Paul J. Kiel v. Select Artificials

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 97-2433
Paul J. Kiel, *
*
Appellant, *
* Appeal from the United
States
v. * District Court for the
* Eastern District of
Missouri.
Select Artificials, Inc., *
*
Appellee. *
Submitted: January 14, 1998
Filed:
April 20, 1998
Before WOLLMAN, BRIGHT, and HEANEY, Circuit Judges.
HEANEY, Circuit Judge.
Paul Kiel appeals the district court’s grant of
summary judgment for Select Artificials, Inc. (Select).
Kiel sued Select under the Americans with Disabilities
Act (ADA), 42 U.S.C. § 12101-12213 (1995) and the
Missouri Human Rights Act (MHRA), Mo. Rev. Stat. §
213.010-213.137 (1996). Under the ADA and MHRA, Kiel
argued that he was terminated because he requested a
reasonable accommodation and then protested when his
request was denied. He also alleged other unlawful
employment practices. We reverse and remand to the
district court for trial on Kiel’s retaliation claim.
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I.
Because this case concerns a grant of summary
judgment, we recite the facts in a light most favorable
to Kiel, the non-moving party. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986)
(citation omitted). Kiel has been deaf since birth. He
worked as a billing clerk for Select from January 1992
until February 1994, when he was terminated. Although
most billing clerks were required to make telephone calls
to customers, Kiel’s supervisor made the calls because of
Kiel’s hearing impairment.
Kiel asked Select to accommodate his hearing
impairment on many occasions. Specifically, Kiel
requested that Select provide a telecommunication device
for the deaf (TDD) that allows deaf persons to make and
receive telephone calls. Although Select’s policy
allowed its employees to make and receive both business
as well as personal calls, Kiel could do neither without
a TDD and an access line. According to Kiel, his request
for a TDD was denied on several occasions. Kiel also
requested that an interpreter be provided for meetings
and other company affairs so he could fully participate.
With the exception of one training session, the company
denied Kiel’s requests. The company stated that aside
from the training session, Kiel did not provide
sufficient notice for Select to obtain an interpreter for
meetings.
On February 17, 1994, Kiel drafted a letter to Robert
Fry, Select’s owner, requesting that Select provide TDDs
so that Kiel and two other deaf employees could enjoy the
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same privileges as non-deaf employees to make and receive
phone calls. According to his letter, each TDD cost
$230, which Select could deduct from its taxes. Kiel
first planned on distributing the letter to other
hearing-impaired employees. When Julie Fry, Select’s
president, saw Kiel making copies of the letter, she
admonished him for using the photocopying machine for
personal reasons. Kiel explained that it was not a
personal letter but was being sent to Mr. Fry and that
under the ADA, the company was required to purchase the
TDD. In addition, he pointed out the nominal
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cost of the device and expressed his view that Select
could claim a tax deduction after purchasing the device.
After Ms. Fry confronted Kiel at the copy machine,
Kiel asked her whether Select would purchase the TDD, to
which Ms. Fry continuously stated no. Kiel requested an
American sign language interpreter so he could discuss the
issue with Mr. Fry. Ms. Fry denied his request. Kiel
became frustrated, raised his voice at Ms. Fry and said
“you’re selfish, you’re selfish.” Four of Select’s other
employees overheard the conversation.
Later in the day, Ms. Fry handed Kiel a note asking
him if he realized that he had shouted at her. He stated
that he did not realize that he had shouted and
immediately apologized. Believing the incident to be
behind them, Kiel went back to work. In his deposition,
Kiel explained the series of events:
Q. Did you tell [Ms. Fry] she was selfish?
A. Yes.
Q. Did you say that twice?
A. Yes. I was trying to impress on her
what I was trying to say. I’ve been taught to
repeat. If people don’t understand me, I’ve
been taught to repeat myself.
Q. Do you know whether your voice was
raised at the time that you called [her]
selfish?
A. No. . . . I didn’t know that people could
hear me.
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(Joint App. at 39.) Later in the day, however, Ms. Fry
sent Kiel a termination letter. It read: “Since you
shouted at me this morning during our conversation, it was
very belittling and insulting in front of all the office
employees. You were insubordinate in
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this action and I cannot tolerate this type of action. I
have no choice but to discharge you for insubordination.”
