IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 02-2447 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. KOHLER COMPANY, doing business as Sterling Plumbing Group, Defendant-Appellee. On Appeal from the United States District Court for the Eastern District of Arkansas BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS THE APPELLANT NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731(w) (202) 663-7090 (fax) SUMMARY OF THE CASE The Equal Employment Opportunity Commission (“EEOC” or “Commission") brought this Title VII action in the district court alleging that Kohler Company (“Kohler”) engaged in racial discrimination and retaliation when it terminated charging party John Reynolds. The jury entered a verdict against the EEOC on the race discrimination claim and the district court entered judgment as a matter of law against the EEOC, setting aside the jury's favorable verdict on the retaliation claim. This appeal is from the district court's judgment as a matter of law on the EEOC's retaliation claim. The EEOC is the agency charged by Congress with the enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This appeal requires this Court to determine whether, viewing the record in the light most favorable to the EEOC, evidence of temporal proximity between the discrimination complaint and the termination, along with evidence of inconsistent enforcement of company policies, and disparate discipline of policy violators was sufficient to support the jury's finding that Kohler's discharge of employee John Reynolds was retaliatory under Title VII. The Commission believes that oral argument of 15 minutes for each party will assist the Court in its consideration of this question, which is critical to the Commission's mission of enforcing workplace nondiscrimination laws. TABLE OF CONTENTS SUMMARY OF THE CASE i TABLE OF AUTHORITIES iv STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUE 1 STATEMENT OF THE FACTS 2 1. The Plant's Operations and Policies 2 2. The Plant's Key Management Staff 6 3. Relevant Facts Pertaining to Reynolds and the Disciplinary Actions 8 4. The Proceedings of the Case 20 5. District Court's Decision 21 SUMMARY OF THE ARGUMENT 23 ARGUMENT: THE DISTRICT COURT IMPROPERLY SET ASIDE THE JURY'S VERDICT FOR THE COMMISSION ON THE RETALIATION CLAIM BECAUSE THERE WAS SUFFICIENT EVIDENCE OF CAUSATION AND PRETEXT FROM WHICH THE FACTFINDER COULD AND DID CONCLUDE THAT REYNOLDS WOULD NOT HAVE BEEN FIRED IF HE HAD NOT COMPLAINED OF RACIAL DISCRIMINATION 25 A. The Complaint was a Motivating Factor in the Discharge Decision 30 B. Admission of Wrongdoing Was Not a Credible Reason for Dismissal 32 C. Inconsistent and Lax Enforcement of Company Policies Suggest the Proffered Reason was Pretextual 35 D. Inconsistency in Disciplinary Actions Strongly Indicates that the Proffered Reason for Reynolds' Termination was a Pretext 39 E. Reynolds' Unique Production Requirements and Work Assignments Suggests His Infraction was Neither a Serious nor Terminable Offense 43 CONCLUSION 46 CERTIFICATION OF WORD PROCESSING PROGRAM CERTIFICATE OF SERVICE ADDENDUM TABLE OF AUTHORITIES CASES Bassett v. City of Minneapolis, 211 F.3d 1097 (8th Cir. 2000) 30 Bradley v. Widnall, 232 F.3d 626 (8th Cir. 2000) 22 Brown v. Lester E. Cox Med. Ctrs, 286 F.3d 1040 (8th Cir. 2002) 25 Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033 (2d Cir. 1993) 30 Cummings v. Malone, 995 F.2d 817 (8th Cir. 1993) 47 Davenport v. Riverview Gardens School Dist., 30 F.3d 940 (8th Cir. 1994) 39 Dunn v. Nordstrom, Inc., 260 F.3d 778 (7th Cir. 2001) 46 Duty v. Norton-Alcoa Proppants, 2002 WL 1312197 (8th Cir. June 18, 2002) 26, 29 EEOC v. Avery Dennison Corp., 104 F.3d 858 (6th Cir. 1997) 27 English v. Colorado Dep't of Corrections, 248 F.3d 1002 (10th Cir. 2001) 39 Harvey v. Anheuser-Busch, Inc., 38 F.3d 968 (8th Cir. 1994) 39 Hiatt v. Rockwell International Corp., 26 F.3d 761 (7th Cir. 1994) 39 Hocevar v. Purdue Frederick Co., 223 F.3d 721 (8th Cir. 2000) 27 Jackson v. Missouri Pacific R.R., 803 F.2d 401 (8th Cir. 1986) 46 Keathley v. Ameritech Corp., 187 F.3d 915 (8th Cir. 1999) 45 Kipp v. Missouri Highway Transp. Comm'n, 280 F.3d 893 98th Cir. 2002) 25, 28 Kovacevich v. Kent State Univ., 224 F.3d 806 (6th Cir. 2000) 27 Long v. Eastfield College, 88 F.3d 300 (5th Cir. 1996) 31 Lowery v. Hazelwood School Dist., 233 F.3d 654 (8th Cir. 2001) 32, 33 McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976) 35 McGill v. Munoz, 203 F.3d 843 (D.C. Cir. 2000) 46 McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995) 34 Nichols v. American Nat. Ins. Co., 154 F.3d 875 (8th Cir. 1998) 46 Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000) 25, 26, 28, 29 Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035 (7th Cir. 1993) 45 Sherman v. Runyon, 235 F.3d 406 (8th Cir. 2000) 28, 30 Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) 28 Waters v. Churchill, 511 U.S. 661 (1994) 32 Wilking v. County of Ramsay, 153 F.3d 869 (8th Cir. 1998) 23 Yates v. Rexton, Inc., 267 F.3d 793 (8th Cir. 2001) 25, 29 STATUTES AND RULES 28 U.S.C. § 1291 1 28 U.S.C. § 1331 1 28 U.S.C. § 1343 1 28 U.S.C. § 1345 1 42 U.S.C. § 2000e-5(f)(3) 1 Fed. R. Civ. P. 50(a)(1) 25 STATEMENT OF JURISDICTION This is an appeal from the final order of the district court entering judgment as a matter of law on the EEOC's retaliation claim, setting aside the favorable jury verdict on that claim, and dismissing the EEOC's entire complaint with prejudice. The district court had jurisdiction of this matter pursuant to 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. §§ 1331, 1343, and 1345. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the district court erred in setting aside a jury's favorable verdict on the EEOC's retaliation claim, where the record contains substantial evidence showing that charging party was terminated shortly after he complained of race discrimination and that it was more likely than not that his alleged violations of company policies were not the real reason for the termination. Pertinent or Apposite Cases Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Sherman v. Runyon, 235 F.3d 406, 410 (8th Cir. 2000). Davenport v. Riverview Gardens School Dist., 30 F.3d 940, 945 (8th Cir. 1994). Keathley v. Ameritech Corp., 187 F.3d 915 (8th Cir. 1999). STATEMENT OF THE FACTS<1> John Reynolds was terminated after being questioned about his failure to comply with a company policy governing work shifts and hours claimed for pay. To evaluate the jury's conclusion that he was actually fired in retaliation for complaining that he was being singled out for these violations of procedures due to his race, it is necessary to explain the plant's policies and practices in some detail. 1. The Plant's Operations and Policies Kohler Company, an international privately held company that does business as Sterling Plumber Group in Searcy, Arkansas, manufactures and markets plumbing fixtures such as stainless steel sinks. Tr. I at 115, EA-17(Miller); Tr. III at 354, EA-143 (Davis). The physical outlay of the plant spans approximately 207,000 square feet. Tr. II at 197, EA-66; Tr. III at 354, EA-143. From 1997 to 1998, the Sterling facility had 300 employees and 15 foremen. Tr. I at 116, EA-18; Tr. II at 219-20, EA-80-81 (Dickson). The Arkansas facility operated with three standard shifts. Generally, these shifts ran from 7 a.m. to 3:30 p.m., 3 p.m. to 11:30 p.m., and 11 p.m. to 7:30 a.m. Tr. II at 220, EA-81 (Dickson). However, employees came and left at different hours and the foremen were authorized to make adjustments to the shift schedules. Id. at 166, EA-51 (Miller). Absent permission, clocking in and out early was a violation of company policy. Id. at 181, EA-62. Because half of the employees were violating the rule with impunity and arriving 30 minutes to two hours early, in May 1996, John Dickson, the plant manager, ordered all of the employees to clock in no earlier than 15 minutes prior to their assigned start time. Tr. III at 430-31, EA-158-159 (Froud); Pl. Ex. 11, TEA1-25.<2> Despite this mandate, employees on the first shift continued to come in early without permission. Id. at 431, EA-159. After January 6, 1998, when John Reynolds was fired, the foremen were again advised to remind the employees to start work only at their assigned times. Tr. II at 167, EA-52 (Miller). Kohler also had a company policy that required its employees to have their timecards signed by a foreman at the conclusion of their work but management knew that the employees did not always do it. Tr. II at 233-34, EA-91-92 (Dickson); id. at 260, EA-107 (Davis); Tr. III at 434, EA-161 (Froud). One reason for this lapse was that, at one time, the company only required the employees to get their timecards signed if they worked overtime. Tr. II at 233, EA-91 (Dickson); Tr. III at 500-01, EA-189-190 (Reynolds). Another reason was that sometimes it was difficult for the employees to find foremen to get the cards signed. Tr. II at 233-34, EA-91-92 (Dickson). Accordingly, employees who did not get their timecards signed were rarely penalized even though it was a policy violation. Id. at 235-36, EA-93-94; Tr. III at 434, EA-161 (Froud). On each shift, there were jobs that were straight time and others that had production quotas. Tr. II at 221, EA-82 (Dickson). Straight time employees were paid an hourly wage and were required to work the full eight hours of their shift at their work station. Id. at 199, EA-67(Miller). Production quotas represented the number of parts an employee was expected to complete per hour. Id. Under the company's “Get Off Work Early Program,” employees could be paid based on the hours they worked or by their production rate if their jobs had an established quota. Id. For example, if an employee had a production rate of 10 sinks per hour, then over an eight-hour period, he was expected to complete 80 sinks. Id. If the employee completed 80 sinks in six hours, he could quit work and spend the remaining two hours of his shift in the breakroom playing cards, outside pitching horseshoes, or in his vehicle sleeping so long as he did not leave the plant premises. Id. at 199, 222, EA-67, 83 (Dickson).