
    Gagnon further claims Wilder had no factual basis for stating in the written
    reminder that Gagnon created the false perception of discrimination. But Gagnon
    himself testified that he had a discussion with Wilder and Kim Klosak during their
    investigation of the matter which suggests that Wilder did make factual findings
    regarding the meeting held by Gagnon and Meredith-Ball. Finally, Gagnon claims that
    Wilder's failure to secure a promised raise for Gagnon evidences her retaliatory
    motive. Again, the evidence doesn't create such an inference. Gagnon testified that
    Wilder did attempt to increase his compensation in January 1998, he received a small
    merit increase in April 1998, and he was aware that there were "no guarantees" in
    Wilder's efforts to secure a raise. Although Gagnon did not receive his allegedly
    promised July increase, the only connection he makes supporting an inference of
    retaliation at that point is the timing in connection with his EEOC claim, and that is
    not enough as a matter of law.
    We find the record empty of any evidence connecting Gagnon's EEOC claim
    filed in April 1998 and the issuance of the written reminder in August 1998. Thus,
    JAML was appropriate and the opinion of the district court is affirmed on this point.
    See Kipp v. Missouri Highway Transp. Comm'n, Nos. 01-1814/1922, slip op. (8th Cir.
    Feb. 20, 2002) (granting JAML because the plaintiff failed to establish the causal link
    necessary to make out a prima facie case of retaliation).
    C.     USERRA Discrimination Claim
    In reviewing a grant of summary judgment, we review the decision of the
    district court de novo. 
    Buettner, 216 F.3d at 713
    . The question before us on appeal
    is whether the record, when viewed in the light most favorable to the non-moving
    party, shows there is no genuine issue as to any material fact, and the moving party is
    entitled to judgment as a matter of law. 
    Id. -14- The
    USERRA, enacted in 1994 to improve the Veterans' Reemployment Rights
    Act ("VRRA"), prohibits employment discrimination on the basis of military service.
    Hill v. Michelin N. Am., Inc., 
    252 F.3d 307
    , 311 (4th Cir. 2001); 38 U.S.C. § 4311 et.
    seq. Section 4311(a) provides:
    A person who is a member of . . . [or] has performed . . . in a uniformed
    service shall not be denied initial employment, reemployment, retention
    in employment, promotion, or any benefit of employment by an employer
    on the basis of that membership . . ..
    The USERRA replaced the "sole cause" standard of the VRRA, which
    "protect[ed] the employee-reservist against discriminations like discharge and
    demotion, motivated solely by reserve status." Knowles v. Citicorp Mortgage, Inc.,
    
