The full case caption appears at the
end of this opinion. BOGUE, District Judge. This is an employment discrimination case. The Plaintiff, Larry Kells chargedthe Defendant with discrimination on account of age and disability. The district court
[FOOTNOTE 2]granted the Defendant’s motion for summary judgment on each count of the Plaintiff’sComplaint. For the reasons set forth below, we affirm in part and reverse in part. I. BACKGROUND In April 1993, Defendant Sinclair Buick-GMC Truck, Inc. (“Sinclair-Buick”)acquired Art Haack Buick, where Larry Kells worked as a used car salesman. Partowner Dave Sinclair Jr. became the dealership’s new manager, and in March 1994 heoffered Kells the opportunity to work as a finance and insurance (“F&I”) manager.Kells accepted. He joined Greg Gorham, the other F&I manager. The F&I department was responsible for selling car buyers additional servicessuch as financing, insurance, and extended warranties. Sometime in 1994, DaveSinclair Jr. was contacted by General Motors Holding Division, the investmentdepartment at General Motors, which advised him that his F&I department wasunderperforming. General Motors Holding Division recommended that he engage anindependent financing and consulting firm called Maximum Achievable Profits, Inc.(“MAP”) to review the department and train the Sinclair-Buick F&I employees.Sinclair Jr. hired MAP in December 1994. Two MAP consultants arrived, Vern Hutson and Leo Norath. They reviewedand trained Kells and his coworker, Gorham for an eight month period ending inAugust 1995. MAP noted problems with both Gorham’s and Kells’ performance, butbelieved that Kells exhibited a more serious attitude problem. On or about August 4,Sinclair Jr. removed Kells from the F&I department and reinstated him in his formerposition as a used car salesperson. Subsequently, a September 8 MAP “letter of findings” from Leo Norath wasissued. The letter criticized the accuracy of Kells’ and Gorham’s “daily logs” andmade additional remarks concerning Kells’ performance. During a September 17meeting between Sinclair Jr. and MAP consultant Hutson, Sinclair Jr. expressed hisconcerns with regard to a possible lawsuit from Kells as well as community perceptionssurrounding Kells’ transfer. A second MAP “letter of findings” was generatedfollowing this meeting which described how Kells would not use procedures properlywith customers, did not take a great interest in improving, and had a negative attitude.This letter contained the first written MAP recommendation that Kells be removed fromhis F&I position. Kells’ new supervisor was Mike Ruhland, who was also critical of Kells’abilities. Ruhland told Kells that he was “useless,” “done with the business” and thathe did not want Kells in the used car department because he could not wait oncustomers fast enough or keep up with the other Sinclair-Buick employees. Kells hasmuscular dystrophy and found some duties connected with his new position difficult.Ruhland denied repeated requests for a ramp into the used car building, the use of acart, and authorization to use a canopy-covered parking space in order to accommodateKells’ disability. Kells worked in the used car department for nearly five more months beforesubmitting a letter of resignation in December. In the letter, Kells complained thatdespite his genuine dedication to Sinclair-Buick, he had been demoted “under dubiouspretexes” [sic] so that his income would decline and he would be forced to resign.Following Kells’ resignation, Dave Sinclair Sr., Dave Sinclair Jr.’s father and a partowner of the dealership, called Kells at home. Sinclair Sr. asked Kells how old he was.”Fifty,” Kells replied. “When you get that age, those things happen to you in ourcompany,” Sinclair Sr. responded. In March of the following year, Kells filed a charge of discrimination with theEqual Employment Opportunity Commission (EEOC) and the Missouri Commissionon Human Rights (MCHR). He filed a four count Amended Complaint with theDistrict Court for the Eastern District of Missouri, alleging wrongful demotion,harassment, and constructive discharge in violation of the Americans with DisabilitiesAct (ADA), the Age Discrimination in Employment Act (ADEA), and comparableprovisions of the Missouri Human Rights Act (MHRA). In three separate orders, thedistrict court granted summary judgment on all counts of Kells’ Complaint.