<3> The employee also had the option of continuing to work, if authorized, and earning overtime pay. Id. at 200, EA-68 (Miller).<4> To ensure production quotas were met, the foreman was responsible for knowing how much production his shift was to get out and for knowing if there were problems with equipment or an inadequate flow of parts. Id. at 224, EA-84 (Dickson). The foreman also was responsible for checking the timecards of the employees and calculating their production on a daily basis. Id. at 260, EA-107 (Davis); Tr. III at 403-04, EA-148-149 (Hulsey); id. at 433, 440, EA-166 (Froud). To govern the employee's work conduct, Kohler and the employees' union set forth a list of prohibited conduct that was subject to discipline in their collective bargaining agreement (“CBA”). Tr. I at 127, EA-24 (Miller). That agreement is published in the employee handbook. Pl. Ex. 12, TEA1-26. The misconduct of “cheating” is not listed or defined in the CBA, but Kohler officials testified that it is a terminable offense particularly if it is cheating on pay. Tr. I at 129-130, EA-26-27 (Miller); Tr. II at 231, EA-89 (Dickson). According to Kohler officials, cheating can include someone claiming pay for work he did not perform or someone claiming overtime in parts or hours that he was not entitled to. Id. at 127-28, EA-24-25 (Miller); Tr. II at 230, EA-88 (Dickson). Cheating could also include falsifying company records such as timecards and production records or concealing defective work. Tr. II at 229, EA-87 (Dickson). It also violated company policy if an employee clocked in or out for another employee. Tr. II at 174, EA-56 (Miller). Purportedly, this conduct would result in the discipline of both employees. Id. 2. The Plant's Key Management Staff During the period of 1997-1998, John Dickson was the plant manager of the Sterling facility. Tr. I at 141, EA-33 (Miller). He had been employed with Kohler since 1985 and became plant manager in 1992, the position he held until he was fired in 1999 for failure to get along with the union. Tr. II at 217-18, EA-78-79 (Dickson). As plant manager, Dickson held the highest position at the facility and was responsible for setting and enforcing production standards. Id. at 219, EA-80. He also handled some personnel matters and grievances. Id. at 225, EA-85. Rebecca Miller was the Human Resources (“HR”) manager for Kohler during the time in question. Tr. I at 114, EA-16 (Miller). She reported to John Dickson. Id. at 120, EA-120. Although Dickson preferred that Miller handle most of the personnel issues, and acknowledged that she had the authority to terminate an employee, he required that she consult him before anyone was fired and he retained the authority to overrule her decisions. Tr. II at 226, EA-86 (Dickson). Miller's position required that, inter alia,<5> she be responsible for the staffing needs of the facility, which included hiring, firing and disciplining employees. Tr. I at 120, EA-19 (Miller). Miller explained that Kohler operated under a progressive discipline policy that can conclude with termination. Id. at 122, EA-21. For example, a person who repeatedly violated a company rule usually first received a verbal warning, then two written warnings, then a suspension and finally termination. Id. at 125, EA-23; Tr. II at 213, EA-76. However, a person who was caught sleeping on the job instead of working would receive a two-day suspension rather than a verbal or written warning because of the nature of the infraction and if a second offense occurred within a year of that suspension, that person would be terminated. Tr. I at 122, 125, EA-21, 23. Because of the progressive discipline policy, one foreman testified that he believed the only grounds for termination without prior warning would be for stealing company property, intoxication, and fighting. Tr. III at 436, 439, EA-163, 165 (Froud). According to Miller, a foreman did not have any input in deciding what discipline was given, Tr. I at 121, EA-20, but he could suggest a discipline. Tr. II at 156, EA-44. Instead, when there was a violation of company policy, Miller consulted the manufacturing manager and/or the plant manager, and they decided the discipline based on the nature of the violation. Tr. I at 120, 124, EA-19, 22. If an employee was disciplined in writing, Miller had to sign the form and a copy of the action was kept in the employee's file. Tr. I at 121, 125, EA-20, 23; Tr. II at 155, EA-43. 3. Relevant Facts Pertaining To Reynolds and the Disciplinary Actions John Reynolds, an African American, worked for Kohler from August 1991 until he was terminated on January 6, 1998. Tr. III at 449-50, EA-167-168 (Reynolds). On May 13, 1996, Reynolds was assigned to work as a deck sander on the first shift from 7 a.m. to 3:30 p.m. Pl. Ex. 11, TEA1-25; Tr. II at 220, EA-81 (Dickson); Tr. III at 457, EA-170 (Reynolds). Deck sanders use special machinery to clean the rough surface off the top of the sink and bring out the color in the metal. Tr. III at 450, EA-168 (Reynolds). There were 8 or 9 machines run in the deck sander classification, which included three pre-sanders and a manual deck sander. Id. at 456, EA-169. At some point, Reynolds began to clock in for work at 6 a.m. but he did not report to his work station until 7 a.m. Pl. Ex. 5, TEA1-14. At the end of the day, Reynolds would clock-out at 2:30 p.m. and go home. Id. According to Reynolds, he had been working this modified shift for a while. Id. He explained that he thought it was all right to come in and depart early because he had done it in the past without getting in trouble and because other employees were doing it. Tr. III at 474, 478, EA-181, 184; Pl. Ex. 5, TEA1-14 & Pl. Ex. 6, TEA1-15 (Miller's notes on the December and January meetings). As a deck sander, Reynolds was responsible for using a buffer to put a mirror finish on the sinks. Tr. II at 238, EA-96 (Dickson); Tr. III at 459, EA-172. Reynolds' production quota was 35 sinks per hour. Tr. II at 272, EA-117 (Davis). Hence, over an eight-hour period, he was expected to produce 280 sinks. Id. Often there were not enough parts to enable Reynolds to meet his production quota. Tr. II at 177, EA-58 (Miller); id. at 272, EA-117 (Davis); Tr. III at 429, EA-157 (Froud). Because of this erratic flow, it was difficult to know when Reynolds would get parts during the day and thus he was required to be at his work station for the eight-hour period. Tr. II at 239, EA-97 (Dickson). According to Dickson, because Reynolds' job was straight time, only a foreman could decide whether to relocate Reynolds to another job to make his production and Reynolds could not initiate a relocation on his own. Id. James Froud, a third shift foreman, also testified that a deck sander (or buffer) rarely came and requested more work to do because, even if there were no parts, there was a lot of work to do on the buffing machine, which was high-maintenance, and in that work station area. Tr. III at 429, EA-157. Generally, when Reynolds arrived at work, there were no sinks waiting for him. Tr. III at 458, 464, EA-171, 177 (Reynolds). Reynolds would then get the sinks off the wash line which was managed by Jerry Burkett. Id. at 459, EA-172. Burkett reported for work at 7 a.m. Id. As a matter of process, sinks usually would come first to Burkett, then go to Howard Bailey for manual deck sanding, and then to Reynolds to be run through the buffer. Tr. III at 362, EA-146 (Davis); id. at 459, 463-64, EA-172, 176-77 (Reynolds). Since Burkett did not report to work until 7a.m., Reynolds said that Bailey would not have work to do at 6 a.m. Id. at 464-65, EA-177-178 (Reynolds). Reynolds also said that there were days that Bailey would clock in at 6 a.m. and then walk out of the building and go to his truck rather than his work station. Id. at 475, EA-182. He testified that on five or ten occasions, either Charles Davis, his immediate supervisor, or Richard May, the general foreman,<6> would send him to look for Bailey and he would find him asleep in his truck. Id. at 475-76, EA-182-183. James Froud, a third shift foreman, also said he would see first shift employees such as Howard Bailey sitting in the breakroom before starting work. Tr. III at 435, EA-162 (Froud).<7> With respect to the beginning of the shift, Reynolds testified that when he clocked in at 6 a.m., he would see other first shift employees, Michael Senko and Jeremy Askins, clock in at 6 a.m. Tr. III at 479, EA-185 (Reynolds); id. at 530, EA-194 (Senko); id. at 540, EA-201 (Askins); Def. Ex. 22, TEA2-234-294 (Senko's timecards); Def. Ex. 24, TEA2-295-352 (Askins' timecards). He said that after clocking in, they would leave the building and either go to their trucks or visit with other employees rather than immediately going to work. Tr. III at 479, EA-185 (Reynolds). Senko and Askins were sprayers who received sinks that had gone through Reynolds' buffing process and the trim press. Id. at 464, EA-177 (Reynolds). Spraying was one of the last steps in the sink process, id. at 529, EA-193 (Senko), and according to Reynolds, there were often no sinks for Senko and Askins to spray at 6:00 a.m. Id. at 464, EA-177 (Reynolds).