Guimaraes v. SuperValu, Inc.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 11-1046
___________

Katia Guimaraes, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
SuperValu, Inc., *
*
Appellee. *

___________

Submitted: October 18, 2011
Filed: March 23, 2012
___________

Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.
___________

BENTON, Circuit Judge.

Katia Agiuiar Guimaraes sued her former employer SuperValu, Inc. for
national-origin discrimination and retaliation in violation of Title VII of the Civil
Rights Act and the Minnesota Human Rights Act (MHRA). See 42 U.S.C. §§ 2000e-
2(a)(1), 2000e-3(a); Minn. Stat. §§ 363A.08, 363A.15. The district court1 granted

1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
summary judgment to SuperValu, dismissing all claims with prejudice. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Guimaraes, a native of Brazil, has dual Brazilian and Canadian citizenship.
She speaks English with an accent; her native language is Portuguese. She moved
from Brazil to Canada in April 2002 through a skilled-workers program. In October
2005, Albertson’s Inc., a grocery retailer, hired her to work in its Boise, Idaho,
headquarters as an Assistant Category Manager (ACM). Her review with Albertson’s
was positive, rating her overall performance “above expectations.” SuperValu, a
grocery retailer and wholesaler, acquired Albertson’s in 2006. Guimaraes accepted
an ACM position with SuperValu, relocating to its Minneapolis headquarters in 2007.

Lisa Delia Bautista Grubbs2 joined SuperValu as a manager in January 2008.
She is from Mexico and someone introduced her to Guimaraes, mistakenly stating the
two could speak Spanish together. The two laughed at the misunderstanding. Later
that day, Grubbs approached Guimaraes about getting lunch together, because Grubbs
was new to SuperValu and wanted to meet people. Over lunch, each shared her story
of coming here, with Grubbs saying she wanted to go to Brazil.

At Albertson’s and SuperValu, Guimaraes worked under an H-1B visa, an
employer-sponsored non-immigrant visa allowing temporary residence for specialty
workers and requiring renewal after three years. In early 2008, Guimaraes renewed
her visa. SuperValu sponsored the renewal, posted her job internally and externally,
interviewed U.S. residents, and certified that none were more qualified than

2
Grubbs’s name also appears in the record as Lisa Bautista. This opinion will
use Grubbs.

-2-
Guimaraes. SuperValu also sponsored her application to be a legal permanent
resident and receive her “green card.”3

In March 2008, SuperValu blended its management with Albertson’s, in a
“SUPERFusion” restructuring. After SUPERFusion, each product’s marketing is
assigned to a team of three employees: a Business Development Manager (BDM), a
Business Support Manager (BSM), and a Business Support Specialist (BSS). The
BDM manages the other two, reporting to a Director. Guimaraes became the BSM
for the Print Media/Checkout product category. Although the core responsibilities
remained the same, Guimaraes’s new role as a BSM was broader than as an ACM,
requiring wholesale as well as retail marketing. She estimated her workload
increased by 20 percent.

In May 2008, Grubbs became Guimaraes’s BDM. At about the same time,
Guimaraes’s annual review was due. Because of the BDM change, Lanny L.
Hoffmeyer (her second-level supervisor) completed the review, rating her an overall
3 of 5 or “consistently meets expectations.” Grubbs signed the review and discussed
it with Guimaraes. Guimaraes received a 9.14 percent merit raise in June.

Once Grubbs began supervising her, Guimaraes disagreed with the assignment
of work, believing that Grubbs was giving her tasks meant for either Grubbs or the
BSS. Guimaraes, however, waited to raise a complaint, believing the mistakes were
due to Grubbs’s inexperience and would be corrected.

In July 2008, Grubbs asked Guimaraes to perform a task that Guimaraes
particularly believed was meant for Grubbs. Guimaraes responded she already had

3
The parties inconsistently use the term “green card” to refer to lawful
permanent residence authorization, and to refer to the temporary H-1B work visa.
This inconsistency is immaterial here.

-3-
too much on her desk and thought it was Grubbs’s responsibility. At Guimaraes’s
request, the two met. Grubbs asked Guimaraes to describe the work on her desk and
then told her how to handle it better. Guimaraes stated that Grubbs was improperly
delegating her work and giving unreasonable time frames for tasks. Grubbs said that
the company demands a lot from Guimaraes and the BSS, and that they needed to
work harder or be replaced. Guimaraes responded that she felt threatened and did not
think a boss should talk to her employees that way. Grubbs felt insulted by
Guimaraes’s response and said she would never talk to her boss like that. Guimaraes
said she was only giving honest feedback (as Grubbs had requested when she became
BDM).

The next day, Guimaraes met with Hoffmeyer – who had already heard about
the meeting from Grubbs – because she was worried Grubbs may have gotten some
things wrong about the need for honest feedback. He suggested that it was up to
Guimaraes, the subordinate, to smooth things over with Grubbs, the boss. Guimaraes
requested that the three of them together address the issues. Hoffmeyer promised to
schedule a discussion within five days, but did not.