[FOOTNOTE 3] Thisappeal followed. II. DISCUSSION We review a district court’s grant of summary judgment de novo. Rothmeier v.Investment Advisers, Inc., 85 F.3d 1328, 1331 (8 th Cir. 1996). Summary judgment mayissue only when “there is no genuine issue as to any material fact and that the movingparty is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. “[S]ummaryjudgment should seldom be granted in the context of employment actions, as suchactions are inherently fact based.” Hindman v. Transkirt Corp., 145 F.3d 986, 990 (8 thCir. 1998). When the evidence would support conflicting conclusions, summaryjudgment should be denied. See Johnson v. Minnesota Historical Soc’y, 931 F.2d1239, 1244 (8 th Cir. 1991) (“All the evidence must point one way and be susceptibleof no reasonable inferences sustaining the position of the nonmoving party [beforesummary judgment is appropriate].”). A. ADA Claim The Defendant does not dispute that Kells is a qualified individual with adisability within the meaning of the ADA. See 42 U.S.C. � 12102(2)(A) (defining adisability as an impairment which substantially limits a major life activity). Kells hasinsulin-dependent diabetes and muscular dystrophy, both recognized ADAimpairments. See Torcasio v. Murray, 57 F.3d 1340, 1354 (4 th Cir. 1995), cert. denied,516 U.S. 1071, 116 S.Ct. 772, 113 L.Ed.2d 724 (1996), citing 28 C.F.R. � 35.104(muscular dystrophy); Burroughs v. City of Springfield, 163 F.3d 505, 507 (8 th Cir.1998) (diabetes). As a result of his muscular dystrophy, Kells has diminished use ofthe muscles in the lower part of his body. He wears braces on both legs and walksusing two canes. Despite these mitigating devices, the Defendant concedes, Kells’impairments substantially limit one or more of his major life activities, such as walking.As such, Kells has a disability. What the parties dispute is whether Kells was demoted and ultimatelyconstructively discharged because of his disability. See 42 U.S.C. � 12112(a)(prohibiting discrimination because of disability in regard to “the hiring, advancement,or discharge of employees”). In support of his claim, Kells points to statements byMike Ruhland, the used car department manager, that Kells was “useless,” “done withthe business,” and could not wait on customers fast enough or keep up with otheremployees. In addition, Kells cites to instances in the record which suggest thatSinclair Buick failed to provide reasonable accommodations for his disability. Kellsfurther attempts to create a genuine issue of material fact with regard to the timing ofMAP’s recommendation that he be transferred out of the F&I department. Beforereviewing the district court’s grant of summary judgment on Kells’ ADA claim, we firstexamine these factual issues. 1. Timing of MAP Recommendation The following facts are clearly undisputed. Kells was transferred back to theused car department on August 4, 1995. On September 8, MAP issued a letter offindings which contained criticisms of Kells, as well as criticisms of Greg Gorham. OnSeptember 17, Vernon Huston met with Dave Sinclair Jr. and discussed Sinclair Jr.’sconcerns about a possible lawsuit from Kells. On September 27, MAP issued a secondletter of findings recommending Kells’ transfer. What is not entirely clear is whether MAP consultants orally recommended thatKells be transferred before Sinclair Jr. carried out Kells’ transfer. Sinclair-Buick’sdefense theory depends, in part, upon their reliance on MAP’s objective conclusionsconcerning Kells’ professional shortcomings. Sinclair-Buick argues that its reliance onMAP’s recommendation to transfer Kells out of the F&I department refutes Kells’claim that it was motivated by any sort of discriminatory animus. In support of thistheory, Sinclair-Buick contends that the record plainly establishes that it received averbal recommendation to transfer Kells prior to taking that action. The district courtagreed, and found that this was the only reasonable reading of the record. Sinclair-Buick cites to affidavits by MAP consultants Leo Norath and VernonHutson which it originally attached to its reply brief to Plaintiff’s brief in opposition toDefendant’s motion for summary judgment. In the Norath affidavit, Norath swore thathe verbally advised Sinclair Jr. to remove Kells from the F&I department inapproximately April of 1995, some four months before Kells was finally transferred.In the Hutson affidavit, Hutson stated that he verbally advised Sinclair Jr. to transferKells as early as February 1995. Because Kells could offer no evidence to contradictthese assertions, the district court concluded that there was no genuine issue as to whenthe MAP consultants recommended Kells’ transfer. Part of the difficulty with the district court’s conclusion as to this aspect of therecord lies in Norath’s and Hutson’s prior deposition testimony. Hutson was askedabout his notes of the September 17 meeting: A. It was one of my follow-up visits and, again, it was things wediscussed so I made notes. Q. It goes on to state that, the very third sentence from the bottom, “Wethen recommended dismissal. Dave’s thoughts on community standingand concern of some type of lawsuit would not permit dismissal until hehad given ample warning and compile statistics to support his move anddecision.” That’s something that, your testimony was, that you discussedin February of 1995. I’m wondering why you’re writing