    142 F.3d 1082
    , 1085 n.3 (8th Cir. 1998) (emphasis in original) (citation omitted);
    Newport v. Ford Motor Co., 
    91 F.3d 1164
    , 1167 (8th Cir. 1996). Under the USERRA,
    an employer violates the act when a person's membership in the uniformed services
    is a motivating factor in the employer's action, "unless the employer can prove that the
    action would have been taken in the absence of such membership, application for
    membership, service, application for service, or obligation for service." 38 U.S.C. §
    4311(c)(1).
    In Gagnon's claim of discrimination under the USERRA, he asserts that because
    of his military background, he received a lower starting salary. The district court held
    that because Sprint PCS provided evidence of a factor other than Gagnon's military
    service to explain the disparity in his initial pay, Sprint PCS's motion for summary
    judgment was warranted. However, our inquiry does not carry us that far into the
    analysis. We find Gagnon fails to state a claim of discrimination under the USERRA.
    Gagnon has not been denied "initial employment, reemployment, retention in
    employment [or] promotion," as covered under section 4311(a). Thus, his only basis
    -15-
    for a claim of discrimination under section 4311(a) is that Sprint PCS denied him a
    benefit of employment due to his prior service membership. Gagnon claims he was
    paid $1,000 less than his peers at Sprint PCS. The term "benefit," as defined by the
    USERRA, specifically excludes wages or salary for work performed. 38 U.S.C. §
    4303(2). Thus, Gagnon has no basis for maintaining his claim of discrimination under
    the USERRA.
    D.    USERRA Retaliation Claim
    Gagnon also alleged retaliation under the USERRA based upon Sprint PCS's
    actions following Gagnon's internal complaints of activity he perceived as illegal
    USERRA discrimination. The district court held that the USERRA only applies to a
    retaliation claim if the employee has taken a formal enforcement action as provided
    in section 4323. Thus, the court held that Gagnon was unable to maintain a cause of
    action for retaliation under the USERRA because he did not file a complaint with the
    secretary of labor nor commence a civil action against Sprint PCS. We disagree with
    this initial conclusion. Under a plain reading of the statute, we hold that Gagnon's
    internal complaints suffice as protected activity under the USERRA.
    The USERRA standard for retaliation claims is set forth in 38 U.S.C. §§
    4311(b) and 4311(c)(2):
    (b) An employer may not discriminate in employment against or take any
    adverse employment action against any person because such person (1)
    has taken an action to enforce a protection afforded any person under this
    chapter, . . .
    (c) An employer shall be considered to have engaged in actions
    prohibited–(2) under subsection (b), if the person's (A) action to enforce
    a protection afforded any person under this chapter, . . . or (D) exercise
    of a right provided for in this chapter, is a motivating factor in the
    -16-
    employer's action, unless the employer can prove that the action would
    have been taken in the absence of such person's enforcement action,
    . . . or exercise of a right.
    Gagnon correctly asserts on appeal that the appropriate standard of proof in a
    discrimination or retaliation claim under the USERRA is the so-called "but for" test
    and that the burden of proof is on the employer, once the employee's case is
    established. Sheehan v. Dep't of Navy, 
    240 F.3d 1009
    , 1013 (Fed. Cir. 2001). The
    legislative history and treatment by other circuits support this evidentiary scheme, set
    forth below, for USERRA cases. See NLRB. v. Transportation Mgmt. Corp., 
    462 U.S. 393
    , 401 (1983) (modified by Director, Office of Workers' Compensation Programs
    v. Greenwich Collieries, 
    512 U.S. 267
    (1994)). We apply this precedent:
    The procedures established by precedent require an employee making a
    USERRA claim of discrimination to bear the initial burden of showing
    by a preponderance of the evidence that the employee's military service
    was "a substantial or motivating factor" in the adverse employment
    action. If this requirement is met, the employer then has the opportunity
    to come forward with evidence to show, by a preponderance of the
    evidence, that the employer would have taken the adverse action anyway,
    for a valid reason.
    
