                          Nos. 95-1253/1305


Dale Nelson,                        *
                                    *
      Appellee/Cross-Appellant,     *
                                    *
        v.                          *
                                    *
J. C. Penney Company, Inc.,         *   Appeals from the United States
                                    *   District Court for the
      Appellant/Cross-Appellee.     *   Northern District of Iowa.

                                    *
                                    *
                                    *
                                    *
Equal Employment                    *
Opportunity Commission,             *
                                    *
      Amicus Curiae.                *




                  Submitted:    September 13, 1995

                       Filed:   January 24, 1996


Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     Dale Nelson began working for J. C. Penney department stores
in 1960.    In 1983, he became the manager of a store in Iowa.
In late 1990, he was transferred to become the manager of a smaller
store in North Dakota. Four and a half months later, shortly after
he turned 55, he was fired.


     Mr. Nelson sued Penney in federal court in Iowa in late 1991,
alleging age discrimination, retaliatory discharge (he had filed an
age discrimination charge with the appropriate administrative
agency a month before he was fired), and discharge in violation of
the Employee Retirement Income Security Act (ERISA) (all under
federal law), and disability discrimination, invasion of privacy,
intentional infliction of emotional distress, and defamation
(under Iowa law).


     At an eight-day mixed jury/bench trial in mid-1993, the trial
court dismissed the claims of invasion of privacy and intentional
infliction of emotional distress for failure to state a claim. The
trial court did not instruct the jury on the claim of defamation.
The jury then found for Mr. Nelson on the age discrimination and
retaliatory discharge claims. The trial court found for Penney on
the claims of discharge in violation of ERISA and disability
discrimination. See Nelson v. J. C. Penney Co., 858 F. Supp. 914
(N.D. Iowa 1994).    After denying post-trial motions, the trial
court entered judgment for Mr. Nelson in the amount of
approximately $930,000. Both sides appeal. We affirm in part and
reverse in part and remand the case for the entry of the
appropriate judgments.


                                 I.
     Penney contended that Mr. Nelson was fired, after repeated
warnings, because of an abrasive and intimidating management style.
Mr. Nelson contended that Penney's stated reason for firing him was
merely a pretext for age discrimination. The trial court denied
Penney's motions for judgment as a matter of law, both at trial and
post-trial, on the age discrimination claim. Penney appeals those
denials.   In reviewing the denial of a defendant's motion for
judgment as a matter of law in an age discrimination case submitted
to a jury, we "focus on the ultimate factual issue of whether the
employer intentionally discriminated against the employee on
account of age." Nelson v. Boatmen's Bancshares, Inc., 26 F.3d




                               -2-
796, 800 (8th Cir. 1994). That process requires an evaluation of
three different questions. Id. at 801.

     First, we determine whether the plaintiff established a
prima facie case -- i.e., that he was "within the protected age
group, ... [that] he was performing his job at a level that met his
employer's legitimate expectations, ... [that] he was discharged,
and ... [that] his employer attempted to replace him." Radabaugh
v. Zip Feed Mills, Inc., 997 F.2d 444, 448 (8th Cir. 1993). For
the purposes of this appeal, we assume that Mr. Nelson established
a prima facie case and thus created a presumption of unlawful age
discrimination by Penney. Nelson, 26 F.3d at 801. The existence
of that presumption placed an obligation upon Penney to rebut it,
if possible. Id.


     To rebut a presumption of unlawful age discrimination created
by a plaintiff's prima facie case, an employer has to offer reasons
for its actions that, if believed by a jury, would allow the jury
to conclude that the plaintiff's age was not the reason for his
termination. Id. Penney did so. There was evidence that many
store managers older than Mr. Nelson were still working and had
even been promoted.     There was additional, and considerable,
evidence of Mr. Nelson's difficulties in dealing with his employees
in Iowa and of a continuation of those difficulties after his
transfer to North Dakota (there was, moreover, no evidence that
Penney failed to discipline younger store managers with the same or
similar difficulties).     Finally, both of the supervisors who
participated in the decision to fire Mr. Nelson denied that his age
was a factor in that decision.


