                   United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 03-1878
                                 ___________

John Christopher Shaver,               *
                                       *
            Appellant,                 *
                                       *
      v.                               *
                                       *
Independent Stave Company, doing       *
business as Salem Wood Products Co.,   *
Inc.; Salem Wood Products Co.,         *
                                       *    Appeal from the United States
            Appellees.                 *    District Court for the Eastern
                                       *    District of Missouri.
________________________               *
                                       *
Equal Employment Opportunity           *
Commission; Epilepsy Foundation        *
of Kansas and Western Missouri;        *
Epilepsy Foundation of Minnesota,      *
                                       *
            Amici on Behalf            *
            of Appellant.              *

                                 ___________

                            Submitted: September 12, 2003

                                Filed: December 1, 2003
                                 ___________

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and MELLOY, Circuit Judges.
                          ___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.

      This is a harassment and retaliation case brought under the Americans with
Disabilities Act (ADA), see 42 U.S.C. §§ 12101-12213, and the Missouri Human
Rights Act (MHRA), see Mo. Rev. Stat. §§ 213.010-213.137, that comes to us on
appeal from an order dismissing the plaintiff's claims on summary judgment. We
affirm the judgment of the district court in part and reverse it in part.

       Christopher Shaver has suffered from nocturnal epilepsy since he was a
teenager. After an operation in which part of his brain was removed and replaced by
a metal plate, he was able to get a job working at the timber mill of Salem Wood
Products Company. After being fired, allegedly for insubordination, Mr. Shaver sued
Salem under various theories. By the time that Salem moved for summary judgment,
Mr. Shaver had abandoned most of his claims, but he continued to maintain that he
had been unlawfully harassed as a result of his epilepsy and his cranial operation, that
Salem had violated the anti-retaliation provisions of the ADA and the MHRA, and
that Salem was liable to him under Missouri workers' compensation law. The district
court ruled against Mr. Shaver on his ADA and MHRA claims and declined to
exercise supplemental jurisdiction over the workers' compensation claim.

      We review a district court's summary judgment order de novo. See Darby v.
Bratch, 287 F.3d 673, 678 (8th Cir. 2002). We resolve Mr. Shaver's MHRA claims
on the same basis as his federal claims. See id. at 682.

                                           I.
       We have suggested in dicta that it might be possible to bring a claim for a
hostile work environment under the ADA, see, e.g., Jeseritz v. Potter, 282 F.3d 542,
547 (8th Cir. 2002), but we have never ruled directly on the matter. Today, for the
reasons that follow, we join the other circuits that have decided the issue by holding
that such claims are in fact actionable. Cf. Flowers v. Southern Reg'l Physician


                                          -2-
Servs., Inc., 247 F.3d 229, 232-35 (5th Cir. 2001), Fox v. General Motors Corp., 247
F.3d 169, 175-77 (4th Cir. 2001).

       Even broad, remedial statutes such as the ADA do not give federal courts a
license to create causes of action after the manner of the common law. See Alexander
v. Sandoval, 532 U.S. 275, 286-87 (2001). Rather, our rulings must be disciplined
by the text of the statute itself. The ADA states that "[n]o covered entity shall
discriminate against a qualified individual with a disability because of the disability
of such individual in regard to ... terms, conditions, and privileges of employment."
42 U.S.C. § 12112(a). While the statute does not specifically mention hostile work
environment, in construing a statute we must look at how its text was understood at
the time that it was passed.

       The drafters of the ADA borrowed the phrase "terms, conditions, and privileges
of employment" directly from Title VII of the Civil Rights Act of 1964. Compare
42 U.S.C. § 12112(a) with 42 U.S.C. § 2000e-2(a)(1). As early as 1971, courts had
construed the phrase in Title VII to create an action based on a hostile work
environment, see, e.g., Rogers v. EEOC, 454 F.2d 234, 238-39 (5th Cir. 1971), cert.
denied, 406 U.S. 957 (1972), and by the time that the ADA was passed in 1991, this
interpretation was clearly established as the controlling federal law on the subject.
See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-66 (1986). Thus, when
Congress included the phrase "terms, conditions, and privileges of employment" in
the ADA, it was using a legal term of art that prohibited a broad range of employment
practices, including workplace harassment. Cf. Cannon v. University of Chicago,
441 U.S. 677, 696-98 (1979).

