United States Court of Appeals
For the Eighth Circuit
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No. 20-1831
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Daniel J. Gardner
Petitioner - Appellant
v.
Wal-Mart Stores, Inc.; Wal-Mart Stores East, LP; Wal-Mart Transportation, LLC
Defendants - Appellees
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: April 14, 2021
Filed: June 23, 2021
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Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
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BENTON, Circuit Judge.
Daniel J. Gardner sued his former employer, Wal-Mart Stores, Inc., for age
discrimination under the Iowa Civil Rights Act (ICRA). The district court 1 granted
summary judgment to Walmart. Gardner v. Walmart Stores, Inc., No. 4-18-cv-450,
1
The Honorable Charles R. Wolle, District Judge for the Southern District of
Iowa.
Docket No. 55, at 4 (S.D. Iowa Mar. 23, 2020). Having jurisdiction under 28 U.S.C.
§ 1291, this court affirms.
I.
Gardner worked for Walmart from 1993 until February 2017. He served as a
private fleet safety manager in Mount Pleasant, Iowa, responsible for implementing
Walmart’s safety program.
In January 2016, Gardner disclosed an employee’s medical condition during
a training session. Walmart placed him on a “Third Written”—meaning he could be
fired if disciplined again. One of Gardner’s job responsibilities was enforcing
Walmart’s Hazardous Materials Endorsement (HME) policy. It required him to
“identify all current and new hire drivers without a valid hazmat endorsement and
notify the local Transportation Operations Managers.” In January 2017, Gardner
violated the policy. As acknowledged in his statement of undisputed material facts,
a driver failed to get an HME after the 90-day deadline, but Gardner did not notify
Operations that the driver continued working. Instead, after about 30 more days, he
suspended the driver.
In February 2017, Walmart gave Gardner the option to resign or be dismissed.
He resigned. He then sued, alleging he was fired because of age (58). The district
court granted summary judgment to Walmart, ruling he could not show that its
proffered reason for the firing was a pretext for age discrimination.
This court reviews de novo a grant of summary judgment, viewing the facts
most favorably to the nonmoving party. Torgerson v. City of Rochester, 643 F.3d
1031, 1042 (8th Cir. 2011) (en banc). Iowa discrimination law governs this diversity
action. See Junk v. Terminix Int’l Co., 628 F.3d 439, 450 (8th Cir. 2010). See also
Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 7 (Iowa 2009) (“When interpreting
discrimination claims under Iowa Code chapter 216, we turn to federal law,
including Title VII of the United States Civil Rights Act . . . .”).
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II.
ICRA prohibits age discrimination in the workplace. Iowa Code
§ 216.6(1)(a). Although Gardner did not present direct evidence of discrimination,
he claims to satisfy the McDonnell Douglas burden-shifting framework. See
Hedlund v. Iowa, 930 N.W.2d 707, 719-20 (Iowa 2019) (collecting Iowa cases
applying McDonnell Douglas to discrimination claims), citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). 2
Like the district court, this court assumes that Gardner met his prima facie
burden.3 Gardner acknowledges that Walmart offered a legitimate, non-
2
The standard for ICRA claims, at summary judgment, is unsettled in the Iowa
courts. Hedlund, 930 N.W.2d at 726-27 (Appel, J., concurring in part and dissenting
in part) (arguing that a “motivating factor” test should be applied at summary
judgment), discussing Price Waterhouse v. Hopkins, 490 U.S. 228, 232 (1989)
(plurality opinion), superseded partly by statute, Civil Rights Act of 1991, 42 U.S.C
§§ 2000e-2(m), 2000e-5(g)(2)(B). Because Gardner’s claims fail under either test,
this court need not address this issue. See id. at 719 (opinion of the court) (declining
to determine which test applies).
