                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                Nos. 03-3888/3950
                                ________________

Robert Eliserio,                          *
                                          *
      Appellant/Cross-Appellee,           *
                                          *
      v.                                  *      Appeal from the United States
                                          *      District Court for the
United Steelworkers of America            *      Southern District of Iowa.
Local 310; Steve Vonk,                    *
                                          *
      Appellees/Cross-Appellants.         *
                                          *

                                ________________

                           Submitted: October 21, 2004
                               Filed: February 24, 2005
                               ________________

Before BYE, BEAM, and GRUENDER, Circuit Judges.
                         ________________

GRUENDER, Circuit Judge.

       Robert Eliserio appeals from the district court’s grant of summary judgment
to United Steelworkers of America Local 310 (“Local 310”) on his hostile work
environment and retaliation claims under 42 U.S.C. § 2000e et seq. (“Title VII”) and
42 U.S.C. § 1981, and the dismissal of his related state-law claims. Local 310 and its
divisional chairman, Steve Vonk, cross-appeal the decision of the district court not
to address whether Eliserio’s state-law claims are preempted by federal law. For the
reasons discussed below, we reverse the grant of summary judgment to Local 310 on
the hostile work environment and retaliation claims and remand for further
proceedings.

I.    BACKGROUND

      Robert Eliserio is a Hispanic male who worked as a quality inspector for
Firestone at its Des Moines, Iowa plant. His duties included inspecting tires and
reporting production problems and poor workmanship to Firestone supervisors.
Local 310 is the collective bargaining agreement representative for production and
maintenance employees at the plant. Eliserio resigned his membership in Local 310
in 1995 after he crossed the picket line during a strike.

       In early 1997, Johnny Bales, a Firestone employee in Eliserio’s division and
a Local 310 member, referred to Eliserio as “Taco Bob” in Eliserio’s presence.
Eliserio complained to Firestone about racial harassment, and Bales was terminated.
As required by the duty of representation, Local 310 filed a grievance on behalf of
Bales. As part of a larger agreement negotiated by Local 310 and Firestone, Bales
was reinstated at the plant with full seniority in October 2000.

       In early 2001, within a few months of Bales’s reinstatement, graffiti began to
appear on the walls of two restrooms near Eliserio’s work area. The graffiti typically
referred to “Taco Bob” and contained drawings of rats labeled “Ratelserio” or
“Ratserio.” Other graffiti included the phrase “a woman gave birth to a taco shaped
turd and she named him Bob.” Eliserio complained to Firestone supervisors that the
graffiti constituted racial harassment. At Firestone’s request, Steve Vonk, the Local
310 divisional chairman of Eliserio’s division, spoke to members of Eliserio’s shift
in an effort to identify and discourage the graffiti culprits. The parties dispute the
amount of effort Vonk actually put into this task. Regardless, the graffiti continued
to appear regularly, and Eliserio continued to complain.



                                         -2-
       In July 2001, Vonk caused Local 310 to purchase “No Rat” stickers. The
stickers, which displayed a rat in a circle with a slash through it, were distributed
throughout the plant in August. Vonk claims that the stickers were meant to generally
discourage employees from informing on each other to Firestone over petty matters.
Eliserio, however, viewed the “No Rat” stickers as a union endorsement of the
discriminatory graffiti and complained further to Firestone. Firestone ordered Local
310 to remove the stickers from all Firestone property, but Local 310 members
continued to display the stickers on their personal belongings in the plant.

       In September 2001, Vonk asked Firestone Assistant Labor Relations Manager
Mel Hall to “somehow get [Eliserio] out of the area.” In response, Firestone
disqualified Eliserio from his quality inspector position and moved him to a lesser-
paying job in another area. Vonk and Hall contend that the demotion was caused by
Eliserio’s alleged misuse of his company internet and two-way-radio privileges.
However, Hall admitted that no other Firestone employee had ever been disciplined
for those offenses in Hall’s eight years of experience. No documentation regarding
Eliserio’s alleged internet and radio misdeeds was retained.

       At Eliserio’s request, Local 310 filed a union grievance regarding Eliserio’s
demotion. Firestone recognized that the reasons cited for his demotion were not
listed in the collective bargaining agreement as permissible grounds. As a result,
Firestone reinstated Eliserio to his former job with full back pay in December 2001.
Eliserio, however, disputes whether all his authority and overtime opportunities were
fully restored. The graffiti continued to appear after his reinstatement. Eliserio left
Firestone in August 2002, citing stress from the continual racial harassment as the
reason.

