Appendix — Gagnon v. Sprint Corp., Dba Sprint

a

y

No. os -ULS

In the

SUPREME COURT OF THE UNITED STATES

William E. Gagnon, Jr.,

Petitioner,

V.

Sprint Corporation d/b/a Sprint, Sprint Spectrum L.P. i

and Sprint Spectrum Finance Corporation d/b/a Sprint PCS,

Respondents.

On Petition for Writ of Certioriari

To The United States Court of Appeals

For the Eighth Circuit

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

VOLUME I

Dennis E. Egan* Henry R. Cox

The Popham Law Firm, P.C. Swanson Midgley, LLC.

323 W. 8" Street - Suite 200 2420 Pershing Rd. - Suite 400

Kansas City, Missouri 64105 Kansas City, Missouri 64108

(816) 221-2288 (816) 842-6100

Counsel for Petitioner

*Counsel Admitted Before U.S. Supreme Court

N

10.

11.

12.

TABLE OF CONTENTS

Volume I

Page

March 19, 2002 Memorandum Opinion of Eighth Circuit Court of Appeals,

Case No. 01-2505 (Gagnon v. Sprint, 284 F.3d 839 (8" Cir. 2002)).......... 0001-023

May 22, 2002, Order Denying Petuion for Rehearing of Eighth Circuit

Comtt ok Re SO FOO, GE 5500 55 os eo eo Wi eed 024

January 4, 2001 Order of District Court denying plaintiff's Motion

for Summary Judgment and granting defendants’ Partial Motion for

Summary Judgment, Case No. 99-0683-CV-W-1 ...... 0.0... eee eee eee ‘025-047

May 10, 2(01 Order of District Court granting defendants’ Motion to

Dismiss ard entering Judgement as a Matter of Law, Case No.

ce LS ae eee ara Mareen ny ace any enya ws 1 ren eae Sra werner ay 048-066

February 4, 2002 Order of District Court ordering Gagnon to pay Sprint

its attorneys’ fees and costs, Case No. 99-0683-CV-W-1 ........ 0.0.0.0 0 05 067-070

July 15, 2002 Order of District Court vacating the Court’s prior

award of attorneys’ fees and costs to Sprint, due to Eighth Circuit

te SPR EP CRETE CTT Te ree ee eee ree 071

The Uniformed Services Employment and Reemployment Rights Act

of 1994 (“USERRA”) Title 38 U.S.C. §§ 4301, 4303, 4311 and 4323 ......... 072-079

United States Sentate Report No. 103-158 (October 18, 1993)

Se We ae TF ID Sino S096 n ba a 5G 5 or RRR NS aS ee ee eee 080-081

Combined House Report No. 103-65; Cong. Record Vol. 139

(1993) and Cong. Record. Vol. 140 (1994), excerpts ............ 0.0 ce eeeee 082-088

Volume II

eee ek ee er ee re re rs 089-112

Excerpts from Trial Transcript of Proceeding ............-.. 5 cee eeee enue 113-144

Plaintiff's Trial Exhibits

a ge ek ee rn a rer ee reer rem nr rer ae ep tr 145-147

PORE EOD 6 6: kkex here ceed GSEs vane eee RE Ss CER a eer e Eee 148

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Bort bees, cee cm Se OE PORE DETR OE OP SA Se BLIND ORE MIN fed 151

be noe ph de, TTT EE Te Re err ana me OE 152-163

cece oll Lee cecal gg MT Ee CLOT OP Peer Rey Poetry Oe oie en mT 164

PE EEE 5 ics od Ea ERR Rae hee eo eee eee EL eae ae 165

Pe EE isn eS oho eae sakes seek ess bhiv ee enaes 166-167

TE POE C0 OV ha kv hh oe wee e ee hs kis eh ee oe ee 168

13 Defendants’ Notice of Corporate Affiliations .................. cee eee eaee 169-174

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, °

o*

Appellees. °

Submitted: December 13, 2001

Filed: March 19, 2002

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 seg., 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

APPENDIX 1 001

ME

appeals the district court's grant of summary judgment in favor of Sprint PCS on his

USERRA discrimination and retaliation claims’. 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 it's 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.

'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).

a

APPENDIX 1 002

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

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APPENDIX 1 003

Ca eT TT

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

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APPENDIX 1 004

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 iawsuit 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.

Il. 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

pe |

APPENDIX 1 005

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. Jd, 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),

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APPENDIX 1

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

vy. 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 acclaim 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.

APPENDIX 1 007

Direct evidence is evidence cf 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 vy. 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

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APPENDIX 1

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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 judgrnent as a matter of law was inappropriate.

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APPENDIX 1

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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. Ar ]

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.” Id, at 714.

>We recognize that Missouri Revised Statute § 21 3.070(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.

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APPENDIX 1

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——~

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).

TEE REND NE Me

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

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APPENDIX1 014

impact on her job title, salary, benefits, or any other material aspect of her

employment).?

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

*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, 911 S.W.2d at 625; Buettner, 216 F.3d at 715 n.8; Cross v. Cleaver,

142 F.3d 1059, 1076 (8th Cir. 1998).

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APPENDIX 1

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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.

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APPENDIX 1

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yew

EP Ener recneeeee

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.

até.

APPENDIX 1 014

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. :

seg. 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 .. ..

Fe ao AMER aah ape ae

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

-]5-

APPENDIX1 015

ee

for a claim of discrimination under section 431 1(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 431 1(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

Ge

APPENDIX 1

016

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' Compensati

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.

3%

APPENDIX 1 017

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. 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.’ Various

‘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 plaintiffs 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

Vil).

"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-

APPENDIX 1

018

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 en "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 1n Brandsasse v. City of

Suffolk, Virginia, 72 F. Supp. 2d 608, 619 (E.D. Va. 19¢9). 'r 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-

APPENDIX 1 019

ee

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-

APPENDIX 1

020

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

n> ns

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 ‘) making a contrary finding, noting that the

investigation conducted by Bass was an integral part of in-house counsel Martin's

RS RL TAS A REPRESS AB ATI aR

—————————

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).

i

APPENDIX1 924

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.

Ill. 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

x,»

APPENDIX1 = 99

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-

APPENDIX 1 023

EEE OL OO eee

& | UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 01-2505

William E. Gagnon, Jr., -

Appellant, e

* Order Denying Petition for

V. * Rehearing and for Rehearing

* En Banc

Sprint Corporation, etc., et al., *

Appellees. "

The petition for rehearing en banc is denied. The petitions

for rehearing by the panel is also denied.

(5128-010199)

May 22, 2002

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit

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APPENDIX 2 024

IN THE UNITED STATES COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

WILLIAM E. GAGNON, JR., )

Plaintiff,

V. No. 99-0683-CV-W-1

SPRINT CORP., et al.,

Defendants.

ORDER

Pending before the Court are motions for summary judgment for Defendants, Sprint Corp.,

et al. (“Sprint PCS”), and Plaintiff, William E. Gagnon, Jr. (“Gagnon”). In Counts I and II of his

Complaint, Gagnon charges Sprint PCS with violating the Uniformed Services Employment and

Reemployment Rights Act (“USERRA”) by paying him a lower starting salary due to his military

experience and for retaliatory discipline. Gagnon alleges in Counts III and IV that Sprint PCS

violated Title VI] and the Missouri Human Rights Act’s (“MHRA”) prohibition of discrimination

based on race or gender when it denied him a higher salary upon Gagnon’s promotion.

Sprint PCS moves for summary judgment as to Counts I and II, arguing that it based its

starting salary decision on a legitimate non-discriminatory reason and that Gagnon did not participate

in a protected activity in order to receive protection against retaliatory discipline. Gagnon also moves

for summary judgment as to Count I and argues in support that direct evidence shows that Sprint

PCS’ decision regarding his starting salary pay was motivated by Gagnon’s prior military experience.

Gagnon, in turn, moves for summary judgment for charges set forth in Counts III and IV. Gagnon

contends that evidence shows that Sprint PCS committed reverse discrimination when it denied him (

APPENDIX 3 025

nner # iz”)

we UU obs wil

oy %

a a near-fifty percent raise upon receipt of a management promotion. In addition, Gagnon moves to

strike affidavits submitted by Sprint PCS in opposition to Gagnon’s summary judgment motion. For

the following reasons, the Court grants Sprint PCS’ partial summary judgment motion, denies

Gagnon’s motion for summary judgment, and denies the motions to strike affidavits submitted by

Sprint PCS.

I. BACKGROUND

Gagnon applied for a position with Sprint PCS’ professional skills team under the direction

of Larry Snyder (“Snyder”) in January 1997. Shortly after his initial application, Snyder

recommended Gagnon apply for a different Sprint PCS job, a curriculum specialists. Thereafter,

Gagnon submitted a new application on January 21, 1997, and interviewed with Snyder and Jim

J Keenan (“Keenan”), both of whom were managers in the training department, and Kathleen Wilder

(“Wilder”), the director of the department.' Keenan subsequently hired Gagnon as a curriculum

specialists with the approval of Wilder and Jim Mendenhall (“Mendenhall”), a vice-president.

Before applying to Sprint PCS, Gagnon served in the United States Army until his retirement

as a Lieutenant Colonel on January 31, 1997. While serving in the Army, Gagnon worked for six

years in charge ofa team that researched, developed, and published training and wartime doctrine for

Army division level organizations. Gagnon also worked for two years as the operations officer at a

battle simulation center in Korea. Gagnon began working for Cubic Applications, Inc, (“Cubic”)

developing combat simulation for the Army following his active service with the Army and continuing

The uncontroverted record indicates that one or two other individuals interviewed Gagnon.

These individuals are not identified by Plaintiff or Defendant, are not the basis of Plaintiffs claims, and,

so, will be ignored for purposes of this motion.

APPENDIX 3 026

&

’

until his employment with Sprint PCS. Gagnon’s salary while working at Cubic was $42,000.

Sprint PCS hired Gagnon ata starting salary of $44,100 with a short-term incentive potential

(“SPI”) of $3,000, over twelve percent above Gagnon’s Cubic salary. Gagnon worked under Keenan

from his initial start date, March 11, 1997, until his promotion.

On October 10, 1997, Gagnon was promoted to Manager, Multimedia/CBT Training, a

promotion that Wilder previously advised Gagnon he would receive when it was created.” However,

during October 1997, Wilder was out of the office on maternity leave and Keenan and Lynn

Meredith-Ball (“Meredith-Ball”), another manager in Wilder’s department, assumed Wilder’s

responsibilities as director of the training group. In Wilder’s absence, Mendenhall directed’ that

Gagnon be promoted to the manager position.

Manager, Multimedia/CBT Training (“CBT Manager”), was a new position and did not have

: a dollar amount assigned by Sprint PCS for compensation. Therefore, Gagnon submitted, with the

assistance of Meredith-Ball, a job description for the position to Sprint PCS so that a compensation

amount could be assigned to the position. The Sprint PCS compensation group established a target,

or MRP, salary of $66,000 with a SPI of $9,500. Thereafter, Meredith-Ball and Gagnon prepared

a form to submit in order to raise Gagnon’s salary from $44,100 to $66,000, an increase of over

forty-nine percent. The Sprint PCS compensation group within the Human Resources Department

at Sprint PCS did not support Gagnon’s proposed forty-nine percent salary raise but instead proposed

: Defendant used the term "funded" and the record indicates that Plaintiff used the word

"created", "created" will be used for purposes of this Order.

4 Plaintiff and Defendant can not agree whether Mendenhall "directed" or "approved"

Plaintiff's promotion. Mendenhall said to Meredith-Ball, in reference to Plaintiff and the management

promotion, "He [Gagnon] is here, hire him now." Meredith-Ball deposition, p. 71:15-21. The Court will

use the term "directed" when referring to this action.

3

APPENDIX 3 027

Deceit biti elec enamel oee mie nena

| &

‘

'

7

ee a raise of twenty-five percent. Mendenhall, who was responsible for approving all raises over ten

percent, rejected Gagnon’s forty-nine percent raise. Meredith-Ball revised the compensation form

to request an eleven percent initial raise followed by an automatic ten percent raise in six months.

The initial pay raise received the approval of Julie Moylan (“Moylan”), an employee in the Human

Resources Department, but the second automatic pay raise was not supported. Moylan suggested

the second raise should be processed with “separate approval action.” Mendenhall approved

Meredith-Ball’s revised form of an initial raise and an automatic raise in six months, however, Al

' Kurtze (“Kurtze”), the Chief Operating Officer, agreed with Moylan’s recommendation about the

second automatic raise.’

