Matta v. Dakota Provisions

#30478-aff in pt & rev in pt-SRJ
2024 S.D. 75

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

ANGEL MATTA, Plaintiff and Appellant,

v.

DAKOTA PROVISIONS, Defendant and Appellee.

****

APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
BEADLE COUNTY, SOUTH DAKOTA

****

THE HONORABLE KENT A. SHELTON
Judge

****

TUCKER J. VOLESKY
Mitchell, South Dakota Attorney for plaintiff and
appellant.

REED RASMUSSEN of
Siegel, Barnett & Schutz, L.L.P.
Aberdeen, South Dakota Attorneys for defendant and
appellee.

****

CONSIDERED ON BRIEFS
JUNE 4, 2024
OPINION FILED 12/11/24
#30478

JENSEN, Chief Justice

[¶1.] Angel Matta was hired as a production worker by Dakota Provisions in

February 2020. Throughout his short tenure, Dakota Provisions documented

concerns with Matta’s work attendance. Matta was injured at work on March 23,

2020, which caused him to miss several weeks of work. Matta filed a workers’

compensation claim due to his injuries and Dakota Provisions terminated Matta one

month later. Matta filed suit alleging wrongful termination and that his

termination violated public policy. Dakota Provisions moved for summary

judgment on Matta’s claims which the circuit court granted. Matta appeals the

circuit court’s entry of summary judgment. We affirm in part and reverse in part.

Factual and Procedural Background

[¶2.] Dakota Provisions is a meat production and processing business

located in Huron. Matta began working for Dakota Provisions on February 17,

2020, and was provided several employment forms including an employee handbook

(the Handbook) and an acknowledgment form which indicated that he had received

and read the Handbook. The Handbook acknowledgment included a statement that

Matta was “an ‘at will’ employee” and that the Handbook did not “constitute a

contract between [Matta] and Dakota Provisions.” The Handbook further explained

that “Dakota Provisions is an at-will employer. Employees are free to terminate

their employment at any time, for any reason, with or without notice and [Dakota

Provisions] may terminate the employee’s employment at any time, with or without

cause and with or without notice.”

-1-
#30478

[¶3.] The Handbook also included an explanation of the “No Fault

Attendance Policy” (the Policy). The Policy outlined the importance of regular and

punctual attendance for work and assessed “points” for different forms of

attendance concerns, including a half point each time an employee reported late for

work. The Policy also assessed points for missed work due to health-related issues,

even when a doctor’s excuse was provided:

If an employee has an illness lasting more than one workday
and a Doctor’s excuse is provided, the employee will only be
charge [sic] with one point for consecutive days of illness;
regardless of the duration. However, if an employee is absent
for more than one consecutive day and does not provide a
Doctor’s excuse, a point will be assessed for each day absent.
Failing to report for work and failing to call in [] counts as two
(2) points; (NO CALL/NO SHOW) for three (3) consecutive days
will result in immediate termination of employment.

[¶4.] The Policy provided that an employee would be automatically

terminated upon the accumulation of ten points within one calendar year but

clarified that “[t]he following attendance guidelines do not constitute a contract,

expressed or implied and are not intended as limitations upon [Dakota Provisions’]

judgment to expand, alter or to otherwise modify them as determined by the facts of

each individual situation.” In addition to the explanation of the Policy in the

Handbook, Matta also received and signed a one-page summary of the Policy, and

acknowledged that he had read and understood “the No Fault Attendance Policy as

stated in the [Handbook].”

[¶5.] Approximately one month after Matta began working for Dakota

Provisions, he was cited for “poor attendance during [his] probationary period” in a

disciplinary action form dated March 15, 2020. Matta signed the form,

-2-
#30478

acknowledging that it was his final warning and any future instance of late or

missed work without excuse would result in termination.