       In April 2002, Eliserio filed suit against Firestone and three of its managers,
the international union, Local 310 and Vonk, alleging a hostile work environment and
retaliation in violation of Title VII and 42 U.S.C. § 1981, plus associated claims

                                          -3-
under the Iowa Civil Rights Act (“ICRA”). Firestone and its managers settled.
Eliserio conceded that the international union and Vonk, in his individual capacity,
could not be held liable on the federal claims. The district court granted summary
judgment on the federal hostile work environment claim to the sole remaining
defendant, Local 310, on the grounds that Eliserio had produced no evidence to show
that Local 310 instigated or actively supported the discriminatory conduct. The
district court also granted summary judgment to Local 310 on the federal retaliation
claim because it found no evidence to suggest an adverse action or retaliatory motive
by Local 310. After dismissing the claims over which it had original jurisdiction, the
district court declined to exercise supplemental jurisdiction over the ICRA claims.

II.   DISCUSSION

       We review the grant of summary judgment de novo, viewing the summary
judgment record in the light most favorable to the non-moving party. Griffith v. City
of Des Moines, 387 F.3d 733, 734 (8th Cir. 2004). We give the non-moving party the
benefit of all reasonable inferences that can be drawn from the record. Morgan v.
UPS of Am., Inc., 380 F.3d 459, 463 (8th Cir. 2004). If the record as a whole could
not lead a rational trier of fact to find for the non-moving party, there is no genuine
issue for trial. Rifkin v. McDonnell Douglas Corp., 78 F.3d 1277, 1280 (8th Cir.
1996). However, if a reasonable jury could return a verdict for the non-moving party
based on the evidence, summary judgment is inappropriate. Quick v. Donaldson Co.,
90 F.3d 1372, 1377 (8th Cir. 1996).

       Eliserio asserts that summary judgment for Local 310 was improper because
he introduced credible evidence to show that Local 310 supported the actions that
allegedly created a hostile work environment and that Local 310 took adverse action
against him in retaliation for his complaints regarding discrimination.




                                          -4-
A.    The Hostile Work Environment Claim

       Eliserio does not claim that the union discriminated against him with respect
to union membership or activities. Rather, he claims that the union discriminated
against him with respect to the terms and conditions of his employment with
Firestone.

        Title VII and § 1981 claims alleging a hostile work environment are analyzed
under an identical standard. Elmahdi v. Marriott Hotel Services, Inc., 339 F.3d 645,
652 (8th Cir. 2003). “An employer violates Title VII ‘if the workplace is permeated
with discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.’” Gipson v. KAS Snacktime Co., 171 F.3d 574, 578 (8th Cir.
1999) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The claimant
must show both that the offending conduct created an objectively hostile work
environment and that he subjectively perceived the work environment to be hostile.
Bowen v. Mo. Dep’t of Soc. Services, 311 F.3d 878, 883 (8th Cir. 2002). Whether an
environment was objectively hostile or abusive must be judged by looking at the
totality of the circumstances, including the frequency and severity of the
discriminatory conduct, whether such conduct was physically threatening or
humiliating, as opposed to a mere offensive utterance, and whether the conduct
unreasonably interfered with the employee’s work performance. Id. at 884.

       A union has no affirmative duty under Title VII to investigate and take steps
to remedy employer discrimination. Thorn v. Amalgamated Transit Union, 305 F.3d
826, 832 (8th Cir. 2002). On the other hand, a union may be held liable under Title
VII if “the [u]nion itself instigated or actively supported the discriminatory acts.” Id.
at 832-33 (quoting Anjelino v. New York Times Co., 200 F.3d 73, 95-96 (3d Cir.
1999)).



                                           -5-
       Local 310 did not argue in its summary judgment motion that Eliserio failed
to produce evidence from which a reasonable jury could find that the work
environment was objectively and subjectively hostile, and the district court did not
reach the issue. Neither party addressed this issue before this Court. Therefore, for
the purposes of this appeal, we will assume without deciding that the work
environment was objectively and subjectively hostile. The issue we must address is
whether Eliserio produced evidence from which a reasonable jury could find that
Local 310 instigated or actively supported the hostile work environment.

       Eliserio offers three bases from which a jury might conclude that Local 310
instigated or actively supported the graffiti: the likelihood that union members created
the graffiti, the issuance of the “No Rat” stickers, and an affidavit by a former co-
worker alleging discriminatory statements about Eliserio by Local 310 officials. We
examine each in turn.

      1.     The Likelihood That Union Members Created the Graffiti

       Eliserio argues that the graffiti was almost certainly created by union members
because approximately 11,950 of 12,000 employees at the Des Moines plant are
union members, some of whom held a grudge against Eliserio for crossing the picket
line in 1995 and causing Bales to be fired in 1997. The sole fact that union members
created the graffiti, however, would not give Eliserio a Title VII claim against Local
310. Unions have no duty to take remedial action for discriminatory acts by their
individual members. See Thorn, 305 F.3d at 832. Instead, Eliserio must show that
Local 310, as an organization, “instigated or actively supported” the racially
harassing graffiti. Id. at 832-33.




