                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-2447
                                   ___________

Equal Employment Opportunity          *
Commission,                           *
                                      * Appeal from the United States
             Appellant,               * District Court for the Eastern
                                      * District of Arkansas.
       v.                             *
                                      *
Kohler Company,                       *
d/b/a Sterling Plumbing Group, Inc.,  *
                                      *
             Appellee.                *
                                 ___________

                             Submitted: December 13, 2002

                                  Filed: July 10, 2003
                                   ___________

Before MORRIS SHEPPARD ARNOLD, RILEY, and SMITH, Circuit Judges.
                         ___________

SMITH, Circuit Judge.

       The Equal Employment Opportunity Commission ("EEOC") brought this
action against Kohler Company based upon former employee John Reynolds’s claim
that race discrimination motivated Kohler to fire him after a company-policy violation




                                         -1-
investigation.1 The EEOC filed claims for discrimination and retaliation on
Reynolds’s behalf. The jury found that Kohler did not discriminate against Reynolds,
but that Kohler did retaliate against him for bringing the claim. The District Court2
granted Kohler's motion for judgment as a matter of law finding that Kohler’s reasons
for firing Reynolds were legitimate and that Reynolds offered no evidence of
retaliation. The EEOC appealed.3 We reverse.

                                         I.
       Reynolds, an African American, worked at Kohler for almost six-and-a-half
years before his termination on January 6, 1998. Reynolds worked as a "quota"
employee, meaning that he had to buff thirty-five sinks per hour, or 280 sinks during
his shift from 7 a.m. to 3:30 p.m. However, Reynolds often did not have enough parts
to meet his production quota because his output depended on the production of those
ahead of him on the line. When that occurred, Company policy required Reynolds to
work his entire eight-hour shift in order to be paid his full salary for the day. In
contrast, on days when Reynolds met his daily quota of 280 sinks prior to the end of
his eight-hour shift, he could leave work early and still receive a full day's pay.

        At some point during his employment, Reynolds began clocking in at 6 a.m.
and clocking out at 2:30 p.m. However, he did not begin work until 7 a.m., thus
working only seven hours while being paid for an eight-hour shift. Reynolds testified
that when he clocked in at 6 a.m., he would not have sinks to work on from the third
shift, so he would not begin working until 7 a.m. He also testified that he had worked

      1
       Reynolds worked at Kohler's Searcy, Arkansas, plant, doing business under
the name Sterling Plumbing Group.
      2
        The Honorable Stephen M. Reasoner, United States District Court Judge for
the Eastern District of Arkansas.
      3
        The EEOC did not appeal the jury's verdict in Kohler's favor on the race
discrimination claim.

                                         -2-
these hours over an extended period without reprimand, and that other employees,
including Michael Senko, Jeremy Askins, and Howard Bailey, three Caucasian men,
also kept the same schedule. For example, Reynolds testified that Bailey would clock
in early and return to his truck to sleep during his shift hours. Also, he testified that
Senko, Askins, and Bailey often spent their shift hours in the break room with
Reynolds when they did not have parts to work on, a fact that Bailey admitted at trial.
Senko, Askins, and Bailey disputed most of this testimony, stating that when they
clocked in at 6 a.m., they immediately began working.

       Kohler’s personnel policy did not permit clocking in and out at unauthorized
times without a foreman’s permission. Kohler, however, did not begin to enforce the
policy until May 1996 when John Dickson, the plant manager, ordered all employees
to clock in no earlier than fifteen minutes before their shifts began. Despite this order,
many employees, including those on the first shift, continued to clock in early. Kohler
also maintained a policy that employees who had a per-hour quota could leave work
early if they met that quota before the end of their eight-hour shift. Dickson testified,
that the company enforced that rule “off and on.” It appears that Kohler instituted,
retracted, enforced, and ignored other such policies over the years. As a result,
employees and managers were, at times, unclear about the state of the company's
policies.

        In July 1997, Charles Davis became Reynolds’s immediate supervisor on the
first shift. Late that summer, second-shift foreman Royce Hulsey told Davis that he
saw Reynolds leaving the plant premises before Reynolds’s shift ended. On August
28, 1997, Davis issued a written warning to Reynolds for not keeping his area clean
and for not getting his time card signed by the foreman. Despite the warning,
Reynolds only obtained a supervisor’s signature on his time cards on four occasions




                                           -3-
between September 1, 1997, and December 10, 1997.4 Davis testified that prior to
August 28, 1997, he had no problems with Reynolds’s job performance. However, in
November or December 1997, another foreman testified that Davis referred to
Reynolds as a “dumb nigger.”

       In December 1997, Davis informed Rebecca Miller, the human resources
director, that Hulsey saw Reynolds off-site between 2:30 p.m. to 3:30 p.m. during the
last hour of his scheduled shift. Miller called a meeting on December 10, 1997, with
Reynolds, Davis, and a union representative to discuss Reynolds’s work schedule.
Miller’s notes from that meeting indicated that Reynolds acknowledged that his shift
hours ran from 7 a.m. to 3:30 p.m., and that he had modified his shift to run from 6
a.m. to 2:30 p.m. without permission. Her notes also indicated that Reynolds
acknowledged that he did not start work until 7 a.m., but that he did not know that
clocking in and out early was a violation of company policy. At the close of the
meeting, Miller told Reynolds that she would have to notify Dickson about the
problem. Reynolds then told Miller that he believed he was singled out by Davis
because of his race. Both Reynolds and the union representative told Miller that they
believed that other employees were keeping the same schedule. They, however, did
not provide the names of those employees, and Miller never investigated the
allegations.