it down onSeptember 17 th of 1995. A. Because it was probably September then, I discussed it then. It wasfive years ago. Q. So this refreshes your recollection that it wasn’t in February, but it wasSeptember of 1995 that you made the recommendation? A. I wrote it on September of 1995. The actual conversation wasprobably then. Mr. Sinclair was very concerned about public opinion andthat’s why I put it in my record. Norath was questioned about the September 27 letter which was issued following themeeting: Q. Okay. Do you know of any other writing other than this September27, 1995, letter that you recommend Mr. Kells be discharged from theF&I department? MR. GOFFSTEIN: Are you referring just to what Mr. Norath did? MR. LOWE: Yes. MR. GOFFSTEIN: Okay. A. Repeat that question please. Q. Yeah. Do you remember any other document where you recommendMr. Kells be changed from the F&I department – A. No. Q. — other than this — you’ve got to let me finish my — other than thisSeptember 27, 1995, letter? A. No. Q. And sitting here today you don’t have a recollection of making thatrecommendation to Mr. Sinclair other than in this September 27 th , 1995,letter? A. That’s correct. The court reasoned that Defendant Sinclair-Buick had offered uncontradicted evidencethat it had relied on MAP’s verbal recommendations in deciding to transfer Kells to theused car department. The court focused on other portions of the MAP consultants’deposition such as where Hutson testified that in roughly February 1995, he “probably”recommended Kells’ termination, and Hutson’s handwritten notes of the September1995 meeting where it was recited that dismissal was recommended as early as sixweeks into the MAP program. We do not believe that the court’s conclusion can be reconciled with theapplicable standard for reviewing facts on a motion for summary judgment. SeeAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d202 (1986) (citation omitted) (cautioning that in the context of a motion for summaryjudgment, “[t]he evidence of the nonmovant is to believed, and all justifiable inferencesare to be drawn in his favor.”). The district court’s factual conclusion might have beenbased on a logical, well-reasoned reading of the record, but it was not the onlyreasonable conclusion which could have been drawn. Hutson’s and Norath’s depositions did more than clarify their depositiontestimony, they contradicted it. Indeed, Hutson’s affidavit characterizes his priordeposition testimony as “incorrect.”
[FOOTNOTE 4] Granting, as we must, all reasonable inferences in Kells’ favor, we cannot say that the record establishes whether MAP consultantsrecommended Kells’ transfer before Sinclair-Buick acted. Instead, this is a questionbest left to a jury. For summary judgment purposes, the district court should haveassumed that no MAP recommendation to transfer or remove Kells was articulated untilafter the fact. 2. Reasonable Accommodation Evidence Kells also argues that an inference of unlawful discriminatory intent arises fromthe Defendant’s repeated denials of reasonable accommodations. When he presentedthis evidence in resistance to Defendant’s motion for summary judgment, the courtdisregarded the evidence as irrelevant. Kells urges us to reconsider this decision. In addition to prohibiting discrimination on account of disability, the ADAimposes an affirmative duty on employers to provide “reasonable accommodations tothe known physical or mental limitations” of their employees. 42 U.S.C. �12112(b)(5)(A). An accommodation is simply some change or modification in thework environment which allows an individual with a disability to participate on anequal footing with non-disabled employees. 29 C.F.R. � 1630.2(o)(1)(iii). Reasonableaccommodations might include special training, restructured work schedules, ormodifications of workplace equipment and devices. 42 U.S.C. � 12111(9)(B); see,e.g., Valentine v. American Home Shield Corp., 939 F.Supp. 1376, 1399 (N.D. Iowa1996) (listing part-time employment as a potential reasonable accommodation).Proposed accommodations which would involve significant expense or difficulties uponthe employer’s operation of its business constitute an “undue hardship” and need notbe implemented. 42 U.S.C. �� 12112(b)(5)(A), 12111(10). Kells cites to three instances where he was allegedly denied a reasonableaccommodation by Sinclair-Buick. First, he claims, the Defendant refused to allow himto park his vehicle in a covered parking spot during bad weather. Because the parkinglot was positioned on an incline, Kells’ disability made it difficult to maneuver whenthe surface was wet or icy. Sales manager Mike Ruhland denied this request on ten ormore separate occasions. Second, Kells requested that a ramp be built to assist him inclimbing the stairs into the used car building following his transfer. Although SinclairBuick apparently made preliminary efforts to construct a ramp, it did not do so until thetime of Kells’ resignation in December 1995. Third, Kells repeatedly requested the useof an electric cart which was kept at the dealership in order to go from the used carbuilding to the main building. Plaintiff needed to carry as many as ten or twelve filesacross the uneven asphalt on a daily basis. On at least one occasion, Kells fell whilemaking this trip. Ruhland refused to permit Kells to use the cart because it reserved thecart’s use for customers, saying, “It’s