[¶6.] On March 23, 2020, Matta slipped and fell on ice in Dakota Provisions’

parking lot and suffered a fractured sacrum and coccyx. He immediately reported

his injuries to Dakota Provisions and sought medical treatment. Dakota Provisions

received a health care note on April 1 from Matta’s care provider who recommended

Matta not return to work for at least one week. During this time, Dakota

Provisions assisted Matta with filing a workers’ compensation claim, and he

received workers’ compensation benefits for the injuries he sustained from the fall

and for the time he missed work. Matta was later medically cleared to work for five

hours per day and returned to work under these conditions on April 13. Upon his

return, Matta received a second written disciplinary action from Dakota Provisions

on April 16 after he reported late for work on April 15. 1

[¶7.] By April 22, Matta was cleared by his medical provider to return to

work full time but was directed to call if a full day of work was “too much”. Matta

reaggravated his injury while working on April 30 and sought medical treatment.

He was given a doctor’s note recommending only light work until they were able to

receive Matta’s MRI reports. The note further indicated that an appointment was

1. The disciplinary action form showed he was previously assessed points for
absenteeism on March 10, 12, and 13 which presumably were the absences
that led to his initial written discipline on March 16. The form also showed a
“no call/no show” event on March 24, the day after his fall in the parking lot.
Matta claimed in his deposition that he was medically excused from work on
March 10, 12, and 13 because of intestinal problems. However, the
disciplinary action form in early March indicated that he failed to notify
Dakota Provisions prior to these absences and the record does not show that
Matta provided a doctor’s note to Dakota Provisions to excuse these absences.
-3-
#30478

being set up with an orthopedist. On May 1, Matta’s health care provider wrote an

additional note stating that Matta was “off work until [he could see an] orthopedic

doctor . . . on May 6[.]” 2 After meeting with the orthopedist, Matta was referred to a

spine specialist and was ordered not to return to work until May 19. It is unclear

whether this information was communicated to Dakota Provisions.

[¶8.] The personnel action form in Matta’s personnel file shows that he was

terminated on May 1, 2020, for “poor attendance during [his] probationary period.”

Matta claims he first learned of his termination approximately a week and a half

later through a child support enforcement letter from the Department of Social

Services (DSS). Upon receiving the DSS letter, Matta called Dakota Provisions who

informed him that he was terminated because he had “missed some days” at work.

Matta was informed that he would continue to receive workers’ compensation

benefits for the medical bills associated with his injuries but would no longer be

receiving weekly disability payments.

[¶9.] Matta’s attorney also reached out to Dakota Provisions and inquired

about Matta’s termination. Despite the earlier form indicating that Matta had been

terminated on May 1, Dakota Provisions’ human resources (HR) director responded

to Matta’s attorney with a letter dated May 30, 2020, and explained that Matta was

terminated “because of attendance issues effective 5-6-20.” In addition to the

previously noted attendance concerns, the letter stated that on May 1, 4, and 5

2. The record shows that the May 1 note was faxed to Dakota Provisions on May
1 at 3:50 p.m. Dakota Provisions does not dispute receiving the May 1 note.
-4-
#30478

“[Matta] did not come to work or call in. This constitutes grounds for termination

as it is 3 days in a row—no call no show.”

[¶10.] Matta filed this action against Dakota Provisions alleging he was

wrongfully terminated in retaliation for filing a workers’ compensation claim in

violation of SDCL 62-1-16. Matta subsequently amended his complaint by

removing a reference to SDCL 62-1-16 and broadly alleging his termination “was in

violation of the law and contrary to public policy.” 3

[¶11.] Dakota Provisions filed a motion for summary judgment on May 5,

2023. In its brief in support of summary judgment, Dakota Provisions asserted that

Matta was an at-will employee who could be terminated from employment “for

virtually any reason.” In his resistance, Matta argued that the Policy created an

express or implied contract that limited Dakota Provisions’ ability to terminate him

before he had accumulated ten attendance points. Matta also argued that he was

terminated against public policy on the basis of a disability or in retaliation for

filing a workers’ compensation claim in violation of SDCL 62-1-16. Matta also filed

a summary judgment motion arguing, as a matter of law, that he was wrongfully

terminated by Dakota Provisions. In addition to his summary judgment motion,

3. Matta’s amended complaint does not otherwise specify his claims against
Dakota Provisions. Dakota Provisions expressed before the circuit court that
it was difficult to determine the claims Matta was making and his complaint
seemed to be a “moving target.” However, it did not move to dismiss the
complaint nor moved for a more definitive statement under SDCL 15-6-12(e)
before moving for summary judgment. Further, in their written and oral
arguments to the circuit court, the parties argued and addressed all three of
Matta’s claims for wrongful discharge based on express or implied contract;
wrongful termination based upon public policy under SDCL 20-13-10; and
retaliatory discharge under SDCL 62-1-16. The parties have also fully
argued and presented all three theories as issues on appeal.
-5-
#30478

Matta also filed a motion to conduct discovery on punitive damages. Dakota

Provisions filed a brief responding to each of the claims made by Matta in his

resistance to summary judgment and in support of his own motion for summary

judgment.