      Over most of the next month, Miller and Davis reviewed Reynolds’s time cards
to observe his clock-in and clock-out times. They noticed that he had failed to have
a foreman sign his time cards as required. They also reviewed Bailey's time cards and
found that his clock-in and clock-out times were either during the same minute or
within a minute of Reynolds’s times. They, however, did not question Bailey about



      4
        Time-card evidence admitted at trial showed that Senko, Askins, and Bailey
also often failed to get their time cards signed during this time period.

                                         -4-
modifying his shift or about the curiously close correlation between his and
Reynolds’s clock-in and clock-out times.

       On January 6, 1998, Miller recommended to Dickson that he discharge
Reynolds. She also showed him the close correlation between Bailey’s and
Reynolds’s time cards. Dickson then met with Reynolds, Miller, and the union
representative. Dickson testified that when he asked Reynolds why he left work at
2:30 p.m., Reynolds responded that he did so because others were keeping the same
schedule. Reynolds also denied clocking Bailey in and out. Dickson then accused
Reynolds of cheating the company by working only seven hours without producing
his eight-hour quota. Reynolds responded that he was being singled out because he
was black.5 Reynolds again refused to name the other violators because he did not
want anyone to be discharged. To avoid his own discharge, Reynolds offered to remit
to the company the extra hours of pay he had received. Dickson ended the meeting
by telling the group that he would have to think about the matter before making a
decision. Dickson fired Reynolds later that day.

      The union filed a grievance on Reynolds's behalf, noting that Senko and Askins
also had clocked in and out early. However, after reviewing their time cards, Miller
concluded that even though the two clocked in early, they usually worked over eight
hours per shift and met production. Miller also determined that when Senko and
Askins worked more than eight hours in a day, they only claimed pay for eight hours.
Miller concluded that they had not engaged in the same conduct as Reynolds, and she
denied the grievance.6 Furthermore, Miller testified that although Bailey's time cards
showed the same hours as Reynolds's–so much so that it prompted Dickson to accuse


      5
        Dickson testified at trial that he was "upset" at Reynolds's allegation of
discrimination.
      6
         The company disciplined Senko and Askins for failing to work their assigned
shifts. This disciplinary action occurred several months after Reynolds's termination.

                                         -5-
Reynolds of clocking in and out for Bailey–neither Miller nor Dickson questioned
Bailey about the oddity or investigated whether he was working his full
eight-hour shift.

       On July 8, 1999, the EEOC filed this Title VII action, alleging that Kohler
discriminated against Reynolds because of his race and discharged him in retaliation
for complaining of race discrimination. In the course of this action, the EEOC’s
claims survived summary judgment and two requests for directed verdict. At the
conclusion of trial, the jury returned a verdict in Kohler’s favor on the EEOC’s race-
discrimination claim and against Kohler on the retaliation claim. It also awarded
Reynolds $40,000 in compensatory damages and $50,000 in punitive damages for his
retaliation claim.

       On March 12, 2001, Kohler moved for judgment as a matter of law or for a new
trial on the retaliation claim. In the alternative, Kohler sought remittitur on the
punitive-damages award. Kohler argued that the evidence at trial was insufficient to
sustain the jury’s verdict on the retaliation claim. Specifically, Kohler contended that
the evidence failed to establish a causal connection between Reynolds’s race-
discrimination complaint and his termination. Kohler also argued that even if the
court upheld the jury’s verdict, it should set aside the punitive-damages award
because there was no evidence to support the conclusion that Dickson or Miller
retaliated against Reynolds with malice or reckless indifference to Reynolds’s
federally-protected rights.

       On March 27, 2002, the District Court granted Kohler’s motion for judgment
as a matter of law. The District Court determined that while the EEOC established the
first two elements of a prima facie case of retaliation, it failed to meet the third
element that the adverse employment action occurred because of Reynolds's claim of
discrimination. The court determined that Kohler paid Reynolds for time he did not
work, and that when confronted with this proof, Reynolds admitted this infraction.

                                          -6-
The District Court also found that Senko and Askins were not similarly situated
because different managers supervised them, and the level and nature of their
infractions “did not approach the frequency of Reynolds’s actions, and they engaged
in conduct that was different.” Lastly, the District Court noted that Reynolds refused
to supply the names of other employees who were committing the same infraction,
thus defeating Reynolds's claim that Kohler did not properly investigate his
discrimination complaint. The District Court granted Kohler's motion for judgment
as a matter of law, dismissed as moot Kohler's alternative motions for new trial or
remittitur, and dismissed the EEOC’s complaint with prejudice.