not my concern. Just get [the files] down there.It’s your responsibility. Just take care of it.” Kells presents a rather novel theory. Rather than stating a claim directly forthese purported denials of reasonable accommodations, he asked the district court toconsider the denials as evidence supporting his claim that his demotion and terminationwere motivated by discriminatory animus. See Tart v. Behan Lumber Co., 31 F.3d668, 673 (8 th Cir. 1994) (noting that evidence of background incidents showing biasedclimate can be indicative of motive or attitude of discrimination). The Defendantcharacterizes Kells’ assertion as a red herring because all the events occurred afterKells’ demotion to used car salesman. Kells admitted that he made no requests forreasonable accommodations while in the F&I department because he did not need anyaccommodations in that position. Because the alleged denials of reasonableaccommodations did not occur before or contemporaneously with his demotion, theDefendant claims, they shed no light on the reason for Kells’ demotion. We disagree. Kells claims that the demotion as well as the purportedconstructive termination were motivated by his disability. He has clearly presentedprima facie evidence of the Defendant’s repeated denials of requests for reasonableaccommodations. If it is accepted that the Defendant conducted itself with a disregardfor its obligations to Kells under federal disability laws, this is relevant evidence of theDefendant’s attitude towards Kells’ disability. Cf. 42 U.S.C. � 12112(b)(5)(B)(including within the definition of discrimination under the ADA, the denial ofemployment opportunities “if such denial is based on the need of [the] covered entityto make reasonable accommodation”). From the evidence presented, a reasonable jurycould find that Sinclair-Buick viewed with derision Kells’ requests for reasonableaccommodations and from that infer that Sinclair-Buick’s reasons for transferring anddischarging Kells were also related to contempt towards his disability. Failing toprovide an employee with reasonable accommodations can tend to prove that theemployer also acted adversely against the employee because of the individual’sdisability. We therefore reject the district court’s conclusion that such evidence issimply irrelevant. See F.R.E. 401 (defining “relevant evidence” as “evidence havingany tendency to make the existence of any fact that is of consequence to thedetermination of the action more probable or less probable than it would be without theevidence.”). The district court also disregarded Plaintiff’s evidence of verbal harassment byMike Ruhland, Plaintiff’s supervisor in the used car department. We likewise rejectthe court’s conclusion that this evidence has no bearing on Plaintiff’s claim. Criticismsof Kells’ slugishness in attending to customers could be read as directed towards thefact that Kells mobility is restricted due to his disability. The court erred in failing toconsider this evidence in the context of Defendant’s motion. 3. Summary Judgment Having reviewed the record, we have concluded that the district court erred indisregarding the evidence of reasonable accommodation denials and in holding that nogenuine issue existed regarding the timing of the MAP recommendation to transferKells. It still remains for us to determine whether we should nonetheless affirm thedistrict court’s grant of summary judgment on Kells’ ADA claim. Summary judgmentis an appropriate remedy despite factual discrepancies unless genuine issues of materialfact remain. Fed. R. Civ. P. 56 (emphasis added). The evidence in support of Kells’claim that he was demoted and constructively discharged because of his disability,viewed in a light most favorable to him, can be summarized as follows: insensitivecomments by supervisor Ruhland in connection with Kells’ physical limitations,repeated denials of reasonable accommodation requests, Kells being replaced by a non-disabledworker, and an inference that the MAP recommendation may have beenmanufactured post-hoc to support a non-discriminatory explanation for Kells’demotion. Granting Kells all reasonable inferences from these facts, we conclude thata genuine issue has been presented as to whether the Defendant’s actions weremotivated by the existence of Kells’ disability. We will reverse the district court’sgrant of summary judgment on this claim. B. ADEA Claim Kells was fifty years old during the time frame at issue. He asserted in count IIof his Complaint that he was demoted because of his age. See 29 U.S.C. �� 623(a)(1),631(a) (prohibiting employment discrimination against any individual over the age offorty “because of such individual’s age”). In support of this claim, Kells relies on thefact that after his demotion he was replaced by a 37-year-old individual, the subsequentcriticisms by Mike Ruhland, and a comment by Dave Sinclair Sr. during a telephoneconversation with Kells. After Kells resigned in December 1995, Dave Sinclair Sr. called Kells at hishome. Sinclair Sr. was not directly involved with the dealership’s management,although his ownership interest is forty-nine percent. Kells complained to Sinclair Sr.that he felt he had been mistreated by Sinclair Jr. and Mike Ruhland. Sinclair Sr. askedKells how old he was. “Fifty,” Kells replied. “When you get that age, those thingshappen to you in our company,” Sinclair Sr. observed.