With the approval of the eleven percent raise, Gagnon began work as a CBT Manager with

a base salary of $50,100 and a SPI of $9,500. On January 29, 1998, Wilder submitted a

a compensation request form to increase Gagnon’s salary to $57,616, an amount within fifteen percent

of the CBT Manager’s MPR salary of $66,000. Moylan concurred on the compensation request and

it was subsequently approved by John Garcia (“Garcia”) and Alex Battey (“Battey”), Market

Development vice-president. Gagnon again received an increase in his salary on April 4, 1998, with

the approval of a “merit” increase of $1,119.17. The merit increase brought Gagnon’s salary to

$58,735.44. On March 27, 1999, Gagnon received another merit increase of $2,349, raising his

salary to $61,084.44. Gagnon received a final upward “adjustment” of $3,157.06 to his pay on April

11, 1999, as a result of his position’s reclassification into the Sprint compensation system. After the

final April adjustment, Gagnon’s CBT Management salary was $64,241.50.

: The record, and uncontroverted facts, tend to show that Mendenhall’s actions required the

approval of Kurtze, and, therefore, the second automatic raise was not approved and the Court will treat

such as uncontroverted.

APPENDIX 3 028

LL

a In August 1998, Gagnon and Meredith-Ball organized a discussion with four other Sprint PCS

employees® outside the Sprint PCS training department building. Gagnon and Meredith-Ball

informed the group of employees, all of whom possessed prior military experience, of Sprint PCS’

growth outside the training department directed by Wilder and the possibility of “upward mobility.”

During that discussion, various statements report that Gagnon and Meredith-Ball advised the four

employees that Wilder was uncomfortable with the number of employees in her department with prior

military experience and, therefore, would not promote anyone with such a background.® As a result

of the statements regarding Wilder’s comfort with employees with prior military experience, Gagnon

and Meredith-Ball were placed on written reminder (reprimand).’ The 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.

LOL 2 POG NE SE TO Oe eS

. Gagnon subsequently filed the present 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

en enerreerresorenanser

him following the meeting outside the Sprint PCS building, and with violating Title VII and the ~

MHRA for denying his salary raise upon receiving the promotion to CBT Manager.

: The four employees were Bill Pearce, Cory Aylor, Steve Hammack, and Brian Schlaak.

Gagnon deposition p. 297: 1-2.

° Gagnon deposition p. 296:8 - p.297:21.

e Id. p. 296:19-25.

: Pearce deposition p. 33:2-17; Schlaak deposition p. 24:5-11; Aylor deposition p. 41:4-12.

. Gagnon deposition p. 385:20 - p. 836:8; Wilder deposition p. 112:6-8.

4

APPENDIX 3 029

€ II. SUMMARY JUDGMENT

“Summary judgment is proper where the evidence, when viewed in the light most favorable

to the nonmoving party, indicates that no genuine issue of material fact exists and that the moving

party is entitled to judgment as a matter of law.” Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 919

(8" Cir. 2000) (citing Allen v. Interior Constr. Services Ltd., 214 F.3d 978, 981 (8th Cir.2000) and

Fed.R.Civ.P. 56(c)). In moving fer summary judgment against the non-movant, a movant will bear

the ultimate burden of proof at trial and may satisfy this burden by pointing to an absence of evidence

to support an essential element of the nonmoving party's claim. See Celotex Corp. v. Catrett, 477

U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986).

“[A] party opposing a motion for summary judgment may not rest upon the mere allegations

or denials of the pleadings, but by affidavits or as otherwise provided in Rule 56 must set forth

specific facts showing that there is a genuine issue for trial.” Dancy v. Hyster Co., 127 F.3d 649, 653

(8" Cir. 1997) (internal alterations and quotation marks omitted). When reviewing a motion for

summary judgment and viewing the evidence in the light most favorable to the non-movant, a court

must draw all inferences in the non-movant’s favor. See Exeter Bancorporation, Inc. v. Kemper Sec.

Group, Inc., 58 F.3d 1306, 1310 (8" Cir. 1995) (citing AgriStor Leasing v. Farrow, 826 F.2d 732,

734 (8™ Cir. 1987)); Oldham v. West, 47 F.3d 985, 988 (8" Cir. 1995) (cautioning that summary

judgment should not be granted unless the evidence could not support any reasonable inference for

the non-movant) (citing Crawford v. Runyon, 37 F.3d 1338, 1341 (8™ Cir. 1994)); see also St. Pierre

v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (“In assessing the record to determine whether there is a

genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw

all factual inferences in favor of the party against whom summary judgment is sought”).

APPENDIX 3 030

III. DISCUSSION

Gagnon sets forth facts for two claims of discrimination violations under USERRA. In Count

I, Gagnon claims Sprint PCS discriminated against him in violation of USERRA by paying him a

lower starting wage due to his prior military experience. Gagnon alleges in Count II that Sprint PCS

retaliated against him in violation of § 4311(b) by placing him on written reminder for the August

discussion regarding Wilder’s comfort with employees who possessed prior military experience.

Gagnon also proffers facts for two claims of discrimination in violation of Title VII and the Missouri

Human Rights Act for a comment made regarding Gagnon’s race and gender.

The Court will first review Sprint PCS’ motion regarding Counts I and II before reviewing

Gagnon’s motion for Counts III and IV.

A. USERRA Discrimination Claim

Gagnon began working at Sprint PCS at a salary of $44,100 and a SPI of $3,000.

Suggestions in Support(“Def’s Suggestions.”), § 15. The total amount of compensation, $47,100,

was over a twelve percent increase from his salary at Cubic. Id. at J] 5, 15. The compensation levels

at Sprint PCS are established by the Human Resources Department and supervised by Moylan. Id.

4 10. The compensation group of the Human Resources Department at Sprint PCS utilized a Market

Reference Point (MRP) to assist in the valuation of a position in regard to the marketplace. Id. ¥ 12.

A PCS salary is generally expected to be within fifteen percent, “plus or minus, of the MRP.” Id.

One of the guidelines used to assist in administering Sprint PCS’ compensation program is

APPENDIX 3

031

s the 1997 Salary Management Guide'® (“SMG”). Def’s Suggestions, 4 13. One of the guidelines

provided in the SMG is an objective to increase a base salary up to twenty percent when a new salary

is at or below the MRP. Id. § 14. Some of the factors used to determine the amount of increase

include (1) whether the individual holds a similar job or the job change is a promotion, (2) the market

pressure, (3) required relocation, (4) the proximity of the current salary to the MRP, (5) if the

individual is at an entry level of the position’s requirements, and (6) whether the amount of the total

compensation increase is significant. Id.

As mentioned earlier, Gagnon’s salary was over twelve percent above his previous salary at

Cubic and $2,100 above the MRP for Curriculum Specialist. Def.’s Suggestions, J 15. In an attempt

to controvert these facts, Gagnon in his opposition to Sprint PCS’ motion for summary judgment

argues that Sprint PCS failed to recognize his pay while employed in the Army, advised him to not

* include his military compensation when filling out the application, that Snyder advised him that he

was disadvantaged because he was coming from the military, and Wilder paid Gagnon $1,000 less

because he gained his previous experience in the military. Plaintiff's Opposition (“Pff's Opposition”),

{4 5-9. Gagnon also argues in his motion for summary judgment that two pieces of direct evidence

of discrimination exist. The first involves a statement made by Wilder in which she stated that “[h]e

[Gagnon] was brought in about $1,000 less than his peers, based upon the lack of business

experience. Most of his experience was in the military, and his counterparts had extensive training

within corporations.” Id. p. 24 (citing uncontroverted fact { 38). The second piece of direct evidence

involves an e-mail from Barbara Glover that requested the recipients consider the military background

a The guide is dated May 1997, after Gagnon’s initial employment but before his first

promotion in October 1997.

APPENDIX 3 032

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: of two interviewees, which was similar to Gagnon’s, and the need for diversity at Sprint PCS."!

Gagnon is unable to correctly controvert the fact that Sprint PCS set his starting salary within

the guidelines later established by its SMG. Instead, Gagnon directs the Court to find discriminatory

treatment in Sprint PCS’ consideration of his background in establishing a starting salary within its

guidelines. The record: reflects that Gagnon’s employment record lacked extensive corporate

experience. And, the record clearly shows that Sprint PCS personnel considered Gagnon’s lack of

corporate experience in establishing his salary. Gagnon, however, finds discrimination in Sprint PCS’

action because his lack of corporate experience is due to his military career.

The Uniform Services Employment and Reemployment Rights Act of 1994, USERRA,

prohibits employment discrimination on the basis of military services and provides a private right of

action to enforce those rights. See Robinson v. Morris Moore Chevrolet-Buick, Inc., 974 F.Supp.

a 571, 575 (E.D. Tx. 1997); 38 U.S.C. §§ 4311 & 4323 (Supp. I 1997)." |

Section 4311(a) of USERRA provides that

" Barbara Glover wrote: "I provided my notes regarding the two candidates I interviewed

yesterday in a previous e-mail.

The following is a list of things to think about:

- Both candidates are career military.

- Both have worked or currently work for the same company, Logicon, so have very

similar backgrounds as far as type of experience since leaving the military. I believe that Bill Gagnon has

also worked for the same organization. That would make three people with the same basic background in

the training organization.

- Diversity is critical for an organization to grow and thrive.

- Different skill sets, different backgrounds and experiences are essential in a well-rounded

training organization.

- the organization should reflect the environment in which it is providing training.

Hope this helps!

Thanks!

Pff’'s Suggestions, Exh. O (e-mail from Barbara Glover to Jim Keenan, Lynn Meredith-Ball, "cc" to Jim

Mendenhall, AJ Francis; Subject: Training Interviews; October 15, 1997).

. All references of "USERRA" or 38 U.S.C. § 4311, ef. seq., are to the 1997 Supplement.

4

APPENDIX 3 033

[a] person who is a member of, . . . has performed, . . . in a uniformed service shall

a not be denied initial employment, reemployment, retention, in employment,

promotion, or any benefit of employment by an employer on the basis of that

membership, application for membership, performance of service, application for

service, or obligation.

38 U.S.C. § 4311(a). According to § 4311(c), an employer shall be considered to have acted in

violation of § 4311(a) “if the person’s membership, . . . service . . . in the uniformed service 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, . . . [or] service... .” Id. at § 4311(c)(1).

Based upon the right set forth in subsection (a), § 4311(b) prohibits an employer from

discriminat[ing] inemployment 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, (2) has testified or otherwise made a

statement in or in connection with any proceeding under this chapter, (3) has assisted

or otherwise participated in an investigation under this chapter, or (4) has exercised

a right provided for in this chapter.

i Id. at § 4311(b). An employer shall also be considered to have acted in violation of § 4311(b) if the

person’s acts that are enumerated in § 4311(b) are “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 person’s

enforcement action, testimony, statement, assistance, participation, or exercise of a right. Id. at §

4311(c)(2).

The Eighth Circuit has published few decisions substantively addressing claims arising under

USERRA. See Newport v. Ford Motor Co., 91 F.3d 1164 (8" Cir. 1996) (holding in a case brought

under the Veterans Reemployment Rights Act that USERRA’s “motivating factor” standard was not

to be applied retroactively); Knowles v. Citicorp Mortg., Inc., 142 F.3d 1082 (8" Cir. 1998)

(discussing the Newport precedent of denying retroactive application of the “motivating factor”

. 0

APPENDIX3 034

@

a standard). Thus, the Court will look to cases from within and outside the Eighth Circuit for

assistance with principles and analysis. See Robinson, 974 F.Supp. at 575 (deciding to look to other

circuits and district courts because the Fifth Circuit and Supreme Court had not addressed claims

under USERRA).

Because Gagnon’s claims he was denied an employment benefit (an unequal starting salary)

due to Sprint PCS’ discrimination in violation of USERRA, the Court will use the Title VII and Equal

Pay Act (“EPA”) standard that applies to claims involving “unequal pay for equal work.” See

Hutchins v. International Brotherhood of Teamsters, 177 F.3d 1076, 1080 (8" Cir. 1999) (citing

Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8" Cir. 1999)). Similar to § 4311(c),

in order to establish a prima facie case of pay discrimination using the Title VII and EPA standard,

a plaintiff must prove that the employer paid non-military employees higher salaries than it paid the

a plaintiff for “jobs ‘requiring equal skill, effort and responsibility, and which are performed under

similar working conditions.”” Id. (citing EEOC v. Delight Wholesale Co., 973 F.2d 664, 669 (8" Cir.

1992) and 29 U.S.C. § 206(d)(1)). Upon establishing a prima facie case, the Title VII and EPA

unequal pay standard again closely follows § 4311(c) by shifting the burden to the employer to prove

that the alleged disparities “were based on either (1) a seniority system; (2) a merit system; (3) a

system that measures earnings by quantity or quality; or (4) a factor other than sex.” Id. (ruling on

an unequal pay for equal work claim alleging discrimination based on the plaintiff's sex) (citing 29

U.S.C. § 206(d)(1) and McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 513 (8" Cir. 1995); see

38 U.S.C. § 4311(C).

An individual’s education and experience are recognized by the Title VII and EPA unequal

pay standard as “factors other than” (the fourth possible reason stated in the Hutchins decision),

a 1]

APPENDIX3 | 035

@

& which permit unequal pay. See Id. at 1081 (citations omitted). As Gagnon pointed out, Wilder

considered Gagnon’s “lack of business experience” when making her decision on his starting pay.

