                        United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT



                   ____________________________________

                   Nos. 97-1973EM, 97-2061EM, 97-2598EM
                   ____________________________________

Dee Lyoch,                           *
                                     *
           Appellant,                *
                                     * On Appeal from the United
     v.                              * States District Court
                                     * for the Eastern District
                                     * of Missouri.
Anheuser-Busch Companies, Inc.,      *
                                     *
           Appellee.                 *
                                ___________

                            Submitted: November 17, 1997
                                Filed: March 20, 1998
                                 ___________

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN and MAGILL, Circuit
      Judges.
                           ___________

RICHARD S. ARNOLD, Chief Judge.

       Dee Lyoch appeals the District Court’s entry of summary judgment in favor of
Anheuser-Busch Companies, Inc., on her claims of employment discrimination on the
basis of sex, age, and retaliation. We affirm in part and reverse in part.
                                           I.

        Dee Lyoch began her career with Anheuser-Busch in April 1960, when she was
hired as a secretary. After several promotions to other clerical positions, she received
her first managerial position, as Sales Service Manager, at salary grade 17, in May
1977. In 1982, Lyoch was promoted to the grade-23 position of Manager, Wholesaler
Equity Agreement Operations, which required her to administer the contract that
governed the relationship between Anheuser-Busch and its wholesalers. Evaluations
of Lyoch’s performance in this position were very good. In 1986, 1987, and 1988,
Tom Sobbe, her superior, wrote that she was a “[v]ery dependable and conscientious
employee” and recommended her for promotion to one of three positions: director of
sales training; staff assistant to a vice-president; or a position with Campbell-Taggart,
a separate Anheuser-Busch company.

       Despite these favorable evaluations, Lyoch was not promoted beyond salary
grade 23 while she was employed at Anheuser-Busch, though she did receive regular
merit raises and annual bonuses. In 1987, Lyoch complained to Anheuser-Busch
ombudsman Camille Emig that she believed she had been discriminated against on the
basis of sex by Tom Sobbe. This complaint produced a great deal of friction between
Lyoch and Sobbe. On July 17, 1992, Lyoch filed a charge of discrimination with the
Equal Employment Opportunity Commission (EEOC) and the Missouri Commission
on Human Rights, alleging that she had been denied promotions and compensation on
account of her sex and age, and that Sobbe had retaliated against her because she
complained about him. Lyoch left Anheuser-Busch on December 31, 1993, when she
accepted an early-retirement package.

      On July 18, 1994, Lyoch filed this action in the District Court, alleging failure
to promote, wage discrimination, and retaliation in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000 et seq. (1994); the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq. (1994); and the Missouri Fair Employment

                                          -2-
Practices Act, Mo. Ann. Stat. § 213.010 et seq. (1996). The Court filed a
memorandum and opinion on February 21, 1997, granting Anheuser-Busch’s motion
for summary judgment. Specifically, the Court held that Lyoch had failed to present
a genuine issue of material fact on her failure-to-promote claim because she failed to
establish job responsibilities for any positions for which she was passed over, to
demonstrate her qualifications for the job, and to demonstrate the qualifications of the
person who actually received the promotion. The District Court granted summary
judgment on Lyoch’s wage discrimination claim because it held that Lyoch had not
established that higher-paid men performed substantially equal work. Finally, the Court
held that summary judgment was appropriate for the retaliation claim because Lyoch
“suffered no decrease in title, salary or benefits” after she complained about her
problems with Tom Sobbe, and because she did not demonstrate that she was qualified
for any of the positions which she claims she did not receive because of retaliation.
Lyoch now appeals.

                                          II.

                                          A.

        Summary judgment is appropriate if there are no genuine issues of material fact
as to the essential elements of a party’s case. Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The elements of the prima facie case for a failure-
to-promote claim are well established: The plaintiff must demonstrate “(1) that she is
a member of a protected group; (2) that she was qualified and applied for a promotion
to a position for which the employer was seeking applicants; (3) that despite her
qualifications, she was rejected; and (4) that other employees of similar qualifications
who were not members of a protected group were promoted at the time plaintiff’s
request for promotion was denied.” Marzec v. Marsh, 990 F.2d 393, 395-96 (8th Cir.
1993). Under the McDonnell Douglas framework, after a plaintiff makes a prima facie
showing of liability, the employer must produce evidence that it had a legitimate,

                                          -3-
nondiscriminatory reason for its actions. If the employer meets this burden of
production, then the burden shifts to the plaintiff to show that the employer’s actions
were a pretext for discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-54 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-
03 (1973).

