Charity Wierman v. Casey's General Stores, et al

Filing

OPINION FILED - THE COURT: WILLIAM JAY RILEY, C. ARLEN BEAM and DUANE BENTON. Duane Benton, Authoring Judge (PUBLISHED) [3772042] [10-1665]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-1665
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Charity L. Wierman,
Appellant,
v.
Casey’s General Stores, et al.,
Appellees.

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*
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* Appeal from the United States
* District Court for the
* Western District of Missouri.
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*
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Submitted: December 14, 2010
Filed: March 31, 2011
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Before RILEY, Chief Judge, BEAM and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Charity L. Wierman sued her former employer, Casey’s Marketing Company
and Casey’s General Stores, Inc. (“Casey’s”). She asserts pregnancy discrimination
in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§
2000e–2000e-17) and the Missouri Human Rights Act (Mo. Rev. Stat. § 213.055)
(“MHRA”). She also alleges retaliation in violation of the Family and Medical Leave
Act of 1993, 29 U.S.C. § 2615(a)(2) (“FMLA”). Casey’s moved for summary
judgment on all claims, which the district court granted. Having jurisdiction under 28
U.S.C. § 1291, this court affirms in part, and reverses and remands in part.

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I.
This court states the facts most favorably to Wierman. See Fercello v. County
of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010). In March 2006, she began work
with Casey’s as a cashier at a convenience store in Missouri. A few months later,
Casey’s promoted her to store manager, and later transferred her to another store,
which she managed until her termination on May 6, 2008.
As a store manager, Wierman reported to an area supervisor, who in turn
reported to the district manager. Lisa J. Hercules was her supervisor until April 2008
(when Gregory Johnson became her supervisor). In December 2007, Hercules issued
Wierman a corrective action statement for exceeding her allowable absences and for
failing to provide timely notification of absences as required by Casey’s policies.
Wierman was suspended for five days without pay.
Wierman told Casey’s in January 2008 that she was pregnant, with an August
due date. Wierman called Casey’s human resources department about her rights under
the FMLA, but was told to call back closer to her due date. Over the next two months,
she took some time off due to doctor’s appointments, morning sickness, and
pregnancy-related back pain—which Wierman made up by working Saturdays, her
regular day off. Due to these absences, Hercules called Casey’s HR department
asking about FMLA coverage for Wierman, and was told that she was eligible for
back-dated, intermittent leave under the FMLA.
In early April, Casey’s HR department sent Wierman a letter with a summary
of her FMLA rights, a Request for Leave form, and a Certification of Health Care
Provider form (to be completed by her physician). The letter stated that it was HR’s
understanding that Wierman would be working limited hours due to her
conditions/restrictions and that “beginning on March 6, 2008, any hours below the
required 90 hours per pay period will be deducted from your 540 hours of available
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FMLA time.” The letter told her to return the forms by April 25. Wierman’s
supervisor Greg Johnson was copied on the letter (and acknowledged in his deposition
that he was aware Wierman was eligible for FMLA leave). Wierman failed to respond
to the letter, so Casey’s sent a follow-up letter on April 30. It advised her to complete
the paperwork by May 14, or risk having absences (beyond accrued sick leave)
counted as violations of Casey’s attendance policy. Johnson was copied on this letter
as well. Wierman never completed this paperwork before her termination.
In early April, Wierman told her area supervisor Johnson that she was pregnant,
and would need time off for doctor’s appointments. Wierman recalls that Johnson
said “okay.” Asked whether Johnson ever said anything to lead her to believe that her
pregnancy was a problem for him, Wierman responded that he “said that I pretty much
needed to do my job more, and that I needed to be at work as much as I possibly
could.”
Johnson visited the Casey’s store that Wierman managed on April 1, 11, 15, 18,
25, and 30. Johnson described these visits as “uneventful.” Wierman said she felt
“unwelcome” and “very uncomfortable” when Johnson visited, describing him as
unfriendly. Sometime in mid-April, Wierman asked Johnson if she could have her
assistant managers conduct the daily cigarette counts (by Casey’s policy, managers
were to conduct daily audits of the cigarette packs in a case behind the register).
Because some packs were in an elevated case, Wierman had to climb a stool to count
them. While her doctor had not restricted her from climbing, she was afraid of falling
when four months pregnant with her first child, and told Johnson so. She wanted an
assistant manager to count the packs in the elevated case while she counted the lower
ones. Johnson refused her request, saying it was her job to do the audits. Wierman,
however, had her assistant managers climb the stool to count the high-up cigarettes.
Wierman was admittedly tardy or absent on several occasions in late April and
early May. On April 29, after working her regular nine-hour shift, Wierman called
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Johnson from home to notify him that the store’s cook would not be at work because
of a death in his family. Per Casey’s policy, Johnson told her to find a replacement,
or to cover it herself. Wierman agreed to cover the shift, but asked if she could first
eat dinner and rest her feet for a couple of hours. Johnson refused, telling her to report
to the store immediately. Wierman, however, ate and rested her feet, then proceeded
to work a double shift as directed. Johnson testified that Wierman should have not
have taken a break to rest her feet and eat, but instead should have worked the entire
16-hour double shift. After working the double shift, Wierman asked Johnson if she
could take off work the next day due to fatigue, and that she had found another
employee to cover her shift. Johnson refused her request. The next morning, before
her shift began, Wierman left Johnson a voicemail message that she would be unable
to work her shift because of fatigue and that another employee would cover it.
Johnson visited the store that day (April 30) to review video from the security
surveillance cameras—timing that Wierman finds suspicious, though Casey’s area
supervisors periodically review security video. Reviewing the video from the
previous week, Johnson discovered that Wierman was late to work on April 21, 25,
and 28. Wierman admits being tardy then, and failing to notify Johnson that she
would be late, but notes that her tardiness was due to morning sickness or pregnancyrelated back pain (Wierman lived 20 miles from the store and twice that week pulled
over en route to be sick). Wierman also left early on May 2 with a pregnancy-related
migraine headache after arranging coverage by an assistant manager. Johnson later
testified that regardless whether absences were pregnancy-related or how many days
of sick leave she had accrued, Wierman did not provide timely notice of her absences
or tardiness on these dates.