[¶12.] At the conclusion of the summary judgment hearing, the circuit court

orally denied Matta’s motion for summary judgment and granted Dakota

Provisions’ motion for summary judgment. Based upon this decision, the court

declined to rule on Matta’s motion for discovery on punitive damages. Matta

appeals the circuit court’s grant of summary judgment in favor of Dakota

Provisions. He raises three issues, which we restate as follows:

1. Whether the Policy created an express or implied contract
that Dakota Provisions violated by terminating Matta
outside the procedures set forth in the Policy.

2. Whether Dakota Provisions violated public policy by
terminating Matta because of his alleged disability.

3. Whether a genuine issue of material fact exists as to
whether Matta was terminated in retaliation for filing a
workers’ compensation claim in violation of SDCL 62-1-
16.

Analysis and Decision

[¶13.] This Court reviews “a circuit court’s entry of summary judgment under

the de novo standard of review.” Ries v. JM Custom Homes, LLC, 2022 S.D. 52,

¶ 14, 980 N.W.2d 217, 222 (quoting Wyman v. Bruckner, 2018 S.D. 17, ¶ 9, 908

N.W.2d 170, 174). “We will affirm a circuit court’s ‘grant of a motion for summary

judgment when no genuine issues of material fact exist, and the legal questions

have been correctly decided.’” Id. (quoting Harvieux v. Progressive N. Ins. Co., 2018

-6-
#30478

S.D. 52, ¶ 9, 915 N.W.2d 697, 700). “Summary judgment is appropriate ‘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.’” Geidel

v. De Smet Farm Mut. Ins. Co. of S.D., 2019 S.D. 20, ¶ 7, 926 N.W.2d 478, 481

(quoting N. Star Mut. Ins. v. Korzan, 2015 S.D. 97, ¶ 12, 873 N.W.2d 57, 61).

1. Contract claim based upon the Policy.
[¶14.] Matta initially argues that the Policy is a “self-contained document

detailing a list of specific grounds and procedures for discipline” which created an

express or implied contract that limited Dakota Provisions’ authority to terminate

him for attendance reasons. Matta argues that “the Policy contained both an

exclusive list of grounds for discipline regarding attendance and a specific procedure

for employee discipline up to termination,” without explicitly preserving an at-will

employment relationship. According to Matta, these procedures limited Dakota

Provisions’ ability to terminate his employment for attendance related reasons until

he accumulated ten points. Matta argues his termination, prior to accumulating

ten points, violated the Policy and breached the implied or express contract it

created.

[¶15.] Dakota Provisions responds that the Policy and the Handbook clearly

stated that Matta was an at-will employee and could be fired for any lawful reason.

Dakota Provisions claims that the Policy merely provided a non-exhaustive list of

reasons for disciplining Matta and simultaneously preserved Dakota Provisions’

authority to terminate Matta at will.

-7-
#30478

[¶16.] “In the context of employment relationships, South Dakota is an

employment-at-will state per the provisions of SDCL 60-4-4.” Aberle v. City of

Aberdeen, 2006 S.D. 60, ¶ 20, 718 N.W.2d 615, 621. Accordingly, unless a statute or

employment contract states otherwise, an employment relationship “may be

terminated at the will of either party on notice to the other[.]” SDCL 60-4-4.

However, an employer may waive its statutory presumption as an at-will employer

either expressly or impliedly. Aberle, 2006 S.D. 60, ¶ 21, 718 N.W.2d at 621 (citing

Holland v. FEM Elec. Ass’n, Inc., 2001 S.D. 143, ¶ 12, 637 N.W.2d 717, 720). “In

either regard, the employer’s intent to surrender its right to terminate an employee

at will must be clear.” Henning v. Avera McKennan Hosp., 2020 S.D. 34, ¶ 16, 945

N.W.2d 526, 531 (citing Aberle, 2006 S.D. 60, ¶ 22, 718 N.W.2d at 622).