    Sheehan, 240 F.3d at 1013
    (citations omitted).
    Unlike the McDonnell Douglas framework adopted by the district court in this
    matter, the procedural framework and evidentiary burdens set out in section 4311 shift
    the burden of persuasion, as well as production, to the employer. "Thus in USERRA
    actions there must be an initial showing by the employee that military status was at
    least a motivating or substantial factor in the [employer's] action, upon which the
    [employer] must prove, by a preponderance of evidence, that the action would have
    been taken despite the protected status." 
    Sheehan, 240 F.3d at 1014
    .
    -17-
    One question before us is whether Gagnon's internal complaints constitute an
    "action to enforce a protection afforded any person" under the USERRA. Under both
    USERRA and Title VII, a plaintiff must first assert that she engaged in some form of
    protected activity in order to determine whether the employer retaliated against the
    employee. However, the district court mistakenly held that the first Title VII inquiry
    is whether a charge of harassment was filed.4 The court then went on to hold that
    although Title VII also protects actions in opposition to perceived conduct prohibited
    by Title VII, the USERRA protects only formal enforcement of rights in its prohibition
    of retaliatory conduct. It is clear, though, that like Title VII, many actions may form
    the basis of protected activities giving rise to a claim of retaliation under the
    USERRA. Under section 4322(a)(2)(A), the USERRA anticipates that people may
    take alternate steps or "actions" to seek enforcement of the USERRA, prior to filing
    a formal complaint with the secretary of labor or filing a civil action.5 Various
    4
    The elements of a claim of retaliation in violation of Title VII are the
    following: (1) the plaintiff filed a charge of harassment or engaged in other protected
    activity; (2) the plaintiff's employer subsequently took adverse employment action
    against the plaintiff; and (3) the adverse action was causally linked to the plaintiff's
    protected activity. 
    Scusa, 181 F.3d at 968
    ; Cross v. Cleaver II, 
    142 F.3d 1059
    , 1071
    (8th Cir. 1998). "Protected activities" under Title VII include much more than merely
    filing a formal charge of harassment. Fierros v. Texas Dep't of Health, 
    274 F.3d 187
    ,
    194 (5th Cir. 2001) (recognizing that internal discrimination complaints and use of
    employer's internal administrative processes are clearly protected activities for
    purposes of a Title VII retaliation claim); Raniola v. Bratton, 
    243 F.3d 610
    , 624 (2d
    Cir. 2001) (finding internal complaint to be a qualified activity protected from
    retaliation by Title VII and citing authority noting that "Congress sought to protect
    a wide range of activity in addition to the filing of a formal complaint") (citation
    omitted); O'Neal v. Ferguson Constr. Co., 
    237 F.3d 1248
    , 1255 (10th Cir. 2001)
    (finding informal complaints to superiors constitute protected activity under Title
    VII).
    5
    "A person who claims that such person is entitled under this chapter to
    employment or reemployment rights or benefits with respect to employment by an
    employer; and such employer has failed or refused, or is about to fail or refuse, to
    -18-
    informal activities could occur in order for an employee to determine that their
    employer has not complied with or will not comply with the USERRA. The formal
    procedures of enforcement are merely another alternative under the USERRA once an
    employee makes this determination.
    We find further support for the proposition that an "action to enforce a
    protection afforded any person" under the USERRA subsumes more than just formal
    complaints filed with the secretary of labor or civil actions in Brandsasse v. City of
    Suffolk, Virginia, 
    72 F. Supp. 2d 608
    , 619 (E.D. Va. 1999). In Brandsasse, the
    plaintiff was a city police officer who was refused consideration for a promotion
    allegedly because of discrimination he incurred as a result of his Army Reserve
    obligations. 
    Id. at 611-12.
    The court concluded that sufficient allegations were made
    by the plaintiff to support a cause of action for retaliation. 
    Id. at 619.
    The basis of the plaintiff's claim in Brandsasse was that he took steps to enforce
    his rights under the statute by speaking with the director of personnel, and hired
    counsel to pursue his claims under the USERRA. The defendants subsequently began
    a retaliatory investigation. 
    Id. at 612,
    619. The district court in Brandsasse did not
    dismiss the claim because the plaintiff had not formally filed a claim with the secretary
    of labor nor filed a civil action against the defendants. In fact, the court concluded
    that raising internal complaints and seeking the advice of outside counsel "seems to
    be exactly the sort of adverse employment action which the statute contemplates." 
    Id. at 620.
    We agree with the assessment in Brandsasse and find that Gagnon, too, engaged
    in just the sort of conduct which the statute contemplates. We also previously
    comply with the provisions of this chapter, . . . may file a complaint with the
    Secretary in accordance with subsection (b), and the Secretary shall investigate such
    complaint." 38 U.S.C. § 4322(a)(1) & (2)(A).
    -19-
    established that a written reminder may constitute an adverse employment action.
    Thus, Gagnon's final burden was to establish that his military status was at least a
    motivating or substantial factor in Sprint PCS's issuance of the written reminder.
    
