                                 ___________

                                 No. 95-2482
                                 ___________

Thomas C. Hopper,                     *
                                      *
           Appellant,                 *
                                      *
     v.                               *
                                      *
Hallmark Cards, Inc.,                 *
                                      *
           Appellee.                  *
                                 ___________

                                 No. 95-2866

                                 ___________

Thomas C. Hopper,                     *
                                      *
           Appellee,                  *
                                      * Appeals from the United States
     v.                               * District Court for the Western
                                      * District of Missouri.
Hallmark Cards, Inc.,                 *
                                      *
           Appellant.                 *
                                 ___________

                                 No. 95-3031

                                 ___________

Thomas C. Hopper,                     *
                                      *
           Appellant,                 *
                                      *
     v.                               *
                                      *
Hallmark Cards, Inc.,                 *
                                      *
           Appellee.                  *
                                 ___________

                    Submitted:   March 14, 1996

                        Filed:   June 28, 1996
                                 ___________

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.
                               ___________
BEAM, Circuit Judge.


      Following his discharge from employment, Thomas Hopper brought suit
against Hallmark Cards, Inc. (Hallmark) for age and handicap discrimination
and intentional infliction of emotional distress.               Before trial, the
                  1
district court         granted Hallmark's motion for summary judgment on the
intentional infliction of emotional distress claim.           At trial, it granted
Hallmark's motions for judgment as a matter of law on the discrimination
claims.     Hopper appeals alleging the district court erred when it:              (1)
applied an incorrect standard to Hallmark's motion for judgment as a matter
of   law    on   the    discrimination    claims   and    refused   to   submit    the
discrimination claims to the jury; (2) found diverticulitis is not a
medical handicap under Missouri law; (3) entered summary judgment on the
emotional distress claim; (4) excluded "high potential" manager evidence
and various other testimony; (5) denied discovery regarding other employees
who allegedly also used drugs but were not discharged; and (6) awarded
attorneys' fees against plaintiff's counsel on the emotional distress
claim.     Hallmark appeals the denial of its request for attorneys' fees on
the discrimination claims.         We affirm in part and reverse in part.


I.    BACKGROUND


      In September 1967, Hopper began working for Hallmark as a production
analyst in the Manufacturing Control Department.          Over the next twenty-four
years of service for Hallmark, Hopper held various positions, including
several managerial positions in the Manufacturing Control Department.               At
the time of his discharge in March 1992, Hopper was employed in the
Manufacturing     Division    of   the   Manufacturing,   Scheduling     and   Control
Department.      He was forty-six years old at the time of his discharge.




      1
     The Honorable Fernando J. Gaitan, Jr., United States District
Judge for the Western District of Missouri.

                                          -2-
        In April 1988, roughly four years before his discharge, Hopper was
first diagnosed with diverticulitis by his physician, Dr. Keith Jantz.
Diverticulitis is the acute form of diverticulosis.                   Although usually
asymptomatic, diverticulosis manifests itself as small pockets on the
lining of the colon, which can become painful if infected.                      In this
aggravated state, the condition is referred to as diverticulitis.                    Dr.
Jantz successfully treated the 1988 flare up with antibiotics.               Dr. Jantz's
notes do not reflect any further visits from Hopper for this condition
until late 1991.      In December 1991, Hopper's colon ruptured as a result of
complications from diverticulitis.        The rupture required Hopper to undergo
surgery at which a colostomy was constructed.2              The colostomy was later
surgically reversed following a successful healing process.


        Several years prior to his discharge, Hopper experienced marital
difficulties.      After his wife left him in the summer of 1990, Hopper began
drinking alcohol heavily.      The drinking resulted in three driving under the
influence of alcohol (DUI) offenses:          August 1991; October 1991; and April
1992.    Along with the October 1991 DUI conviction, Hopper was convicted of
attempted possession of cocaine and served time in jail.                     Hopper also
testified to using cocaine on other occasions before and after that
conviction.        The April 1992 DUI resulted in the revocation of Hopper's
probation on the earlier offense and another sentence of jail time.                It is
not clear who at Hallmark knew of Hopper's substance abuse and legal
problems.    Hopper testified, however, that his supervisors had become aware
of   his    drug   and   alcohol   use   by   the   time   of   his   exit    interview,
approximately one week after his discharge.