There is nota bright line distinction between “den{ing] . . .any benefit of employment. . .on the basis

of that membership, application for membership, performance of service, application for service, or

obligation [in the uniformed service],” 38 U.S.C. § 4311(a), and denying a benefit because a person

lacked a quality due to military service. But, an employer’s conduct is not in violation of USERRA,

according to § 4311(c)(1), if “the employer can prove that the action would have been taken in the

absence of” the employee’s military service. 38 U.S.C. § 4311 (c)(1). And, the Title VII and EPA

unequal pay standard permits an employer to consider the past experience of an individual in order

to establish a pay rate that is different than those who work at the same position.

Clearly a hospital would not violate § 4311 of USERRA if it refused to hire as a surgeon a

= former military serviceman who is not a doctor. There would not be a case of discrimination for the

former military serviceman even though his lack of education and experience was a result of his

service in the military. The hypothetical analysis, and possible outcome, begin to change if those facts

are varied and the former military serviceman is in fact a medical doctor. While not dispositive,

greater scrutiny would be required in order to determine the former serviceman’s type of medical

practice and experience. For, even though the former military doctor might be qualified as a surgeon,

it is not beyond the realm of possibilities that his surgical practice varied from that sought by the

hospital. The hospital could lawfully pay the former military surgeon a lower starting salary because

it does not place as high a value on his experience compared to other surgeons. The hospital could

also pay a higher salary because it views the military doctor’s experience more valuable than other

surgeons. A violation of USERRA occurs in the hypothetical fact pattern when the hospital views

$ 2

APPENDIX3 036

SSS:

Sak

a the military doctor’s experience equal to other doctors but pays a lower salary because it holds a

discriminatory animus against the military, its members, and, specifically, the military doctor.

In the present case, Gagnon possessed experience, education, and other qualities that Sprint

PCS viewed as valuable to its business operation. Thus, Sprint PCS hired Gagnon to work because

of his experience, education, and other qualities. Sprint PCS, however, did not value Gagnon’s lack

of corporate experience as high as other possible new employees. The fact that Gagnon’s lack of

corporate experience occurred because he worked in the military or in a religious mission is not

relevant or distinguishable. Sprint PCS established Gagnon’s salary within the Salary Management

Guide’s fifteen percent target but $1,000 lower to reflect the lower value it placed on a lack of

corporate experience. Gagnon does not present evidence of another Sprint PCS employee who was

paid the extra $1,000 yet also lacked corporate experience. See Hutchinson, 177 F.3d at 1080-81

e (finding that sex-based pay discrimination did not exist because the higher paid male employees

possessed more education and experience and male employees who had like education and experience

were paid the same as the plaintiff). Sprint PCS established that its decision to not pay Gagnon a

higher starting salary is based on a factor other than Gagnon’s military experience.

Gagnon’s second piece of direct evidence does not aid his argument. Glover’s e-mail that

request its recipients consider the diversity in the training department of Sprint PCS did not

discriminate against Gagnon in violation of USERRA. The e-mail does not ask the reader to deny

an employment benefit, fire, or demote Gagnon. The statement, read in the most discriminatory light

and with every inference in favor of Gagnon, is requesting that Sprint PCS deny two applicants

employment due to their military experience because Sprint PCS already employed individuals with

military experience. Gagnon is the only plaintiff before the Court in this lawsuit and, therefore, unable

- 13

APPENDIX 3 037

ree

.

.

4

® to utilize a possible discriminatory statement made in reference to third parties to establish a prima

facie case of discrimination claim under the Title VII and EPA equal pay standard.

Because Sprint PCS provided evidence of a factor other than Gagnon’s military service to

explain the disparity in pay, Gagnon’s motion for summary judgment for his claim of discrimination

based upon a lower starting salary, Count I, is denied and Sprint PCS’ motion for summary judgment

on the same claim is granted.

B. USERRA Retaliation Claim

Sprint PCS also moves for summary judgment on Gagnon’s USERRA retaliation claim, Count

II, because Gagnon did not engage in a protected activity and did not suffer an actionable adverse

employment action. Gagnon counters that internal complaints of discrimination area USERRA

* protected activity and adverse employment action includes a written reprimand.

USERRA protects any person who “has taken an action to enforce a protection afforded . .

. under [USERRA], (2) has testified or otherwise made a statement in or in connection with any

proceeding under [USERRA], (3) has assisted or otherwise participated in an investigation under

[USERRA], or (4) has exercised a right provided for in [USERRA]” from discrimination or adverse

employment action. 38 U.S.C. § 4311(b). Ifthe exercise of rights protected under subsection (b)

is amotivating factor in an employer’s action, then the employer will “be considered to have” violated

subsection (b). Id. § 4311(c). The employer’s action, however, is not in violation of USERRA if the

employer can prove that it would have acted in the absence of the exercise of rights protected under

subsection (b). Id.

The Court finds persuasive a decision by a district court in South Dakota that utilized the

& .

APPENDIX 3 038

OO eoOow.|]!TlhCLC

.

.

burden shifting framework set forth in McDonnell Douglas Corp. v. Green for analysis ofa USERRA

retaliatory discrimination claim. See Novak v. MacKintosh, 1996 WL 677104 *1 (D. S.D. 1996)

(referring to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed.

2d 668(1973)). Under the McDonnell Douglas framework, Gagnon must initially establish a prima

facie case of discrimination “by showing participation in a protected activity, a subsequent adverse

action by the employer, and some evidence and some causal connection between the protected

activity and the subsequent adverse action.” Novak, 1996 WL 677104 *2; see Roark v. City of

Hazen, Ark., 189 F.3d 758, 761 (8" Cir. 1999). Following the establishment of a prima facie case

by the plaintiff, the burden then shifts to the employer to articulate an appropriate nondiscriminatory

reason for the alleged adverse employment action. Id. If an employer establishes an appropriate

nondiscriminatory reason, the burden returns to the plaintiff to demonstrate that the employer’s

proffered reason is pretextual. Id. (citing Reich v. Hoy Shoe Co., Inc., 32 F.3d 361, 365 (8"

Cir.1994) and Schweiss v. Chrysler Motors Corp., 987 F.2d 548, 549 (8™ Cir.1993)).

Both USERRA and Title VII rely on the assertion of a protected right as the beginning event

in order to determine whether the employer retaliated against the employee. Title VII looks to see

if a charge of harassment was filed’? while USERRA evaluates whether the person took action,

testified in any proceeding, participated in an investigation, or exercised a USERRA right. Thus,

USERRA uses the beginning of a person’s formal enforcement of the rights protected by USERRA

in order to find retaliatory conduct.

” In the context of a Title VII claim of retaliation, a plaintiff must show that “(1) he

filed a charge of harassment; (2) subsequent adverse action by the employer; and (3) the adverse

action was causally linked to the protected activity.” Ross v. Douglas County, Neb., 2000 WL

1804354 *2 (8™ Cir. 2000) (citing Scusa v. Nestle U.S.A. Co., Inc., 181 F.3d 958, 968 (8"

Cir.1999)).

15

APPENDIX3 039

.

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a Congress set forth two possible ways to formally enforce the rights protected by USERRA.

The first method of enforcement occurs by filing a complaint with the Secretary of Labor that

summarizes the basis for the alleged military discrimination. 38 U.S.C. § 4322(b). Subsequently, the

Secretary shall investigate the allegations in the complaint and attempt to resolve the complaint by

ensuring compliance with USERRA. Id. § 4322(d). If the Secretary fails to resolve the complaint,

then the Secretary is directed to notify the person who submitted the complaint “of the Secretary’s

investigation; and (2) . . . entitlement to proceed under the enforcement of rights provision provided

under section 4323... .” Id. § 4322(e). After réceiving notification from the Secretary of an

unsuccessful effort to resolve the complaint, a person may request the Secretary to refer the

complaint to the Attorney General to commence an action for relief. 38 U.S.C. § 4323(a).

The second enforcement method allows a person to commence an action for relief if he or she

4 chose not to apply to the Secretary for assistance pursuant to § 4322(a), not request that the

Secretary refer the complaint to the Attorney General, or if the Attorney General refuses to represent

the person. Id, § 4323(b). |

The Court’s conclusion that USERRA requires formal enforcement for a retaliation violation

is supported by a comparison of USERRA and Title VII. Under Title VII, a retaliation violation can

occur upon an individual either filing a formal complaint (what is referred to as the “participation

clause”) or taking action in opposition to perceived conduct prohibited by Title VII (the “opposition

clause”). See Reginelli v. Motion Indus.,Inc., 987 F.Supp. 1137, 1139 (E.D. Ark. 1997) (explaining

that the purpose for Title VII’s informal “opposition activity” clause is to provide an alternate method

to formal litigation to resolve a dispute); Pfister v. Bryan Mem’! Hosp., 874 F.Supp. 993, 995-96 (D.

Neb. 1995) (discussing Title VII’s two retaliation clauses, the “opposition” and “participation”

4 6

APPENDIX3 040

_ . -

} clause); Hargens v. U.S. Dept. of Agric., 865 F.Supp. 1314, 1328 (N.D. la. 1994) (same).

In comparison to Title VII, in response to a Supreme Court decision, Congress amended the

Veterans’ Reemployment Rights Actin 1994 with USERRA to require that claimants only show that

military status was a motivating factor for the employer’s action. See Newport, 91 F.3d at 1167

(explaining that Congress amended the Veterans’ Reemployment Rights Act due to the Supreme

Court decision in Monroe v. Standard Oil Co., 452 U.S. 549, 559, 101 S. Ct. 2510, 2516, 69 L. Ed.

2d 226 (1981), which required claimants to show that military status was the sole factor for the

employer’s action). In amending the Veterans’ Reemployment Rights Act, Congress chose not to

provide a retaliation violation for informally opposing employment action that a claimant perceived

to be discrimination (based on military status) even though it had done so in Title VII.

The Court’s decision is also supported by principals of statutory construction. The starting

j point for interpreting a statute is the statute’s plain language and such should be conclusive absent

contrary legislative intent. See Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 835,110

S. Ct. 1570, 1575, 108 L. Ed. 2d 842 (1990) (quoting Consumer Prod. Safety Comm'n v. GTE

Sylvania, Inc., 447 U.S. 102, 108, 100 S. Ct. 2051, 2056, 64 L. Ed. 2d 766 (1980)). If Congress

intended to create a USERRA retaliation cause of action for a person’s opposition then it would have

done so instead of relying on federal courts to “draft” such an important piece of legislation. See

Schooler v. U.S., 231 F.2d 560, 565 (8 Cir. 1956) (“If Congress desired to extend the statute

beyond bank loan transactions, which was all that the original statute encompassed, we must conclude

they would have said so and not left it to the courts to legislate by broadening the terms of the

statute.”); De Moss v. U.S., 218 F.2d 119, 127 (8 Cir. 1955) (“It is not the province of the court

to legislate.”), rev'd, 349 U.S. 918, 75 S. Ct. 659, 99 L. Ed. 1251 (1955). This Court also will not

17

APPENDIX 3 041

j oF

e ;

2 read into legislation, USERRA, that which Congress left out.

Therefore, taking action to enforce protection afforded under USERRA relates only to a

formal enforcement action as provided in § 4323. The record does not show that Gagnon

experienced retaliation for formally taking an action to enforce a protection of USERRA pursuant

to § 4323. Gagnon did not file a complaint with the Secretary of Labor nor commence a civil action

against Sprint PCS. Because Gagnon can not maintain a cause of action for retaliation under

USERRA, the issue of whether the written reminder amounts to an adverse employment action is not

decided. Sprint PCS’ motion for summary judgment on Count II is granted.

C. Title VII and MHRA Discrimination Claim

Gagnon moves for summary judgment on Counts III and IV based on a statement made by

a Mendenhall while reviewing Gagnon’s request for a near-fifty percent raise in pay. Sprint PCS

counters that summary judgment is improper (1) because a jury must decide the credibility and

truthfulness of the statement and (2) because Sprint PCS has a legitimate non-discriminatory basis

for denying Gagnon’s raise.

A claimant in a reverse discrimination case, in order to present a prima facie case, must show

that background circumstances exist that support the suspicion that the defendant is that unusual

employer who discriminates against the majority. See Duffy v. Wolle,123 F.3d 1026, 1036 (8" Cir.

1997) (citing Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6 Cir.1985)). However,

even if a plaintiff is unable to show background circumstances to “trigger” the McDonnell Douglas

presumption that does not necessarily mean he wasn’t intentionally discriminated against. Id. (citing

Notari v. Denver Water Dep’t, 971 F.2d 585, 590 (10" Cir.1992)). If the plaintiff can present direct

er 18

APPENDIX 3 042

TN NT

.