       In determining whether a hostile work environment claim has been made out
under the ADA, we think it proper to turn to standards developed elsewhere in our
anti-discrimination law, adapting them to the unique requirements of the ADA. To
be entitled to relief, it seems to us that Mr. Shaver must show that he is a member of

                                         -3-
the class of people protected by the statute, that he was subject to unwelcome
harassment, that the harassment resulted from his membership in the protected class,
and that the harassment was severe enough to affect the terms, conditions, or
privileges of his employment. Cf. Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d
906, 907-08 (8th Cir. 2003).

       The ADA's employment provisions protect people who are "qualified
individual[s] with a disability." 42 U.S.C. §§ 12111(8), 12112(a). In this case,
neither party disputes that Mr. Shaver was qualified for his job at Salem's lumber mill.
Salem does argue, however, that Mr. Shaver is not "disabled" within the meaning of
the statute. A disability is an "impairment that substantially limits one or more ...
major life activities." See 42 U.S.C. § 12102(2)(A). Furthermore, one can be within
the statute if one is regarded (accurately or inaccurately) as having such an
impairment or if one has a record of such an impairment in the past. See 42 U.S.C.
§ 12102(2)(B)-(C).

       Before his operation, it is undisputed that Mr. Shaver's epilepsy caused severe
seizures of the kind and frequency that this court has held impair "major life
activities" such as speaking, walking, or seeing. See Otting v. J.C. Penney Co.,
223 F.3d 704, 710-11 (8th Cir. 2000). He thus has a record of impairment. Our
review of the record also persuades us that at least some of his co-workers regarded
Mr. Shaver as "stupid" and "not playing with a full deck" because of his epilepsy and
resulting operation. And, since thinking is a major life activity, see Brown v. Lester
E. Cox Med. Ctrs., 286 F.3d 1040, 1044-45 (8th Cir. 2002), we conclude as well that
a jury could find that Mr. Shaver qualifies as disabled because he was regarded as
disabled.

      Our review of the record indicates that there is no real factual dispute about
whether Mr. Shaver was harassed. (The severity and legal consequence of that
harassment are separate questions that we deal with below.) There is ample evidence,

                                          -4-
for instance, that he was routinely referred to as "platehead." Salem argues that the
harassment was not the result of his disability, claiming that the name "platehead"
was linked to the physical fact that Mr. Shaver has a plate in his skull, rather than
with any impairment as such. We think that this distinction may be too fine for us,
but in any case the meaning of the statements (that is, what inference to draw from
the words used) is properly a matter for the jury. There is certainly nothing in the
record to suggest that those who called Mr. Shaver "platehead" made the distinction
suggested by Salem. The distinction itself, moreover, may well be meaningless:
Even if one calls a person "pegleg" because he has a peg leg rather than because he
has trouble walking, it is nevertheless the case that the nickname was chosen because
the person was disabled.

       With the question of the effect of the harassment on the "terms, conditions, and
privileges" of Mr. Shaver's employment we come to the heart of this case. In order
to be actionable, harassment must be both subjectively hostile or abusive to the victim
and "severe and pervasive enough to create an objectively hostile or abusive work
environment -- an environment that a reasonable person would find hostile or
abusive." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). On the other hand,
we have repeatedly emphasized that anti-discrimination laws do not create a general
civility code. See, e.g., Mems v. City of St. Paul, Dep't of Fire & Safety Servs.,
327 F.3d 771, 782 (8th Cir. 2003). Conduct that is merely rude, abrasive, unkind, or
insensitive does not come within the scope of the law.

       Taking the evidence in the light most favorable to Mr. Shaver, we have little
difficulty concluding that a jury could find that he found the harassment by his co-
workers hostile or abusive. The more difficult question is whether the behavior fell
within the elusive category of "objectively ... offensive," see Faragher v. City of Boca
Raton, 524 U.S. 775, 787 (1998). Mr. Shaver's co-workers referred to him as
"platehead" over a period of about two years. Some of the co-workers were
supervisors, and some were not. Some of the co-workers stopped using the name

                                          -5-
when Mr. Shaver asked them to, and others did not. Use of nicknames is widespread
at the mill, and while this fact does not render the name applied to Mr. Shaver
inoffensive, it might reduce its offensiveness. Several co-workers suggested that
Mr. Shaver was stupid. On one occasion, a co-worker said that Mr. Shaver "pissed
in his pants when the microwave was on," but this uglier statement seems to have
occurred outside of Mr. Shaver's presence, a fact that lessens but does not undo its
offensiveness.