Johnson’s review of the security video on April 30 also revealed that Wierman
was taking food and drink from Casey’s without paying. By Casey’s policy, “[a]ll
merchandise purchased by an employee must be paid for before consumption, use, or
removal from the store.” While working, Casey’s employees are allowed free
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fountain drinks and can purchase Casey’s prepared foods at a discount. Employees
must pay full price for pre-packaged items sold in the store. Casey’s requires all items
to be rung up on the register—even if they are free. Casey’s also requires that the
employee print two receipts of each transaction (whether free, discounted, or full
price): one that she signs and places in a shift-audit envelope, and another kept by the
employee for her records. While Casey’s reserves the right to ask for a receipt from
employees, its policy also provides: “An employee who fails to properly pay for
products as required by this policy, or who fails to properly handle his or her receipts,
will be subject to immediate disciplinary action up to and including termination.”
According to Casey’s, the security video for April 21 shows Wierman
consuming a fountain drink, a bottle of soda from a cooler, and a Hostess snack
without first ringing them up or paying for them. Wierman submitted a declaration
that she paid for the bottled soda and the Hostess snack at some point before the end
of her shift, which was her practice. Although the fountain drink she consumed was
free under Casey’s policy, Wierman does not allege that she rang these items up on
the cash register, prepared two receipts, and paid for the bottled soda and Hostess
snack before consumption, as required by Casey’s policy.
Casey’s asserts that the April 29 video shows Wierman consuming a fountain
drink, eating fresh donuts from a donut case, and eating a breakfast pizza—all without
ringing them up. Wierman counters that the video does not show whether they were
stale or fresh, and it was her practice to pay for prepared items at the first available
opportunity or at the end of her shift. She testified that, though it was against Casey’s
policy, it was common practice to eat stale items without paying for them and that
prior area supervisors allowed it. Wierman does not allege that she complied with
Casey’s policy by paying for the items before consumption, or ringing them up on the
cash register before consumption (even for free items). Johnson’s review of the shiftaudit envelopes for April 21 and 29 confirmed that Wierman had not placed any
signed receipts in the envelope.
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On May 1, Johnson left a voicemail with Casey’s HR department. He stated
that although Wierman was pregnant and would be going on FMLA leave, she was
coming in late and not notifying him. Johnson also stated that he reviewed the
security video and noticed that Wierman was taking bakery items and drinks without
paying for them. He said he had discussed the situation with his supervisor, and that
they wanted to dismiss Wierman. An HR representative left Johnson a return
voicemail, advising him to get Wierman’s side of the story and give her every
opportunity to explain her behavior, then take appropriate action. The next day, May
2, Wierman left work early because of a pregnancy-related migraine headache, after
arranging coverage by an assistant manager.
In late April and early May, Johnson drafted three corrective actions that he
delivered to Wierman when she was terminated on May 6, 2008. In a corrective
action dated April 29 and delivered on May 6, Johnson noted that Wierman’s cigarette
totals were off and that she had failed to 1) comply with an earlier request to conduct
midday audits until further notice, or 2) delegate this task to other members of
management.
In a corrective action dated April 30 and delivered May 6, Johnson warned her
about excessive absenteeism and tardiness. The warning specified that Wierman was
tardy on April 21, 25, and 28, was absent on April 30, and left early on May 2. It also
noted she had failed to give appropriate notice (at least two hours) before taking leave.
In a corrective action dated May 2 and delivered May 6, Johnson stated that on
the week of April 21-25, Wierman “was observed by video surveillance taking a donut
per day and/or cookie per day.” He also stated that she did not use the register to ring
up drinks under the employee discount, and there were no receipts for the merchandise
consumed. Johnson explained that the “scope and magnitude of this violation
warrants immediate dismissal.” He did not mention in the corrective action
Wierman’s consumption of the Hostess snack, the breakfast pizza, or the bottled soda.
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With regard to the third corrective action that resulted in termination, Wierman
disputes Johnson’s statement that she “took a donut and/or cookie per day.” Johnson
admits this was inaccurate; the termination was based on the videos from two days,
April 21 and 29. Although she admitted in her deposition that once or twice she may
have failed to pay for a stale item, she testified that she paid for pre-packaged items
and items prepared by Casey’s before the end of her shift. The two area supervisors
who oversaw Wierman before Johnson both testified they never saw Wierman take
products without paying.
When Johnson terminated Wierman on May 6, he gave her the three corrective
action statements and an employee separation form, and told her she was fired. The
separation form had the box checked for the reason “Unathorized Removal of Co.
Property,” and explained that Wierman was discharged because video surveillance
revealed “consumption of bakery items and fountain drinks . . . without paying, no
reciepts [sic] found. Excessive tardiness and absence thru employment for three
years.” Johnson did not give Wierman an opportunity to explain her behavior, or ask
her to produce any receipts. During the litigation, she has not produced any purchase
receipts, and does not dispute that Johnson did not find signed receipts from Wierman
in the shift-audit envelopes.
After her termination, Wierman filed a charge of discrimination with the
Missouri Commission on Human Rights and the Equal Employment Opportunity
Commission. After they issued Wierman right-to-sue notices, she sued Casey’s,
alleging pregnancy discrimination in violation of Title VII, the FMLA, and the
Missouri Human Rights Act. Casey’s moved for summary judgment on all claims,
which the district court granted. This appeal followed.

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II.
Wierman challenges the grant of summary judgment for Casey’s. Summary
judgment is proper “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
Credibility determinations and the weighing of the evidence are jury functions, not
those of a judge. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000).
This court reviews a grant of summary judgment de novo, viewing all evidence
and drawing all reasonable inferences, without resort to speculation, in favor of the
non-moving party. See Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir. 2004).
“Where the record taken as a whole could not lead a rational trier of fact to find for
the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A.
Title VII of the Civil Rights of 1964, 42 U.S.C. §§ 2000e–2000e-17, prohibits
discrimination in employment on the basis of sex. As amended by the Pregnancy
Discrimination Act of 1978, sex-based discrimination under Title VII includes
discrimination based on “pregnancy, childbirth, or related medical conditions.” 42
U.S.C. § 2000e(k).
