                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2707
                                   ___________

Robert G. Franklin; Glenn E. Steele;  *
Edward W. Lewis; Darryl Bailey;       *
Leon Booker,                          *
                                      *
             Appellants,              * Appeal from the United States
                                      * District Court for the
      v.                              * Western District of Missouri.
                                      *
Local 2 of the Sheet Metal Workers    *
International Association,            *
                                      *
             Appellee.                *
                                 ___________

                             Submitted: February 13, 2009
                                Filed: May 13, 2009
                                 ___________

Before RILEY, SMITH, and SHEPHERD, Circuit Judges.
                             ___________

RILEY, Circuit Judge.

       Appellants Robert G. Franklin (Franklin), Glenn E. Steele (Steele), Edward W.
Lewis (Lewis), Darryl Bailey (Bailey), and Leon Booker (Booker) (collectively,
Appellants) are African-American current or former members of Local 2 of the Sheet
Metal Workers International Association (Local 2). Appellants filed a civil rights
action against Local 2, alleging (1) racial discrimination in job placement under
theories of disparate impact and disparate motive, and (2) retaliation. The district
court granted summary judgment to Local 2 on the disparate motive and retaliation
claims, but denied summary judgment on the disparate impact claim. Following a
bench trial on the disparate impact claim, the district court found the evidence was
insufficient to establish Local 2’s referral procedures had a disparate impact on
African-American members. Appellants challenge the district court’s grant of
summary judgment to Local 2 on the retaliation claim and the district court’s denial
of relief on the disparate impact claim. We affirm the district court’s judgment with
respect to the disparate impact claim, but we reverse the district court’s summary
judgment for Local 2 on the retaliation claim.

I.     BACKGROUND
       A.     Parties
       Local 2 is an affiliate of the Sheet Metal Workers International Association.
Local 2’s jurisdiction includes 100 counties in Kansas and Missouri, and its principal
office is in Kansas City, Missouri. Local 2 has approximately 1,600 members, with
1,200 members working in the area of building trades. Of Local 2’s 1,200 members
in building trades, approximately sixty-five members are African-American, and of
these sixty-five, approximately twenty-five are apprentices.

      Franklin, Lewis, and Bailey are current members of Local 2. Steele is a current
member of Local 2; however, Steele retired from the trade in February 2005. Booker
was a member of Local 2 until he retired in April 2004 due to a disability.

      B.      Local 2’s Referral Procedures
      The primary function of Local 2 is to negotiate the terms and conditions of its
members’ employment with contractors who are either signatories to a collective
bargaining agreement (CBA) with Local 2 or who recognize Local 2 as the bargaining
representative for sheet metal workers within Local 2’s jurisdiction. Under Local 2’s
“Referral Procedures,” signatory contractors are required to provide Local 2 the “first
opportunity . . . to provide suitable journeymen sheet metal workers.” In the event
Local 2 “fails to supply journeymen sheet metal workers within forty-eight hours,” the
contractors are free to hire workers outside of Local 2’s membership. Contractors can


                                         -2-
comply with the CBA’s “first opportunity” provision by hiring Local 2 members
through one of three procedures: (1) solicitation, (2) request, or (3) referral.

       A solicitation occurs when a Local 2 member applies directly to a contractor for
a job. With a solicitation, the hiring decision is in the sole discretion of the contractor.
Local 2 does not participate in the hiring decision, but Local 2 requires the contractor
to send paperwork to Local 2 containing the hired member’s name and the date on
which the member was hired. Solicitation is the most common procedure under which
members obtain employment.

       A request hiring occurs when a contractor contacts Local 2 and asks for a
particular member by name. Local 2’s only participation in a request hiring is to
receive the request and to record the date and the name of the member.

        A referral occurs when a contractor contacts Local 2 and asks Local 2 to refer
members with specific skills, rather than requesting particular members by name. To
fill the needs of its members and the contractors who ask for referrals, Local 2
maintains an out-of-work list (OWL). Journeymen members of Local 2 who are
available for employment sign the OWL, and when a contractor contacts Local 2 for
a referral, Local 2 uses the OWL to refer members.