[FOOTNOTE 5] Kells argues at some length that Dave Sinclair Sr.’s telephonic comment presentsdirect evidence of age-related discriminatory animus. See Price Waterhouse v.Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Direct evidence isthat which demonstrates a specific link between the challenged employment action andthe alleged animus. See, e.g., Beshears v. Asbill, 930 F.2d 1348, 1354 (8 th Cir. 1991)(holding that a statement by a company president who actively participated in thepersonnel decision at issue that “older employees have problems adapting to changesand to new policies” constitutes direct evidence). The Sinclair comment is not directevidence because it presents no such link. No evidence was presented that Sinclair Sr.”actively participated in the personnel decisions at issue.” Id. Moreover, Kellspresented no evidence that Sinclair Sr. was basing his comment on any directobservations of Sinclair-Buick’s practices, policies or attitudes concerning olderemployees. The court was correct in applying an indirect evidence framework to Kells’ADEA claim. McDonnell Douglas provides a framework for analyzing employmentdiscrimination charges which rely on inferential proof. McDonnell Dougas Corp. v.Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Thus, utilizing thisfamiliar and often useful three-part burden-shifting scheme, we are persuaded that Kellshas presented a prima facie case of age discrimination. In response, Sinclair-Buick hasarticulated a non-discriminatory explanation for its actions; Kells’ mistakes, his bleakattitude and lackluster performance. Under the third prong of McDonnell Douglas, theburden of production then shifts back to Kells to show that his employer’s explanationis pretextual and that age was a determinative factor in Sinclair-Buick’s decision todemote him. Id., 411 U.S. at 804-05, 93 S.Ct. at 1825-26; Rothmeier, supra, 85 F.3dat 1336-37. The Defendant argues that Kells’ claim is substantially weakened by the fact thathe was already over the age of forty when Sinclair Jr. promoted him seventeen monthsearlier. Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173, 175 (8 th Cir. 1992) (holdingthat age discrimination was not shown where the plaintiff was hired by the same personwho shortly thereafter terminated him and where the plaintiff was in the protected agegroup at the time he was hired). The holding of Lowe is limited to cases where noevidence of overt discrimination has been presented. Madel, 116 F.3d at 1253. Here,the Sinclair Sr. statement and other circumstances are inferential proof of overtdiscrimination, which, coupled with the suspicions timing of the MAP recommendation,raise an inference of illegal discrimination. We therefore hold that, viewing the record in its entirety, Kells has presented atriable issue of fact with regard to his ADEA claim. The Sinclair Sr. observation,coupled with Kells’ other evidence, is sufficient to present a jury with Kells’ claim ofage discrimination. We will reverse the district court’s grant of summary judgment onKells’ ADEA claim. C. Harassment Finally, Kells appeals the district court’s grant of summary judgment on Kells’claims of harassment. Kells’ Complaint alleges that the Defendant wilfully subjectedhim to harassment on account of disability and age. The court dismissed these aspectsof the Plaintiff’s Complaint after concluding that Kells had failed to exhaust hisadministrative remedies. The court reasoned that because Kells had not specificallyraised an allegation of harassment in his charge of discrimination filed with the EEOC-MCHR, and because the allegations Kells did raise were not “like or reasonably relatedto” a harassment charge, that the Plaintiff was limited to claims of wrongful demotionand constructive termination. We review this ruling de novo. Nichols v. AmericanNat’l Ins. Co., 154 F.3d 875, 886 (8 th Cir. 1998) (citation omitted). In the charge Kells submitted to the EEOC, he claimed that he had been removedfrom his F&I position because of his disability and that the Defendant’s “actions weretaken in an effort to force me to resign.”