Because Wierman does not identify direct evidence of pregnancy
discrimination, she can preclude summary judgment only by creating an inference of
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discrimination under the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Elam v. Regions Fin. Corp., 601 F.3d 873, 878 (8th
Cir. 2010). Under McDonnell Douglas, Wierman must first establish a prima facie
case of discrimination: 1) she is a member of a protected group; 2) she was qualified
for her position; 3) she suffered an adverse employment action; and 4) she was
discharged under circumstances giving rise to an inference of discrimination. See id.
at 879.
If she establishes a prima facie case, the burden of production shifts to Casey’s
to articulate a “non-discriminatory, legitimate justification for its conduct, which
rebuts the employee’s prima facie case.” Id. If Casey’s meets this burden, Wierman
must then produce evidence sufficient to create a genuine issue of material fact
showing that Casey’s explanation is merely a pretext for unlawful discrimination. Id.
“[T]he issue is whether the plaintiff has sufficient evidence that unlawful
discrimination was a motivating factor in the defendant’s adverse employment
action.” Roberts v. Park Nicollet Health Servs., 528 F.3d 1123, 1127 (8th Cir. 2008)
(emphasis in original) (internal quotation marks omitted).
The district court assumed without deciding that Wierman met her prima facie
burden, then granted summary judgment to Casey’s because Wierman failed to
identify sufficient evidence that Casey’s reasons for firing her were a pretext for
pregnancy discrimination. On appeal, Casey’s contests only the last element of
Wierman’s prima facie claim, asserting that her termination did not occur under
circumstances giving rise to an inference of discrimination, i.e., that there is no
connection between Wierman’s protected status and her termination. Such an
inference arises when it is more likely than not that the employer’s actions were based
on unlawful discrimination. See Wallin v. Minn. Dept. of Corr., 153 F.3d 681, 687
(8th Cir. 1998). One way a plaintiff can establish an inference of discrimination is to
prove that she was treated less favorably than similarly-situated employees who were

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not in her protected class. See Johnson v. Legal Servs. of Ark., Inc., 813 F.2d 893,
896 (8th Cir. 1987).
Wierman does not address this part of the prima facie case, focusing instead on
the district court’s holding that Casey’s stated reasons for firing Wierman were not
pretextual. As part of her pretext argument, Wierman does claim that Casey’s treated
her less favorably than other similarly-situated employees, who were not fired despite
occasionally eating stale baked goods or failing to ring up free fountain drinks. To be
similarly situated, “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.” Cherry v. Ritenour Sch.
Dist., 361 F.3d 474, 479 (8th Cir. 2004) (internal quotation marks omitted); see also
Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994) (noting that
employees are similarly-situated when they are “similarly situated in all relevant
respects” and “are involved in or accused of the same offense and are disciplined in
different ways.”) (internal quotation marks omitted).
Wierman does not identify any similarly-situated individuals for comparison.
She points out that neither of her two prior area supervisors (before Greg Johnson)
ever disciplined anyone for eating a staled baked good, or for failing to ring up and
file a receipt for an employee’s free fountain drinks. However, Wierman fails to
identify a Casey’s manager who was not fired by Johnson (or any other area
supervisor) after Casey’s became aware the manager was consuming pre-packaged
goods and not paying for them in advance (as all Casey’s employees are required to
pay full-price in advance for such items). In fact, one of Wierman’s prior supervisors
indicated that while she had not yet “caught” anyone drinking a fountain drink without
first ringing it up, she would probably fire the employee if she did. Wierman has not
cited any evidence that similarly-situated store managers were accused of similar
misconduct and were disciplined differently.

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The only other conduct Wierman identifies that arguably raises an inference of
pregnancy discrimination is the “suspicious” timing of her discharge, just days after
she took time off for pregnancy-related reasons. See Sprenger v. Fed. Home Loan
Bank of Des Moines, 253 F.3d 1106, 1113-14 (8th Cir. 2001) (temporal proximity
there was sufficient to establish prima facie case of discrimination, but not to show
pretext). Under this court’s precedents, a temporal proximity of four days is sufficient
to make a prima facie case (Wierman left work early on May 2 with a pregnancyrelated migraine headache, and was fired May 6). See Smith v. Allen Health Sys.,
Inc., 302 F.3d 827, 835 (8th Cir. 2002) (holding that a two-week interval between an
employee’s FMLA leave and subsequent discharge was “sufficient, but barely so, to
establish causation,” and noting that the McDonnell Douglas framework “requires
only a minimal showing before requiring the employer to explain its actions”);
Sprenger, 253 F.3d at 1113-14 (ruling that proximity of a “matter of weeks” between
disclosure of a potentially-disabling condition and adverse employment action was
sufficient for a prima facie case of discrimination).
In response, Casey’s provides nondiscriminatory, legitimate reasons for
terminating Wierman’s employment. Casey’s reasons include Wierman’s recurring
absences and tardiness without giving timely notice, taking pre-packaged items such
as the bottled soda and Hostess snack without paying for them, failing to ring up items
(whether free, discounted, or full-price) before consumption, failing to place receipts
for her purchases in the shift-audit envelope, and failing to conduct the mid-day
cigarette audits as required. On her employee separation form, Johnson’s stated
reason for terminating Wierman was the unauthorized removal of Casey’s property,
as well as her excessive tardiness and absences. Employee theft and violations of
company policy are legitimate, nondiscriminatory reasons for termination. See Quick
v. Wal-Mart Stores, Inc., 441 F.3d 606, 610 (8th Cir. 2006) (finding that knowingly
violating company policy by offering discontinued two-for-one discounts was a
legitimate, nondiscriminatory reason for termination); Kiel v. Select Artificials, Inc.,
169 F.3d 1131, 1135 (8th Cir.1999) (en banc) (violating company policies is a
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legitimate reason for termination). Accordingly, the burden ultimately rests on
Wierman to show “a genuine issue for trial about whether the employer acted based
on an intent to discriminate rather than on a good-faith belief that the employee
committed misconduct justifying termination.” See McCullough v. Univ. of Ark. for
Med. Sciences, 559 F.3d 855, 862 (8th Cir. 2009).