*

s

evidence of intentional discrimination then he “should be permitted to proceed beyond the prima facie

case stage of litigation.” Id.

Under the burden-shifting test for direct evidence, once a plaintiff establishes direct evidence

of discrimination, “the burden then shifts to the employer to show, by a preponderance of the

evidence, ‘that it would have made the same decision even if it had not taken the plaintiff s [race] into

account.” Ross, 2000 WL 1804354 *2 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 258,

109 S. Ct. 1775, 1795, 104 L. Ed. 2d 268 (1989)).

The basis for Gagnon’s Title VII] and MHRA“ reverse race and sex discrimination claims is

a statement reported by Meredith-Ball, a plaintiffalso in a Title VII discrimination case against Sprint

PCS in the United States District Court for the Western District of Missouri. Meredith-Ball attended

a meeting in Mendenhall’s office to discuss the justification for Gagnon’s new salary for the CBT

Manager position. Pff's Suggestions, Exh. H: Meredith-Ball deposition. p. 76:10 - p. 77:22. During

that meeting, Meredith-Ball reports, Mendenhall stated “I don’t like your recommendation [regarding

a fifty percent raise in pay for Gagnon]. I don’t like compensation’s recommendation. This is a white

guy, isn’t it?... Well, I don’t have to pay him. I would only have to pay him this ifhe were a woman

ora minority.” Id. p. 82:17-25. Mendenhall then slid the recommendation back to Meredith-Ball and

stated “He’s just a white guy.” Id. p. 83:1-6.

Sprint PCS argues in its opposition for summary judgment that “ample bias / impeachment

evidence” exists, which will require a jury to decide the truthfulness of Merdith-Ball’s statement

” It is well established that “[c]ourts may look to Title VII prnciples for guidance

when addressing statutory issues under [MHRA].” Vankempen v. McDonrell Douglas Corp.,

923 F. Supp. 146, 149 (Mo. Ct. App. 1996); see Tart v. Hill Behan LumberCo., 31 F.3d 668,

671 (8" Cir. 1994).

19

APPENDIX 3 043

; &

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> (regarding Mendenhall’s alleged “white guy” comments”). The “ample bias / impeachment” evidence

includes Meredith-Ball’s personal relationship with Gagnon, her own pending lawsuit against Sprint

PCS, the lack of corroboration of Mendenhall’s statement, the use of her name and Sprint PCS

telephone number as a primary contact person for the EEOC (in the event that the EEOC could not

contact Gagnon), threats that Meredith-Ball made against Wilder,'* and Meredith-Ball’s failure to

address the “white guy” comment with the Human Resources department at Sprint PCS despite her

previous practice. Sprint PCS argues that the bias and impeachment facts permit a jury to discredit

Meredith-Ball’s report of Mendenhall’s statement and not find that direct evidence of discrimination

exists. The facts presented by Sprint PCS show that a genuine issue exists for trial regarding

Meredith-Ball’s report of the Mendenhall statement. See Exeter, 58 F.3d at 1310 (“[the non-movant]

must ‘set forth specific facts showing that there is a genuine issue for trial.’”) (quoting Anderson v.

- Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986)); Dealer's

Transport Co. v. Werner Transp. Co., 203 F.2d 549, 552 (8 Cir. 1953) (“inferences to be drawn

from uncontroverted as well as controverted facts, are questions for the jury”) (quoting Ellis v. Union

Pacific R. Co., 329 U.S. 649, 653, 67 S. Ct. 598, 600, 91 L. Ed. 572).

In addition, Sprint PCS contends that it would not approve a fifty percent pay raise, under the

same circumstances, regardless of the statement made by Mendenhall or Gagnon’s race and sex. In

order to show that it would have made the same decision had it not taken Gagnon’s race and gender

into account, Sprint PCS points to its company policy that raises should not exceed five percent of

3 Wilder states that Meredith-Ball threatened "if [Wilder] did not change the discipline to a

verbal reminder that [Meredith-Ball] would sue [Wilder], and that [Meredith-Ball] would dig up a lot of

mud on [Wilder], and that the sheriff would come and get [Wilder] and take [Wilder] away." Defs’

Opposition, Exh. 9: Wilder deposition p. 292:7-12.

fe 20

APPENDIX 3 044

—————————————

>

A a

4 bd

e the employee’s previous salary. And, a higher raise (more than five percent), up to twenty percent,

can be awarded in “extraordinary circumstances.” Def’s Suggestions, Exh. B: Salary Management

Guide p. 6. In addition, as shown by the affidavits of Moylan and Kurtze, every Sprint PCS employee

charged with reviewing increases in pay, with the exception of Meredith-Ball, failed to approve or

recommend the near-fifty percent raise. Moylan Affidavit § 8; Kurtze Affidavit § 6. Sprint has

established by that it would not have made the same decision regarding Gagnon’s raise in pay had it

not taken his race and gender into account. Gagnon’s motion for summary judgment on Counts III

and IV is denied.

D. Motions to Strike

Gagnon also moves to strike the affidavits of Wilder, Moylan, Keenan, and Kurtze that Sprint

3 PCS submitted with its opposition to Gagnon’s summary judgment motion. Gagnon argues that

deposition and interrogatory evidence shows that the affidavits in at issue are not based upon personal

knowledge, are inadmissable opinion testimony, and, or, are false (“sham”). Sprint PCS einen

that the affidavits are based upon personal knowledge, are not improper opinion testimony, and clarify

or explain prior ambiguous testimony and responses, or less-than-clear testimony and responses, or

explain any inconsistency.

A party is prohibited from creating genuine issues of material fact by submitting affidavits in

support or opposition of summary judgment that contradict prior testimony or statements. See

Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364 (8 Cir. 1983) (comparing the

holdings in Radobenko v. Automated Equipment Corp., 520 F.2d 540 (9" Cir. 1975) and Perma

Research & Development Co. v. The Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) with the decision

P a

APPENDIX 3 045

a

& in Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893 (5" Cir. 1980)). In Camfield, the Eighth

Circuit ruled that absent an explanation of prior testimony or confusion in prior testimony that

required an explanation, inconsistent affidavits are not permitted to create genuine issues of fact. Id.

at 1364-65.

The Court does not find the affidavits submitted by Sprint PCS to be inherently inconsistent

with prior testimony or statements. Unlike the facts in Camfield and the decisions discussed by the

Eighth Circuit, the affidavits and prior testimony (and statements) brought to issue by Gagnon in his

four motions do not raise new issues or theories of defense and do not contradict prior testimony by

offering new facts to create a genuine issue(s) of material fact. The Court does not read Rule 56(e)

to require an affidavit to follow prior lengthy deposition testimony verbatim. The affidavits closely

follow prior testimony (and statements) and, or, explain incomplete or confusing testimony (and

eS statements). Therefore, the Court denies Gagnon’s motions to strike the affidavits of Kathleen

Wilder, Julie Moylan, Arthur Kurtze, and Jim Keenan.

IV. CONCLUSION

Based on the foregoing, the Court hereby

GRANTS Plaintiff's Motion to Amend Motion for Summary Judgment and Suggestions in

Support. The Court further

GRANTS Defendants’ an extension up to, and including, October 16, 2000, to file its

opposition to Plaintiff's summary judgment motion. All remaining motions regarding the time to file

motions for or against summary judgment are dismissed as moot. The Court further

DENIES Plaintiff's motion to strike the affidavits of Wilder, Moylan, Keenan, and Kurtze.

¢ "

APPENDIX3 046

Se a te a er aaa

e The Court further

GRANTS Defendants’ Motion for Partial Summary Judgment on Counts I and II. The Court

further

DENIES Plaintiff's Motion for Summary Judgment on Count I. The Court further

DENIES Plaintiff's Motion for Summary Judgment on Counts III and IV.

IT IS SO ORDERED. lho

Dean Whippte~

United States District Judge

Date / ~ 4-0/

APPENDIX3 047

|

lia manent cities

hee | IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

WILLIAM E. GAGNON,

Plaintiff,

No. 99-0683-CV-W-1

Vv.

SPRINT CORP., et al.,

Defendants.

ORDER

Plaintiff William E. Gagnon (“Gagnon”) filed this lawsuit against Defendant Sprint

Corporation, d/b/a Sprint Spectrum L.P. (“Sprint Corporation”) and Sprint Spectrum Finance

> Corporation d/b/a Sprint PCS (“Sprint PCS”) (collectively, “Sprint”) on July 20, 1999. Gagnon

alleged five basic claims against Sprint involving: (1) discrimination under the Uniform Services

Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. §§ 4301-33; (2) retaliation

under USERRA; (3) race and gender discrimination under Title VII and the Missouri Human Rights

Act (“MHRA”) (alleging that he was discriminated when denied an approximate fifty percent raise);

and (4) retaliation under Title VII and the MHRA. On January 4, 2001, the Court granted Sprint’s

motion for partial summary judgment on Gagnon’s USERRA claims, leaving the Title VII and the

MHRA discrimination and retaliation claims for trial. Trial on the remaining claims commenced on

January 22, 2001, and on January 25, Gagnon concluded his evidence and rested his case. At that

time, Sprint moved for the Court to enter judgment as a matter of law (“JAML”) against Gagnon

pursuant to Rule 50(a)(1). In moving for JAML, Sprint argued that Gagnon had not established a

APPENDIX 4 048

VW

?

; legally sufficient evidentiary basis for a reasonable jury to find for him on the following: (1) his race

and gender discrimination claim under Title VII and the MHRA; (2) his retaliation claim under Title

VII and the MHRA; (3) his claim for compensatory / emotional distress damages; and (4) his claim

for punitive damages. After hearing arguments from counsel for Gagnon and Sprint, the Court

granted Sprint's motion for JAML on Gagnon’s Title VII and MHRA claims of race and gender

discrimination and retaliation and follows with this Order.'

I. BACKGROUND

The following is not intend to be a complete recitation of all of the evidence at trial but is a

synopsis for purposes of the present Order.

Sprint hired Gagnon, a white male, in March of 1997 to work as a curriculum developer in

. Sprint’s training department (also known as the Training and Professional Studies department, or

“TAPS”). Sprint paid Gagnon an annual salary of $44,100 with a short term incentive (“STI”) of

$3,000. The decision to hire Gagnon was made by Jim Keenan (“Keenan”), a manager in the TAPS

department, (2) Kathleen Wilder (“Wilder”), the director of the TAPS department, and (3) Jim

Mendenhall (“Mendenhall”), a vice president over the TAPS department. Prior to working for Sprint,

Gagnon worked for a defense contractor, CUBIC Applications (“CUBIC”), following his retirement

from the United States Army. The evidence presented at trial showed that Gagnon earned $42,000

a year at CUBIC.

Counsel for Sprint, John J. Yates and Joseph H. Knittig, submitted a proposed order to which

counsel for Gagnon, Henry R. Cox, Don R. Lolli and Benjamin K. Byrd, were allowed to object. The

Court, after considering the proposed order and objections, issues the present Order.

APPENDIX4 049

After he began working at Sprint in March 1997, Sprint created a new management position

in the TAPS department known as CBT-Manager. Before the position was formally created, Wilder

unofficially selected Gagnon to work as the CBT-Manager, which was scheduled to be financed,

created, and filled in early 1998. In September and October of 1997, Wilder did not work at Sprint

because of maternity leave. During the time of Wilder’s maternity leave, another manager of the

TAPS department, Lynn Meredith-Ball (“Meredith-Ball”), assisted in handling Wilder’s director

duties.? The evidence also showed that during the same time period, and extending to the end of

1997, Sprint PCS was ina hiring freeze. Despite the hiring freeze and Wi!der’s absence, Mendenhall

accelerated the creation of the CBT-Manager position and directed that Gagnon be promoted into

the position in October of 1997.

Upon the creation of the CBT-Manager position, Sprint Human Resource Department (“HR”)

z set a “market reference point” (“MRP”) for the position. The MRP is a targeted reference point, or

guide, for a tenured employee in that position. The MRP is not a guaranteed salary point. The MRP

for the curriculum developer position was $42,000, with an STI of $3,000. The MRP for the CBT-

Manager position was $66,000, with an STI of $9,500. Accordingly, at the time of his promotion,

Gagnon was moving from a position with a base salary MRP of $42,000 to a job with a base salary

MRP of $66,000.

The evidence introduced at trial also showed that a Sprint policy governed the raise an

employee was eligible to receive upon a promotion (the “Promotion Policy”). However, both

4 In his objections to the proposed order, Gagnon argues that in Wilder’s absence Meredith-Ball was

named co-director of the TAPS department and was charged with authority concerning compensation

issues. The Court is not concerned with the title that Meredith-Ball held but recognizes her duties included

temporarily assisting with the position left vacant while Wilder took maternity leave.