After the July meeting, Grubbs’s behavior toward Guimaraes changed. Grubbs
often became upset with her; did not help when requested; acted as if she could not
understand her and constantly asked her to repeat herself4 ; rolled her eyes, smirked,
and walked away when she was speaking; asked her to repeat Grubbs’s directions
verbatim; and excluded her from meetings with vendors, which made her job more
difficult. Grubbs also began to criticize Guimaraes’s job performance, claiming she
did not prioritize her work, missed project deadlines, did not promptly reply to emails,
and could not communicate effectively. Grubbs did not treat the BSS, her other
subordinate, the same way. Grubbs never referred to Guimaraes’s accent or made
derogatory comments about her being from Brazil.

4
Guimaraes states that other people had no trouble understanding her.

-4-
 Guimaraes again asked Hoffmeyer to schedule a meeting to discuss the issues
raised in the July meeting, because her attempts to fix the situation had failed.
Hoffmeyer agreed, setting up the meeting on August 19. At that meeting, Grubbs and
Hoffmeyer gave Guimaraes a diagram prepared by Grubbs, clarifying the roles of the
BDM, BSM, and BSS. Guimaraes was surprised that the meeting did not address
what happened in July. She disagreed with Grubbs’s characterization of her
responsibilities as the BSM, specifically “pulling data,” which she considered beneath
her pay scale and properly the duty of the BSS.

After the August meeting, Grubbs and Guimaraes were supposed to meet
weekly to discuss Guimaraes’s need for improvement. Sometimes Grubbs
rescheduled or canceled the meetings; it is not clear how many actually occurred.
Guimaraes considered them a “set-up,” because Grubbs continued to criticize her
without giving meaningful assistance. Guimaraes disagreed with the criticism based
on her years of experience. At the end of every meeting, Grubbs told Guimaraes she
was not improving.

On Friday, October 3, Grubbs met with Richele Lynn Butler,5 the human
resources partner for her department, to discuss Guimaraes’s performance issues and
to initiate disciplinary action. Butler told Grubbs she was about to leave the office
for two weeks to get married and asked whether Grubbs wanted to work with another
HR partner or await her return. Grubbs – with Hoffmeyer’s input – decided to wait.

Later in October, Hoffmeyer told Guimaraes that Grubbs was still dissatisfied
with her performance. He suggested Guimaraes meet with HR to seek out a different
position within the company. She met with Katie Held, an HR partner, on October
15. While inquiring about other positions, Guimaraes told Held that Grubbs was

5
Butler’s name also appears in the record as Richele Thorson. This opinion will
use Butler.

-5-
discriminating against her. She did not mention a basis (or any specifics) of the
discrimination. Held took notes and told Guimaraes to schedule a meeting with
Butler, the HR partner for Guimaraes’s department, when she returned from her
honeymoon.

On October 20, Butler returned to work, reviewed Held’s notes, and decided
to investigate before beginning the disciplinary process requested by Grubbs over two
weeks before. On October 23, Butler met with Guimaraes, who complained about
Grubbs’s discriminatory treatment and – for the first time – linked it to her accent and
national origin. Specifically, she said that Grubbs’s practice of asking her to repeat
herself was linked to her accent and that was linked to her national origin. Butler
responded, “I’m sorry you think that way.” Butler took notes during the meeting, but
did not write anything about national-origin discrimination.

The next day, Butler met with Grubbs and Hoffmeyer to investigate
Guimaraes’s allegations. Butler took notes, which again did not mention national-
origin discrimination. Grubbs denied any discrimination or mistreatment of
Guimaraes. Hoffmeyer confirmed that Grubbs’s expectations for Guimaraes were no
different than for any other BSM. Butler ultimately sided with Grubbs and did not
further investigate.

Some time in September or October, Grubbs went to lunch with Donna
Roberts, another SuperValu employee. Grubbs told Roberts she was “targeting Katia
Guimaraes, and that she was trying to get Katia fired and stop Katia’s Green Card
process.” Grubbs then complained about how long it would take to terminate her.
She also told Roberts she stood outside the window during the August meeting
between Guimaraes and Hoffmeyer to glare at Hoffmeyer and was purposefully cold
to him after the meeting in order to show she was upset he was talking to Guimaraes
about her. Grubbs boasted that the manipulation worked and he had taken her side.
Roberts responded that Grubbs should try to get along with Guimaraes, which

-6-
prompted Grubbs to ignore Roberts for weeks. (Roberts did not tell anyone at
SuperValu about this conversation until February 2009.)

Because Guimaraes continued to complain about Grubbs’s actions, Butler held
a mediation session. Grubbs listed her complaints about Guimaraes’s performance,
and Guimaraes stated her continued frustration. Guimaraes criticized Grubbs’s
practice of answering her questions by saying, “You should know that” or asking
back, “What do you think?” Grubbs explained she was trying to coach Guimaraes
how to solve her problems. Guimaraes disagreed with this style of coaching, asking
Grubbs for examples.

The next day, Grubbs placed Guimaraes on a Performance Action Plan (PAP),
a two-page official warning that she was underperforming with guidelines for
improvement. The PAP listed an action plan: Guimaraes was required to (1) reply to
all emails in one business day without involving Grubbs or the BSS; (2) break up
large projects into smaller pieces and prioritize tasks in order to meet deadlines, or
inform Grubbs as soon as possible if a deadline would be missed, (3) complete
ad/promo responsibilities timely and accurately with direction from Grubbs, (4) pull,
format, interpret, and explain market data, and enroll in an Excel course, and (5) be
receptive to feedback and treat Grubbs with respect. The PAP stated, “The
consequence of a performance trend that does not meet the minimum requirements
of the job and sustain improvement in overall contributions and behavior will lead
further [sic] disciplinary action up to and including termination.” Per SuperValu
policy, an employee’s performance under a PAP is evaluated for 30 days. If there is
no improvement, a second PAP is given. If there is still no improvement after 30
more days, a third PAP is given. After 30 more days with no improvement, the
employee is terminated.