    Sheehan, 240 F.3d at 1014
    . This is where Gagnon falls short. Gagnon does not refer
    us to any causal evidence supporting his claim of retaliation under the USERRA. Our
    review of the record suggests that there is no evidence connecting Gagnon's internal
    complaints of discrimination and the issuance of the written reminder following the
    meeting held outside of the department by Gagnon and Meredith-Ball. Because
    Gagnon is unable to meet his burden as a matter of law to establish a prima facie case
    of retaliation under the USERRA, the district court grant of summary judgment is
    affirmed.
    E.     Evidentiary & Discovery Issues
    Gagnon finally urges us to instruct the district court to vacate its ruling denying
    admission into evidence Plaintiff's Exhibit 306 containing salary information of Sprint
    PCS employee Frank Gardi. Gagnon also requests that the district court on remand
    (1) vacate its rulings on Gagnon's motion to compel regarding the attorney-client and
    work-product privileges asserted by Sprint PCS due to the involvement of its in-house
    counsel Martin; (2) vacate the protective order entered over the deposition of Paul
    Bass; (3) vacate its ruling denying admission into evidence of Plaintiff's Trial Exhibits
    37, 38, 39, 252, and 294 involving communications with Martin.
    A district court's refusal to compel discovery is reversed upon a showing of
    gross abuse of discretion. Wilson v. Int'l Bus. Machs. Corp., 
    62 F.3d 237
    , 240 (8th
    Cir. 1995). We find no abuse of the court's discretion concerning the motion to
    compel the documents protected by the work-product privileges asserted by Sprint
    PCS. The district court conducted an in camera review of specific documents and
    -20-
    twice entertained substantial briefing by both parties. Even though Gagnon argues
    that these documents are not subject to the work-product privilege because they were
    created in the ordinary course of Sprint PCS's business, the district court found they
    were prepared in anticipation of litigation and therefore protected from discovery. The
    district court's holding, based upon a careful review of the documents, as well as both
    parties' briefing on the matter, is not a gross abuse of discretion, and we therefore
    affirm.
    Gagnon also challenges the protective order issued by the district court
    concerning the deposition of Paul Bass. Paul Bass was one of the individuals involved
    in the internal investigation of Gagnon's claim of retaliation. The district court granted
    Sprint PCS's protective order, holding that the investigation by Bass, at the direction
    of Martin, was in anticipation of litigation and is covered by the attorney work-product
    privilege. Gagnon, citing Upjohn Co. v. United States, 
    449 U.S. 383
    , 395 (1981),
    argues that the attorney-client privilege only protects disclosure from communications,
    not disclosures of the underlying facts by those who communicated with the attorney.
    Gagnon claims Bass is a fact witness and not Sprint PCS's corporate representative,
    thus he is outside the scope of the attorney-client privilege. The district court,
    however, did not abuse its discretion in making a contrary finding, noting that the
    investigation conducted by Bass was an integral part of in-house counsel Martin's
    investigation. We affirm.
    Finally, Gagnon challenges several evidentiary rulings made by the district court
    at trial. We review a trial court's evidentiary rulings under the abuse of discretion
    standard, according the district court substantial deference. Shelton v. Consumer
    Prods. Safety Comm'n, 
    277 F.3d 998
    , 1009 (8th Cir. 2002).
    -21-
    At trial, Gagnon sought to introduce five documents reflecting e-mails and
    letters between Sprint PCS's in-house counsel, Gagnon and Meredith-Ball concerning
    Gagnon's complaint of retaliation. Gagnon mistakenly argues on appeal that the
    district court excluded these documents based upon the fact that they were
    communications with in-house counsel and were thus privileged. The transcript
    reveals that prior to trial, the district court sustained the motion in limine because the
    judge failed to see the relevancy of these documents. We also fail to see how these
    documents are relevant to Gagnon's "totality of the circumstances" argument that he
    raises on appeal . Gagnon is not making a claim concerning the internal investigation
    conducted by Sprint PCS regarding Gagnon's claim of discrimination or retaliation.
    We hold that the district court did not abuse its discretion in excluding Exhibits 37,
    38, 39, 252, and 294 in its pre-trial ruling.
    Gagnon's last evidentiary challenge is the district court's exclusion of evidence
    regarding a salary increase given to another Sprint PCS employee after the dates
    relevant to Gagnon's employment at Sprint PCS. Gagnon sought to introduce this
    evidence to prove that Sprint PCS does in fact entertain raises above fifty percent,
    contrary to proffered trial testimony. However, we find the district court did not abuse
    its discretion when it found that any evidence of Sprint PCS's policies regarding
    compensation in 1999 or 2000 are irrelevant in the instant case as to compensation
    policies in 1997 and 1998. We affirm the ruling of the district court.
    III.   CONCLUSION
    We reverse the district court's grant of Sprint PCS's motion for JAML on
    Gagnon's claim of discrimination under Title VII and the MHRA. The district court's
    grant of JAML on Gagnon's claim of retaliation under Title VII and the MHRA, its
    summary judgment on Gagnon's claims of discrimination and retaliation under the
    -22-
    USERRA, as well as its rulings regarding pre-trial discovery and trial evidentiary
    matters stand affirmed. We remand for further proceedings consistent with this
    opinion.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -23-
    

Document Info

Docket Number: 01-2505

Filed Date: 3/19/2002

Precedential Status: Precedential

Modified Date: 10/13/2015

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