                                            II.
                                  Standard of Review
        We review de novo the District Court's grant of judgment as a matter of law,
applying the same standard used by the District Court. Dhyne v. Meiners Thriftway,
Inc., 184 F.3d 983, 988 (8th Cir. 1999) (en banc). Judgment as a matter of law is
appropriate if "there is no legally sufficient evidentiary basis for a reasonable jury to
find for" the non-moving party. Fed.R.Civ.P. 50(a)(1). When the parties have
developed a full trial record, we are not concerned with plaintiff's prima facie case.
What is relevant, at this point, is simply whether the plaintiff's evidence permits a
reasonable inference of discrimination or retaliation. See U.S. Postal Service Bd. of
Governors v. Aikens, 460 U.S. 711, 717 (1983); Cardenas v. AT&T Corp., 245 F.3d
994, 998 (8th Cir. 2001). The court must determine whether there was sufficient
evidence to support the jury's verdict. Id. A jury's verdict must be affirmed "unless,
viewing the evidence in the light most favorable to the prevailing party, we conclude
that a reasonable jury could not have found for that party." Cross v. Cleaver, 142 F.3d
1059, 1066 (8th Cir. 1998). When reasonable persons could differ as to the
conclusion to be drawn from the evidence, the motion must be denied. Smith v.
Riceland Foods, Inc., 151 F.3d 813, 818 (8th Cir. 1998); Ryther v. KARE 11, 108
F.3d 832, 844 (8th Cir. 1997) (en banc). “[W]e will not set aside the jury’s verdict
lightly.” Triton Corp. v. Hardrives, Inc., 85 F.3d 343, 345 (8th Cir. 1996).

                                          -7-
      We are reminded of the directive that judges must be extremely guarded in
granting judgments as a matter of law after a jury verdict. As this court has often
repeated, the standard to be applied is as follows:

      [T]he district court must (1) consider the evidence in the light most
      favorable to the prevailing party, (2) assume that all conflicts in the
      evidence were resolved in favor of the prevailing party, (3) assume as
      proved all facts that the prevailing party's evidence tended to prove, and
      (4) give the prevailing party the benefit of all favorable inferences that
      may reasonably be drawn from the facts proved. That done, the court
      must then deny the motion if reasonable persons could differ as to the
      conclusions to be drawn from the evidence.

Haynes v. Bee-Line Trucking Co., 80 F.3d 1235, 1238 (8th Cir.1996) (citations
omitted).

                                           III.
                                        Analysis
        Title VII prohibits employers from retaliating against employees who file
charges of discrimination or who assist others in opposing discrimination. 42 U.S.C.
§ 2000e-3(a). The legal framework for analyzing retaliation claims under Title VII
is the familiar three-stage, burden-shifting test set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). Under this analysis, a plaintiff must first establish a
prima facie case of retaliation. To do this, a plaintiff must show that: (1) he engaged
in statutorily protected activity; (2) he suffered an adverse employment action; and
(3) there was a causal connection between the adverse employment action and the
protected activity. Stevens v. St. Louis Univ. Med. Ctr., 97 F.3d 268, 270 (8th Cir.
1996). A defendant must then rebut the plaintiff's prima facie case by presenting
evidence of a legitimate, non-retaliatory reason for the action it took against the
plaintiff. Coffman v Tracker Marine, LP, 141 F.3d 1241, 1245 (8th Cir. 1998). If the

                                         -8-
defendant makes this showing, the plaintiff must then establish that the defendant's
proffered reason was a pretext and that illegal retaliation was a motivating reason for
the defendant's decision. Id. However, once a trial on the merits has occurred, the
issue of whether the plaintiff established his prima facie case is moot, and the
question then becomes whether the plaintiff produced sufficient evidence to allow the
jury reasonably to find that the defendant intentionally retaliated against the plaintiff
because of statutorily-protected conduct. Cardenas, 245 F.3d at 998 (citing EEOC v.
Avery Dennison Corp., 104 F.3d 858, 860 (6th Cir. 1997)); Ryther, 108 F.3d at 838.

         “Once a finding of discrimination [or retaliation] has been made and that
judgment is being considered on appeal, the McDonnell Douglas presumptions fade
away, and the appellate court should simply study the record with a view to
determining whether the evidence is sufficient to support whatever finding was made
at trial.” Sherman v. Runyon, 235 F.3d 406, 409 (8th Cir. 2000) (quoting Morgan v.
Arkansas Gazette, 897 F.2d 945, 948 (8th Cir. 1990)). Thus, the principal issue before
us is whether Reynolds produced sufficient evidence to allow a reasonable jury to
find Kohler retaliated against him.

      We first consider Kohler's professed legitimate non-discriminatory reasons for
discharging Reynolds. Kohler fired Reynolds because he "cheated" Kohler out of one
hour of pay by regularly working only seven hours in an eight-hour work day while
accepting pay for the full eight hours. The EEOC acknowledges that Kohler met its
burden of producing a legitimate non-discriminatory reason for Reynolds's discharge.
Therefore, the burden shifts to the EEOC to demonstrate that Kohler's articulated
reasons are mere pretext for retaliation.




                                          -9-
       The EEOC argues that the proximity of Reynolds's complaint of discrimination
in relation to his discharge7 coupled with Kohler's inconsistent enforcement of its
policies and use of disciplinary actions established facts from which a reasonable jury
could have drawn the conclusion that Kohler retaliated against Reynolds. Viewing
the record as a whole and in the light most favorable to the EEOC, we agree.