(Appellant’s App. at 64.) Kiel requested an interpreter
to further discuss the matter, but Ms. Fry refused.
Sometime thereafter, Kiel was replaced by an employee who
was not disabled. A Federal magistrate granted Select’s
summary judgment motion on all claims. Kiel appeals.1
II.
We review a district court’s grant of summary judgment
de novo. United States ex. rel. Glass v. Medtronic, Inc.,
957 F.2d 605, 607 (8th Cir. 1992). In considering whether
to grant summary judgment, a court examines all the
“pleadings, depositions, answers to interrogatories . . .
admissions on file . . . [and] affidavits.” Fed. R. Civ.
P. 56(c). After viewing the record in a light most
favorable to the non-moving party, summary judgment is
appropriate only where there is “no genuine issue of
material fact and . . . the moving party is entitled to
judgment as a matter of law.” Langley v. Allstate Ins.
Co., 995 F.2d 841, 844 (8th Cir. 1993) (citations
omitted).
Under the ADA’s anti-retaliation provision: “No
person shall discriminate against any individual because
such individual has opposed any act or practice made
1
We note from the outset that the causes of action under the ADA and Missouri
law are treated the same. See Finley v. Empiregas, Inc., 975 F.2d 467, 473 (8th Cir.
1992) (“decisions under the various federal employment discrimination statutes are
applicable and authoritative under the [Missouri Human Rights Act] as well as federal
law”) (quotation and citations omitted)).
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unlawful by this chapter. . . .” 42 U.S.C. § 12203(a).
“To establish a prima facie case of retaliation, a
plaintiff must show: (1) that he engaged in [a]
statutorily protected activity; (2) an adverse employment
action; and (3) a causal connection between the adverse
employment action and the protected activity.” Evans v.
Kansas City, Mo. Sch. Dist., 65 F.3d 98, 100 (8th Cir.
1995) (citations omitted). To show that he engaged in a
statutorily protected activity, Kiel must demonstrate that
he had a good
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faith, reasonable belief that his employer was engaging in
a discriminatory employment practice. Id. (citation
omitted).
We conclude that a jury could reasonably find that
Kiel had a good faith, reasonable belief that his activity
was statutorily protected. The record supports a finding
that Kiel reasonably believed that the ADA required Select
to provide a TDD as a reasonable accommodation for his
disability. Second, because he was fired, Kiel suffered
an adverse employment action. Finally, Kiel has offered
sufficient evidence to support a finding of a causal
connection between his protected activity and termination.
A plaintiff may establish this part of his/her prima facie
case, in part, through circumstantial evidence, e.g.,
“proof that the discharge followed the protected activity
so closely in time as to justify an inference of
retaliatory motive.” Rath v. Selection Research, Inc.,
978 F.2d 1087, 1090 (8th Cir. 1992) (citations omitted).
The evidence shows that Kiel was fired the same day
he and Ms. Fry debated whether Select would purchase the
device for deaf employees. While proximity in time alone
may not satisfy the causation requirement, we are
persuaded that a reasonable jury could conclude that Kiel
was terminated as a result of his numerous requests for
accommodations. Therefore, Kiel has sufficiently
established a prima facie case.
Once the plaintiff has established a prima facie case
of retaliation, the burden of production shifts to the
employer to show that its decision to terminate the
9
employee was based on a legitimate, nondiscriminatory
reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
506-07 (1993) (citation omitted). If the employer
proffers a legitimate, nondiscriminatory reason, the
burden then shifts back to the employee to show that the
employer’s proffered reason is a pretext for
discrimination. Id. at 507 (citation omitted). The
burden of persuasion remains with the plaintiff at all
times. Id. (citation omitted).
10
Select argues that even if Kiel reasonably believed
that Select was violating the ADA, his conduct, which
included shouting at Ms. Fry, was not protected. Even if
Kiel’s conduct in protesting Ms. Fry’s denial of an
accommodation was generally consistent with opposing
unlawful discrimination under the ADA, “we must also
consider whether that conduct was so disruptive,
excessive, or ‘generally inimical to [the] employer’s
interests . . . as to be beyond the protection’” of the
ADA. Kempcke v. Monsato Co., No. 97-1423, slip op. at 5
(8th Cir. 1998) (quoting Hochstadt v. Worcester Found. for
Experimental Biology, 545 F.2d 222, 230 (1st Cir. 1976)).