<8> During Reynolds' tenure at Kohler, neither Senko nor Askins were written up by Davis for clocking in at 6 a.m. and leaving at 2:30 p.m. Id. at 534, EA-198 (Senko); id. at 543, EA-202 (Askins). Senko stated that it was not until he received a write-up in September 1998 that he learned clocking in and out early was prohibited conduct. Id. at 535, EA-199. Similarly, Askins said he did not know that leaving the plant premises before the end of his shift was prohibited by the CBA and, although he eventually received a verbal warning, he was never written up for coming in or leaving early. Id. at 543-44, EA-202-203. Most days at the plant, the supply parts came to Bailey and Reynolds very slowly. Tr. III at 465, EA-178. Reynolds testified that four out of five days or even 95 percent of the time he would finish his work before 2:30 p.m. Id. at 459-60, EA-172-173. On those days, he would do nothing for the last hour of his shift and never got into trouble for it. Id. at 460, EA-173. During the earlier hours of the work day, however, Davis or May would assign Reynolds to work other machines, such as the wash line and the annealer, which are in different job classifications and would not contribute to Reynolds' production quota on the buffer. Id. at 461-63, EA-174-176. In fact, Reynolds claimed that these other assignments caused him to lose the production time he had gained on the buffer when he completed his sinks in less time than required. Id. at 460, 463, 493, EA-173, 176, 188. He also said that when he was placed on straight time assignments such as changing the buffing pads, it would affect his production numbers dramatically because it took a long time to change the pads. Id. at 467, EA-179. In July 1997, Charles “Chuck” Davis became Reynolds' immediate supervisor on the first shift. Tr. I at 136, EA-29 (Miller); Tr. II at 256, EA-104 (Davis). There were 45-50 employees under his supervision. Tr. II at 267, EA-113; Tr. III at 357, EA-144. As foreman, he was responsible for managing production, insuring the quality of the sinks run, and making sure his shift employees followed the company rules, including working their assigned shifts and having their timecards signed. Tr. II at 258, 260, EA-106-107 (Davis). Davis testified that he usually reported to work before 6 a.m. Tr. II at 257, EA-105. He said that when he got to work around 6 a.m., he would walk around and count parts to see how much the preceding shift accomplished and what his shift would need to do. Id. He also said he would meet with the third-shift foreman to find out if any equipment had problems. Id. at 257-58, EA-105-106. On August 28, 1997, Davis issued a written warning to Reynolds for failure to have his area cleaned and his timecards signed after a second shift employee or foreman complained that the area was not adequately cleaned. Pl. Ex. 4, TEA1-13; Tr. I at 134, EA-28 (Miller); id. at 261, EA-108; Tr. III at 361, EA-145 (Davis). The warning indicated that Reynolds had already received a verbal warning about these infractions. Pl. Ex. 4, TEA1-13. Despite the warning, Reynolds got his timecards signed only four times during the period of September 1, 1997 to December 10, 1997. Tr. II at 204, EA-72 (Miller); Def. Ex. 34, TEA2-426-29 (Reynolds' signed timecards). Davis testified that prior to August 28 he never had any problems with Reynolds' work performance and that he never left any sinks unfinished. Tr. II at 260, 273, EA-107, 118.<9> See also Tr. III at 429, EA-157 (where foreman Froud testified that he never had a problem with Reynolds' job performance or the cleanliness of his work area when he supervised him). However, around November or the first of December 1997, a foreman testified that he heard Davis refer to Reynolds as a “dumb nigger.” Tr. III at 408, 410, EA-151, 153 (Hulsey).<10> In the late summer of 1997, Royce Hulsey, a second shift foreman, told Davis that he saw Reynolds departing the plant premises during Reynolds' assigned work hours. Tr. II at 269, EA-114 (Davis); Tr. III at 406, EA-150 (Hulsey). In December 1997, Davis informed Miller that there was a problem with Reynolds not being at work from 2:30 p.m. to 3:30 p.m. Tr. II at 204-05, EA-72-73 (Miller); id. at 269-70, EA-114-115 (Davis). On December 10, 1997, Miller called a meeting with Reynolds, Davis, and union representative Tom Brennan to “gather facts” about Reynolds' work schedule. Tr. II at 156, 205, EA-44, 73 (Miller); id. at 271, EA-116 (Davis). In preparation for the meeting, Miller testified that she and Davis looked at about two months' worth of Reynolds' timecards. Tr. II at 156, 161, EA-44, 49. His timecards confirmed that he had been clocking in and leaving early. Id. at 157, EA-45. During the December meeting, Miller took notes which she stated represent the most important matters discussed at the meeting. Tr. I at 143, EA-35. She noted that Reynolds told her his shift was 7:00 a.m. to 3:30 p.m. but that he came in at 6:00 a.m. and left at 2:30 p.m. Id. at 144, EA-36. She testified that Reynolds admitted no one gave him permission to come in at 6 a.m. Id. at 145, EA-37. Her notes also indicated that Reynolds said he did not start work until 7 a.m. and suggested that he did not know clocking in and out early was a violation. Pl. Ex. 5, TEA1-14. According to Miller, she would not have known Reynolds did not work for eight hours if he had not mentioned at the meeting that he did not start work until 7 a.m. since 7:00 a.m. to 2:30 p.m. is only seven hours. Tr. II at 165, 177, EA-50, 58. In any event, Miller told Reynolds that John Dickson would have to be informed about the meeting and directed Reynolds to get his timecards signed and to work his assigned shift hours, which Reynolds agreed to do. Tr. I at 145-46, EA-37-38 (Miller); Tr. II at 271, EA-116 (Davis); Pl. Ex. 5, TEA1-14. As the meeting was about to conclude, Reynolds stated that he believed Davis had singled him out because he is black since other people were also clocking in and out early. Tr. I at 142, EA-34 (Miller); Tr. III at 414, EA-154 (Brennan); Pl. Ex. 5, TEA1-14. Brennan, the union representative, testified that he told Miller he too believed other employees were doing same thing. Tr. III at 414, EA-154. However, neither Reynolds nor Brennan provided the names of other employees who were committing these infractions. Tr. I at 147, EA-39 (Miller); Tr. III at 505, EA-191 (Reynolds); Pl. Ex. 5, TEA1-14. Miller asked Davis if any other employees were coming in and leaving early as Reynolds was, and Davis said that he was not aware of anyone doing this. Tr. II at 159, EA-47. Miller stated that she was aware Reynolds was complaining of race discrimination, but she did not attempt to have a private conversation with Reynolds about his allegation out of Davis' presence or present his complaint for investigation by senior management officials. Tr. I at 148, EA-40; Tr. II at 159-60, EA-47-48. She explained that she understood his complaint to be that he had been singled out for the meeting by Davis because of his race and she knew Davis was not responsible for the meeting since she had called it. Tr. I at 148, EA-40; Tr. II at 158, EA-46. Moreover, Miller said she exercised her discretion not to conduct an investigation because Reynolds did not provide any names and his foreman had no knowledge of other transgressors. Tr. II at 160-61, EA-48-49. Miller claims that by the close of this meeting, she had decided Reynolds should be fired. Tr. II at 216, EA-77. Between December 10, 1997 and January 6, 1998, Miller and Davis reviewed Reynolds' timecards to confirm when he clocked in and out and noticed that he was not getting his timecards signed. Tr. II at 208, EA-74. They also reviewed the timecards of Howard Bailey, a white employee, whose clock-in times were either the same minute or within a minute of Reynolds' clock-in times. Id. at 173, EA-55. When the plant manager, John Dickson, returned to work, Miller informed him of the December meeting and recommended that Reynolds be terminated. Id. at 208-09, EA-74-75 (Miller). Dickson then looked at the timecards of Reynolds and Bailey. Id. at 237-38, EA-96-97 (Dickson). On January 6, 1998, Dickson met with Reynolds to discuss his work schedule. In attendance were Miller, Davis, and Brennan. Tr. II at 171, EA-53 (Miller). Miller took notes of this meeting as well. Pl. Ex. 6, TEA1-15. During the meeting, Dickson asked Reynolds why he left at 2:30 p.m. and Reynolds responded that he did it because other employees were leaving at 2:30. Tr. II at 172, EA-54. Dickson also asked Reynolds if he was clocking in and out for Bailey and Reynolds denied doing so. Id. at 173, 175, EA-55, 57. Dickson then accused Reynolds of cheating the company by only working seven hours since he admitted he did not start work until 7 a.m. but clocked out at 2:30 p.m. and since he had not produced eight hours' worth of parts to justify the early departure. Id. at 177, EA-58. Reynolds complained to Dickson that he believed the reason he could not get away with working a modified schedule was because he is black. Tr. II at 239, EA-97 (Dickson). Dickson became upset and told Reynolds that was not the reason. Id. at 240, EA-98 (Dickson); Tr. III at 416, EA-155 (Brennan). Dickson then asked Reynolds to produce the names of other violators and Reynolds again refused. Id. Reynolds offered to repay the money, but his offer was rejected. Tr. III at 416, EA-155 (Brennan); id. at 480-81, EA-186-187 (Reynolds). According to Miller's notes, Dickson “closed the meeting by telling [Reynolds] he was going to consider the facts and . . . get back with him.” Pl. Ex. 6, TEA1-15. Later, Dickson informed Reynolds that he was fired. Tr. II at 246, EA-102 (Dickson). The next day, Miller issued Reynolds' termination paper. Pl. Ex. 3, TEA1-12. In that document, she wrote that Reynolds was terminated for “clocking in and out at hours other than [his] assigned shift [which] resulted in [his] working only 7 hrs per day rather than the 8 [he was] compensated for.” Id. Miller noted that Reynolds had “confirmed these facts to management on two separate occasions.” Id. She added that “management has also established that on a routine basis [Reynolds was] not getting [his] production in this 7 hr period of work, and leaving the plant 1 hr early.” Id. After Reynolds was terminated, the union filed a grievance on his behalf alleging unjust termination. Tr. II at 179, EA-60 (Miller). Union representative Tom Brennan drew Miller's attention to the fact that two employees who also worked the day shift, Michael Senko and Jeremy Askins, had been clocking in and out early. Id. Miller reviewed their cards and determined that, even though they clocked in early, most of the time Senko and Askins worked over eight hours and met production. Id. at 180, EA-61. She further noted that when they exceeded their required clock hours, they only claimed pay for eight hours. Id. Hence, she concluded that they had not engaged in the same conduct as Reynolds. Id. at 181, EA-62. Notwithstanding, well after Reynolds' termination, both Senko and Askins were disciplined for not working their assigned shifts. Davis gave Askins a verbal warning and Senko was issued a written warning on September 3, 1998 because he had previously received a verbal warning. Id. at 182, 188, EA-63, 65; Pl. Ex. 9, TEA1-17 (Senko's written warning). 