To rebut the legitimate, nondiscriminatory reasons set forth by Casey’s,
Wierman must point to “‘enough admissible evidence to raise genuine doubt as to the
legitimacy of the defendant’s motive, even if that evidence [does] not directly
contradict or disprove [the] defendant’s articulated reasons for its actions.’” Strate
v. Midwest Bankcentre, Inc., 398 F.3d 1011, 1021 (8th Cir. 2005) (emphasis omitted)
(quoting Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 945 n.8 (8th Cir.
1994)). Wierman claims that she has shown pretext (that Casey’s proffered reasons
are unworthy of credence) through her evidence of: 1) Casey’s “shifting” reasons for
terminating Wierman; 2) Casey’s past failure to fully enforce its employee discount
policies; 3) Johnson’s failure to ask Wierman for her purchase receipts or her side of
the story when terminating her; 4) the suspicious timing of Johnson’s visit to her store
to view security video—a day Wierman took off and the day after a confrontation with
Johnson; and 5) the suspicious timing of her discharge, just days after Wierman took
time off for pregnancy-related reasons.
Wierman claims that Casey’s shifting reasons for terminating Wierman are
evidence of pretext. “Substantial changes over time in the employer’s proffered
reason for its employment decision support a finding of pretext.” Allen Health Sys.,
Inc., 302 F.3d at 835 (internal quotation marks omitted). In the corrective action
dated May 2, Johnson claimed the video showed Wierman “took a donut per day
and/or cookie per day.” In an employee separation form Johnson filled out May 6, he
indicated Wierman was fired for unauthorized removal of company property,
indicating the video showed her consuming “bakery items and fountain drinks”
without paying or placing receipts in the shift-audit envelope. The form also
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mentioned Wierman’s “[e]xcessive tardiness and absence[s].” In its motion for
summary judgment, Casey’s raised for the first time that Wierman had consumed a
bottled soda, a Hostess snack, and a piece of breakfast pizza without first paying for
these items.
This discrepancy, however, is not sufficient to make a triable issue as to pretext.
See, e.g., Allen Health Sys., Inc., 302 F.3d at 835 (explaining that pointing out
additional aspects of the same behavior is not probative of pretext); see also EEOC
v. Trans States Airlines, Inc., 462 F.3d 987, 995 (8th Cir. 2006) (contrasting a
situation with two completely different explanations for the termination, which would
be evidence of pretext, with a situation where minor discrepancies appeared in a
consistent explanation of why the plaintiff was fired). The discrepancy between
Casey’s various documents do not undermine its consistent reason for terminating
Wierman—her failure to comply with Casey’s employee discount policy by not
ringing up store merchandise, and tendering payment if necessary, in advance of
consumption.
Wierman also argues that Casey’s past failure to fully enforce its employee
discount policies is evidence of pretext. She contends that her termination for trivial
violations of Casey’s policies is evidence of pretext, because Casey’s did not produce
evidence of an employee terminated for failure to ring up free fountain drinks or for
failure to pay in advance for store merchandise eventually paid for (Wierman claims
she paid for the non-stale items she consumed before the end of her shifts). Wierman
also emphasizes that prior area supervisors allowed employees to eat stale bakery
items without ringing them up or paying.
However, at the pretext stage of the McDonnell Douglas burden-shifting
framework, the burden is on Wierman to show sufficient evidence of disparate
treatment. See Elam, 601 F.3d at 879. As discussed, Wierman does not point to any
comparable employee who was treated more favorably than herself by Johnson, the
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decision maker in this case. See Britton v. City of Poplar Bluff, 244 F.3d 994, 998
(8th Cir. 2001) (“When different decision-makers are involved, two decisions are
rarely similarly situated in all relevant respects.”) (internal quotations omitted).
Wierman argues that where the evidence of disparate treatment is offered as only one
component of the plaintiff’s circumstantial evidence of pretext, the evidence does not
need to reach the strong degree of similarity required of plaintiffs who present no
proof of discrimination or pretext aside from disparate treatment. See Scott v. County
of Ramsey, 180 F.3d 913, 917-18 (8th Cir. 1999). However, Wierman has failed to
come forward with evidence of any remotely similarly-situated employee who was
accused of remotely-comparable conduct and not fired by any other area supervisor.
Stale items from Casey’s bakery are not comparable to pre-packaged items (which
justify an expectation of profit and need to prevent even inadvertent theft). Wierman
does not deny that she consumed items that were not stale without paying in advance,
including a Hostess snack and a bottled soda—in clear violation of Casey’s employee
discount policy. The burden is on her to identify evidence that Johnson, or other area
supervisors, tolerated such violations while aware of them. Even under Wierman’s
relaxed standard, she has not carried this burden.
Wierman next argues that Johnson’s failure to ask for her purchase receipts or
her side of the story when terminating her is evidence of pretext. According to
Wierman, the language in Casey’s written employee discount policy—that Casey’s
“reserves the right to ask employees to show their receipts for any items
consumed”—required Johnson to ask her for receipts before terminating her (she
testified that she had kept receipts for her purchases for a few days afterward).
Further, Wierman argues that Johnson’s failure to comply with the HR
representative’s voicemail instructing him to get her side of the story and give her
every opportunity to explain is evidence her termination was a pretext for pregnancy
discrimination. However, the quoted language does not mandate that employees be
asked for their receipts before termination, so Johnson did not deviate from Casey’s
policy. While Casey’s reserves the right to ask for a receipt from employees, Casey’s
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policy also provides that “[a]n employee who fails to properly pay for products as
required by this policy, or who fails to properly handle his or her receipts, will be
subject to immediate disciplinary action up to and including termination.”
Additionally, no action of Casey’s prevented Wierman from voluntarily producing her
own purchase receipts, either at the time of her termination or in this litigation.