Although an employer is ordinarily able to proffer
insubordination as a legitimate reason for termination,
Berg v. Bruce, 112 F.3d 322, 327 (8th Cir. 1997), the
evidence presented by both parties shows that a fact
question remains as to the cause of Kiel’s termination.
Ms. Fry’s note to Kiel asking whether he was aware
that he had raised his voice tends to show that she was
not certain that Kiel intended to be insubordinate. Kiel
responded to her note by explaining that he did not
realize that he had shouted and he apologized prior to his
termination. It is our view that Kiel’s singular act,
whether purposeful or otherwise, is not the type of
conduct that falls outside the ADA’s
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protection.2 Because a jury could reasonably find that
Select fired Kiel because of his protected behavior,
summary judgment on Kiel’s retaliation claim is improper.
We believe that Kiel’s remaining claims are so closely
related to his retaliation claim, we need not address them
individually.
III.
For the reasons discussed above, we reverse and remand
to the district court for trial on Kiel’s retaliation
claim.
WOLLMAN, Circuit Judge, dissenting.
With all due respect to the court’s opinion, I do not
believe that the record, fairly read, admits of a
2
Select argues that simply because Kiel is disabled does not mean that they are
unable to fire him. While we agree with this general proposition, the cases that Select
cites in support of its argument are inapposite. In those cases, the employee’s conduct
fell outside the ADA’s protection because it excessively disrupted the workplace and/or
constituted egregious or criminal behavior. See, e.g., Palmer v. Circuit Court of Cook
County, Ill., 117 F.3d 351, 352 (7th Cir. 1997) (under the ADA, termination for
excessively disruptive behavior and threats is justified since “[t]he Act does not require
an employer to retain a potentially violent employee”); Newland v. Dalton, 81 F.3d
904, 906 (9th Cir. 1996) (employee terminated not because of his disability, “but rather
. . . in response to his attempt to fire an assault rifle inside a bar”); Williams v. Widnall,
79 F.3d 1003, 1007 (10th Cir. 1996) (employee terminated not because of disability,
but because he “made threats against his supervisor and co-workers”); Maddox v.
University of Tennessee, 62 F.3d 843, 848 (6th Cir. 1995) (under the ADA, termination
for criminal behavior warranted because “[e]mployers . . . must be permitted to take
appropriate action with respect to an employee on account of egregious or criminal
conduct, regardless of whether the employee is disabled”) (emphasis added).
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conclusion that it is open to a jury to find that Ms. Fry
fired Kiel in retaliation for his engaging in protected
activity. Accordingly, I respectfully dissent.
13
The record reveals, as established by the deposition
testimony of Kiel’s co-workers, that Kiel yelled out at
Ms. Fry, “You’re selfish, Julie, you’re selfish,” and then
slammed a desk drawer. At least two of these co-workers
testified that they had never before heard Kiel speak that
loudly. As one of the co-workers testified, “It started
off, he was kind of yelling louder than I had ever heard
him speak before, and then she [Ms. Fry] was trying to
calm him down, I felt.”
As for the contention that Kiel may not have realized
that he was shouting, he himself testified that “If I want
to shout, I shout,” which is consistent with the co-
workers’ testimony that they had never before heard him
raise his voice.
Perhaps we might have been more tolerant of Kiel’s
insubordinate outburst than was Ms. Fry, but to hold that
the ADA insulates an employee from the consequences of
insubordination is to engage in a tortured reading of the
purpose of that statute. To hold in the face of this
record that it would be reasonable for a jury to find that
Ms. Fry fired Kiel in retaliation for his requesting a TDD
is to penalize employers like the Frys, who have an
admirable record of hiring deaf employees, and to send an
ominous message to other employers who might heretofore
have been contemplating adopting a similar hiring
practice. Virtue may well be its own reward, but we ill
serve enlightened employment practices by fettering them
with bonds the statute was never contemplated to impose.
A true copy.
Attest:
14
CLERK, U. S. COURT OF APPEALS, EIGHTH
CIRCUIT.
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