       Generally, members on the OWL are referred on a “first in, first out” basis,
meaning those who have been on the list the longest are referred first. There are
exceptions. First, if a contractor asks Local 2 to refer a member with a particular skill,
Local 2 goes down the OWL until it finds a member with the relevant skill. Local 2
reviews the members’ experience and qualification cards to determine which skills
each of the members on the list possess. Second, if the first qualified member on the
OWL cannot be reached at the number he provided to Local 2 after two calls, Local
2 moves down the list and contacts the next member. If Local 2’s call is answered,
but the member is not present, the member has one hour from the time of the call to
contact Local 2. If the member does not return Local 2’s call within the hour, Local

                                            -3-
2 moves down the OWL to the next member. Third, when a contractor contacts Local
2 requesting a referral for a foreman, Local 2 is not required to use the OWL to refer
a foreman.

       A member on the OWL may request to be placed in “will call” status, meaning
the member wishes to retain his position on the OWL, but does not wish to be
considered for referrals until he contacts Local 2 and changes his status. Similarly,
a member who has been referred by Local 2 to a job outside of Local 2’s jurisdiction
can retain his position on the OWL. Local 2 will not consider the absent member for
referrals until he is again available for work within the jurisdiction.

      A member’s name is removed from the OWL when the member (1) requests to
have his name removed, or (2) has accumulated eighty hours of employment. If a
member turns down three job referrals in areas in which the member indicated on his
experience and qualification card that he would work, and before accumulating eighty
hours of work, the member loses his place on the OWL and is placed at the bottom of
the OWL.

       C.     EEOC Proceedings
       Between 2001 and 2002, Appellants each filed charges of discrimination with
the Equal Employment Opportunity Commission (EEOC) against Local 2. Appellants
alleged Local 2’s referral procedures discriminated against African-American
members. Appellants filed subsequent charges of discrimination alleging Local 2
retaliated against them for filing their charges of discrimination by posting documents
which identified Appellants by name and listed Local 2’s legal bills associated with
defending against Appellants’ EEOC charges.

      After investigating Appellants’ charges, the EEOC issued an Amended
Determination on September 19, 2003, finding there was reason to believe Local 2
engaged in intentional discrimination against African-American members and
subsequently retaliated against Appellants for filing EEOC charges. After the EEOC

                                         -4-
advised Local 2 to discontinue posting the legal bills which identified Appellants by
name, Local 2 continued posting them. Local 2 eventually blacked out the
Appellants’ names on the postings. However, Local 2 continued to read the bills and
names at union meetings. The EEOC issued right to sue letters to Appellants on
October 6, 2005.

       D.     District Court Proceedings
       On January 3, 2006, Appellants filed a complaint against Local 2 in the United
States District Court for the Western District of Missouri. Appellants alleged Local
2’s referral procedures discriminated against Appellants on the basis of race, in
violation of 42 U.S.C. § 2000e-2(c). Appellants alleged racial discrimination under
two theories: (1) Local 2 intentionally discriminated against African-American
members on the basis of race, and, in the alternative, (2) Local 2’s referral procedures
had a disparate impact on African-American members. Appellants next alleged Local
2 interfered with Appellants’ right to contract in violation of 42 U.S.C. § 1981, by
referring white members over qualified African-American members who were ahead
of the white members on the OWL. Appellants also alleged Local 2, in violation of
42 U.S.C. §§ 1981 and 2000e-3(a), retaliated against Appellants for filing charges of
discrimination with the EEOC. Appellants contended Local 2 retaliated against them
by revealing to contractors that Appellants had filed charges of discrimination, and by
posting in the union hall monthly statements which identified Appellants and the legal
bills associated with Appellants’ EEOC proceedings.

       Local 2 moved for summary judgment on each of Appellants’ claims on August
15, 2007. Five days later, Appellants filed a cross motion for partial summary
judgment on Appellants’ retaliation claims, arguing Local 2’s posting of the legal bills
constituted a per se violation of Title VII. On February 21, 2008, the district court
denied Appellants’ partial summary judgment motion and granted in part, and denied
in part, Local 2’s summary judgment motion.