        Deanna Bisel was Hopper's immediate supervisor at the time of his
discharge.     Bisel testified that she had seen a marked decrease




        2
      A colostomy is the surgical creation of an opening between
the colon and the surface of the body.     Dorland's Illustrated
Medical Dictionary 356 (28th ed. 1994).

                                          -3-
in the quality of Hopper's work since mid-1990, around the time of his
separation from his wife.3          Bisel documented these concerns and twice
recommended Hopper's discharge to her superiors, stating his recent poor
job performance and unacceptable work attendance as reasons for the
recommendations.      Hallmark offered these same reasons for its eventual
discharge of Hopper.


     Although not privy to Bisel's confidential memos regarding his
problems at work, Hopper received notice of Bisel's concerns regarding his
performance and attendance no later than mid-1991, when he received an
unsatisfactory midyear evaluation from her.           In that evaluation, Bisel
stated that Hopper's job performance and attendance were unacceptable.
Hopper    disagreed   that    the   evaluation   accurately    reflected    his    work
performance but did not take his concerns to anyone else at Hallmark.
Nevertheless, Hopper did not dispute the accuracy of Hallmark's attendance
records and conceded that his attendance had at times been unsatisfactory
according to the guidelines set for the Manufacturing, Scheduling and
Control Department.       To counter this evidence, Hopper produced numerous
performance reports in which he had received positive evaluations and
evidence showing he had received a pay raise shortly before his mid-1991
evaluation.


     At trial, there was conflicting testimony regarding whether a younger
individual, Pam Oberdiek, replaced Hopper or whether she filled a newly
created,    independent      position.   Hopper   alleged     that   with   few   minor
alterations, Oberdiek had taken over his job responsibilities.               Hallmark
claimed that Hopper's previous position had been eliminated during a
reorganization of the Manufacturing, Scheduling and Control Department.
It further claimed that Hopper was not moved to the new position assumed
by Oberdiek because of his poor performance and attendance ratings.




     3
         This separation ended in divorce in June 1991.

                                         -4-
       Prior to trial, Hallmark moved for summary judgment.               The district
court granted the motion on the intentional infliction of emotional
distress claim but denied the motion with respect to the discrimination
claims.     The district court stated that material factual disputes existed
as to whether Hopper had alleged a medical handicap under Missouri law and
as to Hallmark's proffered reason for terminating Hopper's employment.
After the presentation of Hopper's evidence, the district court granted
judgment     as   a   matter   of   law   on    the   handicap   discrimination   claim.
Following the close of all the evidence, the district court granted
judgment as a matter of law on the age discrimination claims, apparently
finding Hopper had not successfully rebutted Hallmark's proffered reasons
for his discharge.


II.    DISCUSSION


       A.   Age Discrimination Claims


       Hopper claimed Hallmark discharged him because of his age, in
violation of the Missouri Human Rights Act, Mo. Rev. Stat. § 213.055, and
the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634.                     Both
statutes prohibit employers from basing adverse employment decisions on
age.   The district court granted Hallmark's motion for judgment as a matter
of law on these claims pursuant to Rule 50(a)(1) of the Federal Rules of
Civil Procedure.4       In




       4
        That rule provides, in relevant part:

       If during a trial by jury a party has been fully heard on
       an issue and there is no legally sufficient evidentiary
       basis for a reasonable jury to find for that party on
       that issue, the court may determine the issue against
       that party and may grant a motion for judgment as a
       matter of law against that party with respect to a claim
       or defense that cannot under the controlling law be
       maintained or defeated without a favorable finding on
       that issue.