Grubbs alone concluded that the PAP was necessary and determined the areas
needing improvement. Butler and Hoffmeyer reviewed the PAP, but did not

-7-
investigate the substance of it. Butler and Grubbs went over the PAP with Guimaraes
on November 12. Guimaraes disagreed with the alleged deficiencies and stated that
the PAP lacked benchmarks to measure her improvement. She also wanted to know
if all BSMs were expected to do the same things, stating that, if not, the PAP was
clearly discriminatory. She did not mention her national origin or retaliation as the
cause of the discrimination. Guimaraes claims Grubbs “routinely” cancelled meetings
with her and failed to offer “feedback” or “guidance” under the PAP.

On December 12, Grubbs and Butler met with Guimaraes to tell her that her
performance had not improved. They gave her a second PAP, identifying the same
issues as the first. Grubbs alone determined that Guimaraes had not improved.
Guimaraes refused initially to sign the second PAP, despite the disclaimer that her
signature did not indicate agreement. She did return the signed PAP about two weeks
later with a handwritten response and a copy of her last performance review. In the
response, she questions the PAP’s veracity in light of her previous positive reviews,
criticizing it as based solely on Grubbs’s perceptions. She does not mention national-
origin discrimination or retaliation.

On January 14, 2009, Guimaraes went on leave pursuant to the Family and
Medical Leave Act (FMLA). During this time, SuperValu underwent an
economically-driven reorganization, eliminating several positions in Guimaraes’s
department, including one BSM position. SuperValu chose the affected employees
based on disciplinary status, performance reviews, and seniority – in that order.
Guimaraes was identified for termination as the only BSM on a PAP at the time.
(Based on her reviews and seniority, if not on a PAP, she would not have been the
affected BSM.) Neither Grubbs nor Hoffmeyer played any part in the determination
to eliminate a BSM position or the choice of Guimaraes for termination. On February
20, Hoffmeyer and Butler met with Guimaraes – still on FMLA leave – to tell her she
would be terminated when she returned. Guimaraes’s doctor released her to return
to work and, after a 60-day notice, she was terminated on May 15.

-8-
 While Guimaraes was on FMLA leave, Roberts took her place as BSM for
Print Media/Checkouts around January 30. The first thing Grubbs told her was “I
can’t believe I told you all of those things about [Guimaraes] now that you’re going
to be reporting to me.” Grubbs then proceeded to treat Roberts poorly.6 Roberts met
with Butler on February 11 to discuss her problems working with Grubbs. When
Butler “did not seem to care,” Roberts reported Grubbs’s comments during both the
lunch and her first day working for Grubbs. Roberts believed Grubbs was now
targeting her due to her knowledge of Grubbs’s treatment of Guimaraes. Butler
investigated, talking to Grubbs and Hoffmeyer, but ultimately concluded that Grubbs
did not make those statements. On March 12, Roberts emailed a SuperValu vice
president, listing all her concerns with Grubbs, including the comments about
targeting Guimaraes. Roberts was terminated later that day for insubordination,
including profanely describing Grubbs to a co-worker.

II.

This court reviews de novo a grant of summary judgment. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir.) (en banc), cert. denied, 132 S. Ct. 512
(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.” 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.” Torgerson, 643 F.3d at 1042, quoting Ricci v. DeStefano, 129 S. Ct.
2658, 2677 (2009) (internal quotation marks omitted). “Credibility determinations,
the weighing of the evidence, and the drawing of legitimate inferences from the facts

6
Roberts lists many of the same types of mistreatment by Grubbs as Guimaraes.
However, Grubbs did not ask Roberts to repeat herself or pretend not to understand
her.

-9-
are jury functions, not those of a judge.” Id., quoting Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000).

Guimaraes alleges that her termination violated Title VII and the MHRA
because it was either the result of national-origin discrimination, or retaliation for her
complaints of national-origin discrimination.

A.

Guimaraes alleges that SuperValu discriminated against her based on national
origin. Title VII makes it “an unlawful employment practice for an employer . . . to
discharge any individual . . . because of such individual’s . . . national origin.” 42
U.S.C. § 2000e-2(a)(1). The MHRA makes it “an unfair employment practice for an
employer, because of . . . national origin . . . to . . . discharge an employee.” Minn.
Stat. § 363A.08, subd. 2. The same analysis applies to both Title VII and MHRA
claims. Torgerson, 643 F.3d at 1043; Bahr v. Capella Univ., 788 N.W.2d 76, 83
(Minn. 2010).