[FOOTNOTE 6] Kells argues that his failure to specificallyreference harassment “should not sound the death knell” for his allegations. Shannonv. Ford Motor Co., 72 F.3d 678, 685 (8 th Cir. 1996). A harassment claim “reasonablycan be expected to grow out of” an investigation into the substance of his assertion thatthe Defendant forced his resignation, Kells avers. EEOC v. Delight Wholesale Co.,973 F.2d 664, 668 (8 th Cir. 1992). “In determining whether an alleged discriminatory act falls within the scope ofa [discrimination] claim, the administrative complaint must be construed liberally ‘inorder not to frustrate the remedial purposes of [the ADA and the ADEA]‘ and theplaintiff may seek relief for any discrimination that grows out of or is like or reasonablyrelated to the substance of the allegations in the administrative charge.” Nichols, 154F.3d at 886-87 (citations and internal citation omitted). “Accordingly, the sweep of anysubsequent judicial complaint may be as broad as the scope of the EEOC ‘investigationwhich could reasonably be expected to grow out of the charge of discrimination.’”Cobb v. Stringer, 850 F.2d 356, 359 (8 th Cir. 1988) (citation omitted). Allegationsoutside the scope of the EEOC charge, however, circumscribe the EEOC’sinvestigatory and conciliatory role, and for that reason are not allowed. Williams v.Little Rock Mun. Water Works, 21 F.3d 218, 223 (8 th Cir. 1994) (citation omitted). We agree with the district court that Kells’ claim that he was unlawfully subjectto verbal harassment by Mike Ruhland is not reasonably related to his claims ofdiscriminatory demotion and termination at the hands of Sinclair Jr. The EEOC chargefailed to put the Defendant on notice that Kells was claiming he was subject toharassment. Even granting Kells’ pro se EEOC charge a liberal construction, we areprohibited from “inventing ex nihilo, a claim which simply was not made.” Shannon,72 F.3d at 685; see also Tart, 31 F.3d at 673 (claim of racial harassment is notreasonably related to racially discriminatory discharge); Williams, 21 F.3d at 223(claim of race discrimination separate and distinct from claim of retaliation three yearslater). We will therefore affirm the district court’s ruling that Kells failed to exhausthis administrative remedies with regard to his harassment claims. III. CONCLUSION For the foregoing reasons, we reverse the district court’s grant of summaryjudgment on Kells’ ADA and ADEA claims. We affirm with respect to the court’sdismissal of Kells’ harassment claims and remand for further proceedings consistentwith this opinion. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. :::FOOTNOTES:::
FN1 The Hon. Andrew W. Bogue, Senior United States District Judge for theDistrict of South Dakota, sitting by designation.
FN2 Hon. Lawrence O. Davis, United States Magistrate Judge in the Eastern Districtof Missouri, to whom the case was referred for final disposition by consent of theparties. 28 U.S.C. � 636(c); Fed. R. Civ. P. 73.
FN3 The district court ruled that Kells’ MHRA claims should be dismissed becausethey were untimely filed. See Mo. Rev. Stat. � 213.075.1 (complaints of discriminationmust be filed with the MCHR within 180 days of the alleged act of discrimination).Kells has not appealed this determination. Thus, only his federal claims are before thisCourt.
FN4 Hutson explained that during his deposition, he became confused when he wasshown his notes from the September 17 meeting with Sinclair Jr.
FN5 Kells’ deposition testimony was that Sinclair Sr. said, “You know, when youstart getting in the age you’re in, those things happen.” Subsequently, in an affidavit,Kells modified this to include the phrase “those things happen in our company.” Forpurposes of reviewing the district court’s summary judgment ruling, we assume thatKells inadvertently misquoted Sinclair Sr. and corrected his error by affidavit.
FN6 Kells’ charge read in full: I. On August 4, 1995, I was removed from my position as FinanceManager, and was given a “choice” of either resigning or accepting astraight commission position as a used car salesperson. I had beenperforming satisfactorily in the Finance Manager position but I wasviewed as a liability because of my disability and my worsening physicalcondition. II. I was not given a valid reason for the removal and demotion.Management was aware of my disability and worsening physicalcondition which would make it almost impossible for me to supportmyself as a used car salesman. I believe their actions were taken in aneffort to force me to resign. III. I believe I have been discriminated against because of my disabilityin violation of the Americans with Disabilities Act. IV. I was also replaced by a younger, non-disabled man.
Kells v. Sinclair Buick – GMC Truck, Inc. United States Court of AppealsFOR THE EIGHTH CIRCUIT No. 99-2795 Larry Kells, Appellant, vs. Sinclair Buick – GMC Truck, Inc., Appellee. Appeal from the United States District Court for the Eastern District of Missouri. Submitted: March 13, 2000 Filed: April 27, 2000 Before McMILLIAN and HEANEY, Circuit Judges, and BOGUE,
[FOOTNOTE 1] District Judge.