                                          -5-
       The district court denied Local 2’s summary judgment motion with respect to
Appellants’ discrimination claim based on disparate impact. The district court
determined Appellants’ stated a prima facie case of disparate impact and also met their
burden of showing there were alternative referral procedures available that would have
a less adverse impact on African-American members. The district court, however,
found there were no material issues of fact precluding summary judgment on
Appellants’ discrimination claim based on disparate treatment, and granted summary
judgment to Local 2.

       The district court also granted summary judgment to Local 2, and denied partial
summary judgment to Appellants, on Appellants’ retaliation claim. The district court
determined Appellants met their burden to show (1) Appellants engaged in protected
conduct when they filed charges of discrimination, (2) a reasonable member would
view Local 2’s actions as materially adverse, and (3) there was a temporal link
between Local 2’s actions and Appellants’ protected activity. The district court then
found Local 2’s proffered explanations that Local 2 was required to provide full
disclosure of its legal bills to its members, and that it was Local 2’s longstanding
practice to post legal bills with names listed, satisfied Local 2’s burden to show there
were non-retaliatory reasons for the adverse employment action. The district court
granted summary judgment to Local 2 because the court found Appellants failed “to
raise a question of fact as to pretext or motive for Local 2’s conduct.” Thus, the only
claim that proceeded to trial was Appellants’ disparate impact claim.

      On June 23, 2008, the district court began a seven-day non-jury trial on
Appellants’ disparate impact claim. Dr. Arthur Gutman (Dr. Gutman) testified as an
expert witness for Appellants. Dr. Gutman prepared an expert report upon which
Appellants relied to support their claim. In the report, Dr. Gutman concluded white
members of Local 2 worked significantly more hours than their African-American
counterparts in the years 2000 to 2006. Dr. Gutman’s data indicated white members
worked on average 1,566.26 hours per year during this period, while black members


                                          -6-
worked on average 1,338.75 hours per year. Dr. Gutman opined, “race-neutral factors
[could not], statistically, account for the differences in hours worked.”

       On July 8, 2008, the district court issued an order, finding in favor of Local 2.
The district court determined the evidence was insufficient to establish Local 2’s
referral procedures had a disparate impact on African-American members. The
district court found “Dr. Gutman’s report [was] not reliable because of the
assumptions he m[ade], unsupported conclusions he dr[ew], and variables he fail[ed]
to consider in rendering his opinion.”

      One reason the district court gave for finding Dr. Gutman’s report unreliable
was “Dr. Gutman failed to consider the individual characteristics of [Appellants] to
determine if there were race neutral reasons” to explain the racial disparity in hours
worked. The district court noted the five Appellants made up approximately 13.5%
of Local 2’s African-American sheet metal journeymen. The district court further
noted, of the approximately thirty-seven African-American journeymen, fifteen to
twenty were core employees, meaning they were steadily employed. Appellants made
up 23% to 29% of the non-core African-American employees. The district court
observed, “The record reflects significant impediments to each of the [Appellants’]
employability which Dr. Gutman’s report does not persuasively address.”

       The district court then discussed each of the five Appellants’ impediments,
making the following findings. Franklin entered into settlement agreements with five
separate sheet metal contractors to resolve complaints of discrimination. In exchange
for agreeing to no longer work for those particular contractors, Franklin received
“nuisance value compensation.” Another contractor designated Franklin as ineligible
for rehire. The district court noted, “Franklin did not want to work outside of Kansas
City, he was not willing to work as a boilermaker and he did not possess a cell phone
in order to make himself more accessible for calls from Local 2 for work referrals.”
The district court observed that Franklin did not come across as an honest person
when he testified at trial.

                                          -7-
        The district court pointed out that Lewis also entered into settlement agreements
with two contractors to resolve discrimination complaints, accepting nuisance value
compensation and agreeing not to seek work from those contractors in the future.
Like Franklin, Lewis was designated ineligible for rehire by Local 2’s largest
contractor after the contractor fired Lewis. The district court stated Lewis was willing
to work in only one of Local 2’s six zones, did not possess a cell phone, and was
demanding with respect to working conditions and with whom he was willing to work.
The district court observed Lewis presented himself as unreasonable in his request for
back pay and not fully committed to his position because he stopped appearing at the
trial after he testified.