Guimaraes presents a cat’s paw theory, arguing that her placement on the PAP
by Grubbs was discriminatory and led to her termination even if Grubbs had no part
in the decision to eliminate her position in the reorganization. See Amini v. City of
Minneapolis, 643 F.3d 1068, 1075 (8th Cir. 2011) (“If a non-decision-maker
performs an act motivated by a discriminatory bias that is intended to cause, and that
does proximately cause, an adverse employment action, then the employer is liable
under the cat’s paw theory of liability.”), citing Staub v. Proctor Hosp., 131 S. Ct.
1186, 1194 (2011).7

7
Because Guimaraes does not present a submissible case of national-origin
discrimination or retaliation, this court need not determine whether she makes out an
adequate case for cat’s paw liability.

-10-
 Guimaraes can survive a motion for summary judgment in one of two ways:

The first is by proof of “direct evidence” of discrimination. Direct
evidence in this context is not the converse of circumstantial evidence,
as many seem to assume. Rather, direct evidence is evidence “showing
a specific link between the alleged discriminatory animus and the
challenged decision, sufficient to support a finding by a reasonable fact
finder that an illegitimate criterion actually motivated” the adverse
employment action. Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64,
66 (8th Cir. 1997). Thus, “direct” refers to the causal strength of the
proof, not whether it is “circumstantial” evidence. A plaintiff with
strong (direct) evidence that illegal discrimination motivated the
employer’s adverse action does not need the three-part McDonnell
Douglas [Corp. v. Green, 411 U.S. 792, 802-03 (1973),] analysis to get
to the jury, regardless of whether his strong evidence is circumstantial.
But if the plaintiff lacks evidence that clearly points to the presence of
an illegal motive, he must avoid summary judgment by creating the
requisite inference of unlawful discrimination through the McDonnell
Douglas analysis, including sufficient evidence of pretext. See, e.g.,
Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 971 (8th Cir. 1994).

Torgerson, 643 F.3d at 1045, quoting Griffith v. City of Des Moines, 387 F.3d 733,
736 (8th Cir. 2004).

1.

As direct evidence of discrimination, Guimaraes points to Grubbs’s “green
card” statement. In her affidavit, Roberts says:

Sometime in September or October of 2008, I had lunch with Lisa
Grubbs (then Lisa Bautista). . . . During that luncheon, Lisa told me that
she was targeting Katia Guimaraes, and that she was trying to get Katia
fired and stop Katia’s Green Card process. Even though Lisa had only
been working with Katia for a brief period of time – a matter of months

-11-
 – she told me that she was setting in motion a process to terminate Katia.
Lisa even complained to me about how long it would take to terminate
Katia.

The “green card” statement does not show a specific link between placement
on the PAP and Grubbs’s alleged discriminatory animus toward Guimaraes’s national
origin. Guimaraes conflates citizenship or immigration status with national origin.
Her green card process shows her intent to change her citizenship or immigration
status by becoming a lawful permanent resident. True, a reasonable jury could find
the “green card” statement evinces an intent to terminate Guimaraes because she is
not yet a lawful permanent resident. The Supreme Court has held, however, that
while “[a]liens are protected from illegal discrimination” under Title VII, “nothing
in [Title VII] makes it illegal to discriminate on the basis of citizenship or alienage.”
Espinoza v. Farah Mfg. Co., 414 U.S. 86, 85 (1973); see also Lixin Liu v. BASF
Corp., 409 Fed. Appx. 988, 991 (8th Cir. 2011) (per curiam) (unpublished) (rejecting
Title VII claim where the plaintiff “conflate[d] national origin and alienage. His
employment status was terminated because of his immigration status, not his Chinese
ancestry.” (citation omitted)).

Guimaraes does not present direct evidence of national-origin discrimination
in violation of Title VII or the MHRA. Her claim is properly analyzed under
McDonnell Douglas.

2.

Under the McDonnell Douglas framework, Guimaraes must first establish a
prima facie case of discrimination. Torgerson, 643 F.3d at 1046. The burden of
production then shifts to SuperValu to “articulate a legitimate, non-discriminatory
reason” for its act. Id. “[T]he ultimate burden [then] falls on [Guimaraes] to produce
evidence sufficient to create a genuine issue of material fact regarding whether

-12-
[SuperValu’s] proffered nondiscriminatory justifications are mere pretext for
intentional discrimination.” Id., quoting Pope v. ESA Servs., Inc., 406 F.3d 1001,
1007 (8th Cir. 2005) (first and second alterations in original). Guimaraes’s “burden
to show pretext ‘merges with the ultimate burden of persuading the court that [she
was] the victim of intentional discrimination.’” Id., quoting Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981). “Proof of pretext, coupled with a
strong prima facie case, may suffice to create a triable question of fact.” Id.
Guimaraes “retain[s], at all times, the ultimate burden of proof and persuasion that
[SuperValu] discriminated against” her. Id.

a.

To establish a prima facie case of discrimination under Title VII and the
MHRA, Guimaraes must establish that (1) she is a member of a protected class, (2)
she met SuperValu’s legitimate expectations, (3) she suffered an adverse employment
action, and (4) the circumstances give rise to an inference of discrimination. Pye v.
Nu Aire, Inc., 641 F.3d 1011, 1019 (8th Cir. 2011). The district court assumed
without deciding that Guimaraes had established a prima facie case. SuperValu
challenges the sufficiency on appeal, and this court “may affirm the district court’s
dismissal on any basis supported by the record.” Mader v. United States, 654 F.3d
794, 808 n.12 (8th Cir. 2011) (en banc), quoting Phipps v. FDIC, 417 F.3d 1006,
1010 (8th Cir. 2005).