       To begin with, the timing of Reynold's termination in relation to his complaint
of discrimination raises an inference that Kohler terminated him in retaliation for
making a discrimination claim. We recently discussed the issue of temporal proximity


      7
          We note that the District Court, in part, granted judgment as a matter of law
after determining that Reynolds failed to meet the third element of a prima facie case
of retaliation, the "causal connection" element. Returning to this inquiry, however,
was improper because the case had been tried on the merits. At that point, the issue
of whether the plaintiff established his prima facie case is moot. Cardenas, 245 F.3d
at 998; Ryther, 108 F.3d at 838; Avery Dennison Corp., 104 F.3d at 860. This is so
because the trial court's duty after trial on the merits, like our duty on appeal, is to
"simply study the record with a view to determining whether the evidence is sufficient
to support whatever finding was made at trial." Sherman, 235 F.3d at 409; Morgan,
897 F.2d at 948. That is not to say that we should not consider the evidence
concerning the "causal connection" or timing of Reynolds's discharge in relation to
his complaint of discrimination. Rather, it is the context in which the reviewing court
considers the evidence after trial that controls how the court weighs that evidence.
For example, while the timing of a plaintiff's discharge in relation to his protected
activity can sometimes establish the causation element of a prima facie case, see
Smith, 151 F.3d at 820 n. 5, timing alone is usually insufficient to establish that the
employer's legitimate non-discriminatory reason for discharge is pretext. See Stevens,
97 F.3d at 272. Instead, in reviewing a judgment as a matter of law, the timing of the
discharge is evaluated along with the other evidence in the record to determine
whether the evidence was sufficient to support the jury's verdict. See Sherman, 235
F.3d at 410. As applied to this case, the District Court's evaluation of the causal-
connection evidence to support its finding that Reynolds failed to make a prima facie
case was in error; however, evaluating the timing of Reynolds's complaint to his
discharge in light of all of the evidence in the record is permissible and required, and
it is a task we undertake here. See Cardenas, 245 F.3d at 998.

                                         -10-
thoroughly in Smith v. Allen Health Systems, Inc., 302 F.3d 827(8th Cir. 2002). In
Smith, we summarized several relevant cases and highlighted their significance. In
particular, we noted the difficulty in neatly analyzing our treatment of temporal
proximity. But this much is clear: temporal proximity rises in significance the closer
the adverse activity occurs to the protected activity. The further in proximity the
decision to terminate is from the protected activity, the less suspect the decision to
terminate becomes. Kipp v. Missouri Highway and Transp. Comm’n, 280 F.3d 893
(8th Cir. 2002). In Kipp, the time interval between protected activity and adverse
activity diluted the inference of causation to such a degree that in the absence of other
evidence, the plaintiff’s claim failed.8

      Reynolds voiced his claim that race motivated the company’s actions on two
occasions–at the December 10 meeting with Miller, after which she decided to
recommend termination to Dickson, and at the January 6 meeting with Dickson.
Within hours of that meeting, Dickson terminated Reynolds. The District Court
determined that the temporal proximity between Reynolds's complaint and his
discharge was too broad to support a finding that the complaint was causally
connected to the termination. Whether one considers the December meeting or the
January meeting as the first time Reynolds complained to a "decisionmaker," the
temporal proximity between the complaint and the adverse employment action is
short–less than one month. This proximity, coupled with evidence that Reynolds’s
discrimination allegation “upset” Dickson, forms the basis for an inference that a
causal connection existed between Reynolds’s claim and his termination.

      While timing of the discharge alone is insufficient to sustain the jury's verdict
on the retaliation claim, the EEOC buttresses its case with additional evidence
showing Kohler's lax enforcement of its company policies and disciplinary actions.

      8
        The plaintiff in Kipp also could not show similar employees were treated
differently because there was no evidence the company knew other employees were
in violation of company policy.

                                          -11-
The EEOC argues that Kohler disciplined Reynolds disproportionately to other
employees who violated company policies, such as failing to have forepersons sign
their time cards or clocking in and out at odd hours. The EEOC also argues that
Kohler's unequal use of discipline shows that the company's decision to terminate
Reynolds was due to a retaliatory motive.

       Although Kohler asserts that its "zero-tolerance" policy mandated Reynolds's
discharge when Reynolds accepted pay for time he did not work, management's
conduct and evidence of lesser "sanctions" in similar situations belies this assertion.
To begin with, management's conduct in handling Reynolds's termination could
support an inference of retaliatory motive. For example, Miller decided to recommend
termination prior to reviewing Reynolds's or any other employee's time cards or
performing any other investigation regarding the allegations against Reynolds.9 In
addition, Dickson contributed to the implication of retaliatory motive by taking time
to consider the facts regarding Reynolds's sanction. Such "consideration" undermines
Kohler's claim that this particular infraction mandated immediate termination under
the alleged "zero-tolerance" policy.

       Kohler's lax enforcement of company policy and disciplinary procedures
provided additional evidence from which a jury could have found retaliatory motive.
The EEOC offered evidence that four Kohler employees–Senko, Askins, Bailey, and
Alan Dickson, the plant manager's son–violated similar policies and either were not
disciplined or were disciplined with less severity. Kohler responds that each of these
employees’ violations differed in several respects from Reynolds's violation.



      9
        Miller and Davis admittedly only reviewed two months' worth of Reynolds's
time cards. Therefore, the District Court's determination that Reynolds had been
keeping these hours for an extended time–up to two years–was information that
Miller and Davis did not have at the time that Miller and Dickson determined that
discharge was an appropriate sanction.