      The district court noted Steele entered settlement agreements to resolve
discrimination complaints with seven separate contractors, accepting nuisance value
compensation and agreeing not to work for those contractors. Steele was fired from
one job after he allegedly displayed aggressive behavior, and he did not have a cell
phone. The district court characterized Steele’s demeanor while testifying as
“disrespectful” and “shocking.”

      The district court also discussed Booker’s impediments to employment,
including his lack of a driver’s license and cell phone, his refusal to accept short-term
work, and his failure to demonstrate personal initiative. The district court noted
Booker’s absence on the final day of trial due to feeling ill.

       According to the district court, “Bailey’s employment experience for the past
five years [did] not support his claim.” Bailey had been fully employed since 2003,
and in 2001 and 2002, when he was not fully employed, there were large numbers of
members on the OWL. Bailey accepted nuisance value compensation and agreed not
to seek work from one contractor as part of the settlement of his discrimination
complaint, did not possess a cell phone, and refused to accept work as a boilermaker.
The district court observed Bailey did not present himself as a reasonable person
because he would not accept work with less than a two-month duration, and he sought

                                          -8-
back pay for periods during which he was employed. Bailey was also absent from the
trial for one full day without explanation.

       After discussing Dr. Gutman’s failure to consider Appellants’ impediments to
employability, the district court next addressed Dr. Gutman’s failure to account for
the impact of “core employees” on the total number of hours worked. According to
the district court, approximately 200 members were working as core employees during
the relevant time frame. Dr. Gutman testified he was not familiar with the concept of
core employees, and thus, the district court concluded Dr. Gutman’s analysis and
opinions were incomplete and speculative. The district court observed the referral rate
of African-American members was equal to the referral rate of white members, and
Appellants failed to prove a single instance of the union giving preference to a
member contrary to the referral procedures. The district court declared,

      [E]ven if the Court assumes Dr. Gutman’s testimony meets the Daubert
      standard, the statistical evidence is overwhelmingly undermined by the
      circumstances and conduct of the individual [Appellants] (who represent
      a significant portion of the data sample) and the limited and narrow
      scope of data from which Dr. Gutman draws his conclusions.

       The district court maintained the evidence demonstrated Local 2 could not
control “the number of hours members worked, the conduct or motivation of the
individual members, the number of qualified African-American members available
on the OWL, when or whether a member was terminated or laid off, or to what extent
contractors relied on core employees.” Finally, the district court found Local 2
demonstrated its current referral procedure was maintained in good faith and created
incentives for Local 2, Local 2 members, and Local 2 contractors. In contrast, the
district court determined Appellants failed to propose or support an alternative referral
procedure which would remedy the alleged disparate impact.

      Appellants raise two issues on appeal. First, Appellants argue the district court
erred in dismissing Appellants’ disparate impact claim following the bench trial.

                                          -9-
Second, Appellants contend the district court erred in granting summary judgment to
Local 2, and denying partial summary judgment to Appellants, on Appellants’
retaliation claim.

II.    DISCUSSION
       A.    Disparate Impact Claim
       Appellants assert the district court erred by (1) failing to find Appellants
established a prima facie case of disparate impact, (2) finding Dr. Gutman’s analysis
unreliable, (3) imposing an intent requirement in the prima facie case, (4) making
clearly erroneous factual findings regarding Dr. Gutman’s consideration of “core”
employees and Appellants’ employability, (5) using an incorrect legal standard to
evaluate Local 2’s purported justification for maintaining its current referral
procedures, and (6) finding Appellants failed to propose or support an alternative
referral process which would have less of a disparate impact on African-American
members.

       “Following a bench trial, ‘we review the trial court’s factual findings for clear
error and its legal conclusions de novo.’” King v. United States, 553 F.3d 1156, 1160
(8th Cir. 2009) (quoting Richardson v. Sugg, 448 F.3d 1046, 1052 (8th Cir. 2006)).
“Using this standard, we will overturn a factual finding only if it is not supported by
substantial evidence in the record, if it is based on an erroneous view of the law, or if
we are left with the definite and firm conviction that an error was made.” Richardson,
448 F.3d at 1052 (citing Tadlock v. Powell, 291 F.3d 541, 546 (8th Cir. 2002)). “A
factual finding supported by substantial evidence, as well as a district court’s choice
between two permissible views of the evidence, are not clearly erroneous.” Id. (citing
Tadlock, 291 F.3d at 546).