                                          -6-
      2.     The Issuance of the “No Rat” Stickers

       Eliserio contends that the union’s issuance of the “No Rat” stickers supported
the discriminatory graffiti campaign against him. The timing of the purchase of the
“No Rat” stickers supports his claim. Vonk, in his capacity as a union official,
decided to purchase and distribute the “No Rat” stickers at a time when he was well
aware of the “Ratserio” graffiti and associated racial slurs. A reasonable jury could
conclude that Vonk’s goal was to demonstrate union support for the graffiti’s
discriminatory message.

       Local 310 contends that the “No Rat” stickers are part of a time-honored
tradition of encouraging union members not to snitch on each other for petty
misbehavior. As such, they have no negative racial connotations regarding Hispanics
or any other group. However, the stickers need not have a direct racial connotation
to be perceived as supportive of the racially offensive graffiti campaign. See Diaz v.
Swift-Eckrich, Inc., 318 F.3d 796, 800 (8th Cir. 2003) (“[A]ll instances of harassment
need not be stamped with signs of overt discrimination to be relevant under Title VII
if they are part of a course of conduct which is tied to evidence of discriminatory
animus.”) (citation omitted). The graffiti combined derisive references to Eliserio’s
Hispanic heritage, such as “Taco Bob” and “taco-shaped turd,” with drawings of
Eliserio as a rat. A reasonable jury could find that the union-issued “No Rat” stickers
were intended to be associated with the “Ratserio” drawings in the graffiti and, thus,
would serve as a broad endorsement of the graffiti, including the discriminatory
elements. Therefore, summary judgment for Local 310 on Eliserio’s hostile work
environment claim was improper.

      3.     The Osterhout Affidavit

       An affidavit by former Firestone employee Robert Osterhout supports
Eliserio’s claim that Local 310 officials purchased the stickers to support the graffiti

                                          -7-
campaign against Eliserio. Osterhout avers that, in the course of distributing the
stickers, Local 310 executive board member Terry Welch told him the stickers were
targeted at Eliserio. In addition, Osterhout claims that Vonk and Osterhout’s union
steward, Andy Byrkette, stated on more than one occasion that they would “stop at
nothing to get rid of” Eliserio.

        Local 310 asks us to discount the affidavit because of questions surrounding
Osterhout’s credibility, but issues of credibility are for a jury to determine.
Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 788 (8th Cir. 2004). Local 310
also argues that the alleged statements were inadmissible hearsay because its officials
were not acting as agents of the union at the time they made the comments reported
by Osterhout. See, e.g., Erickson v. Farmland Indus., 271 F.3d 718, 728 (8th Cir.
2001) (noting that hearsay reported in an affidavit cannot be considered in deciding
a summary judgment motion). On the contrary, Welch’s statement was allegedly
made while distributing the union-purchased stickers. Although Osterhout provided
little context for Vonk’s alleged statements, the statements were made in regard to a
matter of union concern and in the presence of a union steward. Based upon the
summary judgment record, we conclude that Vonk’s alleged statements were made
within the scope of his duties as a union official. Therefore, the statements of Welch
and Vonk reported by Osterhout are not hearsay and should be considered as
admissions of a party-opponent. See Fed. R. Evid. 801(d)(2).

       The Osterhout affidavit supports Eliserio’s claim that a genuine issue of
material fact exists as to whether Local 310 officials purchased the stickers to support
the discriminatory graffiti campaign. We conclude that Eliserio produced evidence
from which a reasonable jury could find that Local 310 actively supported the
allegedly hostile work environment.




                                          -8-
B.    The Retaliation Claim

        Eliserio claims that Local 310 retaliated against him for complaining to
Firestone about the racially offensive graffiti. Neither party has addressed the issue
of Eliserio’s statutory standing to bring this claim against a labor organization under
42 U.S.C. § 2000e-3(a). Therefore, for the purposes of this appeal, we will assume
without deciding that Eliserio has statutory standing.

       To analyze a claim of retaliation under Title VII, we apply the McDonnell
Douglas three-part burden shifting analysis. Thorn, 305 F.3d at 830. Absent direct
evidence of discrimination, we ask first whether the plaintiff presented a prima facie
case of retaliation, next whether the defendant rebutted the resulting presumption of
retaliation by advancing a legitimate reason for its challenged behavior, and finally
whether the plaintiff refuted the defendant’s proffered reason with sufficient evidence
of pretext. Id.