                                         -12-
       Kohler offered various reasons why it singled-out Reynolds for discipline and,
ultimately, termination–including that Reynolds failed to get his time-cards signed
by a foreman, that he had adjusted his shift hours, that he left the work site an hour
before his regular shift was over, and that he worked only seven hours of his eight-
hour shift for an extended length of time. Kohler's lax enforcement of company
policies and employee discipline, however, undermines its reasons for Reynolds's
discipline and termination. Kohler first investigated Reynolds based on a report from
a foreman that Reynolds was not at work during the 2:30 p.m. to 3:30 p.m. hour that
was part of the regular first-shift schedule. Reynolds acknowledged that he, as others,
had modified his shift hours without a foreman's permission, but that he had worked
the modified shift for some time without repercussion. Furthermore, the evidence
indicated that Senko, Askins, and Bailey kept these same hours even after Kohler
terminated Reynolds, but were not approached about or disciplined for their conduct
until months after Kohler fired Reynolds. As to Reynolds’s failure to have time cards
signed by a foreman, the evidence indicates that other employees, such as Senko,
Askins, and Bailey, also failed to comply with this formality, yet they were not
disciplined for this failure.

       Kohler claims that the main reason it fired Reynolds was because Reynolds
worked only seven of the eight hours in his regular shift, but accepted pay for the full
eight hours. Kohler asserts that this violation constituted a "zero-tolerance" infraction
requiring immediate termination. However, the record reflects evidence that similar
violations did not receive a "zero-tolerance" reaction, thus creating a basis upon
which a jury could have determined that Reynolds's complaint of discrimination was
a contributing factor to his termination.

       Kohler argues that these employees were not similarly situated to Reynolds.
Thus, Kohler argues, comparing their treatment for violating policy to Reynolds's
treatment is fruitless. The test to determine whether employees are "similarly
situated" to warrant a comparison to a plaintiff is a "rigorous" one. Harvey v.

                                          -13-
Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994). "Instances of disparate
treatment can support a claim of pretext, but [plaintiff] has the burden of proving that
he and the disparately treated [employees] were similarly situated in all relevant
respects." Lynn v. Deaconess Medical Ctr.–West Campus, 160 F.3d 484, 487 (8th Cir.
1998) (citation omitted). Specifically, the individuals used for comparison must have
dealt with the same supervisor, have been subject to the same standards, and engaged
in the same conduct without any mitigating or distinguishing circumstances. Id. at
487–88. To be probative evidence of pretext, the misconduct of more leniently
disciplined employees must be of "'comparable seriousness.'" Lanear, 843 F.2d at 301
(quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973)). Compare
Kendrick v. Commission of Zoological Subdistrict, 565 F.2d 524, 527 (8th Cir. 1977)
(two instances of fighting not sufficiently similar for disciplinary purposes). A
plaintiff may prove allegations of disparate treatment by demonstrating that he was
treated less favorably than similarly situated employees outside the plaintiff's
protected class. See Barge v. Anheuser–Busch, Inc., 87 F.3d 256, 259–60 (8th Cir.
1996); Johnson v. Legal Servs. of Arkansas, Inc., 813 F.2d 893, 896 (8th Cir. 1987).
For discriminatory discipline claims, "[e]mployees are similarly situated when they
are involved in or accused of the same offense and are disciplined in different ways.
" Id. (citations omitted); Palesch v. Missouri Commission on Human Rights, 233 F.3d
560 (8th Cir. 2000). The appellant has the burden of demonstrating that there were
individuals similarly situated in all relevant aspects to her by a preponderance of the
evidence. See Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000); Harvey v.
Anheuser–Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994).

        First, the evidence at trial showed that Alan Dickson was disciplined, but not
fired, for failing to comply with a company policy that required employees to stay at
work for more than eight hours if their production during the eight-hour shift
exceeded quota and qualified for overtime pay. Alan Dickson, however, did not
remain at the job site as required, thus accepting pay in violation of company policy.
When Kohler confronted Alan Dickson with this violation, Kohler allowed Alan

                                         -14-
Dickson to reimburse the company for pay he received for overtime hours for which
he was not present. More importantly, Kohler did not fire Alan Dickson for this
violation of company policy. Although Kohler points out that Alan Dickson produced
work during his regular shift hours, the fact remains that Alan Dickson violated
company policy, was overpaid due to this violation, but was not terminated. That does
not reflect “zero tolerance.” Furthermore, evidence at trial indicated a factual dispute
existed as to whether Senko and Askins began working at 6 a.m. after they, too,
modified their shift hours. Despite this conflicting evidence, Kohler never
investigated these allegations and did not discipline these employees until months
after the company fired Reynolds. Finally, Bailey's time cards indicated that he
clocked in and out at nearly the same time that Reynolds punched the clock.
However, although Miller and Dickson were aware of this oddity at the time of the
January 6 meeting (as evidenced by Dickson's accusation that Reynolds clocked in
and out for Bailey in violation of company policy), Kohler never investigated Bailey's
conduct despite the company's alleged "zero-tolerance" policy.