       A disparate impact claim challenges an employment, or union, practice that on
its face is neutral, “but that in fact fall[s] more harshly on one group than another and
cannot be justified by business necessity.” Mems v. City of St. Paul, 224 F.3d 735,
740 (8th Cir. 2000) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993)).

                                          -10-
“To establish a prima facie case for disparate impact, the plaintiff must show: (1) an
identifiable, facially-neutral personnel policy or practice; (2) a disparate effect on
members of a protected class; and (3) a causal connection between the two.” Id.
(citation omitted)

        Appellants first argue the district court improperly rejected Dr. Gutman’s
statistical analysis.1 Dr. Gutman concluded there was a disparity in hours worked
between white members and African-American members and race-neutral factors
could not account for the disparity. The district court declared, “Dr. Gutman’s report
is not reliable because of assumptions he makes, unsupported conclusions he draws,
and variables he fails to consider in rendering his opinion.” Appellants claim Local
2 failed to rebut Dr. Gutman’s analysis, and, thus, the district court discounted the
analysis based on speculation.

       Statistical evidence which fails to include every measurable variable can be
used to prove a plaintiff’s case by a preponderance of the evidence; however, whether


      1
        As an initial matter, we note it is not clear from the district court’s opinion
whether the district court excluded Dr. Gutman’s report as unreliable under Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) or whether the district court merely
considered reliability when assessing what weight to give Dr. Gutman’s report. The
district court cited Rule 702 of the Federal Rules of Evidence and the criteria to
consider under Daubert immediately before concluding Dr. Gutman’s report was not
reliable, but the court later declared, “even if the Court assumes Dr. Gutman’s
testimony meets the Daubert standard, the statistical evidence is overwhelmingly
undermined by the circumstances and conduct of the individual Plaintiffs . . . and the
limited and narrow scope of data from which Dr. Gutman draws his conclusions.” We
find it unnecessary to analyze whether the district court made a Daubert ruling, and
if so, whether it was correct, because Appellants do not raise a Daubert argument in
their challenge to the district court’s reliability determination. Moreover, this was a
non-jury trial, the district court permitted Dr. Gutman to testify, and our review of the
district court’s opinion makes clear the district court carefully considered the
methodology and conclusions in Dr. Gutman’s report.

                                          -11-
such evidence actually “carr[ies] the plaintiffs’ ultimate burden will depend in a given
case on the factual context of each case in light of all the evidence presented by both
the plaintiff and the defendant.” Bazemore v. Friday, 478 U.S. 385, 400 (1986) (per
curium) (Brennan, J., concurring and joined by all members of the Court).

        Appellants, citing Coble v. Hot Springs School Dist. No. 6, 682 F.2d 721 (8th
Cir. 1982), suggest Local 2 was required to present its own expert testimony or
statistical analysis to rebut Dr. Gutman’s analysis or to prove Dr. Gutman failed to
consider relevant factors. In Coble, a class of female teachers sued a school district
for sex discrimination in pay, job assignments, and promotions. See id. at 723. The
district court granted judgment to the school district. Id. On appeal, the court
addressed whether the teachers’ expert’s analysis was sufficient to establish the
teachers’ discrimination claims. See id. at 729-30. The court stated,

      The burden is on the opposing party to clearly rebut statistical evidence;
      hypotheses or conjecture will not suffice. When a plaintiff submits
      accurate statistical data, and a defendant alleges that relevant variables
      are excluded, defendant may not rely on hypothesis to lessen the
      probative value of plaintiff’s statistical proof. Rather, defendant, in his
      rebuttal presentation, must either rework plaintiff’s statistics
      incorporating the omitted factors or present other proof undermining
      plaintiff’s claims.

Id. at 730 (quoting Segar v. Civiletti, 508 F. Supp. 690, 712 (D.D.C. 1981)).