4. The Proceedings of the Case On July 8, 1999, the EEOC filed this Title VII action, alleging that Kohler discharged Reynolds because of his race and in retaliation for complaining of race discrimination. In the course of this action, EEOC's claims survived summary judgment and, during trial, two requests for directed verdict. R.54 (summary judgment order); Tr. III at 524, EA-192; Tr. IV at 581, EA-209. At the conclusion of the trial, the jury returned a verdict in Kohler's favor on the EEOC's race discrimination claim and against Kohler on the retaliation claim. R.79, Judgment as a Matter of Law (“JAMOL”) Order at 1, EA-215. It then awarded $40,000 in compensatory damages and $50,000 in punitive damages to Reynolds, and the district court entered judgment on the verdict. Id. On March 12, 2001, Kohler moved for judgment as a matter of law or for a new trial on the retaliation claim. R. 64. In the alternative, it sought a remittitur on the punitive damages award. Id. Kohler argued that the evidence at trial was insufficient to sustain the jury's verdict on the retaliation claim because it failed to establish a causal connection between Reynolds' race discrimination complaint and his termination. JAMOL Order at 1-2, EA-215-216. In Kohler's view, the jury's verdict rested on speculation and conjecture. Id. at 2, EA-216. Kohler further argued that even if the court upheld the jury's verdict, it should set aside the punitive damages award because there was no evidence to support the conclusion that John Dickson or Rebecca Miller engaged in retaliation with malice or reckless indifference to Reynolds' federally protected rights. Id. 5. District Court's Decision On March 27, 2002, the district court granted Kohler's JAMOL motion. R.79 (order), EA-215; R. 80, EA-221 (judgment). In granting this motion, the district court held that the EEOC failed to prove that “the adverse employment action occurred because of Mr. Reynolds' protected activity.” JAMOL Order at 3, EA-217. In the court's view, EEOC “attempt[ed] to argue there was a temporal connection between the allegedly protected conduct and the adverse employment action and that this connection is evidence of retaliation.” Id. The court observed, however, that “when Mr. Reynolds was confronted about his work habits, he admitted his infractions” and concluded that “[t]hese admissions undermine the suggestion that Reynolds' termination was a result of his complaint of race discrimination.” Id. Putting it differently, the court stated that “Mr. Reynolds claimed he was being singled out, after he had been confronted and after he admitted wrongdoing.” Id. at 4, EA-218. According to the district court, “[e]vidence of retaliation would more likely occur if a Plaintiff complained of racial discrimination and then the employer began to scrutinize him.” Id. The court further noted that Reynolds repeatedly refused to identify a single employee who engaged in the same or similar conduct who was treated differently and it rejected those identified at trial as not being similarly situated either because they did not have the same supervisor or their conduct was different, or even if their conduct was the same, they did not engage in it with the same frequency as Reynolds. Id. In sum, the court decided that, absent “other circumstantial evidence, more than a temporal connection between the allegedly protected conduct and the adverse employment action is required to create a fact issue as to causation.” JAMOL Order at 4, EA-218 (citing Bradley v. Widnall, 232 F.3d 626, 633 (8th Cir. 2000)). In its view, “if the timing of these events could create a causal connection without more, then employees could claim discrimination each and every time they were questioned about alleged infractions, because any subsequent adverse employment action based on the alleged infractions would provide the complaining parties with a prima facie case against their employers.” Id. at 5, EA-219. Hence, it concluded that, “[w]hile the jury may have thought that Kohler's termination was unfair, Title VII does not empower federal courts (sic) to ‘sit as a super-personnel department that reexamines an entity's business decision.'” Id. (quoting Wilking v. County of Ramsay, 153 F.3d 869, 873 (8th Cir. 1998)). The court therefore ordered that Kohler's JAMOL motion be granted, its alternative motions for new trial or remittur be dismissed as moot, and EEOC's complaint be dismissed with prejudice. Id.; R.80, Judgment, EA-221. SUMMARY OF THE ARGUMENT The district court improperly set aside the jury's verdict on the EEOC's retaliation claim because there was substantial evidence in the record to support it. Kohler claims that it fired John Reynolds because he did not work his scheduled hours and because he cheated Kohler out of pay when he received wages for an 8-hour work day after he had only worked seven hours. However, evidence in the record shows that Kohler's reason is pretextual and that it is likely Reynolds' complaint of race discrimination motivated the discharge. Significantly, at the January 6, 1998 meeting, after John Reynolds complained to John Dickson, the plant manager and sole decisionmaker, that he was being singled out for clocking in and out early because of his race, Dickson became admittedly and noticeably upset by his complaint and shortly afterwards terminated Reynolds. In addition, even though Reynolds admitted he was clocking in and out early purportedly in violation of company policy, substantial evidence in the record established that many employees were clocking in and out early, management was aware of it, two received warnings, but none of them were terminated. Further, while Reynolds admittedly only worked seven hours but received compensation for 8 hours because he went to the break room for an hour before he commenced work, testimony in the record indicated that other employees who worked the same day shift as Reynolds and clocked in and out early with Reynolds, also hung out in the break room at the beginning or during the work day but they were not charged with cheating nor were they terminated. In that the jury could have credited this record evidence, along with other evidence of disparate discipline and lax enforcement of company policies, in reaching the conclusion that Reynolds would not have been fired for violating company policy had he not complained of race discrimination, it cannot be said that there was no evidence in the record to support the verdict. Hence, judgment as a matter of law in favor of Kohler was inappropriate and the district court's judgment entered in substitution for the credibility assessments and evidentiary valuation of the jury must be reversed. ARGUMENT THE DISTRICT COURT IMPROPERLY SET ASIDE THE JURY'S FAVORABLE VERDICT ON THE EEOC'S RETALIATION CLAIM BECAUSE THERE WAS SUFFICIENT EVIDENCE OF CAUSATION AND PRETEXT FROM WHICH THE FACTFINDER COULD AND DID CONCLUDE THAT REYNOLDS WOULD NOT HAVE BEEN FIRED IF HE HAD NOT COMPLAINED OF RACIAL DISCRIMINATION Review of a judgment as a matter of law setting aside a jury verdict is de novo. Brown v. Lester E. Cox Med. Ctrs, 286 F.3d 1040, 1044 (8th Cir. 2002); Kipp v. Missouri Highway Transp. Comm'n, 280 F.3d 893, 896 (8th Cir. 2002). Judgment as a matter of law is appropriate only when all of the evidence points one way, and is susceptible of no reasonable inference sustaining the jury's verdict. Kipp, 280 F.3d at 896. In fact, a court should not render judgment as a matter of law against a party unless that “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). Moreover, when determining whether a motion for judgment as a matter of law should be granted, “the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Kipp, 280 F.3d at 896; see also Yates v. Rexton, Inc., 267 F.3d 793, 801 (8th Cir. 2001) (neither the court of appeals nor the district court is permitted to substitute its judgment concerning the weight of the evidence for that of the factfinder). In addition, the reviewing court must disregard all evidence favorable to the moving party that the jury is not required to believe. Reeves, 530 U.S. at 151; Duty v. Norton-Alcoa Proppants, 2002 WL 1312197 (8th Cir. June 18, 2002) (appellate court must disregard all evidence favorable to the moving party that the jury is not required to believe). Here, the district court granted Kohler's motion for judgment as a matter of law and set aside the jury's verdict in favor of the EEOC on the retaliation claim on the ground that the timing of his termination was insufficient to establish that his discharge was retaliatory. JAMOL Order at 3-5, EA-217-219. Specifically, the court decided that there was no evidence of retaliation since Reynolds admitted he committed the charged infractions, attempted to justify these infractions by pointing out that he had worked in this manner for two years,<11> and none of the alleged comparators were similarly-situated. Id. at 4, EA-218. When the trial evidence is viewed in the light most favorable to the EEOC, and all doubts and conflicts are resolved in its favor, it is clear that the verdict was supported by evidence from which a reasonable jury could have concluded that retaliation had occurred and therefore, the district court's JAMOL was inappropriate. To establish a prima facie case of retaliation, the Commission needed to prove that (1) Reynolds engaged in protected activity; (2) Kohler took adverse action against him; and (3) there was a causal connection between the protected conduct and the adverse action. Hocevar v. Purdue Frederick Co., 223 F.3d 721, 726 (8th Cir. 2000). The Commission met this requirement by establishing that Reynolds was fired shortly after he complained of race discrimination and from this evidence a presumption of retaliation arose.