Gardner v. Wal-Mart Stores, Inc.

• Decision Date: 23 June 2021
• Docket Number: No. 20-1831,20-1831
• Citation: 2 F.4th 745
• Parties: Daniel J. GARDNER, Petitioner - Appellant v. WAL-MART STORES, INC. ; Wal-Mart Stores East, LP; Wal-Mart Transportation, LLC, Defendants - Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

2 F.4th 745

Daniel J. GARDNER, Petitioner - Appellant

v.WAL-MART STORES, INC. ; Wal-Mart Stores East, LP; Wal-Mart Transportation, LLC, Defendants - Appellees

No. 20-1831

United States Court of Appeals, Eighth Circuit.

Submitted: April 14, 2021

Filed: June 23, 2021

Counsel who presented argument and appeared on the brief on behalf of the appellant was Brandon R. Underwood, of Des Moines, IA. The following attorney also appeared on the appellant brief; Patrick D. Smith, of Des Moines, IA.

Counsel who presented argument and appeared on the brief on behalf of the appellee was Mark Joseph Goldsmith, of Omaha, NE.

Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.

BENTON, Circuit Judge.

Daniel J. Gardner sued his former employer, Wal-Mart Stores, Inc., for age discrimination under the Iowa Civil Rights Act (ICRA). The district court¹ granted summary judgment to Walmart. Gardner v. Walmart Stores, Inc. , No. 4-18-cv-450, Docket No. 55, at 4 (S.D. Iowa Mar. 23, 2020). Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Gardner worked for Walmart from 1993 until February 2017. He served as a private fleet safety manager in Mount Pleasant, Iowa, responsible for implementing Walmart's safety program.

In January 2016, Gardner disclosed an employee's medical condition during a training session. Walmart placed him on a "Third Written"—meaning he could be fired if disciplined again. One of Gardner's job responsibilities was enforcing Walmart's Hazardous Materials Endorsement (HME) policy. It required him to "identify all current and new hire drivers without a valid hazmat endorsement and notify the local Transportation Operations Managers." In January 2017, Gardner violated the policy. As acknowledged in his statement of undisputed material facts, a driver failed to get an HME after the 90-day deadline, but Gardner did not notify Operations that the driver continued working. Instead, after about 30 more days, he suspended the driver.

In February 2017, Walmart gave Gardner the option to resign or be dismissed. He resigned. He then sued, alleging he was fired because of age (58). The district court granted summary judgment to Walmart, ruling he could not show that its proffered reason for the firing was a pretext for age discrimination.

This court reviews de novo a grant of summary judgment, viewing the facts most favorably to the nonmoving party. Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Iowa discrimination law governs this diversity action. See Junk v. Terminix Int'l Co. , 628 F.3d 439, 450 (8th Cir. 2010). See also Deboom v. Raining Rose, Inc. , 772 N.W.2d 1, 7 (Iowa 2009) ("When interpreting discrimination claims under Iowa Code chapter 216, we turn to federal law, including Title VII of the United States Civil Rights Act ....").

II.

ICRA prohibits age discrimination in the workplace. Iowa Code § 216.6(1)(a) . Although Gardner did not present direct evidence of discrimination, he claims to satisfy the McDonnell Douglas burden-shifting framework. See Hedlund v. Iowa , 930 N.W.2d 707, 719-20 (Iowa 2019) (collecting Iowa cases applying McDonnell Douglas to discrimination claims), citing McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).²

Like the district court, this court assumes that Gardner met his prima facie burden.³ Gardner acknowledges that Walmart offered a legitimate, nondiscriminatory reason to fire him—the violation of the HME policy while on a Third Written. See Torgerson , 643 F.3d at 1047 ("The burden to articulate a nondiscriminatory justification is not onerous, and the explanation need not be demonstrated by a preponderance of the evidence." (internal citation and quotation marks omitted)).

Gardner believes there is a genuine issue of material fact whether the reason Walmart offered is a pretext for age discrimination. "The showing of pretext necessary to survive summary judgment requires more than merely discrediting the employer's proffered reason for the adverse employment decision." Grutz v. U.S. Bank Nat. Ass'n , 695 N.W.2d 505, *3 (Iowa Ct. App. 2005) (unpublished table order) (cleaned up). "The plaintiff's age must have actually played a role in the employer's decision making process and had a determinative influence on the outcome." Id. , quoting Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (cleaned up).

A plaintiff may demonstrate a "material question of fact regarding pretext" in at least two ways. Torgerson , 643 F.3d at 1047, quoted approvingly by Wyngarden v. Iowa Judicial Branch , 856 N.W.2d 2, *12-13 (Iowa Ct. App. 2014) (unpublished table order). The "plaintiff show[s] that the employer's explanation is unworthy of credence ... because it has no basis in fact." Id. Or the plaintiff "persuad[es] the court that a prohibited reason more likely motivated the employer." Id. "Federal courts do not sit as a super-personnel department that reexamines an entity's business decisions .... Rather, our inquiry is limited to whether the employer gave an honest explanation of its behavior."