       Taken as a whole, we conclude that the verbal harassment here does not rise
to the same level as that in cases where we have granted relief. For example, in Smith
v. St. Louis Univ., 109 F.3d 1261, 1264-65 (8th Cir. 1997), we allowed a suit to
continue where the plaintiff had been subject to verbal abuse, but in that case there
was evidence that a supervisor had repeatedly singled the plaintiff out and that she
had been hospitalized twice as a result of the psychological trauma that she suffered.
Showing some tangible psychological condition is not necessary to make out a hostile
work environment claim, but it may be taken into account. Harris, 510 U.S. at 22-23.
While Mr. Shaver was upset about the harassment at work, it was not so severe as to
result in any psychological treatment. In Reedy, 333 F.3d at 909-10, we upheld a
hostile work environment claim based on harassing words, but the words at issue
were death threats directed specifically at the plaintiff over a sustained period of time.
In contrast, there is no allegation or evidence in this case to suggest that any of the
harassment of Mr. Shaver was explicitly or implicitly threatening. Nor does this case
involve harassing conduct of a physical nature as was found actionable in many of the
cases that Mr. Shaver cites. See, e.g., Breeding v. Arthur J. Gallagher & Co., 164
F.3d 1151, 1159 (8th Cir. 1999); Rorie v. United Parcel Serv., Inc., 151 F.3d 757,
761-62 (8th Cir. 1998).

       Mr. Shaver advances two other arguments in an effort to transform the verbal
harassment to which he was subjected into an actionable hostile work environment.
First, he asserts that the harassment resulted from the unauthorized disclosure of his

                                           -6-
medical condition by his supervisor. Viewing the evidence in the light most
favorable to Mr. Shaver, we conclude that it would support a finding that the
supervisor did disclose Mr. Shaver's medical condition without his authorization.
Shortly before the name "platehead" came into use, Mr. Shaver was injured on the job
and taken to the hospital by his supervisor, who there learned for the first time about
Mr. Shaver's epilepsy and the plate in his skull. Before then, no one at the mill seems
to have been aware of Mr. Shaver's condition. Immediately thereafter, co-workers
learned of the plate from the supervisor and began calling Mr. Shaver "platehead."
We are uncertain as to whether this disclosure of Mr. Shaver's medical records was
actionable under the ADA. See 42 U.S.C. § 12112(d); Cossette v. Minnesota Power
& Light, 188 F.3d 964, 969-70 (8th Cir. 1999). But Mr. Shaver does not in any case
raise this as an independent claim for recovery on appeal (he is procedurally barred
from doing so), and so we do not consider whether the facts here would support such
a claim. Instead Mr. Shaver argues that because the harassment we have described
resulted from the disclosure, it somehow makes the harassment more severe.

       Even if the disclosure violated 42 U.S.C. § 12112(d), we note that workplace
harassment and the unauthorized disclosure of medical records are different wrongs,
involving different interests. Workplace harassment is forbidden in order to ensure
that the "terms, conditions, and privileges of employment" are not altered for a legally
impermissible reason. See 42 U.S.C. § 12112(a). Thus, it is a claim that can be raised
under the ADA only by a "qualified individual with a disability." See id. In contrast,
the prohibition on disclosing medical information protects a person's privacy, and one
need not even be disabled in order to raise that matter. See Cossette, 188 F.3d at 969-
70. Harassment resulting from such a disclosure would be relevant to the measure of
damages on a claim for such disclosure, but because the wrong is the disclosure itself
harassment need not even rise to the level of affecting the "terms, conditions, and
privileges of employment" before it can furnish the basis for an award of damages.




                                          -7-
       Mr. Shaver in effect asks us to stand this last principle on its head and hold that
harassment that by itself is not actionable can rise to the level of illegality by being
the result of an unauthorized disclosure. We decline to do so. Medical privacy is not
a "term, condition, or privilege" of Mr. Shaver's employment. In the absence of a
statute, there is nothing to forbid an at-will employer from conditioning employment
on the ability to disclose otherwise private information. This is precisely the reason
that a separate section of the ADA deals with this issue. If Mr. Shaver's right to
medical privacy under the ADA was violated, he was free to pursue a claim under that
section. But he cannot do an end-run around his own procedural default by using
such a claim to transform unactionable harassment into something actionable.