In any event, “shortcomings in an investigation do not by themselves support
an inference of discrimination.” McCullough, 559 F.3d at 863. Wierman must
provide some evidence that Johnson’s findings were motivated by unlawful
discrimination, rather than a good-faith belief that Wierman had violated Casey’s food
policy. See id. at 862 (“The critical inquiry in discrimination cases like this one is not
whether the employee actually engaged in the conduct for which he was terminated,
but whether the employer in good faith believed that the employee was guilty of the
conduct justifying discharge.”). Video footage—corroborated by the lack of receipts
in the shift-audit envelope or any entries in the register’s electronic journal—indicated
that Wierman consumed merchandise without prior purchase. This evidence confirms
a good-faith basis for Wierman’s termination, and any failure to conduct a more
searching inquiry is not evidence of pretext.
Wierman next suggests that the suspicious timing of Johnson’s April 30 visit
to her store to view surveillance video is evidence of pretext. On April 29, she
worked a double shift because the store’s cook had a death in the family, and
Wierman asked Johnson if she could rest and eat dinner between shifts. Johnson
denied her request. After working the double shift, she asked Johnson if she could
take off work the next day due to fatigue, telling him she had found another employee
to cover her shift. Johnson refused. The next morning, before her shift began,
Wierman left Johnson a voicemail that she was unable to work her shift because of
fatigue and that another employee would cover it. Johnson visited the store that day
to review video from the surveillance cameras, discovering the violations for which
she was eventually terminated. In its Statement of Position to the EEOC, Casey’s
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stated that “Johnson had heard employees from the Eldon Store complain about
Wierman’s attendance, so he reviewed surveillance video.” In Johnson’s deposition,
he stated that he did not recall any employees complaining about Wierman’s
attendance, and was in her store to review video as part of a “routine inspection.”
Wierman argues that the timing and Johnson’s inconsistent explanations create
an issue of pretext because it shows he was searching for a reason to discipline her.
True, an employer’s selective investigation of an employee in a protected group can
support a claim of discriminatory intent. See Walsh v. Nat’l Computer Sys., Inc., 332
F.3d 1150, 1155, 1160 (8th Cir. 2003) (evidence employer required more extensive
documentation of pregnant employee’s medical appointments than those of
non-pregnant employees, in addition to employer’s comments, supports the jury’s
finding of pregnancy discrimination); O’Bryan v. KTIV Television, 64 F.3d 1188,
1194-95 (8th Cir. 1995) (ruling that a plaintiff subjected to “unprecedented job
scrutiny” and required to meet brand-new job-performance guidelines within a short
time after protected conduct occurred demonstrates a possible search for a pretextual
basis for discipline); Smith v. Monsanto Chemical Co., 770 F.2d 719, 724 (8th Cir.
1985) (indicating in dicta that plaintiff might have evidence of discrimination had
plaintiff shown that white employees were not scrutinized the same as plaintiff).
Under these cases, Wierman must provide some evidence that other employees
were not subject to the same level of investigation for similar conduct. Wierman has
not provided any evidence that Johnson’s review of her store’s surveillance tapes—a
regular part of an area supervisor’s job duties—was in any way more intensive, more
frequent, or otherwise unprecedented when compared to other stores under Johnson’s
purview. Any discrepancy as to why Johnson reviewed the security video does not
bear on a material fact in dispute, in light of the legitimacy of Casey’s reasons for
terminating her (violation of its attendance and employee discount policies). See
Trans States Airlines, Inc., 462 F.3d at 995 (finding that inconsistent explanations for
the employer’s reliance on an anonymous tip that its pilot was in a bar while in
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uniform did not bear on a material fact in dispute: “Either way, the airline terminated
[the plaintiff] for violation of its rule, and we think the distinctions in testimony about
what convinced [the employer] to rely on the information are simply too fine to
constitute substantial evidence of pretext.”).
Wierman also claims that the suspicious timing of her discharge is evidence of
pretext, as she was fired just days after 1) taking off work on April 30 for fatigue, and
2) leaving work early on May 2 with a pregnancy-related migraine. Any
discriminatory inference based on this temporal proximity is dubious, as Johnson
reviewed the video footage on April 30 and learned that Wierman was violating the
employee discount policy, if not stealing. She was fired six days later, after Johnson
drafted the corrective actions and consulted with his superiors and HR. The discovery
of the video footage gives an explanation for the temporal proximity other than a
discriminatory motive of Casey’s, and is not evidence of pretext. See Sprenger, 253
F.3d at 1113-14 (“An employee’s attempt to prove pretext or actual discrimination
requires more substantial evidence [than it takes to make a prima facie case], however,
because unlike evidence establishing the prima facie case, evidence of pretext and
discrimination is viewed in light of the employer’s justification.”).
Finally, Wierman stresses her testimony (and subsequent written declaration)
that she did not consume pre-packaged or non-stale Casey’s merchandise without
paying. Even if this were true, she admitted to not ringing up or paying for the items
she consumed in advance, and she does not dispute that the shift-audit envelopes did
not contain signed receipts for the items she was filmed eating and drinking. Even if
she did pay for such items before her shift ended, the critical inquiry is whether
Casey’s had a good-faith belief she had violated its policies. See McCullough, 559
F.3d at 862; Scroggins v. Univ. of Minn., 221 F.3d 1042, 1045 (8th Cir. 2000)
(holding that reliance on an honest-but-incorrect belief is not evidence of pretext).

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Viewed either individually or cumulatively, Wierman’s evidence neither
undermines Casey’s legitimate rationale for firing her, nor permits a reasonable
inference that pregnancy discrimination motivated her termination. The inferences
Wierman argues for do not follow naturally from the evidence presented, which show
that she did not meet the legitimate work expectations of Casey’s. Wierman claims
that drinking a fountain soda without first ringing it up and eating a stale baked good
are “trivial” violations. However, she was observed on surveillance video (and
admitted to) failing to abide by Casey’s policy with regard to pre-packaged
items—that “[a]ll merchandise purchased by an employee must be paid for before
consumption, use, or removal from the store.” Johnson’s review of the shift-audit
envelopes and the register’s electronic journal indicated that Wierman did not pay for
the Casey’s store merchandise she consumed. A violation of this policy was
punishable by termination. Because no reasonable jury could find pretext or
discrimination, this court affirms the grant of summary judgment to Casey’s on
Wierman’s Title VII claim.