[¶17.] “An express surrender occurs when the employer affirmatively

indicates such intent by adopting written personnel policies or manuals that

explicitly state that a for-cause termination procedure must be followed.” Aberle,

2006 S.D. 60, ¶ 21, 718 N.W.2d at 621 (citation omitted). Under these

circumstances, the employment contract must express “specific terms surrendering

the statutory at-will power.” Id. ¶ 21, 718 N.W.2d at 622 (citation omitted). An

employer may also create an implied for-cause employment contract “[w]hen no

explicit surrender of the statutory at-will power is made by the employer, but

policies or handbooks ‘contain [] a detailed list of exclusive grounds for employee

discipline or discharge and a mandatory or specific procedure which the employer

agrees to follow prior to any employee’s termination[.]’” Id. (second alteration in

-8-
#30478

original) (quoting Hollander v. Douglas Cnty., 2000 S.D. 159, ¶ 14, 620 N.W.2d 181,

185).

[¶18.] This Court has made clear that a policy “memorialized in writing does

not in and of itself constitute a surrender of an employer’s statutory at-will power.”

Id. at ¶ 23, 718 N.W.2d at 622 (citing Butterfield v. Citibank of S.D., N.A., 437

N.W.2d 857, 859 (S.D. 1989)). An employer may set forth a written policy that

outlines certain expectations of employees while maintaining an explicit reservation

of its at-will employer status. Id. (citing Butterfield, 437 N.W.2d at 860). “Such an

explicit reservation does not require the use of any specific language, but it must

clearly indicate that the employer reserves the right to fire an employee at any time

when it deems discharge to be appropriate.” Id. (citing Butterfield, 437 N.W.2d at

859).

[¶19.] The acknowledgments signed by Matta at the start of his employment

represent that he had read and understood the Handbook and the Policy. 4 The

Handbook acknowledgement explicitly provided “that [Matta was] considered an ‘at

will’ employee” and that the Handbook did not “constitute a contract between

[Matta] and Dakota Provisions.” The Handbook also explained that “Dakota

Provisions is an at-will employer. Employees are free to terminate their

4. Matta argues that Dakota Provisions failed to provide a copy of the
Handbook when it responded to his discovery request to provide any
employee policies that were applicable to him during his employment.
However, Matta admits receiving and acknowledging receipt of the Handbook
when his employment began. He did not object to the submission of the
Handbook by Dakota Provisions in support of its motion for summary
judgment and does not claim any prejudice by not receiving the Handbook
during discovery.
-9-
#30478

employment at any time, for any reason, with or without notice and [Dakota

Provisions] may terminate the employee’s employment at any time, with or without

cause and with or without notice.” (emphasis added). Additionally, page 15 of the

Handbook referenced Dakota Provisions’ “Disciplinary Action Policy” and stated

that “Dakota Provisions reserves the right to terminate an employee at any time for

any lawful reason with or without prior disciplinary counseling or notice. Nothing

in this Handbook or any other Dakota Provisions document is intended to . . .

[m]odify [] ‘at-will’ employment.” (emphasis added).

[¶20.] Matta has not presented any policy in the Handbook which explicitly

stated that Matta could only be terminated for cause. Matta has also failed to show

how the Handbook or the Policy impliedly established a for-cause employment

contract. In Aberle, this Court held that an implied contract waiving an employer’s

statutory authority to terminate employees at will “could not exist” when the

employment contract included an explicit reservation of its right to terminate

employees at will. 2006 S.D. 60, ¶ 25, 718 N.W.2d at 622.

[¶21.] Like Aberle, here, the statements in the Handbook and the Policy

unequivocally “serve[] as an explicit reservation of the right to terminate employees

at any time, without notice or regard to violations of [the Handbook].” Id. ¶ 25, 718

N.W.2d at 622–23. While the Policy outlines specific actions that may result in

termination, it expressly provides that the “attendance guidelines do not constitute

a contract, expressed or implied and are not intended as limitations upon [Dakota

Provisions’] judgment to expand, alter or otherwise modify them as determined by

the facts of each individual situation.” Thus, the Policy functioned to encourage and

-10-
#30478

discourage certain behaviors, particularly with respect to attendance, without

impliedly limiting Dakota Provisions’ ability to terminate its employees for any

lawful reason. The circuit court did not err in concluding that Matta was an at-will

employee.