     Because Penney presented evidence of reasons other than age
for its decision to terminate Mr. Nelson, it is considered to have
rebutted his prima facie case. Id. The presumption of unlawful
age discrimination therefore drops out of the case, id., and we


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evaluate, last, only whether Mr. Nelson presented evidence "capable
of proving that the real reason for his termination was
discrimination based on age."     Id.  Such evidence must include
"'conduct or statements by persons involved in the decisionmaking
process that may be viewed as directly reflecting the alleged
discriminatory attitude'" of an extent "'sufficient to permit the
[jury] to infer that that attitude was more likely than not a
motivating factor in the employer's decision.'"        Id. at 800,
quoting Ostrowski v. Atlantic Mutual Insurance Companies, 968 F.2d
171, 182 (2d Cir. 1992). With that standard in mind, we examine
the evidence offered by Mr. Nelson as the basis for his age
discrimination claim. Nelson, 26 F.3d at 802.


     We have read the entire trial transcript with care. As far as
we can tell, Mr. Nelson presented four specific bases for his claim
of age discrimination. The first was the fact that when he was
transferred to North Dakota, and again when he was fired, his
replacements were younger than he was. Then, late in 1990, around
the time that Mr. Nelson was transferred to the store in North
Dakota, the district manager for Iowa (Mr. Nelson's prior
supervisor) called the district manager for North Dakota
(Mr. Nelson's new supervisor) to advise him about Mr. Nelson's
background.   During that call, the district manager for North
Dakota made notes, among which he included the information that
Mr. Nelson was 54 years old. That inclusion was the second basis
for Mr. Nelson's age discrimination claim. At a lunch in early
1991 attended by Mr. Nelson, his wife, the district manager for
North Dakota, and two other Penney employees, the district manager
told Mr. Nelson that he knew Mr. Nelson's age. That statement was
the third basis for Mr. Nelson's age discrimination claim.
Finally, although Mr. Nelson received negative comments on his
management style from various supervisors earlier in his career, he
was never otherwise disciplined or transferred because of them
until he was 54 years old.


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     It is true that the replacements for Mr. Nelson at both stores
were younger than he was; at the Iowa store, however, the age
difference between Mr. Nelson and his successor was only one month.
It is also true that the district manager for North Dakota wrote
down Mr. Nelson's age when discussing him with the district manager
for Iowa.   But the fact that Mr. Nelson's replacement in North
Dakota was significantly younger than he possesses, in our view,
insufficient probative value to persuade a reasonable jury that
Mr. Nelson was discriminated against. Such a fact is consistent
with age discrimination, but it cannot alone support a reasonable
inference of it. Nor do we believe that the fact that the district
manager knew Mr. Nelson's age could furnish the basis for a
reasonable inference that his age was a basis for his termination.
A fact finder may not simply convert a condition that is necessary
for a finding of liability (here, knowledge of a plaintiff's age)
into one that is sufficient for such a finding.


     We have said that in "some cases, evidence that an employer's
proffered nondiscriminatory explanation is wholly without merit or
obviously contrived might serve double duty, ... permitting an
inference that age discrimination was a motivating factor in a
plaintiff's termination." Id. at 801. This is not such a case.
There was no conflicting testimony or other substantial evidence of
deviousness on the part of the employer, see id. at 802, from which
a reasonable fact finder could conclude that the employer's
proffered reasons for Mr. Nelson's termination were pretextual.
See also Gaworski v. ITT Commercial Finance Corp., 17 F.3d 1104,
1110 (8th Cir. 1994), cert. denied, 115 S. Ct. 355 (1994). We do
not think that the simple fact that the employer's testimony is
necessarily self-interested is enough under our previous cases to
allow the jury to find that the employer's proffered reasons were
pretextual. If it were, then any case in which the plaintiff makes
a prima facie case is a submissible one because it must go to the
jury whether or not the employer produces bona fide reasons for its


                               -5-
actions -- and we have never held that. Mr. Nelson's personnel
file did contain occasional comments from earlier supervisors about
his need to improve his relationships with his employees. There is
no evidence in the record, however, showing that any of those
remarks was preceded by the number, intensity, or scope of employee
complaints that occurred in the year before Mr. Nelson was fired.


     In view of all of these circumstances, and considering the
insubstantial character of the evidence presented with respect to
age discrimination, we cannot agree with the trial court that
Mr. Nelson established a submissible case that age "'actually
motivated'" Penney's decision to fire him. Nelson, 26 F.3d at 800,
quoting Hazen Paper Co. v. Biggins, 113 S. Ct. 1701, 1706 (1993)
(emphasis supplied in Nelson).     We see no evidence "'directly
reflecting the alleged discriminatory attitude.'" Nelson, 26 F.3d
at 800, quoting Ostrowski, 968 F.2d at 182. We therefore vacate
the judgment on the age discrimination claim and remand the case
for the entry of judgment for Penney on that claim.


