                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                   No. 97-4001MN
                                   _____________

Margaret C. Crossman,                 *
                                      *
                  Appellant,          *
                                      * Appeal from the United States
      v.                              * District Court for the District
                                      * of Minnesota.
Tad Ware & Co., Inc.; Leonard E.      *
Ware, also known as Tad Ware,         *       [UNPUBLISHED]
                                      *
                  Appellees.          *
                                _____________

                            Submitted: May 13, 1998
                                Filed: June 8, 1998
                                 _____________

Before RICHARD S. ARNOLD, JOHN R. GIBSON, and FAGG, Circuit Judges.
                          _____________

PER CURIAM.

       Margaret C. Crossman appeals the district court's adverse grant of summary
judgment in this age and gender-based employment discrimination action. Having
considered the record and the parties' briefs, we see no error by the district court. We
reject Crossman's argument that the district court improperly failed to apply a "mixed
motives" analysis to her case, because Crossman did not present enough evidence of
a discriminatory component to meet the threshold showing required for this analysis.
Additionally, even if we assume for the purpose of our review that Crossman
established the elements of a prima facie case, we agree with the district court that
there is no substantial evidence in the record tending to show the reason given by
Crossman's employer for terminating her employment was a pretext for age or gender
discrimination. We also agree with the district court that Crossman's related claims for
defamation, tortious interference with contract, and negligent infliction of emotional
distress cannot survive summary judgment. We thus conclude the district court
correctly granted summary judgment, and we affirm without further discussion. See
8th Cir. R. 47B.

JOHN R. GIBSON, Circuit Judge, dissenting.

      I respectfully dissent.

      While the court today treats most summarily the issues raised by Crossman in
her appeal, the issue is far cloudier than the court recognizes or admits.

       The central issue in the district court's grant of summary judgment was whether
Crossman had made the error in the prize-winning recipe. The district court first held
that Crossman had presented sufficient facts to support her claim that she was qualified
for her position, but then concluded that she presented no evidence that Tad Ware's
reason for terminating her--namely, that she made the large errors in the Schwan's
cookbook, as well as other mistakes--was pretextual.

       It is true that Crossman stated in her deposition that she was the typesetter on the
project. Ware, in its brief, states, "Appellant admitted in her deposition that she--and
not Bilben--made the grand prize-winning error." A lengthy footnote follows in which
counsel explains how "[t]he record makes absolutely clear that appellant made the
grand prize-winning error." Ware's brief then includes Crossman's statement that she
did the initial typesetting; her admission that she could see how the accident could
happen because her eyes could drop a half inch down on the page; and her statement
that she may have made typographical errors on the cookbook project. Ware then

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relies on Mary Turner's affidavit that there was no doubt that Crossman made the error
in question.

       The hard record before the district court does not contain such clear and
unequivocal testimony. When asked if she made some of the errors, Crossman stated
"I don't know." When asked, "Could have?" Crossman responded, "I may have made
typographical errors that were missed in the Proofreading Department. I would have
to admit to that." This is the high point of the testimony relied upon by Ware in its
brief.

        In her deposition Crossman was asked specifically if she made the error in the
prize-winning recipe, and she answered, "I don't know." Asked if she denied it, she
stated, "I can't remember if I made that typographical error." Asked if it was possible,
she stated, "I imagine it's possible." But when asked if it was likely she stated, "I can't
say that," and she followed it up with, "I don't know." The affidavit of Mary Turner
stated that she reviewed the time sheets for the project, the hard copy original recipes,
and the galleys. Turner stated, "There is no doubt in my mind whatsoever that
[Crossman] omitted key words from the Grand Prize Winning Recipe." Turner further
said, "There is also no doubt in my mind that no one else caused that omission, other
than the plaintiff Margaret C. Crossman."

      The record also contains deposition testimony of Brad Bilben, who stated that
he did not feel that he was responsible for the error. He also stated, "As far as I'm
concerned, I had just as much to do with that cookbook as anybody did." The next
questions and answers followed:

      Q.    But the error on the grand prize-winning recipe, you don't feel you
      were responsible for that?

      A.      I could have been.

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      Q.     You don't know?

      A.     I don't--I don't know if I was specifically responsible for it.

When asked if he typeset the recipe, Bilben stated that he could not tell whether he did
or not, and that he might have typeset some of the recipes, but did not know whether
he typeset the grand prize-winning recipe or not.

       There is also testimony in the record that Tad Ware made statements only a few
months before the typesetting incident, that a younger person who could "schmooze"
with the clients would make a more qualified account executive, a post that Crossman
held for a short period.

        On this state of the record, I conclude that it was for the finder of fact to
determine who typeset the prize-winning recipe with its mistake. The opinion
testimony of Mary Turner and the I-don't-knows from both Crossman and Bilben,
together with the overstatement of the facts in Ware's brief, cause me to conclude that
this is an issue for the jury to determine. The court errs today in affirming the grant of
summary judgment.

      A true copy.

             Attest:

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




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