2. Disability claim.

[¶22.] Matta also claims that his termination violated public policy as

contained in SDCL 20-13-10, which prohibits employment discrimination based

upon a disability for any term or condition of employment. Dakota Provisions

responds that Matta is precluded from arguing he was terminated in violation of the

statute because “[i]n order for a person to pursue a claim of discrimination in

violation of SDCL 20-13-10, the party must first pursue a claim with the South

Dakota Division of Human Rights pursuant to SDCL 20-13-29.” Dakota Provisions

further argues that Matta failed to identify any judicially recognized public policy

that was violated when he was terminated by Dakota Provisions.

[¶23.] To the extent that Matta relies on SDCL 20-13-10 to assert a disability

discrimination claim, we agree with Dakota Provisions that Matta is precluded from

doing so for failing to exhaust his administrative remedies. SDCL 20-13-29

provides that “[a]ny person claiming to be aggrieved by a discriminatory or unfair

practice may file with the Division of Human Rights a verified, written charge

which shall state the name and address of the person or agency alleged to have

committed the discriminatory or unfair practice.” We have consistently required an

employee claiming discriminatory treatment under SDCL chapter 20-13 to file a

claim “with the Division [of Human Rights] before proceeding to circuit court.”

-11-
#30478

Wiest v. Montana, 1998 S.D. 63, ¶ 8, 580 N.W.2d 613, 615. An employee’s failure to

do so, “is a palpable example of failure of a party to exhaust his/her administrative

remedies and this is fatal to a discrimination claim.” Weller v. Spring Creek Resort,

Inc., 477 N.W.2d 839, 840 (S.D. 1991) (citing Light v. Elliott, 295 N.W.2d 724, 725

(S.D. 1980)).

[¶24.] Apart from the statutory employment disability discrimination claim,

Matta also argues that SDCL chapter 20-13 establishes a public policy that

prohibits discrimination based upon a disability. He seems to argue that

termination based upon a disability creates an independent common law tort claim

for a violation of public policy. See Niesent v. Homestake Mining Co. of Cal., 505

N.W.2d 781, 783 (S.D. 1993) (holding that to state a cause of action under the public

policy exception to the employment at-will doctrine, “the employee must plead and

prove that a substantial public policy may have been violated.”). However, in

Niesent we further explained that “[p]ublic policy is found in the letter or purpose of

a constitutional or statutory provision or scheme, or in a judicial decision.” Id.

[¶25.] Here, there is no need to create a common law tort remedy when the

Legislature has created robust statutory remedies for an employee whose

employment has been adversely impacted because of a disability, or other

recognized protected status under SDCL chapter 20-13. We refrain from adopting

new exceptions to the at-will employment doctrine absent a clearly articulable

reason for doing so because “adopting unfounded public policy exceptions ‘would

eviscerate the at-will doctrine in favor of judicial management of

employee/management relations.’” Henning, 2020 S.D. 34, ¶ 18, 945 N.W.2d at 531

-12-
#30478

(quoting Harvey v. Reg’l Health Network, Inc., 2018 S.D. 3, ¶ 50, 906 N.W.2d 382,

397). Therefore, we decline to recognize a common law public policy exception to the

at-will employment doctrine for retaliatory discharge based upon a disability. The

circuit court did not error in dismissing Matta’s public policy claim based upon his

alleged disability. 5

3. Retaliation claim for filing a workers’
compensation claim.

[¶26.] Matta also asserts that the circuit court erred in granting Dakota

Provisions’ motion for summary judgment with respect to its alleged violation of

SDCL 62-1-16 because material issues of fact remain as to whether there is a causal

link between Matta filing his workers’ compensation claim and his termination.

Matta argues that Dakota Provisions’ varying justifications for Matta’s termination,

and the proximity of Matta’s termination to the commencement of his workers’

compensation claim are “strong indicator[s] that the justification for [his]

termination was pretextual.” See Phillips v. Mathews, 547 F.3d 905, 913 (8th Cir.