       The District Court granted summary judgment on Lyoch’s claim that she was
wrongfully denied promotions on the basis of her age and sex because, the Court said,
she failed to present evidence that she was qualified for any of the sixteen identified
positions which were filled within the applicable period of limitations. Specifically, the
Court said that she did not identify any of the job responsibilities or qualifications for
the positions, and did not demonstrate that she met any of these qualifications at the
time the positions were filled. Though it granted summary judgment for these reasons,
the District Court noted that it would not have required Lyoch to show that she actually
applied for any of the sixteen positions because, viewed in a light most favorable to
Lyoch, Anheuser-Busch’s promotions policy was “vague and secretive.” District Court
Op. at 10. See Winbush v. State of Iowa by Glenwood State Hosp., 66 F.3d 1471,
1481 (8th Cir. 1995).

       We believe that Lyoch has presented evidence sufficient to raise a genuine issue
of material fact on her failure-to-promote claim. The depositions of Luke Meatte and
Jim Hunter, two long-time Anheuser-Busch employees who served in several
managerial positions, support Lyoch’s argument that Anheuser-Busch’s promotions
policy was informal and subjective and, in the words of the District Court, “vague and
secretive.” District Court Op. at 10. According to Meatte, he did not formally apply
for new positions at Anheuser-Busch; he was simply asked if he would be interested
or informed that he would be promoted. Appellant’s App. at 315-16, 318. Hunter
described being promoted at Anheuser-Busch as “not a firm process . . . . I don’t recall
the promotions process ever being specifically formalized.” Appellant’s App. at 181.


                                           -4-
        Another court, faced with a subjective promotions process, has held that a
plaintiff has a lighter burden when attempting to make a prima facie case of failure to
promote than in a situation involving objective promotions criteria:

       [A] prima facie showing can be made through credible evidence that a plaintiff
       was qualified even if that evidence was disputed by the employer, and . . . this
       burden may be met through the plaintiff’s own testimony and that of co-workers
       who were in a position to know the plaintiff’s qualifications.

Thomas v. Denny’s, Inc., 111 F.3d 1506, 1510 (10th Cir.), cert. denied, 118 S. Ct. 626
(1997) (citation omitted). This lighter burden at the prima facie stage is justified by the
fact that subjective criteria for promotions “are particularly easy for an employer to
invent in an effort to sabotage a plaintiff’s prima facie case and mask discrimination.”
Id. (citing Ellis v. United Airlines, Inc., 73 F.3d 999, 1005 n.8 (10th Cir.), cert. denied,
116 S. Ct. 2500 (1996)). We agree; a plaintiff alleging a prima facie case of failure to
promote should not bear the same burden when the criteria are subjective and the
process “vague and secretive” as when the case involves “objective hiring criteria
applied to all applicants.” Id.

       The record includes deposition testimony and documents from Anheuser-Busch,
as well as Lyoch’s own affidavit, which pose a factual issue as to whether Lyoch was
qualified for a promotion to a higher salary grade level. First, we find particularly
relevant Tom Sobbe’s evaluations of Lyoch’s performance, in which he described her
as a “[v]ery dependable and conscientious employee” and recommended her for
promotions to positions including Director, Sales Training, and Staff Assistant to a
Vice-President. The District Court did not find these evaluations convincing because
the latest was made four years before some of the sixteen positions, including an
Executive Assistant to Vice-President, Sales, were filled. However, there is nothing
in the record to indicate that Lyoch was less qualified in 1992 than she was in 1988,
when Sobbe recommended her for a promotion “Now” to a position as a Staff


                                            -5-
Assistant to a Vice-President. Thus, Anheuser-Busch’s own evaluations of Lyoch’s
performance raise an issue as to whether she was qualified for a promotion.1