Guimaraes fails to establish the fourth element of her prima facie case. “‘The
required prima facie showing is a flexible evidentiary standard,’ and a plaintiff can
satisfy the fourth part of the prima facie case in a variety of ways, such as by showing
more-favorable treatment of similarly-situated employees who are not in the protected
class, or biased comments by a decisionmaker.” Pye, 641 F.3d at 1019, quoting
Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1039-40 (8th Cir. 2010)
(internal quotations marks omitted). Guimaraes does not identify a similarly situated

-13-
employee outside of her protected class, who was treated more favorably. She argues
that the “green card” statement – along with Grubbs’s alleged practice of smirking,
asking Guimaraes to repeat herself, and requiring her to repeat Grubbs’s directions
verbatim – sufficiently raise an inference of national-origin discrimination.

As noted, the “green card” statement refers to her immigration status, not her
national origin. Guimaraes argues it should not be read literally, because Grubbs
used “green card” as a code word for her national origin. Cf. Smith v. Fairview
Ridges Hosp., 625 F.3d 1076, 1085 (8th Cir. 2010) (“[R]acially charged code words
may provide evidence of discriminatory intent by sending a clear message and
carrying the distinct tone of racial motivations and implications.” (alterations and
internal quotation marks omitted)), cert. denied, 131 S. Ct. 2904 (2011). The “green
card” statement is facially neutral as to national origin, and neutral statements,
without more, do not demonstrate animus on the part of the speaker. See Twymon v.
Wells Fargo & Co., 462 F.3d 925, 934 (8th Cir. 2006); Ash v. Tyson Foods, Inc.,
546 U.S. 454, 456 (2006) (per curiam) (“The speaker’s meaning may depend on
various factors including context, inflection, tone of voice, local custom, and
historical usage.”). Nothing about the statement suggests it is charged with national-
origin discriminatory animus or carries the distinct tone of such motivation or
implication. It is “materially different from the historically racially disparaging but
facially-neutral term ‘boy’ . . . deemed potentially probative of racial animus in [Ash,
546 U.S. at 456].” See Twymon, 462 F.3d at 934 n.5. No reasonable jury could find
that the “green card” statement gives rise to an inference of national-origin
discrimination.

Guimaraes also claims that Grubbs’s practice of pretending not to understand
her, constantly asking her to repeat herself, and requiring her to repeat Grubbs’s
directions verbatim show she was mocking her accent, which is related to her national
origin. True, comments ridiculing an employee’s accent may be relevant evidence
of national-origin animus. See Hossaini v. Western Mo. Med. Ctr., 97 F.3d 1085,

-14-
1089 (8th Cir. 1996); cf. 26 C.F.R. § 1606.1 (“The Commission defines national
origin discrimination broadly as including, but not limited to, the denial of equal
employment opportunity . . . because an individual has the . . . linguistic
characteristics of a national origin group.”). However, without more evidence, no
reasonable jury could find Grubbs’s alleged behavior raises an inference of national-
origin discrimination. Guimaraes admits Grubbs never referenced her accent,
derisively or otherwise, and she does not identify any other person who witnessed
Grubbs’s behavior and believed she was mocking Guimaraes’s accent. Cf. Takele v.
Mayo Clinic, 576 F.3d 834, 838-39 (8th Cir. 2009) (holding the plaintiff failed to
establish a prima facie case of national-origin discrimination where supervisors
compared “his successful completion of a treatment plan to a thousand monkeys
getting together to write the Bible,” “laughing and joking . . . would abruptly stop
when [plaintiff] approached,” and plaintiff “heard reference being made to foreigners
and someone Ethiopian”), cert. denied, 130 S. Ct. 3530 (2010).

b.

Assuming Guimaraes presented a prima facie case, she does not present
evidence sufficient for a reasonable jury to find that SuperValu’s legitimate non-
discriminatory reason for her termination – her performance – was a pretext for
unlawful discrimination.

“There are at least two ways [Guimaraes] may demonstrate a material question
of fact regarding pretext.” Torgerson, 643 F.3d at 1047. She may show that
SuperValu’s explanation is unworthy of credence because it has no basis in fact, or
she may show pretext by persuading the court that discriminatory animus more likely
motivated SuperValu. Id. “Either route amounts to showing that a prohibited reason,
rather than [SuperValu’s] stated reason, actually motivated” her placement on the
PAPs. Id.

-15-
 Guimaraes argues that several instances support a finding of pretext: (1) her
previous positive performance reviews, (2) the subjective nature of the PAP, (3)
Grubbs’s failure to meet with Guimaraes after she was placed on the PAP, (4)
Grubbs’s plan to “target” her for termination, as described in the “green card”
statement, and (5) conflicting testimony from SuperValu’s witnesses related to the
investigation of Roberts’s allegations. The first four appear to be attempts at showing
that SuperValu’s stated reason has no basis in fact, and the last appears to be an
attempt at demonstrating an actual discriminatory motivation.

