Schierhoff v. Glaxosmithkline Healthcare

• Decision Date: 14 April 2006
• Docket Number: No. 05-1552.,05-1552.
• Citation: 444 F.3d 961
• Parties: James A. SCHIERHOFF, Appellant, v. GLAXOSMITHKLINE CONSUMER HEALTHCARE, L.P., a Limited Partnership, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

444 F.3d 961

James A. SCHIERHOFF, Appellant, v. GLAXOSMITHKLINE CONSUMER HEALTHCARE, L.P., a Limited Partnership, Appellee.

No. 05-1552.

United States Court of Appeals, Eighth Circuit.

Submitted: December 14, 2005.

Filed: April 14, 2006.

COPYRIGHT MATERIAL OMITTED

Counsel who presented argument on behalf of the appellant was Philip C. Graham of St. Louis, MO.

Counsel who presented argument on behalf of the appellee was Mark G. Arnold of St. Louis, MO. David L. Schenberg of St. Louis appeared on the brief.

Before MELLOY, COLLOTON, and BENTON, Circuit Judges.

COLLOTON, Circuit Judge.

James A. Schierhoff brought an action under the Missouri Human Rights Act ("MHRA"), Mo.Rev.Stat. § 213.010 et seq., alleging that GlaxoSmithKline Consumer Healthcare, L.P. ("GSK"), discriminated against him on the basis of his age and physical disabilities. The district court¹ granted summary judgment for GSK. Reviewing that decision de novo, and considering all reasonable inferences in favor of Schierhoff as the non-movant, we affirm.

In 2002, Schierhoff was a 48-year-old man employed by GSK as a packaging mechanic. He was terminated in April 2002. Prior to his termination, Schierhoff was absent from work frequently for various combinations of medical and personal leave. According to the memorandum that effected his termination,² Schierhoff used 12 weeks of Family Medical Leave during 2000 and took an additional 40 days off that same year. In 2001, and through March 11, 2002, he used 12 weeks of Family Medical Leave and was absent an additional 36 days. For the time between June 12, 2000, and March 11, 2002, Schierhoff was absent a total of 172 days, or almost 40 percent of the time. The memorandum explained that this absenteeism was the reason for Schierhoff's termination: "The Company has made numerous efforts to accommodate your personal absences. However, such absenteeism can no longer be tolerated. Your absences have impaired the operation of the Department and diminished your effectiveness to the Company. As a result, a decision has been made to terminate your employment. . . ." (Appellant's App. at 276).

Schierhoff does not quarrel with GSK's assertion that he was absent frequently, but he disputes whether this was the real reason for his termination. According to Schierhoff, in the fall of 2001, his immediate supervisor, Edward Rohowetz, commented to him, "[y]ou know, I bet you got something hurting all over your body all the time, you've had a rough life. You've done a lot of things. At any given time I bet you got something hurting on your body. You know as old and worn out as you are, why don't you just quit? You don't need the money anyway." Schierhoff understood this comment to mean that Rohowetz regarded him as "generally disabled and unable to perform [his] job," and he asserts that the comment, coupled with Rohowetz's role in his termination, demonstrates that the termination was undertaken because of Schierhoff's age or disability. In addition, Schierhoff heard from a co-worker that another manager, Vertis Thomas, once spoke about "mechanics whose knees are worn out by the time they reach age 50," and said that "[t]hey should be given a chance to retire or bow out gracefully before then." Schierhoff says this comment also demonstrates a discriminatory motive on behalf of GSK.

In further support of this claim, Schierhoff points to positive performance evaluations and the lack of any warning of his upcoming termination. According to Schierhoff, GSK's policies for handling attendance problems necessitated a warning or progressive discipline rather than termination. He also notes that his absences were due to recovery from a scheduled surgery and other injuries, and argues that because the leave was taken with GSK's permission, it cannot be the reason for his termination.

Where a plaintiff relies on indirect proof of discrimination, claims of age or disability discrimination under the MHRA, like those under the federal anti-discrimination statutes, are analyzed under the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1137 (8th Cir.1999) (en banc). This framework requires that the plaintiff set forth a prima facie case in order to shift the burden of producing a legitimate, nondiscriminatory reason for the employment decision to the employer. McDonnell Douglas Corp., 411 U.S. at 802-04, 93 S.Ct. 1817; see also West v. Conopco Corp., 974 S.W.2d 554, 556-57 (Mo.Ct.App.1998); Cook v. Atoma Int'l of Am., Inc., 930 S.W.2d 43, 45 (Mo.Ct.App. 1996). If the employer proffers a nondiscriminatory reason, then the employee must prove that the reason is a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. Summary judgment is appropriate where the moving party has demonstrated that even with all facts and inferences construed in the light most favorable to the non-moving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c).

To establish a prima facie case of age discrimination under the MHRA, a plaintiff must show that he is a member of a protected age group, that he met applicable job qualifications, that he was discharged, and that he was subsequently replaced by a younger employee. See Calder v. TCI Cablevision of Mo., Inc., 298 F.3d 723, 729 (8th Cir.2002). To establish discrimination on the basis of disability, a plaintiff must demonstrate that he is disabled and can perform his job with or without reasonable accommodation, that he was discharged because of his disability, and that there is evidence from which a jury could infer that his protected status was a factor in the discharge. Devor v. Blue Cross & Blue Shield of Kansas City, 943 S.W.2d 662, 665-66 (Mo.Ct.App.1997).

The district court found that Schierhoff had not established a prima facie case that his termination was the result of either age or disability discrimination. Although it is undisputed that Schierhoff was a member of a protected age group and that he was discharged, the court found that he had not presented sufficient evidence that he was performing his job at the level of GSK's legitimate expectations or that he was replaced by a younger employee. With regard to the disability discrimination claim, the district court determined that Schierhoff had not shown that he was "disabled" or "regarded as disabled" within the meaning of the MHRA, and that he had not demonstrated that he was able to perform his job.

Schierhoff argues that the district court's reasoning was flawed because it considered only the McDonnell Douglas burden-shifting analysis. He contends that he presented "direct evidence" that an illegitimate motive had infected GSK's decision to terminate him. See Price Waterhouse v. Hopkins, 490 U.S. 228, 278-79, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring in the judgment). As Schierhoff notes, a plaintiff in an employment discrimination case under the MHRA may avoid summary judgment by following the McDonnell Douglas framework or by...