      1. Prima Facie Case

       To make a prima facie case of retaliation against an employer, a claimant must
show that (1) he engaged in protected conduct by either opposing an act of
discrimination made unlawful by Title VII or participating in an investigation under
Title VII; (2) he suffered an adverse employment action; and (3) the adverse action
was causally linked to the protected conduct. Hunt v. Neb. Pub. Power Dist., 282
F.3d 1021, 1028 (8th Cir. 2002). The district court concluded that Eliserio did not
establish the second and third elements.

       The analysis changes slightly when the retaliation defendant is a labor
organization, rather than the plaintiff’s employer. Because unions often do not have
the authority to subject a represented employee to an adverse employment action, we



                                          -9-
have held that any meaningful adverse action is sufficient when the retaliation
defendant is a union. Thorn, 305 F.3d at 830-31.

      In this case, it is undisputed that Eliserio complained to Firestone of racial
harassment, satisfying the first element. It is also undisputed that Vonk, acting in his
capacity as a Local 310 official, asked Firestone to “somehow get [Eliserio] out of the
area.” Firestone relied on Vonk’s complaint and demoted Eliserio. We believe that
Vonk’s complaint constituted a meaningful adverse action.

       The only remaining element of a prima facie case is a causal link between
Eliserio’s complaints of racial harassment and Vonk’s complaint to Firestone. A
plaintiff can establish a causal connection between his complaints and an adverse
action through circumstantial evidence, such as the timing of the two events.
Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 761 (8th Cir. 2004). Generally,
however, a temporal connection alone is not sufficient to establish a causal
connection. Id.

       Eliserio repeatedly complained of racial harassment from early 2001, when the
graffiti began to appear, until Vonk’s complaint in September 2001. This temporal
connection supports an initial inference of causation. In addition, Vonk admitted that
as a result of Eliserio’s complaints of racial harassment to Firestone, he was forced
to devote significant time to investigating and attempting to remedy the ongoing
graffiti situation. Vonk stated that as a result of his uncompensated overtime work
on union business, he often was forced to forgo opportunities for paid overtime. A
reasonable jury could infer that Vonk’s attempt to have Eliserio removed from his
area was motivated by Vonk’s desire to avoid the drain on his time caused by
Eliserio’s continuing complaints of racial harassment. This inference would provide
the necessary causal link between Eliserio’s complaints of racial harassment and
Vonk’s complaint to Firestone. Therefore, we conclude that Eliserio presents a prima
facie case of retaliation.

                                          -10-
      2. Pretext

      Local 310 claims that Vonk’s attempt to remove Eliserio from his area was
motivated by Eliserio’s abuse of internet privileges and his use of the company two-
way radio to eavesdrop on supervisors and report employee misbehavior. However,
a reasonable jury could find that this explanation for Eliserio’s demotion is mere
pretext.

       Vonk had allegedly made five earlier complaints to Firestone about Eliserio’s
misuse of his radio since approximately 1998. However, Eliserio was not disciplined
for, nor even informed of, any of these earlier complaints. In fact, Firestone
management admitted that no other employee had been disciplined for internet or
radio misuse in the previous eight years. Local 310 cannot explain why Firestone,
which apparently had considered previous complaints about radio and internet misuse
so insignificant that it did not even bother to inform Eliserio of a problem, suddenly
took the severe step of demoting Eliserio for such a complaint. A reasonable jury
could infer that Vonk’s September 2001 complaint involved something more than the
regularly ignored complaints about radio and internet misuse.

       Local 310 contends that because Vonk immediately filed a grievance on
Eliserio’s behalf and gained Eliserio reinstatement with full back pay, no jury could
conclude that Vonk’s original goal was to retaliate against Eliserio. However, Vonk
was bound by union policies to file the grievance, and Firestone had to reinstate
Eliserio because the reasons cited for his demotion were not listed in the collective
bargaining agreement as permissible grounds.

      We conclude that a reasonable jury could find that Local 310’s proffered
nondiscriminatory reason for Vonk’s action against Eliserio was pretextual.
Therefore, summary judgment for Local 310 on the retaliation claim was improper.



                                         -11-
C. State Law Claims

      After granting summary judgment on the federal law claims, the district court
declined supplemental jurisdiction over the state law claims under 28 U.S.C. §
1367(c)(3). Because we reverse and remand the federal law claims, the district court
must reconsider its supplemental jurisdiction over the associated state law claims.
Therefore, we need not address the cross-appeal by Local 310 and Vonk.

III.   CONCLUSION

       We reverse the district court’s grant of summary judgment to Local 310 on
Eliserio’s Title VII and 42 U.S.C. § 1981 hostile work environment and retaliation
claims and remand for further proceedings consistent with this opinion.
                       ______________________________




                                        -12-