       In citing the above evidence, we do not suggest that Kohler discriminated
against Reynolds because of his race. We are cognizant of the fact that the jury ruled
in Kohler's favor on the EEOC's discrimination claim; that claim is not before us on
appeal. Rather, we cite this evidence to show that in viewing the record evidence as
a whole and in the light most favorable to the EEOC, sufficient evidence exists for
a reasonable jury to find that Kohler reacted to Reynolds's complaint of
discrimination by terminating his employment. This court has long held that "[i]n a
jury case, where conflicting inferences reasonably can be drawn from evidence, it is
the function of the jury to determine what inference shall be drawn." Ryther, 108 F.3d
at 845 (quoting Anglen v. Braniff Airways, 237 F.2d 736, 740 (8th Cir. 1956) (citing
Lavender v. Kurn, 327 U.S. 645, 652–53 (1946))). This jury had before it several
instances of disputed evidence bearing on Kohler's reasons for firing Reynolds. The
jury believed that Kohler's reasons were pretext for retaliation. Therefore, we reverse



                                         -15-
the District Court’s grant of judgment as a matter of law, reinstate the jury's verdict,
and remand for further proceedings consistent with this opinion.

RILEY, Circuit Judge, dissenting.

       After admitting he claimed eight hours of pay for seven hours of work over a
period of time, Reynolds alleged the only reason Kohler cared about his behavior was
because he was black. Pressed on who else had behaved as he, Reynolds refused to
name a single employee. From discovery through trial, the EEOC was also unable
to produce a single similarly situated employee who had engaged in the same
conduct. Thus, the resolution of this appeal hinges on the answer to this question:
when an employee admits to cheating his employer, then claims discrimination, which
upsets the decision maker, who soon thereafter discharges the employee, can the
employee’s retaliation jury verdict stand without any evidence that a similarly
situated employee was not discharged for the same conduct? Because an affirmative
response does not faithfully follow precedent and would yield unwieldy results, I
respectfully dissent.

        To uphold the jury verdict, the majority provides three reasons: (1) the
temporal proximity of Reynolds’s race allegation and discharge; (2) the
decisionmaker, Dickson, became upset when Reynolds claimed discrimination after
being confronted with cheating; and (3) Kohler’s lax enforcement of its zero tolerance
policy. The critical issue is whether Kohler’s discharge of Reynolds differed from
its treatment of similarly situated employees. Before addressing this quintessential
question, I must first address the majority’s discussion leading up to its similarly
situated analysis.

       The majority believes the district court erred by discussing the third element
of a prima facie case of retaliation (i.e., causal connection) in deciding to overturn the
jury verdict. I do not agree. Last year, our court overturned a jury verdict because

                                          -16-
the employee failed to establish a prima facie case of retaliation by failing to show a
causal connection. Kipp v. Mo. Highway & Transp. Comm’n, 280 F.3d 893, 896-98
(8th Cir. 2002) (Arnold, J. Morris S.). Regardless of whether we analyze the case as
the district court did10 and this court did in Kipp, or whether we use a sufficiency of
the evidence standard, we are still searching for the same thing: does the evidence
support a retaliation finding? No matter the analytical path, the evidence must
support a reasonable inference that Kohler discharged Reynolds because of his race
discrimination assertion.

       Before discussing the merits of the EEOC’s retaliation claim, we must remind
ourselves the jury decided race was not a motivating factor in Kohler’s decision to
discharge Reynolds, and the EEOC has not appealed that verdict.11 When confronted
with his admitted cheating, Reynolds could have alleged any type of discrimination
to escape a highly probable discharge. Our analysis would not change had Reynolds
claimed discrimination based on religion, sex, national origin, disability or age. Race
discrimination is not an issue on appeal–only retaliation.

A.    Temporal Proximity and Dickson’s Response Do Not Establish Retaliation
      The majority relies, in part, on temporal proximity as proof Kohler retaliated
against Reynolds. Dickson confronted Reynolds with cheating the company by


      10
        The district court may have regretted submitting the retaliation claim to the
jury. When discussing Kohler’s motion for judgment as a matter of law at the
conclusion of the EEOC’s case, the district court stated “I am not impressed that the
discharge case is very strong, and I think the retaliation case is even weaker.”
      11
        The EEOC and the majority recite another foreman’s testimony that he heard
Davis refer to Reynolds as a “dumb nigger.” The record contains no evidence either
Miller or Dickson knew about this comment. Reynolds testified he had never
observed racial animus or discrimination by Miller or Dickson. Because the jury
found no race discrimination, this highly inflammatory reference is absolutely
irrelevant in this appeal involving retaliation alone.

                                         -17-
working seven hours while claiming pay for eight. Reynolds then countered the only
reason Dickson cared was because Reynolds was black. Dickson discharged
Reynolds later that day. To avoid an inference of retaliation, would the majority
require Dickson to wait a day, a week or a month before discharging Reynolds?
Reynolds’s discrimination allegation after being confronted with cheating simply did
“not clothe [him] with immunity for past and present inadequacies.” Kniebert v.
Thomson Newspapers, Mich. Inc., 129 F.3d 444, 455 (8th Cir. 1997) (internal
quotations omitted).

       Our court has made it clear that, “[a]lthough contesting an unlawful
employment practice is protected conduct, the anti-discrimination statutes do not
insulate an employee from discipline for violating the employer’s rules or disrupting
the workplace.” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999).
As the majority concedes, “a ‘mere coincidence of timing’ can rarely be sufficient to
establish a submissible case of retaliatory discharge.” Kipp, 280 F.3d at 897; Kiel,
169 F.3d at 1136 (“Generally, more than a temporal connection between the protected
conduct and the adverse employment action is required to present a genuine factual
issue on retaliation.”). Because the timing of the discrimination allegation and the
ensuing discharge do not provide an inference of retaliation in this case, we must look
to other facts to see if the EEOC presented sufficient evidence to uphold the jury
verdict.