       Mr. Shaver also asserts that the fact that he was denied promotions and
opportunities because of his disability was part of the hostile work environment to
which he was subjected. In support of his claim that he was denied promotions
because of his disability, Mr. Shaver cites to speculations in his own deposition
about the motives and actions of his supervisors, without any foundation suggesting
that Mr. Shaver had personal knowledge of the matters that he was discussing. There
are limits on what kinds of evidence a judge may consider in reviewing a motion for
summary judgment, and inadmissible evidence obtained during discovery cannot be
used to defeat such a motion. See Mays v. Rhodes, 255 F.3d 644, 648 (8th Cir. 2001).
Since Mr. Shaver's testimony would not be admissible, we ignore it. See Fed. R.
Evid. 602. Mr. Shaver also points to depositions by co-workers who overheard
unspecified managers saying that Mr. Shaver was too stupid to be promoted or to get
another position at the mill. Such statements are admissible, but there is no indication
of who the managers were, or whether they were discussing real or hypothetical job
openings. We conclude that even coupled with the use of the name "platehead" this
vague testimony is insufficient to get Mr. Shaver's harassment claim past summary
judgment.




                                           -8-
                                          II.
       Mr. Shaver also challenges the district court's dismissal of his retaliation claim.
Salem fired Mr. Shaver after he had an argument with his supervisor, Charles Bacon.
After he had commenced his suit for harassment, Mr. Shaver contacted several
acquaintances for job interviews and gave them Mr. Bacon's name as a job reference.
When contacted by Mr. Shaver's acquaintances, Mr. Bacon told them that he could
not recommend Mr. Shaver because he had "a get rich quick scheme involving suing
companies." None of the acquaintances with whom Mr. Shaver interviewed offered
him a job, and he was subsequently able to find employment when he gave the name
of a different former supervisor at Salem as a reference. On the basis of these facts,
the district court concluded that Mr. Shaver was attempting to manufacture a
retaliation claim against Salem by baiting Mr. Bacon into giving negative references
because of Mr. Shaver's suit. In reaching this conclusion, the district court also relied
on the fact that no one was hired by any of the acquaintances in lieu of Mr. Shaver
and that Mr. Shaver intentionally gave the prospective employers the name of the
supervisor with whom he had argued.

       We are unable to agree with the district court's view that claims that are
"manufactured" in the sense that the court used the word are not actionable. The
ADA states that "[n]o person shall discriminate against any individual because ...
such individual made a charge ... under this chapter." 42 U.S.C. § 12203(a). A prima
facie case under this provision consists of proof of protected activity by the employee,
adverse action taken by the employer against the employee, and a causal connection
between the protected activity and the adverse action. Cossette, 188 F.3d at 972. The
district court seems to have added an additional requirement, namely, that the party
asserting the claim did not purposefully seek the adverse action. Nothing in the
words of the statute or in our cases, however, suggests that the conduct of the
aggrieved party, other than the party's initial protected activity, is relevant. Rather,
the law focuses exclusively on the conduct of the alleged retaliator in determining
whether the aggrieved plaintiff has a claim.

                                           -9-
       In support of its conclusion, the district court cited McFadden v. State Univ.
of N.Y., 195 F. Supp. 2d 436 (W.D.N.Y. 2002). Even if we were inclined to follow
that case, nothing in it suggests that there is some "manufactured claim" exception to
the retaliation provision of the ADA. In McFadden, the plaintiff, a university
professor, learned that the tenure committee had recommended that she be denied
tenure. Id. at 443-44. Her attorney then wrote to the university, asserting that gender
discrimination had motivated the tenure decision and asking for an investigation, and
the university deemed the request "premature." Id. at 444. Afterward, when the
president of the university followed the committee's recommendation (and the
recommendation of others) to deny the plaintiff tenure, the plaintiff responded by
claiming that the president's decision was, in part, motivated by her attorney's letter.
Id. at 454. While it used the term "manufacture," the McFadden court was making
the straightforward point that it was quite impossible for the plaintiff's subsequent
protected activity to have caused the committee to recommend denying her tenure.
Id. at 455. Nor was there reason to think that the president's decision that was
foreshadowed by that recommendation would have been different if no letter had
been written. Id. Rather than announcing an exotic new "manufactured claim"
defense, the court was making the pedestrian point that some claims fail because there
is no demonstrable causal connection between the protected activity and the adverse
action.