3
The parties dispute the required showing for his prima facie case. See Elam
v. Regions Fin. Corp., 601 F.3d 873, 879 n.4 (8th Cir. 2010) (noting some “tension
in our circuit’s jurisprudence regarding whether a court may consider an employer’s
reasons for discharging an employee when considering the qualified element of the
prima facie case”) (applying Iowa law); Garang v. Smithfield Farmland Corp., 439
F. Supp. 3d 1073, 1085-86 (N.D. Iowa 2020) (addressing the “performing work
satisfactorily” vs “otherwise qualified” debate) (applying Iowa law). Compare
Johnson v. Mental Health Inst., 912 N.W.2d 855, *6 (Iowa Ct. App. 2018)
(unpublished table order) (requiring plaintiff to show she performed her work
“satisfactorily”), with Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 232 (Iowa
1995) (plaintiff’s excessive absences meant she could not perform “essential
functions of her job,” rendering her unqualified), and Iowa State Fairgrounds Sec.
v. Iowa Civil Rights Comm’n, 322 N.W.2d 293, 296 (Iowa 1982) (requiring plaintiff
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discriminatory reason to fire him—the violation of the HME policy while on a Third
Written. See Torgerson, 643 F.3d at 1047 (“The burden to articulate a
nondiscriminatory justification is not onerous, and the explanation need not be
demonstrated by a preponderance of the evidence.” (internal citation and quotation
marks omitted)).
Gardner believes there is a genuine issue of material fact whether the reason
Walmart offered is a pretext for age discrimination. “The showing of pretext
necessary to survive summary judgment requires more than merely discrediting the
employer’s proffered reason for the adverse employment decision.” Grutz v. U.S.
Bank Nat. Ass’n, 695 N.W.2d 505, *3 (Iowa Ct. App. 2005) (unpublished table
order) (cleaned up). “The plaintiff’s age must have actually played a role in the
employer’s decision making process and had a determinative influence on the
outcome.” Id., quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
141 (2000) (cleaned up).
A plaintiff may demonstrate a “material question of fact regarding pretext” in
at least two ways. Torgerson, 643 F.3d at 1047, quoted approvingly by Wyngarden
v. Iowa Judicial Branch, 856 N.W.2d 2, *12-13 (Iowa Ct. App. 2014) (unpublished
table order). The “plaintiff show[s] that the employer’s explanation is unworthy of
credence . . . because it has no basis in fact.” Id. Or the plaintiff “persuad[es] the
court that a prohibited reason more likely motivated the employer.” Id. “Federal
courts do not sit as a super-personnel department that reexamines an entity’s
business decisions . . . . Rather, our inquiry is limited to whether the employer gave
an honest explanation of its behavior.” Harvey v. Anheuser-Busch, Inc., 38 F.3d
968, 973 (8th Cir. 1994), quoting Elrod v. Sears, Roebuck & Co., 939 F.2d 1466,
1470 (11th Cir. 1991).
to show “he was qualified for the job”). Because this court may assume Gardner
met his prima facie burden, this court need not address what Iowa law requires.
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Gardner insists that Walmart’s explanation for firing him is “unworthy of
credence.” See Ridout v. JBS USA LLC, 716 F.3d 1079, 1086 (8th Cir. 2013)
(applying Iowa law). He says he complied with the HME policy when he notified
Operations before the 90-day deadline that the driver did not have an HME. But this
does not excuse his failure to comply after it expired. Cf. Baker v. Silver Oak Senior
Living Mgmt. Co., 581 F.3d 684, 689 (8th Cir. 2009) (evidence that employee did
not violate work policy supported discrimination claim).
Next, Gardner argues at length that age was the reason for his firing. First, he
argues that his former supervisor, Jennifer A. Gray, made disparaging comments
about older employees, saying “You old guys have been around too long and need
to get up with new technologies.” He did not present this as “direct evidence” of
discrimination in the district court, like he does on appeal. Gardner, No. 4-18-cv-
450, Docket No. 55, at 3. This court generally does “not consider arguments raised
for the first time on appeal.” See Murphy v. Aurora Loan Servs., LLC, 699 F.3d
1027, 1033 n.4 (8th Cir. 2012). Cf. Roberts v. Park Nicollet Health Servs., 528 F.3d
1123, 1128 (8th Cir. 2008) (noting that discriminatory comments by a decisionmaker
constituted direct evidence, but adding “[a]lthough Roberts elected not to argue the
case on a direct evidence theory, [the decisionmaker’s] alleged statements also
provide an independent basis” for pretext).