B.
Wierman appeals the district court’s grant of summary judgment to Casey’s on
her retaliation claim under the FMLA, 29 U.S.C. § 2615(a)(2). This court reviews the
district court’s grant of summary judgment de novo. Spangler v. Fed. Home Loan
Bank of Des Moines, 278 F.3d 847, 850 (8th Cir. 2002). “Summary judgment is
appropriate when the evidence, viewed in a light most favorable to the nonmoving
party, shows no genuine issue of material fact exists and the moving party is entitled
to judgment as a matter of law.” Id.
The FMLA entitles an employee to twelve workweeks of leave during any
twelve-month period if he or she has a “serious health condition that makes the
employee unable to perform the functions of the position of such employee.” 29
U.S.C. § 2612(a)(1)(D). A “serious health condition” is any “illness, injury,
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impairment, or physical or mental condition that involves (A) inpatient care in a
hospital, hospice, or residential medical care facility; or (B) continuing treatment by
a health care provider.” 29 U.S.C. § 2611(11).
An employee can bring two types of claims under the FMLA: (1) “interference”
claims where the employee alleges that the employer denied or interfered with her
substantive rights under the FMLA; and (2) “retaliation” claims where the employee
alleges that the employer discriminated against her for exercising her FMLA rights.
Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir. 2008); 29 U.S.C. § 2615(a)(1)-(2).
Wierman asserts a retaliation claim.
Like her pregnancy-discrimination claim, Wierman’s FMLA retaliation claim
is evaluated under the McDonnell Douglas framework. See Phillips, 547 F.3d at 912.
To establish a prima facie case, she must show that: 1) she engaged in protected
conduct; 2) she suffered a materially adverse employment action; and 3) the materially
adverse action was causally linked to the protected conduct. See id. “Materially
adverse action” is action that “would deter a reasonable employee from making a
charge of employment discrimination.”
Fercello, 612 F.3d at 1077-78.
Unquestionably, termination is an adverse employment action. Van Horn v. Best Buy
Stores, L.P., 526 F.3d 1144, 1148 (8th Cir. 2008).
If Wierman meets her prima facie burden, Casey’s must articulate a legitimate,
non-retaliatory reason for its action. Fercello, 612 F.3d at 1078. If Casey’s meets this
burden, Wierman must then identify evidence sufficient to create a genuine issue of
material fact whether Casey’s proffered explanation is merely a pretext for unlawful
retaliation. Id. The ultimate question of proof—the burden of which remains on the
employee throughout the inquiry—is whether the employer’s conduct was motivated
by retaliatory intent. Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1119 (8th Cir.
2006). The district court assumed without deciding that Wierman met her prima facie
burden, then entered summary judgment for Casey’s because Wierman failed to
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support her contention that Casey’s non-retaliatory reason for terminating her was
pretextual.
Casey’s argues that Wierman failed to meet her burden on the first and third
prongs of the prima facie case, contending that she has not shown she was engaged
in protected conduct or that there was a causal connection between the protected
conduct she alleges and her termination. According to Casey’s, Wierman did not
engage in protected activity because she failed to complete her FMLA paperwork. “In
order to benefit from the protections of the statute, an employee must provide [her]
employer with enough information to show that [she] may need FMLA leave.”
Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). However, “[a]n
employee need not invoke the FMLA by name in order to put an employer on notice
that the Act may have relevance to the employee’s absence from work.” Thorson v.
Gemini, Inc., 205 F.3d 370, 381 (8th Cir. 2000). The employer’s duties arise “when
the employee provides enough information to put the employer on notice that the
employee may be in need of FMLA leave.” Id. (internal quotation marks omitted).
Wierman provided enough evidence that, before her termination, Casey’s was
on notice of her need for FMLA leave. Both Wierman and her area supervisor Lisa
Hercules separately inquired with Casey’s HR about her FMLA rights. Casey’s
responded with a letter that summarized her FMLA rights, requested that she fill out
FMLA paperwork, and stated that it was HR’s understanding that she would be
working limited hours due to her conditions/restrictions and that any shortfall from
her required hours would be considered FMLA leave. While Casey’s was entitled to
require Wierman to complete FMLA paperwork before she would be entitled to
FMLA leave, see 29 C.F.R. § 825.305, Johnson terminated her before Casey’s
deadline for her to complete this paperwork.
In the interim, Wierman was tardy or absent from work for pregnancy-related
reasons; she suffered from back pain, migraines, and morning sickness (Wierman,
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who lived 20 miles from her store, testified that she regularly pulled over en route to
be sick). Viewing the evidence most favorably to Wierman, Casey’s and Johnson
were on notice of Wierman’s “serious health condition” and were awaiting her
paperwork when Wierman took leave for symptoms related to this condition.1
Casey’s also cannot use Wierman’s termination before this deadline to argue
that she never exercised her FMLA rights. See Phillips, 547 F.3d at 910 (rejecting
argument that an employee’s termination before FMLA certification means that she
never exercised her FMLA rights, where employee’s FMLA status was in flux at the
time of termination); Caldwell v. Holland of Tex., Inc., 208 F.3d 671, 677 (8th Cir.
2000) (“An employer does not avoid liability by discharging an employee who takes
leave in order to seek treatment for a condition that is later held to be covered by the
FMLA.”).
Wierman has established a causal connection between her protected activity and
the challenged action, sufficient for a prima facie case. On April 30, Johnson was
copied on a letter establishing a deadline of May 14 for Wierman to complete her
FMLA paperwork. Wierman, who had been approved for intermittent FMLA leave
for her pregnancy, left early on May 2 with a pregnancy-related migraine. Johnson
terminated her within a week, in part due to absences that may have been covered by
FMLA. See Allen Health Sys., Inc., 302 F.3d at 833 (finding two-week period

1

In its brief, Casey’s overstates the severity of the condition required for an
expectant mother to be entitled to FMLA leave, claiming the mother must be
incapacitated, not suffering “mere discomfort.” FMLA regulations permit an
expectant mother to take FMLA leave even where the mother “does not receive
treatment from a health care provider during the absence, and even if the absence does
not last for more than three consecutive calendar days. For example, a pregnant
employee may be unable to report to work because of severe morning sickness.” 29
C.F.R. § 825.120(4) (emphasis added).