3 :

APPENDIX 4 050

<

,

’

Gagnon and Meredith-Ball testified that they were unaware of the Promotion Policy at the time of 4

Gagnon’s promotion in October of 1997. The Promotion Policy found in Sprint’s “Salary

Management Guidelines,” stated:

When an employee's base salary after merit pay consideration is below

the market reference point for the new position, a promotional

increase of 5% may be granted if the promotion is within a normal

progression (i.e. analyst to senior analyst). For “extraordinary”

promotional increases between positions, the maximum total increase

should not exceed 20%. Please note: promotional increases greater

than 10% must be reviewed and approved by the appropriate Chief

Officer or their designee.

Sprint’s Exhibit 74, p. 13, Promotion Policy (also contained in Plaintiff's Exhibit 43). Under the

Promotion Policy, and as Gagnon, Meredith-Ball, and Julie Moylan (“Moylan”) all agreed, the “Chief

Officer or [his] designee” was the decision maker on an employee pay increase above ten percent.

As a matter of process, in seeking a salary increase greater than ten percent, a Compensation

e Exception Request form stating the amount of the raise requested is completed, sent to HR for a

recommendation, a vice president in charge of the department for a recommendation and, lastly, to

the “Chief Officer or [his] designee” to review all recommendations and make the decision on the

salary increase.

in the present case, Plaintiffs Exhibit 10 was the Compensation Exception Request form that

resulted in Gagnon’s receiving an eleven percent raise upon his promotion in October of 1997.

According to the evidence, Kurtze was the decision maker for that raise. However, before Kurtze

made that decision, Meredith-Ball prepared and submitted a form requesting an immediate eleven

percent raise for Gagnon with an additional ten percent raise after six months, which Mendenhall

supported. Although agreeing with the immediate eleven percent raise, Moylan, who reviewed the

APPENDIX 4 051

& *

Compensation Request Forms for the HR recommendation component of the Promotion Policy

process, “strongly disagree{d]” with the additional ten percent request. (emphasis in original) Instead

of approving in advance the additional raise, Moylan recommended that Sprint award Gagnon an

eleven percent raise and allow him to seek a ten percent raise in six months, which would be

dependant upon performance. Thus, there were two recommendations before Kurtze: (1) the eleven

percent raise and ten percent automatic increase following six months that Meredith-Ball and

Mendenhall recommended; and (2) the eleven percent recommendation from Moylan. Kurtze rejected

the recommendation of Meredith-Ball and Mendenhall and approved Moylan’s recommendation to

only award Gagnon an immediate eleven percent increase. The evidence showed that Kurtze’s

decision to only approve an immediate eleven percent raise complied with the Promotion Policy.

Further evidence was introduced that Gagnon received an additional salary increase of fifteen

} percent in January of 1998. And, three months after the fifteen percent raise, in April of 1998,

Gagnon received a two percent merit salary increase. In summary, the evidence introduced at trial

showed that over a period of approximately six months Gagnon’s base salary increased from $44,100

to $58,735 (an increase of thirty-three percent). And, Gagnon’s STI increased from $3,000 to

$9,500 (an increase of more than 200 %).

Despite the uncontroverted evidence set forth above, Gagnon claimed that his October 1997

pay raise was the product of race and gender discrimination. Specifically, Gagnon complained

because he did not receive an immediate raise from $44,100 to $66,000 (an increase in pay of

approximately fifty percent to the full MRP for his position) upon his promotion in October of 1997.

The basis for Gagnon’s race and gender discrimination claim follows.

APPENDIX 4 052

Prior to submitting the eleven percent Compensation Exception Request form’ during

Wilder's maternity leave, Meredith-Ball initiated an effort‘ to increase Gagnon’s salary approximately

fifty percent’ during a hiring freeze at Sprint. Meredith-Ball completed a Compensation Exception

Request form’ in order to increase Gagnon’s salary from $44,100 to the full MRP of $66,000 and the

$9.500 STI. Meredith-Ball testified that she personally delivered the fifty percent compensation

request to Mendenhall at his office to receive his recommendation. According to Meredith-Ball,

Mendenhall refused to support her recommendation and remarked that Gagnon “was just a white

guy,” and “that if he was a woman or a minority then Sprint would have to pay him.”

The evidence at trial did not show that Meredith-Ball submitted the fifty percent raise request

to Kurtze, the decision maker, for approval. And, no evidence was submitted to show Kurtze had

knowledge of the Mendenhall “white guy” remark when he made his decision regarding Gagnon’s

gl : Plaintiff's Exhibit 10, supra.

-

The parties dispute whether Wilder directed the action or whether Meredith-Ball took the action on

her own initiative. The distinction is lost upon the Court but, for reasons unknown, is a matter of great

importance to the two parties.

: Gagnon objects to the use of “fifty percent” in the proposed order. Instead, Gagnon argues that

Meredith-Ball’s testimony states that the request was a thirty-three percent “base-to-base” increase using a

calculation provided by Wilder and HR. And, Gagnon argues, the proposed order omits Sprints admission

that the proposal “constituted a [thirty-five percent] increase. Plaintiff's Trial Exhibit 95.”

Once again, the semantics of different terms or language used by both parties is not understood

and severely frustrates the Court. The Court’s math finds the increase from $44,000 to $66,000 is

22,000, or half of $44,000. Arguments by each party’s counsei regarding this type of diminutive issue

plagued the litigation of this matter. The Court believes the argued issues were not in the best interest of

each counsel’s client but instead were the result of the animosity existing between opposing counsel.

Whether “fifty,” “thirty-three,” or “thirty-five” percent is used does not alter the actions taken by Meredith-

Ball, Gagnon, Mendenhall, or Kurtze, and, as such, will not be addressed further in this Order.

Plaintiff's Exhibit 9.

At the same time that he rejected the fifty percent request recommended by Meredith-Ball,

Mendenhall rejected a twenty-five percent increase recommended by Moylan of HR. See Plaintiff's Exhibit

9.

APPENDIX 4 053

¢

i eleven percent pay raise. Instead, the evidence showed Meredith-Ball revised the Compensation

Exception Request form to make a request’ within the SMG’s Promotion Policy. As previously

addressed in this Order, Kurtz did not approve the initial request even though it possessed

Mendenhall recommendation but instead favored a flat eleven percent raise.

Subsequently, on April 21, 1998, Gagnon filed a Charge of Discrimination (“Charge’’) with

the Equal Employment Opportunity Commission (“EEOC”) contending that his eleven percent raise

was the product of race and gender discrimination.

Approximately five months following the filing of his Charge, the “porch incident” occurred.

Specifically, at approximately 2:00 p.m. on August 7, 1998, Gagnon and Meredith-Ball organized a

“meeting” or “discussion” with four employees in the TAPS department on the outside porch of the

Sprint building. The employees gathered to meet with Gagnon and Meredith-Ball were Cory Aylor

a (“Aylor’), Bill Pearce (“Pearce”), Steve Hammack (“Hammack’”’) and Brian Schlaak (“Schlaak”).

These employees were new employees at Sprint PCS, having worked at Sprint for less than six

months. The four employees, who were military veterans and friends of Gagnon, were recruited to

Sprint by Gagnon and ultimately hired into the organization by Wilder. The evidence introduced at

trial revealed that Gagnon and Meredith-Ball called these employees out of work and to a patio, or

porch, in front of the Sprint building to inform the employees about transferring to potential jobs

outside of Wilder’s department.’

Following the porch discussion, two managers in the TAPS group, Dale Coffman (“Coffman”)

The previously discussed eleven percent raise and automatic ten percent raise after six months.

: The evidence introduced at trial showed that Sprint had a policy that prevented employees from

transferring, without approval from their department head, until they had-been with the company for at

least a year.

APPENDIX4 054

and Keenan, contacted Wilder to advise her about the porch incident. They reported to Wilder that

Gagnon and Meredith-Ball met with four employees out of the workplace and told them that she

(Wilder) was uncomfortable with the number of military employees in the department and they could

not advance in the TAPS group under her. Gagnon and Meredith-Ball advised the four employees

that they needed to look outside the TAPS group if they were interested in advancement

opportunities. Because the reports concerned Wilder, she decided to investigate the porch incident

along with Kim Klosak (“Klosak”’) from HR.

In investigating the porch incident, Wilder and Klosak interviewed all four individuals who

met on the porch along with Gagnon and Meredith-Ball. Both Pearce and Aylor reported that

Gagnon and Meredith-Ball, together,” told the four employees that Wilder was uncomfortable with

the number of military employees in the department and, therefore, they could not advance in the

& TAPS group under Wilder and should look outside the TAPS group if they were interested in

advancement opportunities. Hammack reported that he did not hear Gagnon and Meredith-Ball make

such comments but he was not paying attention to what was being discussed. But, Hammack

confirmed that before the porch incident, Meredith-Ball told him Wilder was uncomfortable with the

number of military in the department. Schlaak arrived to the porch approximately 10-15 minutes late

and missed most of the Gagnon and Meredith-Ball discussion. At trial, Gagnon and Meredith-Ball

denied making the statements discussed above and maintained that they were merely sharing job

, Gagnon objects that the testimony of Wilder and Klosak failed to determine who made the

comments. Of the four individuals summoned outside the Sprint building by Gagnon and Meredith-Ball,

the Court notes that evidence shows that at least one individual did not hear Gagnon or Meredith-Ball make

any comments and others attribute the comments to one or both (Meredith-Ball and Gagnon). The Court

also notes that the only evidence of the comments not being made was testimony by Meredith-Ball and

Gagnon.

APPENDIX 4 055

eae

opportunities with the four individuals.

As a result of the investigation, and with the recommendation of Klosak, Wilder issued a

“written reminder”'' to Gagnon and Meredith-Ball. The impact of the reprimand was a temporary

placement of the written reminder in Gagnon’s personnel file for six months and a prohibition on

transfers to other jobs within Sprint for six months without first securing vice-presidential approval. '”

3

During his cross-examination at triai, Gagnon affirmatively admitted that he did not lose any pay'

or other benefits of employment as a result of the written reminder. The evidenced showed that

Gagnon maintained the same job position, was not demoted or suspended and did not suffer a

material employment disadvantage. '* The written reminder for the “porch incident” expired after six

months.

Gagnon also testified some coworkers were cold towards him. Specifically, Gagnon claims

Wilder called him a “white guy” on two occasions and was not as nice to him after her maternity

xs The evidence showed that a “written reminder” is a formal reprimand at Sprint.

28 Pursuant to the prohibition, Sprint refused to allow Gagnon to apply for a promotion or transfer

whiie the written reminder was in effect. Plaintiff's Exhibits 50 and 305. ;

9 Gagnon objects that he did not receive a ten percent raise “assur[ed]” to him by Wilder. Given the

conduct of Gagnon and Meredith-Ball in the “porch incident,” the Court does not find the failure to award

an “assured” raise a loss in pay.

ss Gagnon testified that during the six month period, he asked Wilder to exempt him from the

written reminder so he could pursue a potential lateral transfer to another job in October of 1998. Wilder

did not excuse him from the written reminder. Gagnon admitted that he knew nothing about the job, and

did not even know if the job was filled. Wilder, or. the other hand, testified that the job at issue was not

even an open, available job. In other words, there was no lateral job for Gagnon to which he could have

successfully applied. In addition, Gagnon testified that he thought that during the time frame of the porch

incident, he deserved yet another ten percent raise because Wilder told him in January of 1998 that she

would consider going for another ten percent raise for him. On cross-examination, however, Gagnon

admitted that he was not entitled to another ten percent raise, and that Wilder never “guaranteed” him such

a raise. See supra n.i3.

APPENDIX 4 056

) leave. In addition to Wilder, Gagnon also claims some other coworkers were not as nice to him as

they once were, but only specifically identified Keenan at trial. According to Gagnon, Keenan did

not socialize with him, did not say “hello” to him in the hallway and would talk to employees that

worked under Gagnon without first going to Gagnon. At trial, Gagnon claimed the written reminder,

ostracism by his coworkers and failure to award him an additional ten percent raise were all forms

of retaliation in response to his filing a Charge with the EEOC. But, Gagnon did not offer any

evidence to causally link the written reminder and his differences with his coworkers to his Charge.

In fact, with respect to his coworkers, Gagnon testified that he had no evidence that his fellow

employees even knew that he filed his Charge.

Il. JAML STANDARDS

) In considering a motion for JAML, as when considering a motion for summary judgment, the (

appropriate inquiry is: “‘[wJhether the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.

Kinserlow v. CMI Corp., 217 F.3d 1021, 1025 (8" Cir. 2000) (upholding a district court’s motion

for judgment as a matter of law at the close of all of the evidence) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). Rule 50(a) allows

oe

the trial court to enter JAML “*[i}f during a trial by jury a party has been fully heard on an issue and

399

there is no legally sufficient evidentiary basis for a reasonable jury to find for that party... .

Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1049 (8" Cir. 2000) (reversing lower

court’s entry of jury verdict and entering judgment as a matter of law) (citing Fed. R. Civ. P.

50(a)(1)). In viewing the evidence, the court “‘must assume all facts that the nonmoving party’s

10

APPENDIX 4 057

7

} evidence tends to show, give [him] the benefit of all reasonable inferences, and assume that all

conflicts in the evidence were resolved in [his] favor.’*” Concord, 207 F.3d at 1049-50 (quoting

Hathaway v. Runyon, 132 F.3d 1214, 1220 (8" Cir. 1997)).

However, when considering a motion for JAML, the nonmoving party is entitled only to the

benefit of “reasonable” inferences. Gill, 217 F.3d at 1025. A “reasonable” inference is one that “may

be drawn from the evidence without resort to speculation.” Id. (citations omitted). When the non-

movant’s case rests solely on speculation and conjecture without any evidentiary support, JAML must

be granted. Concord, 207 F.3d at 1050. While entitled to all supporting inferences, the nonmoving

party is not given “‘the benefit of unreasonable inferences or those at war with the undisputed facts.”

Id. (quoting Sip-Top, Inc. v. Ekco Group, Inc., 86 F.3d 827, 830 (8" Cir. 1996). “‘[T]he court

should give credence to the evidence favoring the nonmovant as well as that evidence supporting the

] moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from

disinterested witnesses.’”’ Gill, 217 F.3d at 1025. Thus, JAML must be granted if there can be but

one reasonable conclusion as to the verdict when considering the evidence. Concord, 207 F.3d at

1050.

III. DISCUSSION

A. JAML — RACE / GENDER DISCRIMINATION CLAIM

Gagnon’s Title VI] and MHRA claim of discrimination based on his gender, male, and race,

Caucasian (“white”) is commonly referred to as a reverse discrimination claim. In reverse

discrimination cases, the plaintiff must present evidence to demonstrate the employer is “that unusual

employer who discriminates against the majority.” Duffy v. Wolle, 123 F.3d 1026, 1036 (8" Cir.

1]

APPENDIX 4 058

1997) (queting Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6" Cir. 1985)."°

The evidence relied upon by Gagnon for his reverse discrimination claim was an alleged

comment made by Mendenhall that “he (Gagnon) is just a white guy.” In addition to the Mendenhall

comment, the following evidence was also introduced at trial: the fifty percent raise submitted by

Meredith-Ball was excessively greater than the permissible raises under Sprint’s Promotion Policy;

and Gagnon received raises that were within the Promotion Policy.'® As previously stated,

Mendenhall made the comment while rejecting a recommended fifty percent raise of Gagnon’s salary.

Gagnon argued at trial that the Mendenhall comment was direct evidence for his reverse

discrimination claim. However, the comment, even if made, does not automatically cause Gagnon’s

reverse discrimination case to be a Title VI] / MHRA direct evidence claim.

In order for the Mendenhall comment to be received as direct evidence, Gagnon, must show

that Mendenhall was (1) a decision maker and (2) the comment reflected a discriminatory animus such

that a jury could infer it was a motivating factor in the decision at issue. “Statements may constitute

evidence of impermissible motive only when they are made by decisionmakers in the [decisionmaking]

process and reflect a discriminatory animus such that a jury could infer it was a motivating factor in

the [decisionmaking] process.” Herrero v. St. Louis Univ. Hosp., 109 F.3d 481, 484 (8" Cir. 1997);

is

See also Livingston v. Roadway Express, Inc., 802 F.2d 1250, 1252 (10" Cir. 1986) (“When a

plaintiff who is a member of a favored group alleges disparate treatment, the courts have adjusted the

prima facie case to reflect this specific context by requiring showing of ‘background circumstances [which]

support the suspicion that the defendant is that unusual employer who discriminates against the majority.””)

(citations omitted).

16

Under the Promotion Policy, which was not disputed, a five percent raise upon promotion

was the general rule. Gagnon received two “exceptions” from the general rule which he admitted

were “out of the norm” (his eleven percent raise in October of 1997, and his fifteen percent raise

in January of 1998).

12

APPENDIX 4

059

see also Walton v. McDonnell Douglas Corp., 167 F.3d 423, 426 (8 Cir. 1999) (“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.) (citations omitted).

The evidence introduced at trial revealed that Kurtze, and not Mendenhall, was the

decisionmaker for Gagnon’s October 1997 raise and potential fifty percent raise.'’ The testimony of

witnesses, including Gagnon and Meredith-Ball, and according to the plain language of the Promotion

Policy, Kurtze was vested with the exclusive authority to decide Gagnon’s raise. In fact, according

to the evidence, Kurtze refused to approve Mendenhall’s recommendation" that Gagnon receive an

immediate eleven percent raise (in October of 1997) and an automatic ten percent raise after six

months. Instead, Kurtze only approved an eleven percent raise. Armed with recommendations and

choices, Kurtze made his independent decision. Significantly, no evidence was introduced that Kurtze

knew of the Mendenhall comment or acted on it. Accordingly, there was no evidence to link a

comment by a nondecisionmaker, Mendenhall, to the decision made by Kurtze.

The fact that Kurtze was the decision maker and not Mendenhall does not end the Court’s

direct evidence analysis. Proper supporting evidence of statements or evidence of individuals beneath

the decisionmaker can constitute evidence of discrimination. See Kientzy v. McDonnell Douglas

Corp., 990 F.2d 1051, 1056-60 (8" Cir. 1993). In cases like Kientzy, if the evidence shows that an

Among other witnesses, Gagnon and Meredith-Ball admitted this fact at trial.

” The evidence introduced at trial showed that recommendations for Gagnon’s salary increase were

made by Meredith-Ball, Moylan and Mendenhall.

13

APPENDIX 4

060

innocent decisionmaker was merely the “conduit,” or “cat's paw,” of another’s prejudice, then a non

decisionmaker’s statement or conduct could conceivably support a discrimination claim. See id. at

1060. But, the conduit situation was not present in this case. There was no evidence that Mendenhall

acted upon a bias against white men by refusing to recommend a fifty percent raise for Gagnon or

evidence that Mendenhall used Kurtze, the decision maker, as a mere “conduit.” Indeed, the evidence

was quite to the contrary as Kurtze rejected Mendenhall’s recommendation of an immediate eleven

percent raise with an automatic ten percent raise after six months. Unlike Kientzy and other similar

cases, there was no evidence that the decisionmaker essentially acted as a “rubber stamp” for

Mendenhall. The Court finds that a reasonable jury could not conclude that Kurtze would approve

a fifty percent raise when he would not approve an immediate eleven percent raise with an automatic

ten percent raise after six months

Because the evidence introduced at trial is not “direct evidence,” Gagnon must proceed to use

background circumstances as evidence to show Sprint is the unusual employer who discriminates

against the majority. In Duffy, the Eighth Circuit adopted the analysis first used by the Murray court

in which the Sixth Circuit stated:

[1]n our view, the “reverse discrimination” complainant bears the

burden of demonstrating that he was intentionally discriminated

against “despite his majority status.” [citation omitted]. We agree

with the district court that a prima facie case of “reverse

discrimination” is established upon a showing thai “background

circumstances support the suspicion that the defendant is that unusual

employer who discriminates against the majority;” [citations omitted]

and upon a showing that the employer treated differently employees

who were similarly situated but not members of the protected group.

[citation omitted].

Murray, 770 F.2d at 67.

APPENDIX 4

061

In the present case, Gagnon failed to offer sufficient background circumstances that Sprint

is the unusual employer who discriminates against the majority. The evidence showed Sprint hired

Gagnon into a training department that was approximately ninety-five percent white and fifty percent

male. At the time of his hiring, Gagnon’s fellow managers (Meredith-Ball, Rodgers, Snyder, Keenan

and Coffman) were white and three were men. And, within the predominately white male

department, Sprint promoted Gagnon six months after he started (by Wilder, a white female, and

Mendenhall, a white male) and rewarded him with an eleven percent raise (by Kurtze, also a white

male). And, most significant, Gagnon did not offer evidence that any similarly situated minorities or

female employees were treated differently than him

Thus, Mendenhall’s comment is not direct evidence of reverse discrimination. And, Gagnon

did not produce any background evidence, including evidence that similarly situated individuals

outside of Gagnon’s class were provided preferential treatment, to show that Sprint is the unusual

employer who discriminates against the majority. Therefore, Gagnon’s reverse discrimination Title

VII and MHRA claims fail as a matter of law and, accordingly, the Court entered JAML for Sprint.

B. JAML —- PLAINTIFF'S RETALIATION CLAIM

To establish a prima facie retaliation claim, Gagnon had to prove that: (1) he engaged in a

protected activity; (2) Sprint subsequently took an “adverse employment action” against him; and (3)

the adverse action was causally linked to his protected activity. See Scusa v. Nestle U.S.A.

Company, Inc., 181 F.3d 958, 968 (8" Cir. 1999) (setting forth elements of a retaliation claim). As

a matter of law, Gagnon failed to establish an evidentiary foundation to support the second or third

elements of his claim, warranting JAML for Sprint.

APPENDIX 4

062

“While actions short of termination may constitute an adverse employment action [sic] within

the meaning of the statute, ‘not everything that makes an employee unhappy 1s an actionable adverse

Manning v. Metro. Life Ins. Co., Inc., 127 F.3d 686, 692 (8" Cir. 1997) (quoting

359 (8" Cir. 1997)). “An adverse employment

Montandon v. Farmland Indus. Inc., 166 F.3d 355,

yction is a tangible change in working conditions that produces a material employment disadvantage.”

Spears v. Mo. Vept. ol Corr. & Human Resources, 210 F.3d 850, 853 (8" Cir. 2000) “Employ ment

sctions which do not result in changes in pay, benefits, seniority, or responsibility are insufficient to

retaliation claim.” Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707, 715 (8" Cir. 2000)

\t il, Gagnon alleged two types of alleged retaliation: (1) his August 1998, written

reminder; and (2) alleged ostracism by his co-workers. Viewing the evidence in the light most

vorable to Gagnon, he failed to establish that either of these actions rose to the level of actionable

rity

et ‘ "— wnoder mtr ino i sokrbh _ ‘ ith

© revaliauon UNUeT COMMON: hth Circuit auth

& e

snt in the Eighth Circuit that an admonishment to an employee is not

ble retaliation. See Flannery v. Trans World Airlines, Inc., 160 F.3d 425, 427-28 (8 Cir

terat f an employee's personnel file not adverse employment

ration

MOT AUOT O}

uff alleged retaliatory actions of a change in work hours, reassignment

tion). In Flannery, the plain

to a different work station, various reprimands and the removal of roughly 300 complimentary letters

Id. at 427. However, similar to Gagnon, the plaintiff

and commendations from her personnel file. Id. at 42

in Flannery presented no evidence that any of those actions resulted in a reduction in pay, benefits,

Accordingly, the lower court held that the alleged retaliatory

aan

seniority and the like. Jd. at 428

For purposes of this Order, the written reminder includes all terms and conditions contained in the

written reminder policy. Specifically, the prohibition on promotions or transfers without approval of a

vice-president is treated as part of the written reminder, as a whole

16

APPENDIX 4 063

actions were not actionable because “there was no showing that they caused any significant

disadvantage to Flannery” and the Eighth Circuit affirmed the summary judgment ruling in favor of

the employer ” ia

In the case at bar, Gagnon did not offer evidence that he suffered a materially adverse

employment action and admitted the written reminder caused him no such harm. Specifically, he

testified that he did not lose any pay or other benefits of employment as a result of the written

reminder. Based on the controlling authority of Flannery, Gagnon failed to establish that the written

reminder constituted actionable retaliation as a matter of law.

Similarly, it is well settled in the Eighth Circuit that ostracism and rudeness by co-workers

does not rise to the level of an adverse employment action. See Manning, 127 F.3d at 693 (hostility

and ostracism by supervisor did not rise to the level of an actionable employment action). In

Manning, the plaintiffs’ supervisor constantly talked about his sex life in graphic detail, fondled his

genitals and asked female employees for sexual favors. Jd, at 688. The plaintiffs complained to

management about that conduct and in response the supervisor threatened-to kill at least one of the

plaintiffs and told her that his behavior was not to be questioned. Id, at 688-89. The plaintiff claimed

the supervisor's threat was actionable retaliation and survived JAML at the trial level and was

awarded a $275,000 jury verdict. On appeal, the Eighth Circuit reversed and entered JAML against

the plaintiff on her retaliation claim, holding such hostility and ostracism by her supervisor did not rise

os

at

Numerous Eighth Circuit opinions echo the holding in Flannery. See, e.g., Spears, 210 F.3d at 854

(affirming summary judgment, rejecting plaintiff's claims that job transfer and poor job evaluation

constituted actionable adverse employment actions); Scusa, 181 F.3d at 968-69 (affirming summary

judgment; cataloging Eighth Circuit authority holding that actionable adverse action requires a material

employment disadvantage or an ultimate employment decision, such as termination); Hariston v.