<12> The burden of production then shifted to Kohler to advance a legitimate reason for the discharge, which it did by stating that it fired Reynolds for cheating the company out of one hour of pay when he clocked in at 6 a.m., went to the breakroom for one hour, reported to his workstation at 7 a.m., clocked out at 2:30 p.m., and claimed 8 hours of pay even though he only actually worked 7 hours. Since Kohler satisfied its burden, the Commission then needed to prove that Kohler's reason was merely a pretext for unlawful retaliation to prevail. The district court stated that the Commission presented evidence showing only that there was a close temporal connection between Reynolds' firing and his complaint of discrimination to establish pretext. This characterization of the Commission's evidence is infirm. As the district court correctly noted, the record contained evidence concerning the timing of the protected conduct and the adverse action, and timing alone is not enough to sustain the jury's verdict on the retaliation claim. See Kipp, 280 F.3d at 897 (a mere coincidence of timing can rarely be sufficient to establish a submissible case of retaliatory discharge); Sherman v. Runyon, 235 F.3d 406, 410 (8th Cir. 2000) (timing, by itself, is arguably sufficient to establish a prima facie case but is inadequate for pretext purposes). However, although temporal proximity alone is not enough to establish pretext, it is still relevant evidence from which a jury could decide that the termination was retaliatory. See Reeves, 530 U.S. at 143 (“the trier of fact may still consider evidence establishing the plaintiff's prima facie case ‘and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual”) (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)). In this case, resolving all conflicts in favor of the Commission, the evidence showed that Reynolds was not terminated until after he complained of race discrimination, thereby establishing the requisite causal link between the protected conduct and the adverse action. First, contrary to the district court's suggestion, and testimony in the record, that Dickson fired Reynolds before he voiced his complaint of race discrimination at the January 6 meeting, see, e.g., JAMOL Order at 3-4, EA-217-218; Tr. II at 209, EA-75 (Miller), the record is incontrovertibly clear that Reynolds complained of race discrimination at the December 10 meeting, Tr. I at 142, EA-34 (Miller); Pl. Ex. 5, TEA1-14, that the possibility of his termination did not enter the picture until after that December meeting, and that Reynolds was not actually discharged until after the January 6 meeting. Tr. II at 216, EA-77 (Miller); Pl. Ex. 6, TEA1-15.<13> Hence, Reynolds' protected activity clearly preceded the adverse action taken against him and a reasonable jury was entitled to believe that there was a sufficiently close causal connection between Reynolds' complaint and his termination to infer that Kohler's termination of Reynolds was retaliatory. Bassett v. City of Minneapolis, 211 F.3d 1097, 1105 (8th Cir. 2000) (finding “a temporal connection between an EEOC charge and a negative evaluation sufficient to create an inference of retaliation”). Further, when the timing of Reynolds' discharge is evaluated in light of other evidence suggesting that the articulated reasons lacked credibility and that his complaint actually motivated the discharge decision, Sherman, 235 F.3d at 410 (timing of discharge should be evaluated in light of other evidence or lack of evidence), the totality of the evidence, viewed in the light most favorable to the EEOC, was sufficient to sustain the jury's verdict. A. The Complaint was a Motivating Factor in the Discharge Decision The record contained testimonial evidence from which a jury could have reasonably concluded that Reynolds' complaint of race discrimination was a motivating factor in Dickson's decision to terminate him. See Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993) (retaliatory discharge in violation of Title VII occurs when "a retaliatory motive plays a part in [the discharge], . . . whether or not it was the sole cause . . . [or] when an employer is motivated by retaliatory animus, even if valid objective reasons for the discharge exist"). To begin with, Rebecca Miller testified that she did not contemplate terminating Reynolds as a disciplinary action until after the December 10 meeting at which Reynolds first raised his complaint of racial discrimination. Tr. II at 216, EA-77. Although Dickson was the actual decisionmaker, the jury could have believed that Miller's recommendation to terminate Reynolds was motivated by his race discrimination complaint given her abrupt reaction and refusal to investigate it, and that her retaliatory animus tainted her recommendation and ultimately influenced Dickson's discharge decision. See Long v. Eastfield College, 88 F.3d 300, 307 (5th Cir. 1996) (if an official merely “rubber stamped” recommendations of the supervisors who possessed a retaliatory intent, the causal link between the employees' protected activities and their subsequent terminations would remain intact for purposes of a retaliatory discharge claim). Next, both Davis and Brennan testified that, at the January 6 meeting, Dickson became noticeably upset after Reynolds stated that he was being singled out for not working his assigned schedule because of his race. Tr. II at 304, EA-138 (Davis); Tr. III at 416, EA-155 (Brennan). Significantly, Dickson himself admitted that Reynold's complaint of race discrimination upset him. Tr. II at 240, EA-98. In the Commission's view, this evidence combined with the temporal proximity of the discharge to the complaint could have permitted a reasonable jury to conclude that Reynolds' race discrimination complaint influenced the decision to discharge him and by itself is sufficient evidence of causation to support the jury's verdict and to preclude judgment as a matter of law. Cf. Waters v. Churchill, 511 U.S. 661, 681-82 (1994) (genuine issue of fact as to whether employee's firing was actually based on disruptive speech, and thus not in violation of First Amendment rights, was presented by evidence that she was fired after criticizing cross-training policy, that she had previously criticized the program, that management had exhibited sensitivity about the criticism, and that supervisors were hostile to the employee); Lowery v. Hazelwood School Dist., 244 F.3d 654, 658 (8th Cir. 2001) (any credible evidence tending to establish that an employer acted adversely to an individual "on account of" his protected class will suffice to provide an inference of discrimination sufficient to avoid summary judgment; the necessary inference being that the adverse action was more likely than not based on a discriminatory criterion illegal under federal law). B. Admission of Wrongdoing Was Not a Credible Reason for Dismissal Inasmuch as Dickson's hostile reaction following Reynolds' complaint is evidence sufficient to sustain the jury's finding of retaliation, it also controverts the district court's determination that Reynolds' admission of wrongdoing motivated his discharge. See JAMOL Order at 4, EA-218. Indeed, although Reynolds readily admitted that he worked irregular hours, Dickson did not make an immediate decision to terminate him. Further, the absence of any statement regarding termination in Miller's notes of the January meeting, and Dickson's statement that he would “consider the facts and . . . get back with” Reynolds, despite Reynolds' admission and the company's so-called policy of terminating employees who cheat for first offenses, strongly suggest that other factors were being weighed in the disciplinary decision at the close of that meeting. Combined with other salient facts demonstrating that Reynolds' discrimination complaint could have been one of those factors, the delayed discipline undermines the district court's conclusion that Reynolds' admission of wrongdoing was the real reason that Reynolds was fired and supports the jury's conclusion that Reynolds' discrimination complaint ultimately led to his dismissal. See JAMOL Order at 3, EA-217; Pl. Ex. 6, TEA1-15. Had Reynolds' damaging “admissions” been the reason for his discharge, given Kohler's alleged policy on cheating, it is more likely that Dickson would have