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between FMLA-covered activity and adverse action was alone sufficient to meet
causation requirement).
Wierman’s FMLA retaliation claim nonetheless fails because she cannot show
that Casey’s proffered non-retaliatory reason—that she stole company property—was
pretext for retaliation. She argues that the strength of her prima facie retaliation case,
in combination with Casey’s shifting reasons for firing her, raises genuine issues of
fact whether her discharge for violation of company policy (if not theft) was a pretext
for retaliation. This argument fails for many of the same reasons her Title VII
discrimination case failed—a lack of sufficient evidence to cast doubt on Casey’s
legitimate, non-retaliatory reason for terminating Wierman.
First, Wierman’s prima facie retaliation case is not so strong that it establishes
pretext on its own. Johnson viewed video evidence of her violating company policy
on or about the same date he learned of her upcoming FMLA paperwork deadline, and
two days before she left work early on May 2. A plaintiff’s prima facie retaliation
case, built on temporal proximity, is undermined where the allegedly retaliatory
motive coincides temporally with the non-retaliatory motive. See id. at 834 (“This
gives an explanation for the temporal proximity other than a retaliatory motive of the
employer.”); cf. 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.”). Moreover, evidence that the
employer had been concerned about a problem before the employee engaged in the
protected activity undercuts the significance of the temporal proximity. See Smith v.
Ashland, Inc., 250 F.3d 1167, 1174 (8th Cir. 2001).
Second, Wierman’s argument that Casey’s offered “shifting reasons” for her
termination fails to establish pretext for retaliation, just as it failed to establish pretext
for pregnancy discrimination. Even when added to her prima facie retaliation case,
Casey’s modification of the list of items Wierman allegedly stole is not the kind of
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significant change that shows pretext for retaliation. See Phillips, 547 F.3d at 913
(rejecting claim of pretext where employer “merely” supplemented its original
explanation). Rather than backing off the original explanation in Wierman’s
employee separation form (“unauthorized removal of company property”), Casey’s
has only pointed out an additional aspect of the same behavior; this is not pretext. See
Allen Health Sys., Inc., 302 F.3d at 835.
In a related argument, Wierman claims she was discharged for absences related
to pregnancy, citing the reference on her employee separation form to her excessive
tardiness and absences. However, the separation form had the box checked for
“Unathorized Removal of Co. Property,” not the boxes for either “Excess Absence”
or “Excess Tardiness.” The form elaborated that Wierman was discharged because
video surveillance revealed “consumption of bakery items and fountain drinks . . .
without paying, no receipts found. Excessive tardiness and absence thru employment
for three years.” In Johnson’s testimony and in the voicemail he left with HR before
terminating her, he stated with regard to her absences and tardiness that the issue was
Wierman’s failure to give timely notice to him of her absences. Further, in December
2007 (before Wierman informed Casey’s she was pregnant), her prior area supervisor
Hercules issued her a corrective action for exceeding her allowable absences and for
failing to provide timely notification of absences as required by Casey’s policies,
which resulted in a suspension without pay for five days. In light of Wierman’s clear
and admitted violation of Casey’s employee-discount policy, the absence evidence is
not sufficient to create a genuine issue of fact whether Casey’s proffered explanation
is merely a pretext for unlawful retaliation.
Wierman does not create an issue of fact that Casey’s non-discriminatory reason
for her termination was pretext for FMLA retaliation. Her retaliation claims fails, and
summary judgment for Casey’s was proper. See Sprenger, 253 F.3d at 1113-14 (“An
employee’s attempt to prove pretext or actual discrimination requires more substantial
evidence, however, because unlike evidence establishing the prima facie case,
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evidence of pretext and discrimination is viewed in light of the employer’s
justification.”).
C.
Wierman also challenges the grant of summary judgment on her claim that
Casey’s discriminated against her in violation of the Missouri Human Rights Act
(MHRA). See Mo. Rev. Stat. §§ 213.010-213.137. This court reviews a grant of
summary judgment de novo. EEOC v. Con-Way Freight, Inc., 622 F.3d 933, 936
(8th Cir. 2010). Under Missouri law, “[s]ummary judgment seldom should be used
in employment discrimination cases, because such cases are inherently fact-based and
often depend on inferences rather than on direct evidence. Hill v. Ford Motor Co.,
277 S.W.3d 659, 664-65 (Mo. banc 2009).
Section 213.055.1(1)(a) of the MHRA prohibits an employer from discharging
or otherwise discriminating against an individual based on sex. This prohibition
includes pregnancy discrimination. See Self v. Midwest Orthopedics Foot & Ankle,
P.C., 272 S.W.3d 364, 366-71 (Mo. App. 2008).
The district court did not separately analyze Wierman’s MHRA claim, noting:
“MHRA claims are analyzed under the same standards as federal employment
discrimination claims.” This was error. The Supreme Court of Missouri has stated
that the MHRA’s “safeguards are not identical to the federal standards and can offer
greater discrimination protection.” Daugherty v. City of Maryland Heights, 231
S.W.3d 814, 818-19 (Mo. banc 2007). In particular, that court noted that the MHRA
defines “discrimination” to include “any unfair treatment based on . . . sex . . . as it
relates to employment.” Id. at 819 (quoting Mo. Rev. Stat. § 213.010(5)) (emphasis
added in Daugherty). A plaintiff alleging pregnancy discrimination in violation of the
MHRA can avoid summary judgment by showing that her pregnancy was “a
contributing factor”—not a “substantial or determining factor”—in the challenged
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decision. Id. at 819-20; see also Hill, 277 S.W.3d at 664-65. Missouri courts define
a “contributing factor” as one “that contributed a share in anything or has a part in
producing the effect.” Williams v. Trans States Airlines, Inc., 281 S.W.3d 854, 867
(Mo. App. 2009) (internal quotation marks and citations omitted).