        The majority states temporal “proximity, coupled with evidence that
Reynolds’s discrimination allegation ‘upset’ Dickson, forms the basis for an inference
that a causal connection existed between Reynolds’s claim and his termination.” This
untenable principle would reward employees for claiming discrimination every time
they get caught violating workplace rules.

      What does the record show about Dickson becoming “upset?” The union
representative who accompanied Reynolds to the January 6 meeting testified that,

                                         -18-
after Reynolds said he was being singled out based on his race, Dickson “acted like
it bothered him.” When Dickson was asked about his response to Reynolds’s race
discrimination accusation, Dickson said he “told John [Reynolds] that that was
ridiculous and he knows better than that . . . that that’s not a reason. John was a
friend of mine. It had nothing to do with the fact that he was black.” Dickson said
he was upset for three reasons: “One is that he said he cheated on his time. And
secondly, as he told me, he’d been fired from his last job for the same thing. And
then thirdly, he came up with that statement.” Dickson said Reynolds’s accusation
“kind of upset me because he was throwing that out, as it appeared to me, just as kind
of a last ditch effort to give cause for why we were terminating him, and it had
nothing to do with it.” Becoming upset when charged with racism might be an
appropriate reaction.

       What response would the majority find did not raise an inference of retaliation?
If Dickson remained stone-faced when Reynolds charged him with racial
discrimination, would that have negated an inference of retaliation or would silence
have allowed an inference Dickson did not dispute the charge? Notwithstanding the
temporal proximity or Dickson’s response, this entire case hinges on whether Kohler
failed to discharge other similarly situated employees who had engaged in Reynolds’s
conduct.

B.     Retaliation Claim Hinges on Rigorous Similarly Situated Employee
       Analysis
       The majority repeatedly intimates Kohler’s failure to investigate whether other
employees had engaged in similar conduct allows an inference of retaliation. Nothing
in our law requires an employer who confronts an admitted pay cheat to conduct an
investigation to determine whether other employees had engaged in the same conduct.
Furthermore, the conceptual difficulty with using Kohler’s failure to investigate other
employees’ conduct as an inference of retaliation is Reynolds’s refusal to name a
single employee whom he claimed had done what he did. According to Miller,

                                         -19-
Reynolds said he did not want to provide other names because he did not want to get
anyone fired, which infers he believed he was on the verge of being discharged. Even
the EEOC could not find a similarly situated employee who had consistently claimed
eight hours of pay for seven hours of work.

       The majority focuses on Kohler’s zero tolerance policy in general and Kohler’s
lax treatment of other employees for similar conduct. The proper focus should be on
Kohler’s treatment of similarly situated employees who engaged in the same conduct
as Reynolds. Because the EEOC alleged Kohler’s discharge of Reynolds was
inconsistent with Kohler’s treatment of other employees, the EEOC had the burden
to prove those other employees were “similarly situated in all relevant respects.”
Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994) (internal quotations
omitted). “Employees are similarly situated when they are involved in or accused of
the same offense and are disciplined in different ways.” Id. (internal quotations
omitted) (emphasis added). “Specifically, the individuals used for comparison must
have dealt with the same supervisor, have been subject to the same standards, and
engaged in the same conduct without any mitigating or distinguishing
circumstances.” Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000) (emphasis
added). The majority recognized this rigorous test, see Harvey, 38 F.3d at 972, but
then applied an unexacting analysis.

       Kohler compensated its employees based on straight time or production. If an
employee met his production quota, he did not have to work an entire eight-hour shift.
If an employee could not meet his production quota, he was required to work the
entire eight hours. Reynolds, who usually worked straight time, admittedly took an
hour break at the beginning of his eight-hour shift, which resulted in him consistently
working seven hours and claiming eight hours of pay. In deciding whether the trial
court erred in overturning the jury verdict, we must ask whether the EEOC presented
evidence that Dickson failed to discharge other employees who produced only seven
hours of work for eight hours of pay. The EEOC did not.

                                         -20-
       To support its retaliation claim, the EEOC argued Kohler treated Senko,
Askins, Bailey and Alan Dickson differently. None were similarly situated to
Reynolds. The EEOC points out these employees clocked in and out early, were seen
in the breakroom during the workday, did not always meet production, and “may have
claimed pay for hours they had not worked.” The EEOC had the burden to prove
these employees were similarly situated in all relevant aspects, not that they “may
have” been similarly situated.

       Askins, Senko and Reynolds were not similarly situated in all relevant respects.
The EEOC’s key testimony was Askins and Senko clocked in early and did not
always go directly to work. However, Reynolds did not testify Askins and Senko
worked seven hours to receive eight hours of pay or failed to meet production quotas.
The unrefuted evidence shows, even though Askins and Senko clocked in early on
a regular basis, they frequently worked more than eight hours and achieved eight
hours of production. Even when Askins and Senko worked more than eight hours,
they only claimed eight hours of pay if they only completed eight hours or less of
production. Even though Miller knew Askins and Senko clocked in early, she had
no evidence they did not work once they clocked in. Whether Askins and Senko
clocked in or out early does not prove retaliation, because the real issue in the
similarly situated analysis is whether Askins and Senko claimed eight hours of pay
for seven hours of work, the same conduct in which Reynolds had engaged. Because
the record does not show they did, Askins and Senko are not similarly situated to
Reynolds.