       Appellants quote the above portion of Coble in their brief, but fail to address
the Coble court’s ultimate conclusion in that case that the statistical evidence was
insufficient to state a prima facie case because the expert’s methodology considered
the teachers’ education and experience separately, rather than considering these two
factors together. See id. at 731. The court reached that conclusion even though the
court also determined the school district’s rebuttal evidence would have been
insufficient had the teachers successfully established a prima facie case of

                                         -12-
discrimination. Id. at 732 (“Assuming for the purpose of argument that appellants had
established a prima facie case using multiple regression analysis, we think that the
school district’s rebuttal evidence would have been inadequate to undermine the
accuracy or significance of appellants’ statistical evidence.”).

       Appellants’ argument that Coble mandates reversal is faulty. Contrary to
Appellants’ assertion, the district court here did not err in finding Dr. Gutman’s report
unreliable and finding Appellants failed to establish a prima facie case of disparate
impact. Local 2 did not produce its own expert or statistical analysis accounting for
the factors allegedly missing from Dr. Gutman’s report. See id. Local 2 followed a
trial strategy of attacking Dr. Gutman’s report and opinions as erroneous and
unreliable, thereby defeating Appellants’ prima facie case.

       The district court found Dr. Gutman’s report unreliable after addressing, in
detail, the deficiencies in Dr. Gutman’s analysis. For instance, Dr. Gutman’s report
focused solely on the average annual number of hours worked by white members
compared to the average annual number of hours worked by African-American
members. As the district court found, Local 2 had no “control over the number of
hours members worked.” Dr. Gutman admitted during cross examination at trial that
he had assumed in his analysis that Local 2 was responsible for the number of hours
accumulated by its members, and he conceded this assumption during the following
exchange:

      Q      If the union had no responsibility to control the duration of
             employment by the workers, then your analysis would not be valid
             with respect to the union?
      A      Once again, anything’s possible in a hypothetical, but I find that
             to be a red herring.
      Q      My question is, if the union does not control the duration of
             employment, is your analysis a valid measure of the union’s
             responsibility?


                                          -13-
      A      You’re asking me to agree with a hypothetical that I disagree with
             based upon what I’ve read and understand.
      Q      You have to assume that the union is responsible for the
             accumulation of all these hours, correct?
      A      I do assume that for reasons stated.
      Q      So if your assumption is wrong, then your numbers are wrong?
      A      No, my numbers are right.
      Q      If your assumption is wrong, your conclusion is wrong?
      A      I don’t believe my assumptions are wrong.
      Q      Would you answer the question that I asked?
      A      If you phrase it that way, I’m forced to agree, but I disagree with
             what I’m forced to agree with.

We agree with the district court that Dr. Gutman’s admission that his analysis
assumed Local 2 was responsible for the hours accumulated by its members fatally
undermines the reliability of Dr. Gutman’s analysis and conclusions.

       Another reason the district court determined Dr. Gutman’s analysis was flawed
was because Dr. Gutman failed to take into account the concept of “core employees.”
Dr. Gutman testified he “would be shocked if you could find even one [member] that
worked for the same employer” during the entire period of 2000 to 2006. Yet, the
evidence revealed approximately 200 members were continuously employed with the
same contractor over that period. Other members had changed employers only once
or twice over that period. Still others had remained continuously employed in some
fashion over that time period.

       Finally, the district court noted Dr. Gutman’s analysis failed to take into
account the personal traits and conduct of the individual Appellants and how those
characteristics might have affected the analysis and disparity in hours worked.
Appellants assert this was an improper consideration. We agree with the district court
that the personal traits of Appellants may be relevant to Dr. Gutman’s analysis
because there was a small number of African-American journeymen, and Appellants
made up a significant portion of this group. We also agree with Appellants that there

                                        -14-
is no evidence Appellants’ individual conduct differed from the conduct of other
Local 2 members and, if so, whether this would account for the disparity in hours
worked. We further recognize the impact of the personal traits of Appellants would
be a difficult factor for Dr. Gutman to consider in his analysis, and it is unlikely Local
2 maintained meaningful data on the personal traits of individual members. However,
any error on the part of the district court in faulting Dr. Gutman for failing to consider
Appellants’ personal traits in Dr. Gutman’s analysis is harmless because we conclude
the district court provided sufficient explanation and consideration of other factors
which were lacking in Dr. Gutman’s analysis and which made Dr. Gutman’s report
unreliable as a measure of disparate impact in this case.