terminated Reynolds immediately after he admitted his wrongdoing rather than taking additional time to “consider the facts” and determine his discipline. Thus, because a reasonable jury could have inferred from Dickson's inaction following Reynolds' admission of wrongdoing that his termination was “more likely than not based on a discriminatory criterion illegal under federal law,” Lowery, 244 F.3d at 658, the district court erred in substituting its judgment for that of the factfinder. The court's erroneous conclusion that Reynolds' admission of wrongdoing was clearly the basis for his termination is also compromised by the fact that the district court heavily relied on Reynolds' alleged trial testimony that he had worked a modified shift for two years. JAMOL Order at 4, EA-218. Notably, none of the participants in the decisionmaking process knew that information at the time the discharge decision was recommended or made. Miller's notes of the December and January meetings do not mention any specific period of time that Reynolds admitted to clocking in and out early. See Pl. Ex. 5, TEA1-14 (indicating that he had been doing it “for a long time”); Pl. Ex. 6, TEA1-15 (no mention of or questions about the length of time he had been working an unauthorized schedule). Miller testified that she and Davis had only reviewed two months of Reynolds' timecards before the December and January meetings. Tr. II at 156, 161, EA-44, 49. The termination document does not indicate the frequency or duration of the alleged violation. Pl. Ex. 3, TEA1-12. Hence, since those persons who participated in the decisionmaking process could not and did not know about the “two-year” nature of Reynolds' violations, the district court's conclusion that the longevity of Reynolds' clocking in and out early motivated the discharge decision is unsupported by the record and contrary to the law. See McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 360 (1995) (evidence acquired after the time of an employment decision cannot have been the motive for the challenged decision). Accordingly, the court's reliance on this information, which surfaced during discovery,<14> confirms that the court inappropriately substituted its view of the facts for that of the jury in contravention of the deferential review standards for jury verdicts. C. Inconsistent and Lax Enforcement of Company Policies Suggests the Proffered Reason was Pretextual In any event, even if it would have been a legitimate justification for the discharge, Reynolds' admission of wrongdoing does not undermine the Commission's proof that the company disparately enforced its so-called company policies and thus that his violation of company policy was not the real reason he was terminated. Cf. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 (1976) (while an employer may determine that certain misconduct is grounds for termination, the standard must be "applied, alike to members of all races"). To begin with, documentary and testimonial evidence revealed that Kohler's enforcement of the company policies was lax and inconsistent. Kohler maintains that it had a company rule that timecards be signed daily, Tr. II at 233, EA-91 (J. Dickson); id. at 260, EA-107 (Davis), and that it was the violation of this rule, among others, that led Miller to meet with Reynolds. Tr. I at 147, EA-39 (Miller). Yet, foremen often did not enforce this policy, Tr. III at 434, EA-161 (Froud), and employees other than Reynolds often did not get their timecards signed. See, e,g., Tr. II at 261-65, EA-108-112 (Davis); Pl. Ex. 14, TEA1-56-68; Pl. Ex. 20, TEA1-212-233; Def. Ex. 22, TEA2-234-294 (Senko's signed and unsigned timecards); Def. Ex. 24, TEA2-295-352 (Askins' signed and unsigned timecards) Def. Ex. 32, TEA2-369-401 (Bailey's unsigned timecards). Further, Reynolds testified, and John Dickson corroborated, that at one point timecards only had to be signed if the employee had overtime. Tr. II at 233, EA-91 (J.Dickson); Tr. III at 500, EA-189 (Reynolds). More significantly, Kohler claimed that employees were required to work their assigned shifts, another violation by Reynolds that was partly the basis for his termination. Tr. II at 301-02, EA-136-137 (Davis); Pl. Ex. 3, TEA1-12. However, HR manager Miller and foreman Froud testified that Kohler employees regularly came and left at different hours other than their established shift times and that management was aware of these variances. Tr. II at 166-67, EA-51-52 (Miller); Tr. III at 430, EA-158 (Froud). In addition, although Davis and other foremen testified that it was the foreman's duty to monitor his subordinates' work hours and to check their timecards to be sure they were working their assigned shift times, Tr. II at 233-34, EA-91-92 (Dickson); id. at 258, 260, EA-106-107 (Davis); Tr. III at 403-04, EA-148-149 (Hulsey); id. at 433, 440, EA-160, 166 (Froud), it was clear that they did not enforce this rule either. Indeed, even though Davis stated he arrived at work before 6 a.m.,Tr. II at 257, EA-105, he had no knowledge that Reynolds or any other employee had been clocking in at 6 a.m. and leaving early, Tr. II at 290 & 292, EA-126-127, until Reynolds was reported and employees' timecards were reviewed. Id. at 269, 280, EA-114, 120. Despite Hulsey's report in the late summer that he observed Reynolds leaving the plant early, Davis did not mention the infraction to human resources until December. Tr. II at 204-05, EA-72-73 (Miller); id. at 269, EA-114 (Davis); Tr. III at 406, EA-150 (Hulsey). Jeremy Askins, Michael Senko, and Howard Bailey, who were also under Davis's supervision, typically clocked in and out early and did not work their assigned shift times without permission even after Reynolds was terminated. Tr. II at 285-89, EA-121-125 (Davis); Pl. Ex. 16, TEA1-81-188 (Bailey's, Senko's and Askins' timecards). The clock hour schedule of Howard Bailey, a white employee who also worked the day shift, was so similar to Reynolds' times that it caused Dickson to question Reynolds as to whether he clocked in and out for Bailey, but did not inspire any questioning of Bailey. Tr. II at 173-75, EA-55-57 (Miller). Although Bailey testified that he was authorized to come to work early because there were parts for him to work on, Tr. IV at 577, 579, EA-206, 208, the third shift foreman stated that there were no exceptions to the 7 a.m. start time for the day shift and that his third-shift buffer did not regularly leave sinks for Bailey to start on. Tr. III at 434, 438, EA-161, 164 (Froud). And, despite Reynolds' and Brennan's assertion that other employees were working unassigned hours, no employees' timecards except Bailey's were checked until after Reynolds was terminated, when Brennan informed Miller that Askins and Senko were clocking in and out early. Tr. II at 179, EA-60 (Miller). Lastly, no aggressive efforts were taken to enforce the attendance rules except for a meeting with the foremen at which Dickson asked them merely to remind the employees to work their assigned shift hours. Id. at 167, EA-52 (Miller). Finally, while Kohler permitted its employees who had met their production quota to relax in the breakroom, play horseshoes in the parking lot, sleep in their vehicles, or work overtime, evidence established that the employees' compliance with this privilege varied. For example, Reynolds testified that Bailey would clock in early and go to his truck and sleep during work hours. Tr. III at 475, EA-182. He further testified that Senko and Askins often spent time in the breakroom with him, in their trucks, or visiting other employees after they clocked in at 6 a.m. Id. at 479, EA-185. Third shift foreman Froud testified that he saw Howard Bailey and other first shift employees in the breakroom before they started work. Id. at 435, EA-162. Bailey admitted that he hung out in the breakroom during work hours when he had no parts to run. Tr. IV at 581, EA-209. In that this evidence indicates Kohler exercised leniency with regard to the policy violations, a jury was entitled to believe that Reynolds' violations generally would not have led to any disciplinary action. D. Inconsistency in Disciplinary Actions Strongly Indicates that the Proffered Reason for Reynolds' Termination was a Pretext Equally important, there was substantial evidence to support the jury's belief that Reynolds would not have been terminated merely for violating company policies because the record reveals that few employees who violated company policies were disciplined and even fewer were actually terminated. See Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir.1994) ("[to be probative evidence of pretext, the misconduct of more leniently disciplined employees must be of 'comparable seriousness' "); Davenport v. Riverview Gardens School Dist., 30 F.3d 940, 945 (8th Cir.1994) (evidence that similarly situated white employees committed the same infractions and yet were not discharged is “highly relevant to the issue of pretext”); also see English v. Colo. Dep't of Corrections, 248 F.3d 1002, 1009 (10th Cir. 2001) (a plaintiff can show pretext by submitting evidence that the company acted contrary to an unwritten policy or to company practice when it treated plaintiff differently from other similarly-situated employees who violated work rules of comparable seriousness); Hiatt v. Rockwell International Corp., 26 F.3d 761, 770 (7th Cir. 1994) (a plaintiff can show pretext by presenting evidence that employees outside the protected class were involved in disciplinary violations of comparable seriousness and were not discharged). For example, Miller testified that many employees failed to work their assigned shift times but recalled giving only one employee a written warning. Tr. II at 167, EA-52. In