Discriminatory comments by decisionmakers, however, can be used to show
pretext under McDonnell Douglas. Watkins v. City of Des Moines, 949 N.W.2d 28,
*6-7 (Iowa Ct. App. 2020) (unpublished table order). Gray was “involved” in
Gardner’s firing. See id. at *6 (discriminatory comments must be made by someone
“involved” in the employment decision). She provided information to Michael
Noble (the director of fleet safety) about Gardner’s work performance from when
they worked together. But Gardner did not produce any evidence that she approved
the firing, recommended it, or knew about it in advance. Cf. Thomas v. Heartland
Emp. Servs. LLC, 797 F.3d 527, 530 (8th Cir. 2015) (indirect supervisor was a
decisionmaker because he, along with others, decided to fire the employee). In fact,
Gray was no longer his supervisor when he was fired. See Grutz, 695 N.W.2d at *3.
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Gardner has not shown that the decisionmakers—Noble and his supervisor when the
violation occurred—made any discriminatory comments about age.
Gray’s comments are also too remote in time to support an inference of
discrimination. See Hedlund, 930 N.W.2d at 721-22. Gardner provides no specific
dates for the remarks, but Gray was not his boss as of December 2016. Walmart did
not learn of the HME violation until February 2017. The remarks, at the latest, came
about three months before Gardner’s firing. This is insufficient to show pretext. Id.
at 722, citing Ortiz-Rivera v. Astra Zeneca LP, 363 Fed. Appx. 45, 48 (1st Cir.
2010) (“[M]ere generalized ‘stray remarks’ . . . normally are not probative of pretext
absent some discernable evidentiary basis for assessing their temporal and
contextual relevance.” (alterations in original)).
At most, Gray’s “comment[s] only suggest[] that [she] could have harbored
discriminatory feelings toward older employees in general.” See Hammer v.
Ashcroft, 383 F.3d 722, 727 (8th Cir. 2004) (alterations added). But this evidence
“does not directly deal with the ultimate question: whether [Gardner] was
discriminated against on account of age” when Walmart fired him. Id.
Second, Gardner says Walmart’s “shifting explanations” for his termination
show pretext. See EEOC v. Trans States Airlines, Inc., 462 F.3d 987, 995 (8th Cir.
2006). “Not every supplement to an employer’s initial statement of reasons gives
rise to an inference of pretext, but substantial variations raise suspicion.” Baker,
581 F.3d at 689. “A plaintiff must do more than identify discrepancies or
inconsistences in an employer’s rationale for terminating the plaintiff to prove that
the employer gave shifting explanations.” Fatemi v. White, 775 F.3d 1022, 1048
(8th Cir. 2015). The change in explanation must be substantial. Id. If the employer
provides “two completely different explanations,” there is evidence of pretext.
Trans States, 462 F.3d at 995 (collecting cases).
Here, Walmart has consistently explained that Gardner was terminated for
violating the HME policy, while on a Third Written. See Sieden v. Chipotle
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Mexican Grill, Inc., 846 F.3d 1013, 1018 (8th Cir. 2017) (no pretext where
employer merely “elaborated on” its consistent explanation). While Walmart
referenced some previous infractions throughout litigation, “the nature of the
explanation has not changed.” See id. “A plaintiff claiming shifting explanations to
support pretext must show that the reasons are completely different, not minor
discrepancies.” Id. Cf. Baker, 581 F.3d at 689 (declining to decide whether
supplemental justifications alone raised an inference of pretext because they were
combined with other evidence of discrimination).