2008). Dakota Provisions, on the other hand, argues that Matta failed to present

5. While Matta has presented evidence of a physical impairment, he has not
presented any evidence that he is a disabled individual as required by the
Americans with Disabilities Act (ADA). See Faulkner v. Douglas Cnty. Neb.,
906 F.3d 728, 732–33 (8th Cir. 2018) (“A plaintiff seeking to recover under
the [ADA] must establish a prima facie case of discrimination [by
establishing]: ‘(1) an ADA-qualifying disability; (2) qualifications to perform
the essential functions of [their] position with or without reasonable
accommodation; and (3) an adverse employment action due to [their]
disability.’” (quoting Norman v. Union Pac. R.R. Co., 606 F.3d 455, 459 (8th
Cir. 2010)). While we have not had an occasion to address a disability claim
under SDCL 20-13-10, we have previously recognized that SDCL 20-13-10 is
comparable to the corresponding federal discrimination law. Huck v. McCain
Foods, 479 N.W.2d 167, 169 (S.D. 1991).
-13-
#30478

any evidence that his termination was in retaliation for filing a workers’

compensation claim, and emphasizes the documented concerns with Matta’s work

attendance before his workers’ compensation claim was filed.

[¶27.] SDCL 62-1-16 provides that “[a]n employer is civilly liable for wrongful

discharge if it terminates an employee in retaliation for filing a lawful workers’

compensation claim.” We have not previously addressed the showing necessary to

prove a retaliatory discharge claim under SDCL 62-1-16. However, in other

contexts, we have required an employee to present a prima facie case of retaliatory

discharge by a preponderance of the evidence, by showing the employee “‘(1) []

engaged [in a] protected activity; (2) [they] subsequently suffered adverse

employment action; and (3) [there was] a causal link between engaging in [the]

protected activity and the adverse employment action.’” Lord v. Hy-Vee Food

Stores, 2006 S.D. 70, ¶ 18, 720 N.W.2d 443, 449–50 (fourth alteration in original)

(quoting Leslie v. Hy-Vee Foods, Inc., 2004 S.D. 59, ¶ 11, 679 N.W.2d 785, 789).

Once a prima facie case of retaliation is established, the burden shifts to the

employer to produce a legitimate justification for the employee’s termination.

Leslie, 2004 S.D. 59, ¶ 11, 679 N.W.2d at 789. The employee must then prove that

the proffered reason for termination was a pretext for retaliation. Id. Ultimately,

the employee has the burden of proving the causal relationship between the

employee engaging in a protected activity and the adverse employment action. Id.

[¶28.] It is undisputed that Matta engaged in an activity protected by SDCL

62-1-16 when he filed a workers’ compensation claim and that he subsequently

suffered an adverse employment action. Thus, the dispositive issue is whether

-14-
#30478

Matta has presented facts creating a genuine issue of material fact that a causal

link exists between Matta filing a workers’ compensation claim and his termination.

[¶29.] When analyzing whether a causal link has been established, this Court

has not required the employee to show that the protected activity was the only

reason for termination, and instead we have required the employee to show the

protected activity “was ‘merely a contributing factor’ in the decision to terminate his

employment.” Lord, 2006 S.D. 70, ¶ 20, 720 N.W.2d at 450 (quoting Wiehoff v. GTE

Directories Corp., 61 F.3d 588, 598 (8th Cir. 1995)). To establish a prima facie case

at the summary judgment stage, this Court has determined that a close proximity

in time between the protected activity and the employee’s termination may create

an inference of causation. Leslie, 2004 S.D. 59, ¶ 14, 679 N.W.2d at 790 (citing Kipp

v. Missouri Hwy. and Transp. Comm’n, 280 F.3d 893, 896–97 (8th Cir. 2002)). See

also Mathews v. Trilogy Commc’ns, Inc., 143 F.3d 1160, 1166 (8th Cir. 1998)

(concluding that a time lapse of two months between the protected activity and the

employee’s discharge may create an inference of a retaliatory motive); and Keys v.

Lutheran Fam. and Child.’s Servs. of Mo., 668 F.2d 356, 358 (8th Cir. 1981) (finding

that less than two months between a protected activity and an adverse employment

action supported an employee’s prima facie case of retaliatory discharge).