First, Guimaraes contends that her previous positive reviews show Grubbs’s
criticism of her performance has no basis in fact. “[E]vidence of a strong
employment history will not alone create a genuine issue of fact regarding pretext and
discrimination,” but it “can be relevant when considering whether the record as a
whole establishes a genuine issue of material fact.” Strate v. Midwest Bankcentre,
Inc., 398 F.3d 1011, 1020 (8th Cir. 2005). Guimaraes’s prior employment record is
generally positive. In early 2008, second-level-supervisor Hoffmeyer certified that
she was more qualified than all U.S. citizens that applied when her job was posted for
her visa renewal. In her last performance review in May 2008, he graded her as
“consistently meets expectation” (the middle of five possible ranks), and SuperValu
gave her a merit raise in June. Cf. id. (finding pretext based in part on the terminated
employee’s “eleven-year employment history with the Bank, during which she was
promoted several times and received numerous salary increases”). Grubbs placed
Guimaraes on the first PAP in November. During the six months between the last
review and the PAP, the scope of Guimaraes’s job increased due to the merger,
Grubbs constantly critiqued her performance, and Guimaraes consistently stated her
belief she was performing adequately. This is not enough evidence on its own to cast
doubt on the stated reason for the PAP, but is relevant when considering the record
as a whole.

-16-
 Second, Guimaraes asserts that the PAPs had no basis in fact because they were
subjective and lacked objective measures of her performance and improvement. This
court will assume that at least some of these measures are subjective and difficult to
measure, but reliance on subjective criteria is not enough on its own to prove pretext.
See Torgerson, 643 F.3d at 1049-50. A supervisor’s assessment of a particular
employee’s performance is necessarily subjective, and Guimaraes’s previous positive
reviews relied on similarly subjective criteria. A reasonable jury could find the use
of subjective criteria in the PAP relevant, but not sufficient on its own, to raise an
inference of discrimination.

Third, Guimaraes says that Grubbs did not follow SuperValu’s policies, by
“routinely” cancelling meetings and failing to offer “feedback” and “guidance” while
she was on the PAP. According to Guimaraes, this failure to follow policy supports
the inference that Grubbs was setting her up to fail. This evidence could be relevant
in determining whether her performance deficiencies had no basis in fact. However,
“[t]he fact that [Grubbs] may have failed to follow human resources policy does not
create” a reasonable inference that she was motivated by a discriminatory animus on
its own. Haas v. Kelly Servs., Inc., 409 F.3d 1030, 1036 (8th Cir. 2005).

Fourth, Guimaraes argues that the “green card” statement creates a material
issue of fact whether Grubbs was targeting Guimaraes for termination and therefore
fabricated her critique of Guimaraes’s performance. Grubbs allegedly stated that “she
was trying to get [Guimaraes] fired,” “setting in motion a process to terminate” her,
and unhappy with “how long it would take.” Grubbs did not mention a plan to lie
about her performance in order to cause her termination. Grubbs did not admit that
Guimaraes’s performance was adequate or that her criticisms were unfounded.
However, a reasonable jury could find that Grubbs’s alleged plan to target Guimaraes
for termination allows the inference that SuperValu’s stated reason for placing her on
the PAP had no basis in fact.

-17-
 Viewing the record as a whole and giving Guimaraes the benefit of all
reasonable inferences, a reasonable jury could find that SuperValu’s legitimate, non-
discriminatory reason for placing her on the PAP has no basis in fact – in light of the
sharp decline in her performance reviews, the subjectivity of the PAPs, Grubbs’s
failure to follow policies during the PAP, and her stated intent to target Guimaraes
for termination. Even so, a reasonable jury would not find that Guimaraes meets her
“ultimate burden of proof and persuasion that [SuperValu] discriminated against” her
based on her national origin. See Torgerson, 643 F.3d at 1046; see also Reeves, 530
U.S. at 148 (“This is not to say that [a plaintiff’s prima facie case, combined with
sufficient evidence to find that the employer’s asserted justification is false] will
always be adequate to sustain a jury’s finding of liability.”); Strate, 398 F.3d at 1017
(“[I]n the context of the McDonnell Douglas analytical framework, a court’s use of
the words ‘pretext,’ ‘pretextual’ or similar terminology, often must be read as
shorthand for indicating that a defendant’s proffered discriminatory explanation for
adverse employment action is a pretext for unlawful discrimination, not that it is
merely false in some way.”), citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
516 (1993); Dammen v. UniMed Med. Ctr., 236 F.3d 978, 980-81 (8th Cir. 2001)
(“[A] showing by the plaintiff that the employer’s reason for its decision was a pretext
for discrimination will not necessarily insulate the plaintiff from summary
judgment.”), citing Reeves, 530 U.S. at 148.

Guimaraes has not presented sufficient evidence for a reasonable jury to find
that Grubbs was “targeting” Guimaraes because of her national origin. Examining
the evidence as a whole, a reasonable jury could find that Grubbs targeted her for any
of these reasons: because of a personality conflict, because Guimaraes critiqued
Grubbs’s management style, because Grubbs honestly did not believe Guimaraes was
competent, or even because Guimaraes was trying to get a green card. However, none
of these reasons violate Title VII. “The employment-discrimination laws have not
vested in the federal courts the authority to sit as super-personnel departments
reviewing the wisdom or fairness of the business judgments made by employers,

-18-
except to the extent that those judgments involve intentional discrimination.” Kiel
v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en banc), quoting
Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995).