Harvey v. Anheuser-Busch, Inc. , 38 F.3d 968, 973 (8th Cir. 1994), quoting Elrod v. Sears, Roebuck & Co. , 939 F.2d 1466, 1470 (11th Cir. 1991).

Gardner insists that Walmart's explanation for firing him is "unworthy of credence." See Ridout v. JBS USA LLC , 716 F.3d 1079, 1086 (8th Cir. 2013) (applying Iowa law). He says he complied with the HME policy when he notified Operations before the 90-day deadline that the driver did not have an HME. But this does not excuse his failure to comply after it expired. Cf. Baker v. Silver Oak Senior Living Mgmt. Co. , 581 F.3d 684, 689 (8th Cir. 2009) (evidence that employee did not violate work policy supported discrimination claim).

Next, Gardner argues at length that age was the reason for his firing. First, he argues that his former supervisor, Jennifer A. Gray, made disparaging comments about older employees, saying "You old guys have been around too long and need to get up with new technologies." He did not present this as "direct evidence" of discrimination in the district court, like he does on appeal. Gardner , No. 4-18-cv-450, Docket No. 55, at 3. This court generally does "not consider arguments raised for the first time on appeal." See Murphy v. Aurora Loan Servs., LLC , 699 F.3d 1027, 1033 n.4 (8th Cir. 2012). Cf. Roberts v. Park Nicollet Health Servs. , 528 F.3d 1123, 1128 (8th Cir. 2008) (noting that discriminatory comments by a decisionmaker constituted direct evidence, but adding "[a]lthough Roberts elected not to argue the case on a direct evidence theory, [the decisionmaker's] alleged statements also provide an independent basis" for pretext).

Discriminatory comments by decisionmakers, however, can be used to show pretext under McDonnell Douglas . Watkins v. City of Des Moines , 949 N.W.2d 28, *6-7 (Iowa Ct. App. 2020) (unpublished table order). Gray was "involved" in Gardner's firing. See id. at *6 (discriminatory comments must be made by someone "involved" in the employment decision). She provided information to Michael Noble (the director of fleet safety) about Gardner's work performance from when they worked together. But Gardner did not produce any evidence that she approved the firing, recommended it, or knew about it in advance. Cf. Thomas v. Heartland Emp. Servs. LLC , 797 F.3d 527, 530 (8th Cir. 2015) (indirect supervisor was a decisionmaker because he, along with others, decided to fire the employee). In fact, Gray was no longer his supervisor when he was fired. See Grutz , 695 N.W.2d at *3. Gardner has not shown that the decisionmakers—Noble and his supervisor when the violation occurred—made any discriminatory comments about age.

Gray's comments are also too remote in time to support an inference of discrimination. See Hedlund , 930 N.W.2d at 721-22. Gardner provides no specific dates for the remarks, but Gray was not his boss as of December 2016. Walmart did not learn of the HME violation until February 2017. The remarks, at the latest, came about three months before Gardner's firing. This is insufficient to show pretext. Id. at 722, citing Ortiz-Rivera v. Astra Zeneca LP , 363 Fed. Appx. 45, 48 (1st Cir. 2010) ("[M]ere generalized ‘stray remarks’ ... normally are not probative of pretext absent some discernable evidentiary basis for assessing their temporal and contextual relevance." (alterations in original)).

At most, Gray's "comment[s] only suggest[ ] that [she] could have harbored discriminatory feelings toward older employees in general." See Hammer v. Ashcroft , 383 F.3d 722, 727 (8th Cir. 2004) (alterations added). But this evidence "does not directly deal with the ultimate question: whether [Gardner] was discriminated against on account of age" when Walmart fired him. Id.

Second, Gardner says Walmart's "shifting explanations" for his termination show pretext. See EEOC v. Trans States Airlines, Inc. , 462 F.3d 987, 995 (8th Cir. 2006). "Not every supplement to an employer's initial statement of reasons gives rise to an inference of pretext, but substantial variations raise suspicion." Baker , 581 F.3d at 689. "A plaintiff must do more than identify discrepancies or inconsistences in an employer's rationale for terminating the plaintiff to prove that the employer gave shifting explanations." Fatemi v. White , 775 F.3d 1022, 1048 (8th Cir. 2015). The change in explanation must be substantial. Id. If the employer provides "two completely different explanations," there is evidence of pretext. Trans States , 462 F.3d at 995 (collecting cases).

Here, Walmart has consistently explained that Gardner was terminated for violating the HME policy, while on a Third Written. See Sieden v. Chipotle Mexican Grill, Inc. , 846 F.3d 1013, 1018 (8th Cir. 2017) (no pretext where employer merely "elaborated on" its consistent explanation). While Walmart referenced some previous infractions throughout litigation, "the...