Fed. R. Civ. P. 50(a)(1).

                                               -5-
reviewing the grant of judgment as a matter of law, we apply the same
standard as did the district court, i.e., we resolve all factual issues in
favor of the nonmoving party.        Hamaker v. Ivy, 51 F.3d 108, 110 (8th Cir.
1995).    Accordingly, we must:      (1) consider the evidence in the light most
favorable to Hopper; (2) assume that all conflicts in the evidence were
resolved in favor of Hopper; (3) assume as proved all facts that Hopper's
evidence tended to prove; and (4) give Hopper the benefit of all favorable
inferences that may reasonably be drawn from the facts proved.            See First
Dakota Nat'l Bank v. St. Paul Fire & Marine Ins. Co., 2 F.3d 801, 808 (8th
Cir. 1993).


       Although   we   must   give    Hopper   the   benefit   of   all   reasonable
inferences, we may not accord him "the benefit of unreasonable inferences."
Marcoux v. Van Wyk, 572 F.2d 651, 653 (8th Cir. 1978).                A reasonable
inference is one "`which may be drawn from the evidence without resort to
speculation.'"    Caudill v. Farmland Indus., Inc., 919 F.2d 83, 86 (8th Cir.
1990) (quoting Hauser v. Equifax, Inc., 602 F.2d 811, 814 (8th Cir. 1979)).
If the jury could reasonably reach a different conclusion based on the
facts and the law, we must reverse the grant of judgment as a matter of
law.     Applying this standard, we find no error in the district court's
grant of judgment as a matter of law to Hallmark on these claims.


       To prove he was the subject of age discrimination, Hopper must first
establish a prima facie case of age discrimination within the burden-
shifting framework of McDonnell Douglas Corp. v. Green.               411 U.S. 792
(1973).    A prima facie case of age discrimination requires a showing that
Hopper:    (1) is within the protected age group; (2) was performing his job
at a level that met Hallmark's legitimate expectations; (3) was discharged;
and (4) was replaced by a younger




                                         -6-
worker.5    Nelson v. Boatmen's Bancshares, Inc., 26 F.3d 796, 800 (8th Cir.
1994).     See also, O'Connor v. Consolidated Coin Caterers Corp., 116 S. Ct.
1307, 1310 (1996).      For purposes of this appeal, we assume that Hopper
established a prima facie case of age discrimination.


      Once established, "the prima facie case raises a legal presumption
of discrimination in the plaintiff's favor, requiring the defendant to
produce legitimate, nondiscriminatory reasons for its actions."            Gaworski
v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1108 (8th Cir.), cert. denied,
115 S. Ct. 355 (1994).       If the defendant produces such legitimate reasons,
the presumption, "having fulfilled its role of forcing the defendant to
come forward with some response, simply drops out of the picture."              St.
Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2749 (1993).          The burden then
shifts back to the plaintiff to demonstrate that defendant's proffered
reason is merely a pretext for age discrimination.         Id. at 2747-48; Garner
v. Arvin Indus. Inc., 77 F.3d 255, 257 (8th Cir. 1996).            See also Hutson
v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995) (absent
intentional discrimination by employers, federal courts are not to sit as
"super-personnel departments reviewing the wisdom or fairness of the
business judgments made by employers").


      On    these   facts,    Hopper   failed   to   adequately   rebut   Hallmark's
proffered reasons for discharging him and, therefore, failed to demonstrate
that Hallmark had a discriminatory reason for firing




     5
      The phrasing of this fourth prong reflects the United States
Supreme Court's recent modification. See O'Connor v. Consolidated
Coin Caterers Corp., 116 S. Ct. 1307, 1310 (1996). Many courts had
previously required a plaintiff to show replacement by a worker
outside the protected class, i.e., under the age of 40. Such a
requirement is no longer permissible.       As the O'Connor Court
concluded, "the fact that a replacement is substantially younger
than the plaintiff is a far more reliable indicator of age
discrimination than is the fact that the plaintiff was replaced by
someone outside the protected class." Id.