       Ted Roden’s deposition also indicates that Lyoch was qualified for promotion.
Roden was an Anheuser-Busch distributor for approximately 35 years who worked
closely with Lyoch when she served as Manager, Wholesaler Equity Agreement
Operations. Roden gave Lyoch’s performance high marks, describing her as “the
umbilical cord between the distributors and the Brewery” and saying that “she was
running [the Equity Operations] department.” Appellant’s App. at 149, 151. At the
very least, this testimony creates a factual question as to whether Lyoch was qualified
for promotion. The District Court discounted Roden’s deposition because he was not
an Anheuser-Busch employee, and Anheuser-Busch, in its brief, asserts that “[a]s a
matter of law, the opinion of co-workers, customers, clients and other non-
decisionmakers is not relevant to the determination of an individual’s qualifications.”
Appellee’s Br. at 25. On the contrary, Roden’s affidavit is relevant as long as it has
“any tendency to make the existence of any fact that is of consequence to the
determination of [this] action more probable or less probable than it would be without
the evidence.” Fed. R. Evid. 401. Certainly, the testimony of someone who worked
closely with Lyoch in her employment capacity would be relevant to the issue of
whether she was qualified for promotion. The trier of fact is free to consider such
evidence less persuasive than if it came from someone at Anheuser-Busch empowered
to make decisions on promotion, but courts considering motions for summary judgment
may not weigh evidence in this way.



      1
        The District Court based its decision to grant summary judgment on Lyoch’s
age discrimination claim in part on its belief that Lyoch provided no evidence of the
ages of men who were promoted instead of her. District Court Op. at 14-15. However,
the record includes Anheuser-Busch documents listing the ages of seventeen younger
male employees Lyoch claims were promoted to positions for which she was qualified.
See Appellant’s App. at 234-37, 551-567.

                                         -6-
       Lyoch has presented sufficient evidence to raise a factual issue as to whether she
was qualified for promotion. We therefore reverse the District Court’s grant of
summary judgment on that issue. Lyoch’s claims of age and sex discrimination in the
failure to promote her are sufficient to survive the summary-judgment stage.

                                           B.

       We affirm the holding of the District Court on the plaintiff’s wage discrimination
claim. To make a prima facie case of wage discrimination, Lyoch must prove that she
was paid a lower wage than a younger employee or an employee of the opposite sex
who was performing equal work on a job which required equal skill, effort, and
responsibility, and which was performed under similar working conditions. See Equal
Employment Opportunity Commission v. Delight Wholesale Co., 973 F.2d 664, 669
(8th Cir. 1992). Lyoch has not produced evidence that she was performing work
substantially equal to that of younger employees or male employees at Anheuser-Busch
who were paid more. The District Court properly granted Anheuser-Busch’s motion
for summary judgment on Lyoch’s wage discrimination claim.

                                           C.

       With respect to Lyoch’s claim of retaliation, we agree with the District Court,
largely for the reasons stated in that Court’s opinion, that summary judgment was
appropriate for defendant. Lyoch’s theory is that Anheuser-Busch retaliated against her
on account of internal complaints of discrimination she had made about Tom Sobbe.
In our view, the evidence in this record is not strong enough to raise a genuine issue of
material fact as to whether any action by the company was causally connected to these
internal complaints.




                                          -7-
                                          III.

                                           A.

       Next, we address Lyoch’s argument that we should reverse the District Court’s
decision to deny her request to extend the discovery deadline to give her more time to
choose and disclose an expert witness. A district court’s decisions managing the
discovery process are reviewable only for abuse of discretion. See Dabney v.
Montgomery Ward & Co., 761 F.2d 494, 498 (8th Cir.), cert. denied, 474 U.S. 904
(1985). The District Court did not abuse its discretion in not extending the expert-
disclosure deadline. Not only did Lyoch not comply with the deadline, she waited until
four months after the deadline, and three weeks after the close of all discovery, to
request an extension of time. While the District Court may, if it chooses, grant Lyoch
more time after this case is remanded, we cannot say that it abused its discretion by
denying the extension.

                                           B.

       Finally, we reverse the District Court’s award of costs of $4,663.37 in favor of
Anheuser-Busch. Federal Rule of Civil Procedure 54(d) provides that costs are to be
awarded to the prevailing party as a matter of course unless the court directs otherwise.
The order of the District Court with respect to costs must now be vacated, since there
is as yet no prevailing party in the case as a whole.

                                          IV.

       For the reasons discussed above, we affirm the judgment of the District Court
in part, reverse in part, and remand for further proceedings not inconsistent with this
opinion.


                                          -8-
It is so ordered.

A true copy.

       Attest:

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




                              -9-