       As evidenced by Local 2’s Referral Procedures pamphlet, the only procedure
under which the contractor does not have the sole authority to make the hiring
decision is referral. With referrals, Local 2 is involved in the hiring decision, but
Local 2’s discretion is limited by the strict “first in, first out” policy. As the district
court noted, and Dr. Gutman conceded, African-American members were sent out to
work by referral in proportion to their representation of the workforce. Dr. Gutman’s
analysis, which measured only the disparity in number of hours worked by African-
American members compared to white members, was insufficient to satisfy
Appellants’ burden to show Local 2’s referral procedures create a disparate impact in
job placement.

       Appellants’ other arguments likewise do not warrant reversal of the district
court’s judgment. Appellants suggest the district court improperly imposed a duty on
Appellants to prove discriminatory intent when the district court made the following
statement: “[Appellants] did not contend or attempt to prove a single instance where
the union gave anyone a preference contrary to the referral process.” When taken in
context, we conclude this statement, rather than imposing an intent requirement, was
an illustration of the shortcomings of Dr. Gutman’s analysis and conclusions and was



                                           -15-
the district court’s rebuttal of Dr. Gutman’s statement that the referral process was
somehow “fixed.”

      Appellants’ final two arguments concern the last paragraph of the district
court’s order where the district court stated:

      As a final consideration, Plaintiffs do not propose or support a specific
      alternative process by which to remedy the disparate impact they claim
      exists in the current process. On the other hand, Local 2 posits a good
      faith basis for maintaining the referral process as it currently exists by
      supporting claims that it creates incentive and rewards for Local 2, Local
      2 members, and Local 2 contractors.

Appellants maintain the correct legal standard was whether a “business necessity”
justified Local 2’s maintenance of the process, see Hazen Paper, 507 U.S. at 609, and
the district court erred when it considered whether Local 2 had a “good faith basis”
for maintaining its process and whether an alternative process would put contractors
at a “competitive advantage” if Local 2 changed the process. Appellants also argue
the district court clearly erred in finding Appellants had not proposed or supported a
specific, less discriminatory alternative to the current referral process.

       We need not address the validity of these arguments because we conclude the
district court did not err in finding Appellants’ evidence, specifically Dr. Gutman’s
report, was insufficient to establish a prima facie case of disparate impact. Once the
district court made that finding, there was no need to analyze whether a business
necessity justified maintenance of the process or whether there were less
discriminatory alternatives. The district court merely provided an alternative basis for
why it believed Appellants were not entitled to relief on their disparate impact claim.

      B.    Retaliation Claim
      Appellants also claim the district court erred in granting summary judgment to
Local 2, and in denying partial summary judgment to Appellants, on Appellants’

                                         -16-
retaliation claim. “We review a grant of summary judgment de novo, viewing the
facts in the light most favorable to the non-moving party.” Smith v. Int’l Paper Co.,
523 F.3d 845, 848 (8th Cir. 2008) (citation omitted). “Summary judgment is
appropriate if there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Id. (citations omitted).

       To demonstrate a prima facie case of retaliation, Appellants must show: “1)
[they] engaged in protected conduct; 2) a reasonable [member] would have found the
challenged retaliatory action materially adverse; and 3) the materially adverse action
was causally linked to the protected conduct.” Higgins v. Gonzalez, 481 F.3d 578,
589 (8th Cir. 2007) (citing Burlington Northern & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006)). To meet their burden at the second prong of the prima facie case,
Appellants “must demonstrate that a reasonable [member] would have found [Local
2’s] actions ‘materially adverse,’ meaning they ‘well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.’” Jackson
v. United Parcel Serv., Inc., 548 F.3d 1137, 1142 (8th Cir. 2008) (citing Higgins, 481
F.3d at 589). “Once a plaintiff has shown a prima facie case of retaliation, the burden
shifts to the employer to proffer a legitimate, non-retaliatory basis for the adverse
employment action.” McCullough v. Univ. of Arkansas for Med. Sciences, 559 F.3d
855, 864 (8th Cir. 2009) (citation omitted). “The plaintiff then bears the burden of
proving that the employer’s proffered reason was a mere pretext for a retaliatory
motive.” Id.