Third, Gardner emphasizes his positive performance history. “[A]lthough a
history of positive performance evaluations can be powerful evidence of satisfactory
performance, employers may choose to rely on recent performance more heavily
than past performance.” Twiggs v. Selig, 679 F.3d 990, 994 (8th Cir. 2012) (cleaned
up). Cf. Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 922 (8th Cir. 2000) (recent
poor performance evaluation had less weight because employee had a history of
“very positive” evaluations); Bevan v. Honeywell, Inc., 118 F.3d 603, 612 (8th Cir.
1997) (employee’s “outstanding performance record,” combined with other
evidence, demonstrated pretext). But Gardner’s performance history was not
exclusively positive. Before his termination, he had multiple infractions, including:
a “critical fail” on a safety audit, disclosing confidential employee medical
information, failing to call-in for his mid-year evaluation, discussing personnel
information with an employee’s spouse, and ignoring training materials. He also
points to a state-association award for safety manager of the year (which he
requested a state-board member to nominate him for). Though the HME violation
occurred after some positive evaluations and the award, Walmart was “entitled to
rely” on the later infraction, “rather than solely the performance evaluation[s].” See
Twiggs, 679 F.3d at 994.
Fourth, Gardner argues that other employees made the same error and were
not disciplined. “At the pretext stage, the test for determining whether employees
are similarly situated to a plaintiff is a rigorous one.” See Bone v. G4S Youth Servs.,
LLC, 686 F.3d 948, 956 (8th Cir. 2012). “[I]ndividuals used for comparison must
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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.” Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 613
(8th Cir. 2014) (en banc), quoting Clark v. Runyon, 218 F.3d 915, 918 (8th Cir.
2000) (alteration in original).
Gardner identifies only one other safety manager who violated the policy. Cf.
Ridout, 716 F.3d at 1084 (employee was singled out for discipline for behavior that
was common amongst other employees). He also identifies a general transportation
manager who violated the policy. Gardner has not shown: (1) they had a similar
disciplinary history (i.e., a Third Written); (2) their immediate superiors knew of the
violation and declined to discipline them; or (3) they were in the same chain of
command. See Clark, 218 F.3d at 918.
Finally, Gardner alleges a pattern of firing older workers at Walmart. Viewed
favorably to him, nine of the 10 safety managers fired from 2016 to 2018 were over
40, and Noble was involved in all of them. Gardner provides no further context for
these general statements about a pattern (e.g., the overall age demographic of safety
managers at Walmart, the ages of the other replacement workers). These statements
alone do not support an inference of discrimination. See MacDissi v. Valmont
Indus., Inc., 856 F.2d 1054, 1058 (8th Cir. 1988) (“MacDissi provides independent,
direct grounds for disbelieving Valmont’s explanation for his layoff, and so his
quantitative evidence does not need to reach the degree of certainty required of
plaintiffs who present no proof of discrimination besides a statistical pattern.”);
Thomas v. Caldera, 221 F.3d 1344, *1 (8th Cir. 2000) (per curiam) (unpublished
table order) (generalized statements and statistical evidence without context were
insufficient to show pretext).
Gardner stresses the Ridout case, claiming “[a] reasonable inference of a
discriminatory pattern may . . . be drawn from evidence that nearly all the terminated
employees were over forty.” Ridout, 716 F.3d at 1086. To the contrary, the Ridout
case recognizes, “It is difficult to weigh the probative value” of statistics without
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knowing how many unterminated employees were over 40. Id. In Ridout, there was
more evidence of discrimination than here. First, unlike Gardner, the plaintiff
demonstrated “that younger employees were treated more leniently when they
committed infractions of comparable seriousness.” Id. at 1084. The plaintiff’s post
was filled by two successive employees—one who was demoted for poor
performance, and one who was rehired after a racist incident. Id. Second, unlike
Gardner, the plaintiff “had never been counseled or warned about any declining
performance prior to his termination.” Id. Third, unlike Gardner, the plaintiff
demonstrated he was disciplined for a behavior—swearing loudly—that regularly
went undisciplined. Id.
Gardner’s evidence is insufficient to allow a reasonable juror to find that
Walmart’s proffered reason for firing him was pretextual.
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The judgment is affirmed.
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