Finally, Guimaraes attempts to show that SuperValu was more likely motivated
by discriminatory animus by pointing to inconsistencies in the testimony of Grubbs,
Hoffmeyer, and Butler: (1) Hoffmeyer wavered on whether he was aware of Roberts’s
allegation that Grubbs was targeting Guimaraes, (2) Hoffmeyer and Butler remember
discussing the allegations with Grubbs, but she denies discussing it with them, and
(3) Butler testified that Grubbs was disciplined for discussing Guimaraes’s
termination with Roberts, but Grubbs denies being disciplined. Guimaraes concludes
that the inconsistent testimony implies intentional lying, which in turn implies
liability. Viewing the record favorably to Guimaraes, these inconsistencies are not
sufficient to show a discriminatory motive. When witnesses for the employer give
“completely different” explanations for the decision to terminate an employee, it can
give rise to an inference of pretext. See EEOC v. Trans States Airlines, Inc., 462
F.3d 987, 995 (8th Cir. 2006). However, the inconsistent testimony cited by
Guimaraes does not go to the reason for her termination (or even to the investigation
of her claims of discrimination). No reasonable jury could infer a discriminatory
animus from the immaterial conflicts in this case without resort to speculation.

The district court’s dismissal of Guimaraes’s national-origin discrimination
claim is affirmed.

B.

Guimaraes claims that Grubbs retaliated against her for complaining that
Grubbs was discriminating against her based on her national origin. Title VII makes
it “an unlawful employment practice for an employer to discriminate against any of

-19-
his employees . . . because he has opposed any practice made an unlawful
employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). Similarly, the MHRA
makes it “an unfair discriminatory practice for any individual . . . to intentionally
engage in any reprisal against any person because that person . . . [o]pposed a practice
forbidden under [the MHRA].” Minn. Stat. § 363A.15. Title VII retaliation claims
and MHRA reprisal claims are governed by the same standards. Pye, 641 F.3d at
1015 n.13. This court “applies § 2000e-3(a) broadly to cover opposition to
‘employment actions that are not unlawful, as long as the employee acted in a good
faith, objectively reasonable belief that the practices were unlawful.’” Id. at 1020,
quoting Bonn v. City of Omaha, 623 F.3d 587, 591 (8th Cir. 2010).

Because Guimaraes does not offer direct evidence of retaliation, her claim is
addressed under the McDonnell Douglas framework. To establish a prima facie case
of retaliation, she must show (1) she engaged in protected conduct, (2) she suffered
a materially adverse employment act, and (3) the adverse act was causally linked to
the protected conduct. Id. at 1021. Assuming Guimaraes presents a prima facie case
of retaliation, she does not present evidence sufficient for a reasonable jury to find
that SuperValu’s legitimate non-discriminatory reason for her termination – her
performance – was a pretext for retaliation in violation of Title VII.

For the reasons listed in Part A, a reasonable jury could find that Grubbs’s
stated reason for placing Guimaraes on the PAP had no basis in fact. Guimaraes still
must present sufficient evidence to meet her “ultimate burden of proof and
persuasion” that SuperValu unlawfully retaliated against her. See Torgerson, 643
F.3d at 1046.

Guimaraes cites to four pieces of evidence to support a finding of a retaliation:
(1) the temporal proximity between the protected conduct and the adverse
employment act, (2) Butler’s failure to follow company policy while investigating

-20-
Guimaraes’s allegations, (3) the circumstances of Roberts’s termination, and (4)
Grubbs’s role as sole decisionmaker.

First, because Guimaraes’s report of discrimination followed Grubbs’s decision
to place her on the PAP, the timing negates a finding of retaliation. Guimaraes admits
that the first time she alleged national-origin discrimination was on October 23.
Grubbs learned of the complaint the next day. Guimaraes was placed on the first PAP
around November 12, less than three weeks later. Initially, it might appear that the
temporal proximity can provide some evidence of pretext. See Sprenger v. Federal
Home Loan Bank of Des Moines, 253 F.3d 1106, 1113 (8th Cir. 2001) (looking “for
proximity in conjunction with other evidence” to find pretext). But here, “the
employer had been concerned about a problem before the employee engaged in the
protected activity.” Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 1001 (8th Cir.
2011). Grubbs raised concerns about Guimaraes’s performance at least as early as
August and requested Butler begin disciplinary action on October 3 – three weeks
before she was aware of Guimaraes’s protected conduct. If not for Butler’s wedding,
the PAP would have been executed before any complaint of national-origin
discrimination.

Guimaraes asserts a genuine issue of material fact whether Grubbs knew of the
protected conduct before requesting the disciplinary process. Grubbs testified that
she was already aware of Guimaraes’s (general) complaints before Butler told her on
October 24.8 For a report of discrimination to be statutorily protected activity under
Title VII, it must include a complaint of national-origin discrimination or sufficient
facts to raise that inference. See Helton v. Southland Racing Corp., 600 F.3d 954,

8
Later in her deposition, Grubbs says she made a mistake in her earlier
testimony and that Guimaraes reported discrimination to her much later. On summary
judgment, this court assumes the report was before Grubbs sought to discipline
Guimaraes.