McDonnell! Douglas Corp,, 37 F.3d 379, 382 (8 Cir. 1994) (affirming summary judgment, and holding

that reassignment to more stressful, tedious job that pays the same and has the same benefits is not an

actionable employment action, and is “nothing more disruptive than a mere inconvenience or an alteration

of job responsibilities”)

17

APPENDIX 4

to the level of an actionable employment action. Id. at 693; see also Scusa, 181 F.3d at 968-70

(holding that snide remarks and ostracism did not constitute actionable retaliation).

The conduct that Gagnon alleges in the present case is less significant when compared to the

evidence in Manning and Scusa. For example, Gagnon testified, inter alia, that Keenan would not

-

say “hello” to him and would not look at him when they passed in the hallway. Thus, as a matter of

law, Gagnon failed to establish that his alleged differences, or ostracism, with his co-workers rose to

the level of actionable retaliation by Sprint.

In addition, Gagnon did not introduce evidence that co-worker ostracism was causally linked

to his complaints to the EEOC and MHRC. “Title VII protection from retaliation for filing a

complaint does not clothe the complainant with immunity for past and present inadequacies,

unsatisfactory performance, and uncivil conduct in dealing with subordinates and with peers.”

Comstock v. Consumers Markets, Inc., 953 F.Supp. 1096, 1104 (W.D. Mo. 1996) (quoting Valdez

v. Mercy Hosp.. 961 F.2d 1401, 1403 (8" Cir. 1992)). Thus, in order to create a prima facie

retaliation claim, Gagnon had to prove the alleged retaliatory actions that he complains about were

causally linked to his protected activity. See Herrero, 109 F.3d at 484 (holding that plaintiff failed

to prove that alleged mistreatment by other employees was causally linked to alleged retaliation).

In regard to Gagnon’s claims that his coworkers were cold towards him, he did not offer any

evidence that the treatment was linked to his Charge. In fact, Gagnon testified he kept the issue to

himself and did not have any reason to believe his coworkers knew about the Charge with the

exception of Meredith-Ball, whom he discussed the Charge with and who is also a plaintiff against

Sprint in a discrimination lawsuit.

In summary, Gagnon did not offer evidence to link his written reminder and differences with

coworkers to his Charge. Instead, Gagnon wanted the Court and the jury to second-guess Wilder’s

18

APPENDIX 4

065

business judgment (for issuing the written reminder) and the reasons why he and some of his fellow

employees did not get along. Because “{fjederal courts do nct sit as a super-personnel department

that reexamines an entity’s business decisions,” Kneibert v. Thomson Newspapers, Michigan Inc,, 129

F.3d 444, 454 (8" Cir. 1997) (quoting Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 973 (8" Cir.

1994)), Gagnon’s claims of retaliation fail as a matter of law and the Court entered JAML in favor

of Sprint.

IV. CONCLUSION

In the case at bar, Gagnon did not introduce sufficient evidence to show as a matter of law

that Sprint was the unusual employer who discriminates against the majority in support of his claim

of race and gender discrimination. In addition, the introduced evidence was insufficient to support

Gagnon’s retaliation claim. Based on the foregoing, the Court hereby

GRANTS Sprint’s motion for JUDGMENT as A MATTER of LAW on Gagnon’s claim

of race and gender discrimination in violation of Title VII and the MHRA. The Court further

GRANTS Sprint’s metion for JUDGMENT as A MATTER of LAW on Gagnon’s claim

of retaliation as a result of filing a complaint with the EEOC and MHRC and in violation of Title VII

and the MHRA. The Court further

DISMISSES all remaining claims as moot

IT IS SO ORDERED.

~

Dean Whippt~

United States District Judge

Date S-1O-O/

19

APPENDIX 4

066

eo & $ (

¢ IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

WILLIAM E. GAGNON,

Plaintiff,

No. 99-0683-CV-W-1

¥.

SPRINT CORPORATION, et al.,

Defendants.

ORDER

Pending before the Court is Defendants’ application for attorneys’ fees and suggestions in

support, and Defendants’ first and second supplement to the application for fees. Other related

documents consist of Plaintiff's opposition to the motion for attorneys’ fees, Defendants’ reply,

Plaintiff's further response, Defendants’ reply to the further response, Plaintiff's motion to strike

Defendants’ reply brief, Plaintiff's surreply, and Plaintiff's motion to defer ruling on the motion for

attorneys’ fees and brief comments on daily timesheets. Plaintiff's Title VII and Missouri Human

Rights Act (“MHRA”) reverse discrimination and retaliation claims proceeded to trial in January

2001. The Court granted Defendants’ motion for judgment as a matter of law. Defendants request

that pursuant to Federal] Rule of Civil Procedure 54(d)(2), 42 U.S.C. § 2000e-5(k), and Mo. Rev.

Stat. §213.111(2), the Court declare them prevailing parties on Plaintiff s reverse discrimination and

retaliation claims and award Defendants $75,000 as reasonable attorneys’ fees incurred in defending

against these claims. The Court has considered carefully the arguments presented by the parties.

For the following reasons, the Court GRANTS Defendants’ application for attorneys’ fees in the

amount of $75,000.

APPENDIX 5 067

pocunerT# [KO

bad DISCUSSION

Defendants request an award of $75,000 in attorneys’ fees and costs. Plaintiff contends that

the Defendants are not entitled to fees. The Court may award attorneys’ fees to a Defendant that

prevails ona Title VII claim. 42 U.S.C. § 2000e-5(k); Coleman v. General Motors Corp., 667 F.2d

704 (8" Cir. 1981)(awarding fees to a prevailing defendant). A prevailing defendant is entitled to

an award of attorneys’ fees under the MHRA when the claims against it are “without foundation.”

Mo. Rev. Stat. § 213.111(2). The same standards govern fee awards under litle VII and the MHRA.

See Hartig v. Professional Laundry Management Systems, Inc., 33 F. Supp. 2d 817 (E.D. Mo. 1999).

To award fees, the Court must find that Plaintiff's claims were “frivolous, unreasonable, or

groundless, or that (he) continued to litigate after it clearly became so.” Coleman, 667 F.2d at 707

(quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)). Even if Plaintiff contends

& that he filed his claims in good faith, that does not preclude an award of attorneys’ fees. See Tang

vy. State of Rhode Island, 163 F.3d 7 (1* Cir. 1998). If the case is one that “should never have been

filed,” an award of attorneys’ fees is appropriate. Hoover v. Amco, Inc., 691 F.Supp. 184 (W.D. Mo.

1988)(awarding prevailing defendant attorneys’ fees).

Plaintiff sued Defendants for reverse discrimination because he did not receive a raise that

exceeded the limit of Sprint PCS’ promotion policy. Plaintiff, a white man, was hired by white men

and a white woman, received a promotion from a white man and a white woman, and received pay

increases and incentive compensation. Plaintiff failed to offer credible evidence at trial to meet his

burden of proving reverse discrimination. Instead, his claim hinged on Lynn Meredith-Ball’s

statement that she heard a non-decision maker and a white man refer to Plaintiff as a “white guy.”

Plaintiff also failed to prove that he was retaliated against. Thus, the Court granted Judgment as a

APPENDIX 5 068

—_———xoe_ °°».

[= ® a

> Matter of Law for Defendants. Plaintiff's claims were frivolous and groundless, and the Court

declares that Defendants are the “prevailing party,” and are entitled to attorneys’ fees.

Defendants seek reimbursement for time spent defending this case, both at Bryan Cave and

Husch & Eppenberger. While the case was handled at Bryan Cave, Plaintiff had four claims

pending: reverse discrimination under Title VII and the MHRA; retaliation under Title VII and the

MHRA: military discrimination under USERRA; and retaliation under USERRA. Defendants

recognize that attorneys’ fees are not recoverable on Plaintiff's USERRA claims, which were two

of four claims. Thus, Defendants seek reimbursement for only half of the time spent while the case

was handled at Bryan Cave, which amounts to $46,229.12 in fees.

Mr. Yates moved from Bryan Cave to Husch & Eppenberger on August 25, 2000, and after

this time fees were incurred at this firm. From August 25, 2000 until January 4, 2001, Plaintiff still

S had four claims pending. Because attorneys’ fees are not recoverable in two of the claims, the

Defendants seek reimbursement for half of the time spent on this matter between these dates, which

amounts to $50,539.75. On January 4, 2001, the Court granted Defendants’ motion for partial

summary judgment, eliminating the USERRA claims. From that point through trial and preparation

of the proposed JMOL order. Defendants seek reimbursement for all of the time spent on this case,

which totals $63,928.50. Thus, the total amount sought by Defendants is $160,697.37.

However, because Defendants understand that Plaintiff does not have unlimited resources,

Defendants request only $75,000 in attorneys’ fees. Plaintiff disputes that Defendants are entitled

to attorneys’ fees and requested that this Court order Defendants to produce billing records supporting

Defendants’ supplement to the application for fees. (Plaintiff's surreply, Doc. No. 175). The Court

issued such an order on November 27, 2001, and Defendants submitted their billing records.

APPENDIX 5 069

OOOO

io After a review of the pleadings and billing records, and after taking into account the

complexity of this case and skill of the attorneys’, the Court finds that Defendants’ request for

$75,000 in attorneys’ fees is reasonable.

CONCLUSION

Based on the foregoing, the Court hereby

GRANTS Defendants’ application for attorneys’ fees. The Court

AWARDS Defendants $75,000 in attorneys’ fees.

IT IS SO ORDERED.

Dean Whipple

United States District Judge

a

Date 4 is 4-02

APPENDIX5 070

ors eee re

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

WILLIAM E. GAGNON,

Plaintff,

No. 99-0683-CV-W-1

PRINT CORPORATION, et al.,

Defendants.

— 2 eo i ee ee

ORDER

Pending before this court is a joint relief from judgment signed by all parties, fiied July 1,

2002. In an order dated February 4, 2002, this Court awarded fees and expenses to the Defendant

as the prevailing party in the underlying case. On March 19, 2002, the Court of Appeals issued

its opinion in Gagnon v. Sprint Corporation, Case No. 01-2505, which reversed the District

Court's order granting judgment as a matter of law on Plaintiff's claim of “reverse

discrimination” and remanded the case to the District Court for further proceedings. The parties

state and agree that, given the present procedural posture of this case, the order of this Court

entered February 4, 2002 should be vacated.

Pursuant to Federal Rule of Civil Procedure 60(b), the District Court’s order entered

February 4, 2002 is vacated and Plaintiff is granted relief from such judgment.

IT IS SO ORDERED. / /

Dean Whip

United States District Judge

ics uty 15 2002 APPENDIX6 071

cress g tt

Volcceal

38 § 4301. Purposes; sense of Congress

(a) The purposes of this chapter are-

(1) to encourage noncareer service in the uniformed services by eliminating or

minimizing the disadvantages to civilian careers and employment which can result from such

service;

(2) to minimize the disruption to the lives of persons performing service in the

uniformed services as well as to their employers, their fellow employees, and their

communities, by providing for the prompt reemployment of such persons upon their

completion of such service; and

(3) to prohibit discrimination against persons because of their service in the

uniformed services.

(b) Itis the sense of Congress that the Federal Government should be a model employer in

carrying out the provisions of this chapter.

APPENDIX 7 072

EO

38 § 4303. Definitions

For the purposes of this chapter-

(1) The term "Attorney General" means the Attorney General of the United States or any

person designated by the Attorney General to carry out a responsibility of the Attorney General

under this chapter.

(2) The term "benefit", "benefit of employment", or "rights and benefits" means any

advantage. profit. privilege, gain. status, account, or interest (other than wages or salary for work

performed) that accrues by reason of an employment contract or agreement or an employer policy,

plan. or practice and includes rights and benefits under a pension plan, a health plan, an employee

stock ownership plan. insurance coverage and awards, bonuses, severance pay, supplemental

unemployment benefits. vacations, and the opportunity to select work hours or location of

employment.

(3) The term "employee" means any person employed by an employer. Such term includes

any person who is a citizen, national, or permanent resident alien of the United States employed in

a workplace ina foreign country by an employer that is an entity incorporated or otherwise organized

in the United States or that 1s controlled by an entity organized in the United States, within the

meaning of section 4319(c) of this title.

(4)(A) Except as provided in subparagraphs (B) and (C), the term "employer" means any

person, institution, organization, or other entity that pays salary or wages for work performed or that

has control over employment opportunities, including—

(1) a person, institution, organization, or other entity to whom the employer has

delegated the performance of employment-related responsibilities;

(i1) the Federal Government;

(ili) a State;

(iv) any successor in interest to a person, institution, organization, or other entity

referred to in this subparagraph: and

(v) a person, institution, organization, or other entity that has denied initial

employment in violation of section 4311.