       Reynolds testified Bailey came in early and went to his truck to sleep. Noting
this conduct violated Kohler’s zero tolerance policy, the majority concludes this
conduct reveals Bailey and Reynolds were similarly situated in all relevant respects.
However, Reynolds did not testify Bailey failed to meet his production quota or work
eight hours. Bailey testified he clocked in and normally began working. Bailey said

                                         -21-
he achieved his production quota most days, including enough for overtime on
occasions. He acknowledged he slept in his truck or went to the breakroom when he
met his production. The EEOC then asked Bailey if he ever went to the parking lot
when he had nothing to do during the day, and Bailey replied that “there’s been a few
times I’d go to the breakroom or something, but I’d come right on back and go to
work.” The record simply does not show Bailey worked seven hours and claimed
eight hours of pay. No inference can be made based on this record that Bailey was
similarly situated to Reynolds.

       Finally, Alan Dickson was not similarly situated to Reynolds because he never
worked seven hours and claimed eight hours pay. Alan produced over eight hours of
work and claimed overtime for it, even though the policy at the time required him to
remain on the clock to receive the overtime pay. For instance, if his quota was 10
pieces an hour and he produced 100 pieces in eight hours, he still had to remain on
the premises for ten hours to receive overtime. John Dickson referred to this as a
ridiculous rule that has since been revoked. In order to be paid overtime, Alan could
have hung out in the breakroom or slept in the parking lot after meeting his overtime
production. Instead, he left the premises. Reynolds, on the other hand, went to the
breakroom before working at all, then only worked seven hours without meeting his
production, and then claimed eight hours of pay. Alan Dickson and Reynolds were
not similarly situated.

C.     Strikingly Similar Precedent Supports District Court
       In Kipp v. Missouri Highway & Transportation Commission, Kipp, a female
maintenance crew worker, filed an EEOC complaint after she applied for and was
denied a promotion. A friend of Kipp’s co-worker learned of Kipp’s discrimination
claim and sent a letter to Kipp’s employer informing them Kipp spent extended
periods of time at the friend’s house instead of working. Kipp’s employer
investigated the allegations and the district engineer, who knew about the
discrimination complaint, terminated Kipp. Kipp sued her employer for gender

                                        -22-
discrimination and retaliation. The jury found for the employer on the discrimination
claim, but for Kipp on the retaliation claim. Kipp, 280 F.3d at 895. The district court
denied the employer’s motion for judgment as a matter of law on the retaliation claim.
On appeal, the Eighth Circuit reversed, holding, “because the proof in this case fails
to raise an inference that [Kipp’s employer] acted out of a retaliatory motive in
terminating her, Ms. Kipp failed to establish the causal link necessary to make out a
prima facie case of retaliation.” Id. at 898. As discussed above, our court easily
rejected Kipp’s temporal connection argument. Thus, the employer was entitled to
judgment as a matter of law. Id.

       Kipp argued many of her co-workers left their jobs without authorization and
did not face discipline, which arguably raised an inference Kipp’s employer retaliated
against her. Id. at 897. We were unpersuaded by this argument because no evidence
showed the executives terminating Kipp knew about those workers. Id. Thus, “a
reasonable jury could not draw an inference that Ms. Kipp was singled out for
discipline.” Id. As in Kipp, Miller and Dickson were completely unaware of
employees who had acted as Reynolds had, even though they gave Reynolds an
opportunity to name other employees. It is undisputed Reynolds refused their
requests. Like Kipp, we should hold that, because Dickson was unaware of similarly
situated employees when he discharged Reynolds, no inference of retaliation can be
established.

       Kipp also argued her retaliation claim was supported by the fact that she was
not warned before her discharge, she had a solid work record, and her supervisor did
not think much of her leaving work without authorization. Id. at 897-98. The court
“discern[ed] no supportable inference of retaliation in these facts” and took “the
occasion to reaffirm the principle that ‘federal courts do not sit as a super-personnel
department that re-examines an entity’s business decisions.’ Although the jury may
have believed that [Kipp’s employer] should have handled Ms. Kipp’s situation
differently, that issue was not before it.” Id. at 898 (citations omitted); see also Kiel,

                                          -23-
169 F.3d at 1136 (“The employment-discrimination laws have not vested in the
federal courts the authority to sit as super-personnel departments reviewing the
wisdom or fairness of the business judgments made by employers, except to the
extent that those judgments involve intentional discrimination.”).

       The majority repeatedly asserts we should not lightly overturn jury verdicts,
and, of course, we should not. In this case, the evidence did not allow the jury to find
retaliation because the EEOC could not show similarly situated employees had
engaged in Reynolds’s conduct of claiming eight hours of pay for seven hours of
work without being discharged. “In the absence of any evidence of discriminatory
intent, however, it is not the prerogative of the courts or a jury to sit in judgment of
employers’ management decisions.” Kiel, 169 F.3d at 1136. The district court’s
grant of judgment as a matter of law in Kohler’s favor should be affirmed.

      A true copy.

             Attest:

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




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