addition, Askins, Senko and Bailey routinely clocked in and out early and did not work their assigned shift times without disciplinary action being taken even though these acts were considered serious offenses and the clock-in times appeared on the timecards, some of which were reviewed before and after Reynolds' discharge. Tr. II at 174, 181, EA-56, 62 (Miller). In fact, documentary evidence established that Michael Senko clocked in and out early 62 times and Jeremy Askins also did so 56 times in contrast to Reynolds' 35 times and neither of them were terminated. Pl. Ex. 16, TEA1-81-188 (timecards of Senko, Askins, and Reynolds). Further, despite suspicion that Bailey and Reynolds may have punched each other's timecards in violation of company policy, Tr. II at 173, EA-55 (Miller); Pl. Ex. 12 at 5, TEA1-31 (employee handbook), at Dickson's direction, Bailey was never questioned about clocking in and out for Reynolds even though Reynolds was asked if he clocked in for Bailey. Tr. II at 173-75, 181, EA-55-57, 62 (Miller). Moreover, although Senko and Askins received verbal warnings after Reynolds was fired, Senko continued to violate the clock-in policy for several months and did not receive a written warning until September 3, 1998. Pl. Ex. 9, TEA1-17 (Senko's write-up); Tr. II at 292, EA-127 (Davis). In like manner, Bailey also repeatedly violated the company's policy requiring that timecards be signed at least 18 times between July 7 and August 28, Tr. II at 265, EA-112 (Davis), but he was never disciplined for these infractions. See Pl. Ex. 14, TEA1-56-68; Pl. Ex.20, TEA1-212-233; Def. Ex. 32, TEA2-369-401 (Bailey's unsigned timecards). In addition, Bailey was never disciplined for sleeping in his truck during work hours when he had not met production even though such conduct was a violation of company policy warranting suspension without pay. See Tr. I at 122, 125, EA-21, 23 (Miller); Tr. III at 475-76, EA-182-183 (Reynolds). Next, even though Kohler claimed it strictly enforced its rule and uniformly terminated employees for the first offense of cheating on their time cards, Pl. Ex. 10 at 2, TEA1-19 (Kohler's position statement dated March 6, 1998); Tr. II at 230-32, EA-88-90 (Dickson), evidence revealed that Alan Dickson, son of Kohler's plant manager John Dickson, had been charged with “clocking out early and being paid for time not worked,” Pl. Ex. 13, TEA1-55 (A. Dickson's write-up dated May 16, 1995), but was not terminated. Tr. II at 243, EA-99 (Dickson). Instead, Alan Dickson was permitted to repay the money improperly received and warned that a second violation would result in termination, Id.; Pl. Ex. 13,TEA1-55<15> a remedy that was refused Reynolds when he offered to reimburse the company for his overpayments. Tr. III at 416, EA-155 (Brennan); id. at 480-81, EA-186-187 (Reynolds). Hence, a jury could have reasonably concluded from Kohler's treatment of Dickson's violation that Kohler neither “strictly enforce[d] nor uniformly terminate[d]” employees for their first offense of cheating on the timecards.<16> See Pl. Exs. 1, 10 at 2-3, TEA1-1-11, 19-20. Additionally, if the jury believed Reynolds' testimony that Bailey, Askins and Senko did not immediately go to work when they clocked in at 6 a.m., Tr. III at 475, 479, EA-182, 185, and Froud's testimony that he saw Bailey in the breakroom at the beginning of his shift, id. at 435, EA-162, given Bailey's admission that he hung out in the breakroom during work hours when he had no parts to work on, Tr. IV at 581, EA-209, the fact that their timecards showed they clocked out after eight hours on days they did not meet production would further justify the jury's conclusion that Kohler did not always terminate employees who cheated on their timecards. See Tr. II at 292-300, EA-127-135 (Davis); Tr. IV at 578, EA-207 (Bailey); Pl. Ex. 18, TEA1-199-200 (Senko's timecards); Pl. Ex. 19, TEA1-201-211 (Askins' timecards); Def. Ex. 32, TEA2-368-401, Def. Ex. 33, TEA2-402-424 (Bailey's timecards). Hence, evidence of Kohler's inconsistent application of its disciplinary policies was sufficient for the jury to have decided that Kohler's defense was simply a pretext for retaliation. E. Reynolds' Unique Production Requirements and Work Assignments Suggests His Infraction was Neither a Serious nor Terminable Offense Finally, despite Kohler's assertion that Reynolds was fired for improperly receiving eight hours of compensation for seven labor hours, and that this offense alone would have justified his dismissal, the jury could have decided that Reynolds' abbreviated work hours would not have led to his termination absent his complaint of discrimination because testimony in the record suggested that Reynolds' actual labor hours were not that significant. For example, Kohler officials admitted that if Reynolds had met production, and only worked seven hours, he would have only received a written warning. Tr. II at 202-203, EA-70-71 (Miller); id. at 247, EA-103 (Dickson).<17> Considering that Kohler knew that Reynolds regularly did not and could not meet production, Tr. II at 178-79,183, EA-59-60, 64 (Miller), and that his failure to do so was beyond his control, id. at 200-01, EA-68-69 (Miller); Tr. III at 460-63, EA-173-176 (Reynolds), a reasonable jury could have believed that Reynolds' production rate was not the pivotal factor leading to his being fired rather than receiving a warning about his early departures. Next, the fact that Reynolds routinely finished work before 2:30 p.m. four out of five days of the week, regularly did nothing for the last hour of his shift, and never was disciplined for it, Tr. III at 459-60, EA-172-173, and that Kohler did not require Reynolds to work eight hours even though he did not meet production between the December and January meetings, see Tr. III at 417, EA-156 (Brennan), a jury could have reasonably concluded that Reynolds' failure to work eight hours was not the real reason for his dismissal. Thus, the jury was entitled to believe that Reynolds was not fired because he allegedly cheated the company out of pay. F. The Combined Evidence of Causation and Pretext is Sufficient to Bar Judgment as a Matter of Law In sum, taking into consideration all of the variances, inconsistencies, and contradictions in the company's policies and enforcement efforts, a jury could have considered Kohler's alleged reliance on Reynolds' violation of such company policies as a basis for his discharge to be implausible. See Keathley v. Ameritech Corp., 187 F.3d 915, 922 (8th Cir. 1999) (testimony that employee never saw written policy on tardiness enforced by management is relevant to pretext issue); Sarsha v. Sears, Roebuck & Co. 3 F.3d 1035, 1040 (7th Cir. 1993)(when the existence of a rule or a uniform policy is in doubt, it cannot serve as a reason for terminating an employee). The record shows that management, the foremen and the employees routinely disregarded company policies governing shift assignments, clock-in schedules, and timecards; hence, a reasonable jury could have disbelieved Kohler's assertion that it actually considered violations of these policies to be serious, let alone terminable, offenses. Moreover, the cumulative nature of this evidence could have led a jury to believe that Reynolds would not have been fired merely for claiming eight hours of pay and only working seven hours if he had not complained that he was being singled out because of his race. That evidence along with Dickson's hostile reaction to Reynolds' discrimination complaint and the close proximity of Reynolds' discharge following his complaint is sufficient evidence of causation and pretext to sustain the jury's verdict on the retaliation claim. In short, while Kohler arguably would have been justified in firing Reynolds for “cheating” the company of one hour of pay had it equitably and consistently enforced its company policies,<18> the jury's decision to believe that Reynolds' violation was a pretext for retaliation because he complained of racial discrimination cannot be said to be completely contrary to the evidence. Accordingly, judgment as a matter of law on the retaliation claim was entirely inappropriate and should be reversed. CONCLUSION This case turned on “whose story the jury believed.” Nichols v. American Nat. Ins. Co., 154 F.3d 875, 890 (8th Cir. 1998)(quoting Cummings v. Malone, 995 F.2d 817, 825 (8th Cir. 1993)). A reasonable jury could have accepted Kohler's excuse for why it terminated Reynolds. However, after assessing the credibility of the witnesses and weighing the evidence, this one did not. Hence, given the deference due jury verdicts that are supported by evidence, this Court should reverse the district court's judgment, reinstate the jury's verdict and $90,000 damages award on the retaliation claim, and remand the case for further proceedings concerning equitable and other appropriate relief. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER Attorney Equal Employment Opportunity Commission 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 (w); (202) 663-7090 (fax) July 29, 2002 CERTIFICATE OF WORD PROCESSING PROGRAM Pursuant to 8th Cir. R. 28A(c) and Fed. R. App. Proc. 32(a)(7(C), the undersigned certifies that the brief complied with the type-volume limitations. 1. Exclusive of the exempted portions in Fed. R. App. Proc. 32(a)(7)(B)(iii), the brief contains 12,191 words. 2. The brief was prepared in proportionally spaced typeface using Corel Wordperfect 9, Times Roman, 14 point. 3. If the Court so requests, the undersigned will provide an electronic version of the brief and/or a copy of the work or line printout. 