(B) In the case of a National Guard technician employed under section 709 of title 32, the

term "employer" means the adjutant general of the State in which the technician is employed.

(C) Except as an actual employer of employees, an employee pension benefit plan described

in section 3(2) of the Employee Retirement Income Security Act of 1974 (> 29 U.S.C. 1002(2)) shall

APPENDIX 7

073

A

be deemed to be an employer only with respect to the obligation to provide benefits described in

section 4318.

(5) The term "Federal executive agency" includes the United States Postal Service, the Postal

Rate Commission, any nonappropriated fund instrumentality of the United States, any Executive

agency (as that term is defined in section 105 of title 5) other than an agency referred to in section

2302(a)(2)(C (11) of title 5, and any military department (as that term is defined in section 102 of title

5) with respect to the civilian employees of that department

(6) The term "Federal Government" includes any Federal executive agency, the legislative

branch of the United States, and the judicial branch of the United States

(7) The term "health plan” means an insurance policy or contract, medical or hospital service

agreement, membership or subscription contract, or other arrangement under which health services

for individuals are provided or the expenses of such services are paid

(8) The term "notice" means (with respect to subchapter I]) any written or verbal notification

of an obligation or intention to perform service in the uniformed services provided to an employer

by the employee who will perform such service or by the uniformed service in which such service

is to be performed.

(9) The term "qualified", with respect to an employment position, means having the ability

to perform the essential tasks of the position.

(10) The term "reasonable efforts", in the case of actions required of an employer under this

chapter, means actions, including training provided by an employer, that do not place an undue

hardship on the employer.

(11) Notwithstanding section 101, the term "Secretary" means the Secretary of Labor or any

person designated by such Secretary to carry out an activity under this chapter.

(12) The term "seniority" means longevity in employment together with any benefits of

employment which accrue with, or are determined by, longevity in employment.

(13) The term "service in the uniformed services" means the performance of duty on a

voluntary or involuntary basis in a uniformed service under competent authority and includes active

duty, active duty for training, initial active duty for training, inactive duty training, full-time National

Guard duty, a period for which a person is absent from a position of employment for the purpose of

an examination to determine the fitness of the person to perform any such duty, and a period for

which a person is absent from employment for the purpose of performing funeral honors duty as

authorized by section 12503 of title 10 or section 115 of title 32.

(14) The term "State" means each of the several States of the United States, the District of

Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and other territories of the

United States (including the agencies and political subdivisions thereof).

APPENDIX7 074

(1S) The term “undue hardship", in the case of actions taken by an employer. means actions

)

requiring significant difficulty or expense, when considered in light of

(A) the nature and cost of the action needed under this chapter;

(B) the overall financial resources of the facility or facilities involved in the

provision of the action: the number of persons employed at such facility; the effect on

expenses and resources, or the impact otherwise of such action upon the operation of the

(C) the overall financial resources of the employer: the overall size of the business

of an emplover with respect to the number of its employees: the number, type, and location

of its facilites: and

(D) the type of operation or operations of the employer, including the composition,

structure, and functions of the work force of such employer: the geographic separateness,

administrative, or fiscal relanionship of the facility or facilities in question to the employer.

16) The term “uniformed services” means the Armed Forces, the Army National Guard and

the Air National Guard when engaged in active duty for training. inactive duty training. or full-time

National Guard duty, the commissioned corps of the Public Health Service, and any other category

of persons designated by the President in time of war or national emergency

APPENDIX 7

075

38 § 4311. Discrimination against persons who serve in the uniformed services and acts of

reprisal prohibited

(a) A person who is a member of, applies to be a member of, performs, has performed,

applies to perform, or has an obligation to perform service 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, application for membership,

performance of service, application for service, or obligation.

(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, (2) has testified or otherwise made a statement

in or in connection with any proceeding under this chapter, (3) has assisted or otherwise participated

in an investigation under this chapter, or (4) has exercised a right provided for in this chapter. The

prohibition in this subsection shall apply with respect to a person regardless of whether that person

has performed service in the uniformed services.

(c) An employer shall be considered to have engaged in actions prohibited-

(1) under subsection (a), if the person's membership, application for membership,

service, application for service, or obligation for service 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; or

(2) under subsection (b), if the person's (A) action to enforce a protection afforded

any person under this chapter, (B) testimony or making of a statement in or in connection

with any proceeding under this chapter, (C) assistance or other participation in an

investigation under this chapter, or (D) exercise of a right provided for in this chapter, 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 person's enforcement action, testimony,

statement, assistance, participation, or exercise of a right.

(d) The prohibitions in subsections (a) and (b) shall apply to any position of employment,

including a position that is described in section 4312(d)(1)(C) of this title.

APPENDIX 7 076

38 § 4323. Enforcement of rights with respect to a State or private employer

(a) Action for relief.--( 1) A person who receives from the Secretary a notification pursuant

to section 4322(e) of this utle of an unsuccessful effort to resolve a complaint relating to a State (as

an employer) or a private emplover may request that the Secretary refer the complaint to the

ttorney General. If the Attorney General is reasonably satisfied that the person on whose behalf

the complaint ts referred 1s entitled to the nghts or benefits sought, the Attorney General may appear

on behalf of. and act as attomey for. the person on whose behalf the complaint is submitted and

commence an action for relief under this chapter for such person. In the case of such an action

against a State (as an emplover). the action shall be brought in the name of the United States as the

plaintiff in the action

(2) A person may commence an action for relief with respect to a complaint against a State

(as an employer) or a private emplover if the person-

(A) has chosen not to apply to the Secretary for assistance under section 4322(a) of

this ttle:

(B) has chosen not to request that the Secretary refer the complaint to the Attorney

General under paragraph (1): or

(C) has been refused representation by the Attorney General with respect to the

complaint under such paragraph

(b) Jurisdiction.-—(1) In the case of an action against a State (as an employer) or a private

emplover commenced by the United States, the district courts of the United States shall have

jurisdiction over the action

(2) In the case of an action against a State (as an employer) by a person, the action may be

brought in a State court of competent jurisdiction in accordance with the laws of the State.

(3) In the case of an action against a private employer by a person, the district courts of the

United States shall have junsdiction of the action.

(c) Venue.--(] ) In the case of an action by the United States against a State (as an employer),

the action may proceed in the United States district court for any district in which the State exercises

any authority or carries out any function

(2) In the case of an action against a private employer, the action may proceed in the United

States district court for any district in which the private employer of the person maintains a place of

business.

(d) Remedies.--( 1) In any action under this section, the court may award relief as follows:

APPENDIX 7 077

(A) The court may require the employer to comply with the provisions of this

chapter.

(B) The court may require the employer to compensate the person for any loss of

wages or benefits suffered by reason of such employer's failure to comply with the provisions

of this chapter.

(C) The court may require the employer to pay the person an amount equal to the

amount referred to in subparagraph (B) as liquidated damages, if the court determines that

the employer's failure to comply with the provisions of this chapter was willful.

(2A) Any compensation awarded under subparagraph (B) or (C) of paragraph (1) shall be

in addition to, and shall not diminish, any of the other rights and benefits provided for under this

chapter

(B) In the case of an action commenced in the name of the United States for which the relief

includes compensation awarded under subparagraph (B) or (C) of paragraph (1), such compensation

shall be held in a special deposit account and shall be paid, on order of the Attorney General, directly

to the person. If the compensation is not paid to the person because of inability to do so within a

period of 3 years, the compensation shall be covered into the Treasury of the United States as

miscellaneous receipts.

(3) A State shall be subject to the same remedies, including prejudgment interest, as may

be imposed upon any private employer under this section.

(e) Equity powers.--The court may use its full equity powers, including temporary or

permanent injunctions, temporary restraining orders, and contempt orders, to vindicate fully the

rights or benefits of persons under this chapter.

(f) Standing.--An action under this chapter may be initiated only by a person claiming rights

or benefits under this chapter under subsection (a) or by the United States under subsection (a)(1).

(g) Respondent.-In any action under this chapter, only an employer or a potential employer,

as the case may be, shall be a necessary party respondent.

(h) Fees, court costs.--(1) No fees or court costs may be charged or taxed against any person

claiming rights under this chapter.

(2) In any action or proceeding to enforce a provision of this chapter by a person under

subsection (a)(2) who obtained private counsel for such action or proceeding, the court may award

any such person who prevails in such action or proceeding reasonable attorney fees, expert witness

fees, and other litigation expenses.

(i) Inapplicability of State statute of limitations.--No State statute of limitations shall

apply to any proceeding under this chapter.

APPENDIX 7

078

(j) Definition.--In this section, the term "private employer" includes a political subdivision

of a State.

APPENDIX 7 079

Citation Search Result Rank 8 of 13 Database

S. REP. 103-158 LH

S. Rep. No. 158, 103RD Cong., 1ST Sess. 1993, 1993 WL 432576 (Leg.Hist.)

Page 2

P.L. 103-353, UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT

OF 1994

UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1993

DATES OF CONSIDERATION AND PASSAGE

House: May 4, 1993; September 13, 1994

Senate: November 2, 1993; September 28, 1994

Cong. Record Vol. 139 (1993)

Cong. Record Vol. 140 (1994)

House Report (Veterans' Affairs Committee) No. 103-65,

Apr. 28, 1993 (To accompany H.R. 995)

Senate Report (Veterans' Affairs Committee) No. 103-158,

Oct. 18, 1993 (To accompany S. 843)

SENATE REPORT NO. 103-158

October 18, 1993

[To accompany S. 843]

The Committee on Veterans' Affairs, to which was referred the bill (S. 843) to

amend title 38, United States Code, to improve reemployment rights and benefits

of veterans and other benefits of employment of certain members of the uniformed

services, having considered the same, reports favorably thereon with an

amendment in the nature of a committee substitute, and recommends that the bill,

as amended, do pass.

CONTENTS

Page

ee Pere ee eT ee ee eee Te eT ee ee Tee ee ee ee Te Ore re! 1

ee ee ee ee ee ee ree ere Pee er ee ee ee ee ee en ee aa

oe ee ee re ee ee ee a ne an a2

Discussion:

POTASEGN GE GUEPEOS €F OE SECO FO koe. 6.4 6k heehee ee nkcadvee nev ees 39

Subchapter I-General:

Section 4301. Purposes; sense of CongreSS .........cccccces 40

Section 4302. Relation to other law; construction ......... 41

BOCCLOR. S202. DRE SOUSEOS fie ded a Fibre kb O00 8s s eek eee 41

BOCtiON 42704. CHEROGEOS GE SOFVEEE: 6c ccc Scar siccceveccnete SS

Subchapter II-Employment and reemployment rights and

limitations; prohibitions:

Section 4311. Discrimination against persons who

serve in the uniformed services and

SctUs OF COMPCISAL HEOGRADICEG «2 ccvcccevverse’ 45

Section 4312. Reemployment rights of persons who serve

AR GO UNLECEMOE SOFVACOES 6s sc ecvesceeess -- 46

Section 4313. Reemployment a a fer ee ee ee re 52

Section 4314. Reemployment by the Federal Government ee ee 54

Section 4315. Reemployment by certain Federal

Copr. © West 2000 No Claim to Orig. U.S. Govt. Works

APPENDIX8 080

ey

bol

Page 38

REP. 103-158

itle 38 that nothing in chapter 43 overrides any other law, or any plan,

ontract, policy or practice that provides a greater benefit than chapter 43

rovides for someone serving in the uniformed services. Thus, chapter 43 is

ntended to be a floor and not a ceiling on reemployment rights.

New section 4302(b) would clarify that chapter 43 preempts any State law or

ny plan, contract, policy or practice that would limit chapter 43 rights or

enefits or that impose any additional prerequisites on the exercise of those

ights or the receipt of those benefits. The rights under chapter 43 belong to

he employee and, as such, can only be waived through unambiguous and voluntary

ction by the employee.

ection 4303. Definitions

New section 4303 would define, for the first time, various terms used in

hapter 43.

New section 4303(1) would define "Attorney General" as the Attorney General of

he United States as well as any person designated by the Attorney General to

bsent from employment) that accrues by reason of an employment contract or an

mployer practice or custom and includes by way of illustration the varicus

ttributes of the employment relationship that might be affected by an absence //

rom employment. ; /

New section 4303(3) (A) would define "employee" as any person employed by an

mployer. The Committee intends the term "employee", including temporary

mployees (see discussion of new section 4312), to be considered in the same

xpansive manner as under the Fair Labor Standards Act, 29 U.S.C. 203(e). The

ommittee intends that the term "employee" would include former employees of an

mployer as the Court of Appeals for the 11th Circuit held in Bailey v. USxX

orp., 850 F.2d 1506, 1509 (llth Cir. 1988). The Committee expects that in

ases in which the issue of whether an individual is an independent contractor

r employee would be resolved in the same manner as under the Fair Labor

tandards Act.

New section 4303(3)(B) would provide that with respect to e

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