                                         -7-
him.   Although some of the evidence presented showed an effort to discharge
him, Hopper failed to show that the reason for that effort was his age.
At best, Hopper's allegations were evidence of:        (1) an antagonistic
relationship with his immediate supervisor; (2) a high rate of missed work
which aggravated Hopper's work relationships; and (3) substance abuse and
corresponding legal difficulties which caused Hopper to miss more work.


       Hopper presented statistical evidence to show that all managerial-
level employees discharged within the eighteen-month period surrounding his
discharge were over the age of forty.   Few of those discharged were members
of Hopper's work unit; many were employed at different plants, in different
states.   These statistics showed that managers over the age of forty were
more likely to be discharged than those under forty, but failed to show
that those discharged were similarly situated, qualified individuals who
were singled out for adverse employment decisions based on their age.
Hopper admitted that the statistics were based on his own subjective
interpretation of Hallmark's records and excluded other younger managers
who had been discharged from various departments just prior to the date the
data covered.    Furthermore, Hopper conceded that of all those employees
over the age of forty under Bisel's supervision, he was the only one
discharged despite being the youngest of those in the over-forty age group.
The statistical evidence, therefore, did not raise a reasonable inference
of age discrimination.   Any other conclusion would require that we resort
to speculation on Hopper's behalf, a tool unavailable to us on review of
this judgment as a matter of law.


       Assuming Hopper was not in contravention of company policy against
excess absences, Hopper himself conceded that he believed his absentee rate
was unsatisfactory at times.     This concession is particularly relevant
considering Hopper's supervisory position




                                    -8-
over other employees for whom he was expected to set an example.                    The
evidence also showed that Hopper had been apprised of his unsatisfactory
rating, was urged to improve upon it, but failed to do so.


        Hopper's job performance evaluations and pay raise evidence account
for the remainder of his circumstantial evidence.            This evidence did little
more than show satisfactory work performance, an element of the prima facie
case of age discrimination which we have already assumed was established
for purposes of this appeal.           Although evidence of good performance can
serve as evidence of pretext when an employee is discharged for poor
performance, see, e.g., Hutson, 63 F.3d at 779, standing alone, it was
insufficient to do so here.


        The only reasonable inference to be drawn from these facts is that
Hopper       was    fired   because   of   his   poor   performance   and   attendance.
Therefore, Hopper failed to rebut Hallmark's proffered reasons for his
discharge.          Hicks, 113 S. Ct. at 2747-48 (pretextual reason must be a
pretext for age discrimination, or plaintiff has not carried burden of
showing age discrimination).           Because Hopper failed to offer sufficient
evidence from which a jury could reasonably infer that he was fired because
of his age, the district court correctly disposed of this claim on motion
for judgment as a matter of law.


        B.       Handicap Discrimination Claim


        Hopper alleged that he was discharged because of his diverticulitis
and further claimed diverticulitis was a handicap for purposes of Missouri
law.6    The district court granted




             6
        This statement reflects Hopper's revised allegation of
handicap discrimination. In his first filing with the Missouri
Commission on Human Rights, Hopper alleged he was discharged due to
a perceived handicap of alcohol and drug abuse. Hopper only later
alleged diverticulitis as a handicap.

                                            -9-
Hallmark's motion for judgment as a matter of law on this claim following
the presentation of Hopper's evidence.     As stated above, in reviewing the
grant of judgment as a matter of law, we resolve all factual issues in
favor of the nonmoving party.     Hamaker v. Ivy, 51 F.3d at 110.    Applying
this standard, we find that Hopper failed to establish a prima facie case
of handicap discrimination in that he failed to prove he was handicapped.