                                II.
     The evidence of retaliatory discharge was even less
substantial, consisting only of the facts that Mr. Nelson was fired
a month after filing an age discrimination charge with the
appropriate administrative agency and that both of the supervisors
involved in firing Mr. Nelson knew of that charge. There is no
evidence in the record that others who filed age discrimination
charges were fired, that Mr. Nelson's supervisors discussed the
filing with each other, or that either of them even commented to
Mr. Nelson on that filing.      There was considerable evidence,
moreover, that Mr. Nelson was reprimanded several times and was
given a final warning about the status of his job before his
supervisors knew of the age discrimination charge.




                               -6-
     In light of all of these circumstances, we cannot agree with
the trial court that the mere coincidence of timing established a
submissible case of retaliatory discharge. See, e.g., Caudill v.
Farmland Industries, Inc., 919 F.2d 83, 86-87 (8th Cir. 1990)
(close temporal proximity between filing of age discrimination
charges and firing of plaintiff was only a "slender reed of
evidence" for which "rank speculation" would be required to assume
causal connection between the two events, in light of other
evidence presented); see also Quiroga v. Hasbro, Inc., 934 F.2d
497, 501 (3d Cir. 1991), cert. denied, 502 U.S. 940 (1991)
("inference based on timing alone" was insufficient in light of
other evidence presented). We therefore vacate the judgment on the
retaliatory discharge claim and remand the case for the entry of
judgment for Penney on that claim.


                               III.
     Mr. Nelson cross-appeals the trial court's judgment for Penney
on his claims of discharge in violation of ERISA and disability
discrimination.     We have carefully read the entire trial
transcript. We see no basis for vacating those judgments.


                                IV.
     Mr. Nelson's claim under state law for invasion of privacy was
based on a supervisor's opening of Mr. Nelson's locked desk at the
North Dakota store in his absence to obtain his personnel file.
The trial court dismissed that claim on the first day of trial,
stating that the alleged tort had occurred in North Dakota and that
no such tort is or would be recognized in North Dakota. Mr. Nelson
cross-appeals that dismissal.


     The North Dakota Supreme Court has acknowledged that in the
states where the tort of invasion of privacy is recognized, it
usually takes one or more of four forms -- "(1) appropriation of a
name or picture for commercial purposes without written consent;


                               -7-
(2) intrusion upon one's solitude or seclusion; (3) public
disclosure of private information which is not necessarily
defamatory; and (4) placing a person in a false light ... in
otherwise legitimate news stories." City of Grand Forks v. Grand
Forks Herald, Inc., 307 N.W.2d 572, 578 n.3 (N.D. 1981). In at
least two cases, the North Dakota Supreme Court has assumed for the
sake of argument that a cause of action may exist for commercial
appropriation of a name without consent but has sidestepped the
question of the actual existence of that tort by finding consent to
use of the name. See American Mutual Life Insurance Co. v. Jordan,
315 N.W.2d 290, 296 (N.D. 1982), and Volk v. Auto-Dine Corp., 177
N.W.2d 525, 529 (N.D. 1970). In at least one case, that court has
assumed for the sake of argument that a cause of action may exist
for public disclosure of private information but has sidestepped
the question of the actual existence of that tort by finding no
evidence of proximate cause. See Schleicher v. Western State Bank,
314 N.W.2d 293, 296 (N.D. 1982).


     We have found no authority, however (and have been directed to
none), that would allow us to conclude that North Dakota might
recognize a cause of action for the type of intrusion into a
person's solitude or seclusion of which Mr. Nelson complains.
Indeed, although it has been given a number of opportunities to
hold that some types of invasion of privacy are actionable, the
Supreme Court of North Dakota has consistently refused to do so.
We believe that the trial court therefore correctly decided that
this studied reluctance does not bode well for the acceptance of
this kind of cause of action in North Dakota in the future.
Accordingly, we decline to disturb the trial court's ruling with
respect to the claim for invasion of privacy.