       Our view of the matter finds support in the so-called "tester" cases, where
minority applicants apply for jobs or housing that they have no intention of accepting
for the sole purpose of determining whether the employer or landlord is unlawfully
discriminating. See, e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982);
Kyles v. J.K. Guardian Sec. Servs., Inc., 222 F.3d 289 (7th Cir. 2000). In those cases,
defendants have objected that there was no real substance to the plaintiffs’ claims
since those claims were created solely for the purpose of litigation. The courts,
however, have advanced two different reasons for allowing such suits to proceed.



                                         -10-
       First, the mere fact of discrimination offends the dignitary interest that the
statutes are designed to protect, regardless of whether the discrimination worked any
direct economic harm to the plaintiffs. See Kyles, 222 F.3d at 297. In enacting the
ADA, Congress found that "discrimination against individuals with disabilities
continue[s] to be a serious and pervasive problem," 42 U.S.C. § 12101(a)(2), and that
"individuals with disabilities ... have been ... subjected to a history of purposeful
unequal treatment, and relegated to a position of political powerlessness in our
society, based on characteristics that are beyond the control of such individuals,"
42 U.S.C. § 12101(a)(7). This language suggests that Congress was trying to protect
a dignitary interest with the ADA. Second, tester cases have been allowed to proceed
on a "private attorney general" theory. See Kyles, 222 F.3d at 299. By giving
litigants an incentive to attack illegal activity by employers, Congress enlisted private
self-interest in the enforcement of public policy.

       In any case, there are many reasons why a person might seek a job interview
even though he or she has no intention of taking the job. People may be "testing the
waters" to find out what kind of reference they would get, practicing their
interviewing skills, investigating a new line of work, or they may have any one of a
whole host of other benign reasons for "manufacturing" a job application. See Kyles,
222 F.3d at 298 n.5. For these reasons, we disagree with the district court’s holding
that a "manufactured" claim that meets the statutory requirements cannot proceed.
The issue of whether Mr. Shaver actually failed to get a job remains relevant on the
question of the extent of his damages, but even if the whole situation was
"manufactured," he would still have a claim for nominal damages, and in the proper
circumstances, for attorneys' fees, exemplary damages, and injunctive relief.

       Having dealt with the district court's legal holding, the question remains
whether the evidence here, taken in the light most favorable to Mr. Shaver, presents
a triable issue for a jury. We conclude that it does. Contrary to Salem's arguments,
negative job references can constitute adverse, retaliatory action as a matter of law.

                                          -11-
See Smith, 109 F.3d at 1266. In his deposition, Mr. Bacon denied that his words
constituted a negative recommendation, and also denied that he was retaliating
against Mr. Shaver. But it is for a jury to decide whether Mr. Bacon is to be believed,
whether his interpretation of events is consistent with the rest of the evidence, and
whether his recommendations caused prospective employers to reject Mr. Shaver's
applications. Furthermore, the district court’s conclusion that Mr. Shaver had no real
intention of seeking a job with his acquaintances rests on contestable inferences from
circumstantial evidence. The same is true of the district court’s suggestion that the
acquaintances were somehow involved in this alleged scheme. Both of these issues
are relevant to the extent of the damages that Mr. Shaver suffered and on the present
record are matters for the jury to decide.

                                          III.
       There are a few remaining issues that we must resolve. First, we agree with the
district court's holding that Mr. Bacon was an agent of Salem and that Salem can be
properly charged with any action that he took regarding recommendations of
Mr. Shaver. Second, Independent Stave Company, Inc., asks that we rule that it is an
independent company and that it therefore is not liable for any of Salem's actions.
This issue was not reached by the court below, and on remand the district court will
be obligated to deal with it if Independent pursues the matter. We decide that Salem's
remaining arguments are without merit.

                                         IV.
      For the reasons set forth above, the district court's judgment is affirmed in part
and reversed in part. We remand the case for further proceedings consistent with this
opinion.
                       ______________________________




                                         -12-