     The Missouri Human Rights Act makes it unlawful to discharge an
employee because of a handicap.    Mo. Rev. Stat. § 213.055.1.      A handicap
is defined as "a physical or mental impairment which substantially limits
one or more of a person's major life activities, a condition perceived as
such, or a record of having such an impairment, which with or without
reasonable accommodation does not interfere with performance of the job"
in question.   Mo. Rev. Stat. § 213.010(10).       Hopper failed to present
evidence from which a jury could reasonably find that his diverticulitis
substantially limited his ability to engage in one of life's major
activities--either before or after his operation.


     Hallmark's employment records detailed Hopper's numerous absences
from work, but rarely reflected health problems as the reasons for those
absences.   Hopper explained this by stating that he took vacation days
instead of sick days to downplay his health problems.     It is difficult to
see how Hallmark could have discriminated against Hopper on the basis of
a handicap, the severity of which was concealed from it.      In any event,
Hopper's own testimony showed that his absences were rarely attributable
to his diverticulitis.   In explaining the frequency of his Monday/Friday
half-day vacation occurrences,7 for instance, Hopper




     7
     In addition to taking numerous full-day vacation days, Hopper
took 16 half-days of vacation time in 1990 and 24 such days in
1991. Hopper admitted that many of these occurred on Mondays and
Fridays.

                                    -10-
did not claim that his sickness required time away from work.       Instead, he
stated that he "enjoyed sometimes just splitting up a workday, being able
to come in and work part of the day and then maybe play golf in the
afternoon, maybe that type of thing, or going out and doing something else
in the afternoon."    Transcript at 89.      These half-day outings were taken
despite an attendance policy stating that requests for vacation segments
of less than one week were to be confined to situations of special needs.



     The    medical   testimony   also    established   that   Hopper   was   not
handicapped within the meaning of Missouri law.           Dr. Jantz, Hopper's
treating physician, testified that both before the colostomy surgery and
after the reversal of that surgery, Hopper's diverticulitis did not limit
his ability to engage in major life activities.     This testimony was further
supported by Hopper's lack of doctor visits for treatment of diverticulitis
between the date of the original diagnosis and the date his colon ruptured,
despite calls and visits to the doctor concerning other medical problems,
and by the lack of diverticulitis attacks following surgery.        In the face
of this evidence, we cannot say the district court erred in granting
judgment as a matter of law on Hopper's handicap discrimination claim.        See
Price v. S-B Power Tool, 75 F.3d 362, 365 (8th Cir. 1996) (poor attendance,
even if partially caused by handicap, is insufficient to suggest employee
was terminated because of handicap).


     C.    Intentional Infliction of Emotional Distress Claim



     Hopper next argues that the district court erred in granting Hallmark
summary judgment on his emotional distress claim.       We review the entry of
summary judgment de novo, giving the nonmoving party the benefit of every
inference drawn from the evidence.       Augustine v. GAF Corp., 971 F.2d 129,
131-32 (8th Cir. 1992).    Summary judgment is only proper when no genuine
issue of material fact is present.       Commercial Union Ins. Co. v. Schmidt,
967 F.2d




                                     -11-
270, 271 (8th Cir. 1992).            In an intentional infliction of emotional
distress claim, however, the question of outrageousness of a defendant's
conduct is initially for the judge and not the jury.                Frye v. CBS Inc., 671
S.W.2d 316, 319 (Mo. Ct. App. 1984).           Therefore, this claim is particularly
amenable to disposition on summary judgment.


        Hopper claims that by dismissing him shortly after his colon surgery,
Hallmark intentionally inflicted emotional distress on him.                       Hopper's
evidence included Bisel's continued threatening of his employment despite
her knowledge of his personal and health problems and her terminating his
employment over the phone.           This     evidence amounts to little more than
evidence     of   discharge   and    wholly    fails   to    show   outrageous    conduct.
Liability on an intentional infliction of emotional distress claim has only
been found where "the conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to
be   regarded     as    atrocious,   and    utterly    intolerable      in   a   civilized
community."       Id.    Undisputed evidence showed that Hallmark had offered
Hopper counselling for his personal problems.               Even after discharging him,
Hallmark paid Hopper through the end of April 1992 to ensure that his
follow-up medical care and surgery were covered by its health benefits
plan.    We cannot find such conduct to be "beyond all possible bounds of
decency" and, therefore, find no error in the district court's grant of
summary judgment on this claim.