       In the summary judgment order, the district court determined Appellants
established all three prongs of a prima facie case of retaliation. The district court
found (1) Appellants engaged in protected activity by filing EEOC charges, (2) Local
2’s posting and announcing of the legal bills identifying Appellants by name may
dissuade a reasonable member from filing EEOC charges, and (3) the temporal
connection between the protected activity and the adverse employment action satisfied
the causal link requirement. The district court then found Local 2 satisfied its burden

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to show a non-retaliatory reason for its actions by claiming it was Local 2’s
longstanding policy to post legal bills, and Local 2 was required to obtain member
approval for the legal bills. After shifting the burden back to Appellants, the district
court found Appellants failed “to raise a question of fact as to pretext or motive for
Local 2’s conduct.” Thus, the district court granted summary judgment to Local 2,
and denied partial summary judgment to Appellants.

       Appellants suggest the district court erred in denying Appellants’ motion for
partial summary judgment because Local 2’s actions constituted per se retaliation.
Appellants claim the policy of posting and reading legal bills at meetings, and
identifying by name members who have filed EEOC charges, is retaliatory on its face.
Appellants rely on EEOC v. Bd. of Governors of State Colleges and Univs., 957 F.2d
424 (7th Cir. 1992). In Bd. of Governors, the board had a policy in its CBA that once
an employee filed an EEOC charge or initiated a lawsuit, the board was “authorized
to halt existing or future grievance proceedings.” Id. at 425-26. The Seventh Circuit
determined this policy was retaliatory on its face, stating, “When an employee’s
participation in statutorily protected activity is the determining factor in an employer’s
decision to take adverse employment action, that action is invalid regardless of the
employer’s intent.” Id. at 428.

      We disagree with Appellants that the district court erred in denying partial
summary judgment to Appellants. Bd. of Governors is distinguishable from
Appellants’ case. Local 2 claimed it was required to obtain member approval for
expenditure on all legal bills, and in that sense, Local 2, unlike the board in Bd. of
Governors, was not singling out members who filed EEOC charges. Local 2’s actions
do not constitute per se retaliation in this case.

       In the alternative, Appellants contend there were questions of material fact
precluding summary judgment on the issue of whether Local 2’s proffered non-
retaliatory explanations for its actions were pretextual. We agree. “Courts have

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[long] recognized the difficulty in disposing of issues of discriminatory or retaliatory
intent at the summary judgment stage. ‘Summary judgments should be sparingly used
and then only in those rare instances where there is no dispute of fact and where there
exists only one conclusion.’” Davis v. Fleming Companies, Inc., 55 F.3d 1369, 1371
(8th Cir. 1995) (quoting Johnson v. Minnesota Historical Soc’y, 931 F.2d 1239, 1244
(8th Cir. 1991)). We conclude Appellants’ retaliation claim was inappropriate for
summary disposition.

       Based on the summary judgment record, there were material questions of fact
regarding whether Local 2’s proffered explanations were pretextual. The evidence
raises a possible reasonable inference Local 2 was aware of a negative impact on
Appellants based upon the listing and, during meetings, reading of Appellants’ names,
claims, and related costs. Local 2 initially refused to end these practices after the
EEOC requested a halt, but later blacked out Appellants’ names on the postings.
However, Local 2 continued to read Appellants’ names at union meetings. Although
Local 2’s prior practice and obligation to disclose expenses may justify what Local
2 did, the degree of Local 2’s disclosures raises credibility issues and a potential
reasonable inference of retaliation. Appellants’ retaliation claim cannot be resolved
as a matter of law. Thus, Appellants meet the minimum requirement on their
retaliation claim to show a genuine issue as to a material fact, see Fed. R. Civ. P.
56(c), and we reverse the district court’s summary judgment for Local 2 on
Appellants’ retaliation claim.

III.   CONCLUSION
       For the reasons stated in this opinion, we affirm the district court’s judgment
on Appellants’ disparate impact claim and the district court’s ruling on Appellants’
partial summary judgment motion, and we reverse the district court’s summary
judgment for Local 2 on Appellants’ retaliation claim.
                       ______________________________



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