-21-
961 (8th Cir. 2010) (“Because [plaintiff] acknowledged that she said nothing in that
call about race discrimination, her conversation was not protected conduct under Title
VII, and so any conversation taken in response to that conversation cannot be
actionable under Title VII.”); see also Andonissamy v. Hewlett-Packard Co., 547
F.3d 841, 851 (7th Cir. 2008). As noted, Guimaraes admits she did not raise the issue
of national-origin discrimination until October 23, and Grubbs specifically testified
that the earlier complaint of discrimination had nothing to do with Guimaraes being
from Brazil.9 There is no material issue of fact whether Guimaraes had engaged in
protected conduct before Grubbs’s request for disciplinary proceedings.

9
Guimaraes cites Grubbs’s deposition testimony:
Q: Okay. Do you recall Ms. Butler telling you in October 2008 that
Ms. Guimaraes had complained that you were discriminating
against her for being from Brazil? Do you recall that?
A: Yes.
Q: Okay. How did you respond to this information that Ms. Butler
had informed you of, of complaints that Ms. Guimaraes had?
A: I was aware of them already from Ms. Guimaraes.
Q: Okay. Had Ms. Guimaraes told you in the past that she believed
you were discriminating against her because she was from Brazil?
A: Not because she was from Brazil. She had at one point indicated
that she felt I was discriminating against her.
....
Q: Yeah. I just want to know everything you can possibly tell me
about that conversation where Ms. Guimaraes indicated to you
that she believed you were discriminating against her.
A: Yeah, I believe it was in a meeting that she had initiated with me
prior to her going to Ms. Butler where she was frustrated with the
current work situation and she felt overwhelmed by her job
duties. In that meeting she proceeded to tell me her opinions of
– her personal opinions of me as a manager and indicated that the
reason why I – the reason why she was also unhappy is because
she feels that I am discriminating against her.

-22-
 Second, Guimaraes reasons that a reasonable jury could infer retaliation
because Butler’s investigation of her reports of discrimination was insufficient and
did not comply with SuperValu policy. Guimaraes specifically notes that Butler did
not document either the report of discrimination or the findings of her investigation
and did not speak to anyone other than Guimaraes and Grubbs. SuperValu “can
certainly choose how to run its business, including not to follow its own personnel
policies regarding termination of an employee or handling claims of discrimination,
as long as it does not unlawfully discriminate in doing so.” Haas, 409 F.3d at 1036.
“The appropriate scope of investigation is a business judgment, and shortcomings in
an investigation do not by themselves support an inference of discrimination.”
McCullough v. University of Ark. for Med. Scis., 559 F.3d 855, 863 (8th Cir. 2009).
Butler did limit the investigation, but Guimaraes presents no evidence that “she
purposely ignored relevant information or otherwise truncated the inquiry” in order
to retaliate against Guimaraes for her report of discrimination. Id.

Third, Guimaraes believes the circumstances surrounding Roberts’s
termination raises an inference of retaliatory animus. Roberts thought that Grubbs
retaliated against her because she knew about Grubbs’s plan to target Guimaraes for
termination. Roberts was terminated the same day she sent a lengthy email to an
upper-level manager, mentioning Grubbs’s plan. SuperValu states that Roberts was
terminated for profaning Grubbs and other acts of insubordination. The fact that
Roberts subjectively believes she was retaliated against is “not on point” and fails on
its own to demonstrate a retaliatory motive as to another employee’s termination. See
Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 795 (8th Cir. 2011);
Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 480 (8th Cir. 2004); cf. Gibson v.
American Greetings Corp., ___ F.3d ___, 2012 WL 686198, at *9 (8th Cir. Mar. 5,
2012) (“A party’s unsupported self-serving allegation that her employer’s decision
was based on retaliation does not establish a genuine issue of material fact.”), quoting
Jackson v. United Parcel Serv., Inc., 643 F.3d 1081, 1088 (8th Cir. 2011), cert.
denied, 132 S. Ct. 1075 (2012).

-23-
 Finally, Guimaraes argues that a reasonable jury could find retaliation because
the decision to place her on the PAP was solely made by Grubbs, the target of her
report of discrimination. Butler and Hoffmeyer did confirm that Grubbs alone
initiated placing Guimaraes on a PAP, determined the content of the PAP, and
monitored her progress. However, both Butler and Hoffmeyer testified that they
reviewed the PAP to determine whether Guimaraes was being held to an appropriate
standard for a BSM, and determined that she was.

Viewing the record as a whole, Guimaraes does not, as a matter of law, meet
her “ultimate burden of proof and persuasion” that SuperValu unlawfully retaliated
against her. See Torgerson, 643 F.3d at 1046. That the subject of a discrimination
complaint has wide discretion to discipline the complainant could raise an inference
of retaliation, but “the evidence taken as a whole is ‘insufficient to permit a
reasonable jury, without resort to speculation, to draw an inference’” that Grubbs
placed Guimaraes on the PAP in retaliation for her report of discrimination. See
Montes v. Greater Twin Cities Youth Symphonies, 540 F.3d 852, 859 (8th Cir.
2008), quoting Stewart v. Independent Sch. Dist. No. 196, 481 F.3d 1034, 1043 (8th
Cir. 2007). “The mere existence of a scintilla of evidence in support of the plaintiff’s
position will be insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986). The district court’s dismissal of Guimaraes’s retaliation claim is
affirmed.

*******

The judgment of the district court is affirmed.
______________________________

-24-