        D.   Exclusion of "High Potential" Manager Evidence


        Hopper next argues that the district court erred in excluding
evidence regarding "high potential" managers.               Hallmark had a practice of
selecting individuals as "high potential" managers, thereby designating
those employees with the likely chance to advance in management.                    Hopper
argues that this evidence would have demonstrated Hallmark's preference for
younger managers and proved




                                            -12-
he was discharged because of his age.           Decisions to exclude or admit
evidence are committed to the district court's discretion and will be
affirmed absent a clear abuse of that discretion.               United States v.
Mitchell, 31 F.3d 628, 631 (8th Cir. 1994).


     The district court excluded the "high potential" manager evidence
finding it was not probative of discriminatory intent.             Hopper did not
allege that he was discharged because he was not selected as a "high
potential" manager or allege any other causal link between the excluded
evidence and his discharge.      Because discharge decisions at Hallmark were
made according to individual performance, the requisite causal relationship
between Hallmark's alleged discriminatory attitude and Hopper's termination
was lacking.     See Nitschke v. McDonnell Douglas Corp., 68 F.3d 249, 252
(8th Cir. 1995).     The "high potential" manager evidence also failed to
analyze   the   treatment   of   comparable   employees.     The   district   court
correctly found this evidence was irrelevant and alternatively, that the
danger of unfair prejudice outweighed its probative value.          That decision
was not an abuse of discretion.


     E.   Claims Relating to Hopper's Request for Reinstatement


     Hopper alleges that the district court erred in excluding the
proffered testimony of his defense attorney and a corrections officer
regarding sentencing options for his third DUI conviction.         He also alleges
the district court erred in denying discovery into whether other Hallmark
employees were abusing drugs but not discharged.           These claims relate to
Hopper's claims for reinstatement and back pay in the event he was
successful on his discrimination claims.      See, e.g., McKennon v. Nashville
Banner Publishing Co., 115 S. Ct. 879, 886 (1995) (employee's subsequently
discovered misconduct, which would have led to termination on legitimate
grounds, limits damages and generally renders reinstatement inappropriate).
In light of our decision on the discrimination claims, we need not reach
these arguments.




                                       -13-
     F.    Attorneys' Fees


     Hopper alleges the district court also erred in ordering his counsel
to pay $6,467.50 in attorneys' fees to Hallmark on the emotional distress
claim.    The district court failed to explain the award, issuing only a one-
sentence order granting the fees.     Although we recognize that attorneys'
fees can be awarded directly against a party's counsel, such awards are
normally reserved for those instances in which there is evidence of a
willful abuse of the judicial process.       Jaquette v. Black Hawk County,
Iowa, 710 F.2d 455, 462 (8th Cir. 1983).    There is nothing in this record
to support a finding that the emotional distress claim was filed for
anything less than a good faith belief in the legitimacy of the claim.
Accordingly, we reverse the district court's award.


     Hallmark appeals the district court's denial of attorneys' fees on
Hopper's discrimination claims.    We agree with the district court that an
award of attorneys' fees was not warranted on those claims and affirm as
to that issue.    We have considered the remainder of Hopper's arguments and
find them to be without merit.


III. CONCLUSION


     Because we find no error in the district court's grant of judgment
as a matter of law on the intentional discrimination claims or its grant
of summary judgment on the emotional distress claim, we affirm as to those
claims.    We reverse the award of attorneys' fees against Hopper's attorney
and affirm the denial of additional fees on Hallmark's appeal.




                                     -14-
A true copy.


     Attest:


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




                            -15-
