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Wagner v. Gallup, Inc.

United States Court of Appeals, Eighth Circuit

June 12, 2015

Rodd Wagner, Plaintiff - Appellant
Gallup, Inc., Defendant - Appellee

Submitted: March 11, 2015.

Page 878


For Rodd Wagner, Plaintiff - Appellant: Michelle Dye Neumann, Phillip Kitzer, Brian Rochel, Schaefer & Halleen, Minneapolis, MN.

For Gallup, Inc., Defendant - Appellee: Marko Joseph Mrkonich, William Edward Parker, Kristine D. Yen, Littler & Mendelson, Minneapolis, MN.

Before WOLLMAN, BEAM, and COLLOTON, Circuit Judges.


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BEAM, Circuit Judge.

Rodd Wagner appeals various district court[1] decisions, the sum total of which

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limited matters of discovery, imposed sanctions on Wagner's attorney and ultimately dismissed Wagner's age discrimination and appropriation claims. We affirm.


Rodd Wagner worked for Gallup, Inc., for just over twelve years prior to his termination in October 2011. At the time of his termination, Wagner was a Subject Matter Expert (SME) at Gallup, which Wagner described as someone with extensive experience at Gallup who knew one or more of the practice areas in tremendous depth. He characterized SMEs as likely to have significant experience and as tending to be " an older group within the Gallup workforce." Born in 1961, Wagner was 50 at the time of his termination.

In addition to his billable project work as an SME for Gallup's clients, Wagner also co-authored two books for Gallup. The first, 12: The Elements of Great Managing, became a New York Times bestseller after its publication in 2006. As addressed by the district court, both parties acknowledge that Gallup is widely known in the human resource business for its proprietary " Q12" employee engagement metric; and that concept was discussed in Wagner's first book. In 2009 Gallup published a second book co-authored by Wagner, Power of 2: How to Make the Most of Your Partnerships at Work and in Life. Gallup still sells both books. Wagner balanced his billable client work with the non-billable time he spent authoring and promoting books, with billable time being lower when Wagner was busiest with the writing and publication process.

Although Gallup does not administer formal performance reviews, Wagner received very positive verbal feedback from various individuals in management through the years, including his previous " Go-To" (the closest description of a supervisor in Gallup parlance) Mary Trouba, as well as a regional managing partner, both of whom told Wagner that his billable hours were great and he was performing well. Gallup likewise recognized his achievements and presented him with many awards during his employment.

Gallup employees did, however, receive Internal Customer Engagement (ICE) scores twice each year based upon surveys completed by coworkers. These scores were aimed at measuring " intercompany relationships" with ratings on items such as " timeliness," " promise," and " partnership." The record reveals that Wagner's ICE scorecards from September 2010, March 2011, and September 2011 reflected a decline in his overall " GrandMean" number. Wagner attributed this fluctuation to differences in evaluators and the number of evaluators. During those years of his employment a large number of his key collaborators left Gallup and thus the people he had worked with closely and developed relationships with were no longer at Gallup to provide Wagner with better reviews.

Sometime around August 2011, Patrick Bogart became Wagner's fifth Go-To at Gallup. Bogart is the only Go-To Wagner claims treated him inappropriately or unfairly or exhibited animus based on his age. Bogart was 35 at the time but had worked for Gallup longer than Wagner. Wagner stated that he and Bogart only interacted twice while Bogart was Wagner's Go To--a phone call on October 6 (that Wagner recorded without permission from Bogart), and a phone call on October 13, during which Bogart terminated Wagner (that Wagner likewise recorded). At that time, Wagner was working on a third book that he believed needed to be finished by the end of 2011. However, Larry Emond, executive publisher of the Gallup Press during the relevant time, testified that Wagner had the idea for the book and

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had been told to write an overview or chapter so that it could be further assessed. Emond stated that they " never got to a place where [they] formally approved" the book and no deadline or time frame had been placed on it.

Regardless, Bogart called Wagner on October 6 and, among other things, the two discussed Wagner's utilization. For example, the two talked about the SMEs' ongoing transitional situation at Gallup as well as Bogart's difficulty finding a place for Wagner on a team long term given the perception that Wagner was too " self-referential." [2] In his deposition, Wagner explained that it was during this phone call that he first learned Bogart was his Go-To, but the two had prior interaction; specifically, Wagner and Bogart had corresponded previously about a possible assignment for Wagner in Iraq that Wagner had turned down. Wagner and Bogart had a second phone conversation on October 13, 2011, during which Bogart terminated Wagner, informing Wagner that his position had been eliminated. Subsequently, Wagner sued Gallup alleging an age discrimination claim under the Minnesota Human Rights Act (MHRA) as well as an invasion of privacy cause of action based on the appropriation of his name and/or likeness by Gallup, invoking this court's diversity jurisdiction under 28 U.S.C. § 1332.

In the district court, in order to rebut Gallup's claims that Wagner was difficult to work with, self-oriented and egotistical, as well as to contradict the evidence regarding Wagner's declining ICE scores in 2010 and 2011, Wagner submitted declarations from two individuals who had worked with Wagner in some capacity at Gallup, but both of whom no longer work at Gallup. One of these former Gallup employees attested to Wagner's good reputation with clients as well as coworkers at Gallup. Both employees additionally stated their opinion that Gallup initiated a " youthful movement" at some point and targeted older employees for termination.

In addition to Wagner's allegation that Bogart discriminated against him because of his age, Wagner also advanced a claim that Gallup, in general, maintained a culture of age discrimination. He claimed in his deposition that Gallup had a pattern of replacing more experienced people with someone junior, giving examples of times when he believed that had happened. Wagner stated that few people retire from Gallup, that they are either squeezed out or terminated before they reach the age of retirement, surmising that " [i]f [the most senior people] were more appreciated, better managed, more of them would still be there." Wagner pointed out that all SMEs that Gallup terminated since 2008 were over the age of 42.

Wagner raised the appropriation claim after realizing that Gallup still described Wagner as a principal of the company on a web page advertising Wagner's books long after Wagner's termination. According to Wagner the website stated " Rodd Wagner is a New York Times bestselling author and a principal of Gallup," and Wagner argued that by failing to amend this statement to indicate Wagner was a " former"

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principal after his termination, Gallup was liable for appropriation.

Gallup filed a motion for summary judgment on all claims. Initially, the district court granted judgment in favor of Gallup on the Minnesota age discrimination claim, but denied summary judgment on the name and likeness dispute. As to the age claim, the court held that given the evidence presented, the matter must be analyzed under the McDonnell Douglas framework[3]. In conducting that analysis, the court determined that even though Wagner's evidence sufficed to establish a prima facie case, he did not present evidence from which a reasonable jury could conclude that Gallup's proffered reasons for Wagner's termination were pretextual. Later, pursuant to Federal Rule of Civil Procedure 56(f), the court determined that Wagner lacked evidence that Gallup intended to appropriate his name or likeness and dismissed that claim as well.

On appeal, in addition to the district court's adverse rulings on the age discrimination and appropriation claims, Wagner challenges certain discovery rulings and also the court's imposition of sanctions against Wagner's counsel for issuing particular trial subpoenas.


A. Standards of Review

" This court reviews de novo a grant of summary judgment." Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). " Summary judgment is proper 'if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.'" Id. (quoting Fed.R.Civ.P. 56(c)(2)). " On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts." Id. (quotation and internal quotation omitted).

Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. The nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not ...

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