4. The undersigned understands a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Fed. R. App. Proc. 32(a)(7(C) may result in the court's striking the brief and imposing sanctions against the person signing the brief. _________________________________ Paula R. Bruner CERTIFICATE OF SERVICE This is to certify that on July 29, 2002, two copies of the foregoing brief and a computer diskette along with the certificate of service was mailed first class, postage prepaid, to the following counsel of record: Steven W. Quattlebaum, Esq. E.B. “Chip” Chiles, IV, Esq. QUATTLEBAUM, GROOMS, TULL& BURROW,PLLC 111 Center Street, Suite 1900 Little Rock, Arkansas 72201 PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 July 29, 2002 ADDENDUM 1. Jury Verdicts (2/23/01) 2. District Court's Order on Judgment as a Matter of Law (3/27/02) 3. District Court's Judgment as a Matter of Law (3/27/02) 1 The statement of facts is partially derived from testimony given at the trial conducted from February 20 through February 23, 2001. Citations to the transcripts of these proceedings will be to the volume number and page number (e.g. Tr. I at 52) and then to the EEOC's appendix and page number (e.g. EA-2), in which the trial testimony is compiled. 2 All exhibits admitted into evidence at trial are compiled in a separate appendix. Citation for these exhibits will be to specific exhibit and page number, if relevant, and then to the trial exhibit appendix (“TEA”), volume number, and the relevant page number(s) associated with that exhibit (e.g. Pl. Ex. 5, TEA1-14). 3 Plant manager John Dickson also noted that there used to be a company rule that permitted employees to leave the premises after they completed their eight-hour quota, but he said that rule was off and on. Tr. II at 222, EA-83. 4 At one time, the plant had a policy that required the employee's clock hours to be equivalent to his or her production. Consequently, if an employee produced 10 hours' worth of parts in an eight-hour period, he was required to stay an extra two hours on the job to obtain his overtime pay. Tr. I at 129, EA-26 (Miller); Tr. II at 222, EA-83 (Dickson). That policy was revoked after the plant manager's son, Alan Dickson, was disciplined, required to repay the money, and threatened with termination if he violated the rule again. Tr. II at 243, EA-99 (Dickson). 5 Miller was also responsible for ensuring that employment discrimination did not occur at the Kohler plant. Tr. I at 137, EA-30. According to Miller, discrimination was not tolerated at Kohler and if anyone believed they had been subjected to discrimination, that employee could notify his foreman, Miller, the plant manager or any member of management and an investigation would be conducted. Id. at 137-38, EA-30-31. She stated that an investigation would include interviewing the putative victim. Id. at 139, EA-32. 6 Richard May, the general foreman, supervised all foremen and employees. In 1997-98, he worked on the first shift along with Charles Davis. Tr. III at 456, EA-169 (Reynolds). May and Davis had the authority to reassign first shift employees to machines in different job classifications. Id. at 465, 470, EA-178, 180 (Reynolds). 7 In contrast, Bailey testified that in 1997, he was scheduled to begin the first shift at 6 a.m. Tr. IV at 577, EA-206 (Bailey). He claimed that he always went directly to work after he clocked in and only went to sleep in his truck or to the breakroom after he had met his production quota. Id. at 577-78, EA-206-207. Bailey also stated that third shift would try to leave 30 sinks for him to begin work on and that once he finished those, the first shift would have prepared more sinks for him to sand. Id. at 579, EA-208. He admitted, however, that if there were no sinks to run during the day, he would go to the breakroom. Id. at 581, EA-209. 8 In rebuttal, Senko testified that he came in at 6 a.m. without permission because there were always lots of parts for the sprayers to work on. Tr. III at 530-31, 536, EA-194-195, 200. Senko and Askins also testified that when they clocked in at 6 a.m., they always went directly to work and did not sit in the breakroom or their trucks. Id. at 532-33, EA-196-197 (Senko); id. at 540, 544, EA-201, 203 (Askins). 9 Howard Bailey, a manual deck sander under Davis' supervision, also did not get his time cards signed eighteen times between July 7 and August 22, 1997, and Davis did not write him up. Pl. Ex. 14, TEA1-56-68 (Bailey's unsigned timecards); Tr. II at 261-65, EA-108-112 (Davis). Other than Reynolds, Davis could not recall writing up any other employee for failing to have his or her timecards signed. Id. at 267, EA-113. 10 Davis denied using that epithet. Tr. II at 308-09, EA-139-140. 11 The district court's assertion that Reynolds told Kohler officials he had been working a modified schedule for two years is not supported by the record. Actually, the two-year duration of Reynolds' early work hours was not known to Kohler at the time of its decision to fire Reynolds. See infra at 33-34. 12 Notably, the language of the district court's order suggests that the EEOC failed to establish even a prima facie case of retaliation. JAMOL Order at 4-5, EA-218-219. However, once a trial has been held, the issue of whether the plaintiff met its prima facie case is moot and the ultimate question is whether discrimination actually occurred. See Kovacevich v. Kent State Univ., 224 F.3d 806, 825 (6th Cir. 2000) (after a trial on the merits, a court should not focus on the elements of the prima facie case but should assess the ultimate question of discrimination); EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.1997) (noting that "a prima facie case is defined as 'sufficient evidence ... to get plaintiff past a motion for directed verdict in a jury case ...; it is the evidence necessary to require defendant to proceed with his case' ") (internal quotation omitted). 13 Even if Dickson, as the decisionmaker, was not aware that Reynolds had initially registered his discrimination complaint at the December 10 meeting, his decision to “consider the facts and get back” with Reynolds following the January 6 meeting at which Reynolds re-registered his discrimination complaint still supports the jury's belief that the discharge followed and thus was motivated by the protected conduct. Thus, the fact that the district court reached a contrary conclusion evidences its misapplication of the rule governing judgment as a matter of law because the court failed to disregard all evidence favorable to the moving party that the jury was not required to believe and failed to draw all reasonable inferences in favor of the EEOC. Reeves, 530 U.S. at 151; Duty v. Norton-Alcoa Proppants, 2002 WL 1312197; Yates, 267 F.3d at 801. 14 The record reflects that Reynolds' first mention that he had been working a modified schedule for two years occurred during his deposition on May 13, 2000, well after his termination in January 1998. See R.24, Ex. A at 32, EA-11 (Reynolds' deposition). 15 Superficially, Alan Dickson's violation seems distinguishable from Reynolds' violation since Dickson had put in eight hours on the clock and exceeded his production quota, but since the company rule at that time required employees to stay on the clock for a period equivalent to their quota overage in order to receive overtime pay, Tr. II at 244, EA-100 (J.Dickson), and Alan Dickson deliberately refused to stay on the clock but accepted payment for the overtime production, Pl. Ex. 13, TEA1-55 his receipt of money for time not worked is essentially the same transgression for which Reynolds was terminated. Indeed, even though the plant manager argued that Alan Dickson had not cheated the company out of pay, Tr. II at 245, EA-101, the fact remains that Kohler treated Alan Dickson's conduct “seriously,” required him to reimburse it for the overtime pay he had received, and threatened him with termination if he did it again. Pl. Ex. 13, TEA1-55. 16 Incidentally, in an attempt to establish that it uniformly terminates employees who cheat the company in compensation, Kohler claimed to have fired Sean Mathis, Bradley Johnson, Caleb Dixon, and Keith Evans for cheating on their timecards in 1996. Pl. Ex. 10 at 3, TEA1-20 (Kohler's position statement). This is evidence that the jury could have chosen to disbelieve since the company's records indicate that of those four employees, Caleb Dixon and Keith Evans actually resigned from Kohler, Pl. Ex. 1 at 3-4, TEA1-3-4,and Kohler's bare assertion that those four persons were terminated for cheating was not supported by any documentary evidence or any other independent neutral source. Compare Pl. Ex. 1, TEA1-1 (employee roster) with Pl. Ex. 10, TEA1-18 (Kohler's position statement). 17 Miller actually testified that if Reynolds had met production, the issue of his going to the breakroom for an hour at the beginning of his shift would have been “unorthodox” and a policy violation, but it would not have merited his termination because there would have been no financial harm to the company. Tr. II at 203, EA-71. 18 Cf. Jackson v. Missouri Pacific R.R., 803 F.2d 401, 406 (8th Cir.1986) (finding no discrimination or pretext where the employer fired every employee, regardless of race, who missed five consecutive days of work and lied about the reason for the absences); see also Dunn v. Nordstrom, Inc., 260 F.3d 778, 788 (7th Cir. 2001) (where Nordstrom's sudden decision to implement its previously unenforced weapons policy was accomplished in a non-discriminatory manner, plaintiff failed to establish a material issue of fact with regard to whether he was terminated for discriminatory reasons); McGill v. Munoz, 203 F.3d 843, 848 (D.C.Cir.2000) (holding that if the disciplinary action "complied with the written sick leave policy ..., there is no evidence to support [the] contention that it was mere pretext.").