                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-3928
                                    ___________

Donald E. VanDeWalker,               *
                                     *
                 Appellant,          * Appeal from the United States
                                     * District Court for the District
     v.                              * of Nebraska.
                                     *
Kawasaki Motors Manufacturing Corp., *     [UNPUBLISHED]
U.S.A.,                              *
                                     *
                 Appellee.           *
                               ___________

                              Submitted: April 13, 2000

                                   Filed: May 2, 2000
                                    ___________

Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
                            ___________

PER CURIAM.

       Donald VanDeWalker and his wife were employed by Kawasaki Motors
Manufacturing Corp., U.S.A. (Kawasaki). Shortly after VanDeWalker's wife brought
an employment discrimination lawsuit against Kawasaki, Kawasaki terminated
VanDeWalker. VanDeWalker, in turn, filed a lawsuit against Kawasaki, alleging he
was fired in retaliation for his wife's legal action. The district court granted summary
judgment for Kawasaki, concluding VanDeWalker failed to establish a prima facie case
of retaliation because "there is no dispute that [VanDeWalker] deliberately refrained
from engaging in any protected activity himself." See Smith v. Riceland Foods, Inc.,
151 F.3d 813, 818 (8th Cir. 1998) (prima facie case of retaliation requires showing that
plaintiff engaged in statutorily protected activity, plaintiff suffered an adverse
employment action, and there was a causal connection between adverse employment
action and protected activity). On appeal, VanDeWalker argues that, although he did
not personally engage in statutorily protected activity, his wife's legal action is
sufficient to establish his prima facie case of retaliation. We disagree. As this court
has stated:

      We believe that the rule . . . that a plaintiff bringing a retaliation claim
      need not have personally engaged in statutorily protected activity if his
      . . . spouse . . ., who works for the same employer, has done so – is
      neither supported by the plain language of Title VII nor necessary to
      protect third parties, such as spouses . . ., from retaliation. . . .
      Accordingly, we hold that a plaintiff bringing a retaliation claim under
      Title VII must establish that [he] personally engaged in the protected
      conduct.

Smith, 151 F.3d at 819. We thus affirm the district court's grant of summary judgment
for Kawasaki.

McMILLIAN, Circuit Judge, concurring.

      I concur because our panel is bound by this court's holding in Smith v. Riceland
Foods, Inc., 151 F.3d 813 (8th Cir. 1998). Because I disagree with the holding in
Smith, however, I believe the court should reconsider this case en banc.




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A true copy.

      Attest:

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




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