Wierman argues that by applying the incorrect legal standard, the district court
must be reversed. To the contrary, this court may affirm for any reason supported in
the record, even if that reason is different from the rationale of the district court. See
Reasonover v. St. Louis Cnty., Mo., 447 F.3d 569, 578-79 (8th Cir. 2006). This court
may affirm the district court even if it committed legal error in reaching the correct
result. See McClain v. Kitchen, 659 F.2d 870, 873 (8th Cir. 1981) (per curiam); U.S.
Gypsum Co. v. Greif Bros. Cooperage Corp., 389 F.2d 252, 262 (8th Cir. 1968); City
of Grandview, Mo. v. Hudson, 377 F.2d 694, 696 (8th Cir. 1967); see also Wright,
Miller & Kane, 10A Federal Practice & Procedure § 2716 (3d ed.) (“The appellate
court does not have to affirm a decision on a Rule 56 motion for the same reasons that
persuaded the court below to grant the motion. On the contrary, it can find another
ground for concluding that the movant is entitled to judgment as a matter of law and
ignore any erroneous basis that the district court may have employed.”).
Wierman’s pregnancy was clearly not a motivating factor in her discharge,
given that she was observed on camera (and admitted) violating Casey’s employee
discount policies. However, Wierman has demonstrated a genuine issue of material
fact whether her pregnancy was a contributing factor to her termination under the
analysis of Daugherty and its progeny. See Con-Way Freight, Inc., 622 F.3d at 938
(affirming the district court’s grant of summary judgment in favor of employer on
Title VII claim, but remanding on MHRA discrimination claim).
Viewing the facts most favorably to Wierman, she was fired four days after
leaving work early with a pregnancy-related migraine, and less than a week after her
supervisor (who was aware of the pregnancy) was copied on a letter establishing a
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two-week deadline for her to complete FMLA paperwork. Johnson insisted that she
climb a footstool to conduct the cigarette audits after she told him she was afraid of
falling off the stool when four months pregnant with her first child. Johnson refused
her request to rest and eat in the middle of working a 16-hour double shift, then went
to her store to review video when she took the next day off. In one of the three
corrective actions issued to Wierman at her termination, Johnson faulted Wierman for
excessive absenteeism and tardiness, including dates she was absent or tardy for
pregnancy-related reasons. When the evidence is viewed most favorably to Wierman,
giving her the benefit of all reasonable inferences, sufficient evidence has been
identified to allow a reasonable jury to conclude that her pregnancy contributed a
slight share in Casey’s decision to fire her. See McBryde v. Ritenour Sch. Dist., 207
S.W.3d 162, 170 (Mo. App. 2006) (noting that “in enacting the MHRA, the legislature
sought to prohibit any consideration of race or other improper characteristic no matter
how slight in employment decisions. The plain meaning of the MHRA imposes
liability on an employer when an improper consideration is a contributing factor,
regardless if other factors also exist.”) (emphasis added).
Because this court concludes the district court properly granted summary
judgment on the Title VII and FMLA claims, the case would ordinarily be remanded
with directions to modify the final judgment so as to dismiss Wierman’s MHRA claim
without prejudice, so that it may be decided by the courts of Missouri. See Ivy v.
Kimbrough, 115 F.3d 550, 552-53 (8th Cir. 1997) (“In most cases, when federal and
state claims are joined and the federal claims are dismissed on a motion for summary
judgment, the pendent state claims are dismissed without prejudice to avoid needless
decisions of state law.”) (internal quotation marks and citation omitted); 28 U.S.C. §
1367(c)(3) (court may decline to exercise supplemental jurisdiction if it has dismissed
all claims over which it had original jurisdiction).
However, in this case, there appears to be federal subject matter jurisdiction
over the state-law claim based on diversity of citizenship. See 28 U.S.C. § 1332(a)(1)
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(“The district courts shall have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,000, exclusive of interest and
costs, and is between . . . citizens of different States”); 28 U.S.C. § 1332(c)(1) (“For
the purposes of this section . . . a corporation shall be deemed to be a citizen of any
State by which it has been incorporated and of the State where it has its principal place
of business”). The complaint alleged that Wierman is a citizen of Missouri and that
the amount in controversy exceeds $75,000, exclusive of interest and costs. It further
alleged that Casey’s General Stores, Inc., the parent company of Casey’s Marketing
Company, is an Iowa corporation.2 Casey’s Marketing Company is a wholly-owned
subsidiary of Casey’s General Stores, Inc., and is also an Iowa corporation. While
both Casey’s General Stores, Inc. and Casey’s Marketing Company are authorized and
do business in Missouri, “a corporation’s additional presence in another state does not
destroy diversity jurisdiction.” Ashland, Inc., 250 F.3d at 1172; see also Hertz Corp.
v. Friend, 130 S.Ct. 1181, 1192 (2010) (holding that a corporation’s “principal place
of business” for purposes of 28 U.S.C. § 1332(c)(1) refers to the place where a
corporation’s high level officers direct, control, and coordinate the corporation’s
activities, i.e., its “nerve center,” which will typically be found at its corporate
headquarters). Therefore, subject to further proceedings in the district court about
diversity jurisdiction, Wierman’s MHRA claim is remanded for trial. See Barclay
Square Properties v. Midwest Federal Sav. and Loan Ass’n of Minneapolis, 893
F.2d 968, 969 (8th Cir. 1990) (noting that the courts of appeal may either treat the
complaint as amended to properly allege diversity or allow the party asserting that
subject matter jurisdiction exists to amend its complaint to properly allege diversity);
28 U.S.C. § 1653 (“Defective allegations of jurisdiction may be amended, upon terms,
in the trial or appellate courts.”).

2

Casey’s General Stores, Inc. was granted summary judgment on the
uncontested ground that Wierman was not an employee of Casey’s General Stores,
Inc., which she does not challenge on appeal.
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* * * * * * *
The judgment of the district court is affirmed on the Title VII and FMLA
claims, and Wierman’s state-law claim is remanded for proceedings consistent with
this opinion.
______________________________

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