     In his reply brief, Mr. Nelson argues that Penney never
pleaded the applicability of North Dakota law and, therefore, that
the law of Iowa (where the case was tried) should have been


                               -8-
applied. That argument might prevail in the Iowa state courts (a
question upon which we express no opinion), but Mr. Nelson sued in
federal court, where pleadings are governed by the federal rules.
See, e.g., Bank of St. Louis v. Morrissey, 597 F.2d 1131, 1134-35
(8th Cir. 1979); see also Asay v. Hallmark Cards, Inc., 594 F.2d
692, 698-99 (8th Cir. 1979) ("a federal court cannot be bound by a
state's technical pleading rules").      "The federal courts are
required to take judicial notice of the laws of every state of the
union.   Consequently, it is not necessary to plead state law,
whether it be the forum state's law or the law of another state."
See 5 C. Wright and A. Miller, Federal Practice and Procedure:
Civil 2d § 1253 at 357-58 (1990).      Since Mr. Nelson does not
contend that the trial court interpreted Iowa conflicts law
improperly, we reject the argument that Penney's failure to plead
the applicability of North Dakota law deprives Penney of the
benefit of that law on the claim for invasion of privacy.


                                V.
     Mr. Nelson had serious health problems beginning in mid-1989.
His claim under state law for intentional infliction of emotional
distress was based on Penney's transferring him to North Dakota
"with wanton disregard for [his] physical and mental health." The
trial court dismissed that claim on the first day of trial, stating
that because Mr. Nelson had no expert testimony to offer on the
question of emotional distress, he could not prevail, as a matter
of law. Mr. Nelson cross-appeals that dismissal.


     In dismissing this claim, the trial court relied on Vaughn v.
Ag Processing, Inc., 459 N.W.2d 627, 636 (Iowa 1990) (en banc), in
which the Iowa Supreme Court held that when physical problems are
alleged to have derived from emotional distress, expert testimony
is required. We are dubious about the applicability of Vaughn in
the absence of claims for physical problems consequent to emotional
distress (and Mr. Nelson evidently does not allege any such


                               -9-
physical problems).   We note, however, that Mr. Nelson made no
argument in the trial court (or, for that matter, in his briefs on
cross-appeal) that Vaughn did not apply or that his claim for
intentional infliction of emotional distress could survive based
solely on his subjective reaction to his transfer.         Indeed,
Mr. Nelson's lawyer stated at trial, with respect to Vaughn, that
he had no "contrary authority" and that Vaughn appeared to control
("that appears to be the Iowa law as far as what the cases have
said"). Such a concession amounts, in our view, to a waiver (or an
abandonment) of Mr. Nelson's claim for intentional infliction of
emotional distress.


     On cross-appeal, moreover, Mr. Nelson offers arguments based
on the sufficiency of the evidence on his claim for intentional
infliction of emotional distress. He made none of those arguments
in the trial court, as far as we can tell. Under all of these
circumstances, we decline to disturb the trial court's ruling on
Mr. Nelson's claim for intentional infliction of emotional
distress. See, e.g., Pedigo v. P.A.M. Transport, Inc., 60 F.3d
1300, 1304 (8th Cir. 1995).


                                VI.
     Mr. Nelson's defamation claim was based on the alleged
compelled self-publication by Mr. Nelson to two of his employees of
statements about himself -- but written by Penney -- that
Mr. Nelson considered defamatory. He submitted two proposed jury
instructions on defamation before trial. After the close of the
evidence, the trial court gave to the parties a set of proposed
jury instructions. No instruction on defamation was included in
that set.


     During the jury instructions conference, the trial court asked
the parties to specify, with respect to the set given to them, both
the instructions objected to and any instructions omitted but still


                               -10-
requested. The lawyer for Mr. Nelson asked for the addition of two
jury instructions, neither of which related to defamation, and
stated that he had "no other problems" with the trial court's set.
On at least five other occasions, Mr. Nelson's lawyer repeated that
he was "done," that he had "nothing else," that the trial court's
set seemed "fine," that he could not "think of anything else," and
that he had no further "problems or any record ... to make ... or
anything else" to bring up with the trial court.


     By his lawyer's explicit acceptance of the trial court's
proposed jury instructions and his failure to offer during the jury
instructions conference any additional instructions on defamation,
Mr. Nelson abandoned his defamation claim. We therefore reject his
argument on cross-appeal that the defamation claim should have been
submitted to the jury.


                                VII.
     For the reasons stated, we affirm the trial court with respect
to all of Mr. Nelson's claims except age discrimination and
retaliatory discharge. We vacate the judgments on those claims, as
well as the associated judgments awarding attorney's fees, and
remand the case for the entry of judgment for Penney on all claims.


     A true copy.


          Attest:


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




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