[¶30.] The evidence shows that Matta was terminated approximately one

month after he filed a workers’ compensation claim in early April. The proximity

between Matta’s workers’ compensation claim and his termination may be sufficient

to create a prima facie showing of a causal link between the two events, but Dakota

Provisions has set forth attendance issues during Matta’s probationary period as

-15-
#30478

the legitimate reason for his termination. Thus, for summary judgment purposes

Matta had the burden to present facts creating a genuine issue of material fact that

Dakota Provisions’ stated reason for termination was pretextual. See Lord, 2006

S.D. 70, ¶ 19, 720 N.W.2d at 450 (“If the defendant produces a legitimate,

nonretaliatory reason, the burden shifts back to the plaintiff to prove by a

preponderance of the evidence that the stated reason is merely a pretext for

retaliation.”).

[¶31.] At summary judgment, when considering whether Dakota Provisions’

justification was pretextual, we must review the facts in the light most favorable to

Matta. See Johnson v. Matthew J. Batchelder Co., Inc., 2010 S.D. 23, ¶ 8, 779

N.W.2d 690, 693 (“[W]e view all evidence and favorable inferences from that

evidence in a light most favorable to the nonmoving party.” (alteration in original)

(quoting Stone v. Von Eye Farms, 2007 S.D. 115, ¶ 6, 741 N.W.2d 767, 769)).

“[M]ore substantial evidence of [retaliation] is required to prove pretext, because

evidence of pretext is viewed in the light of [the defendant’s] legitimate, non-

[retaliatory] explanation.” Davis v. Wharf Res. (USA), Inc., 2015 S.D. 61, ¶ 30, 867

N.W.2d 706, 717 (alterations in original) (quoting Jones v. United Parcel Serv., Inc.,

461 F.3d 982, 992 (8th Cir. 2006)).

[¶32.] The facts, when viewed in the light most favorable to Matta, show that

he was initially written up for attendance issues before filing a workers’

compensation claim and written up a second time and disciplined after filing for

benefits. Immediately prior to his termination, Matta reaggravated his injury on

April 30, and never returned to work. Dakota Provisions admitted to receiving

-16-
#30478

Matta’s doctor’s note on May 1 recommending Matta remain off work until further

notice. The same day, Dakota Provisions placed a personnel action form into

Matta’s personnel file, indicating that he was terminated on May 1, 2020, for “poor

attendance during probationary period.” Matta was not informed of his termination

for more than a week and a half. Further, when Matta’s attorney inquired about

Matta’s termination, Dakota Provisions represented that Matta was terminated on

May 6, 2020, for missing work on May 1, 4, and 5 without notifying Dakota

Provisions. The letter from the HR Director represented that “this constitutes

grounds for termination as it is 3 days in a row—no call no show.”

[¶33.] Matta argues that these varying dates and reasonings indicate that

Dakota Provisions’ justification for terminating him was pretextual. However,

courts have indicated changes in the employer’s stated reasons for its employment

decision must change substantially over time to support a finding of pretext. See

Logan v. Liberty Healthcare Corp., 416 F.3d 877, 883 (8th Cir. 2005) (“Substantial

changes over time in the employer’s proffered reason for its employment decision

[may] support a finding of pretext.” (alteration in original) (citation omitted)). Thus

“slight elaborations” or further explanation of its employment decision generally are

not sufficient to provide a showing of pretext. Id. (citation omitted).

[¶34.] A review of the record in the light most favorable to Matta, presents

conflicts between the dates Dakota Provisions stated he was terminated and the

reason for his termination. The personnel form prepared by Dakota Provisions on

May 1 shows that Matta was terminated for attendance issues that occurred prior

to May 1. However, Dakota Provisions’ HR Director later indicated in a letter

-17-
#30478

written to Matta’s attorney that Matta was terminated on May 6 because he missed

three consecutive days of work on May 1, 4 and 5 without notifying Dakota

Provisions. Not only does this explanation differ from the specific dates that were

offered in Dakota Provisions’ original justification for terminating Matta, but it is

also inconsistent with the facts available in the record. Dakota Provisions admitted

to receiving Matta’s doctor’s note on May 1 stating that Matta should not return to

work until he was able to be seen by an orthopedist on May 6. 6 Thus, Dakota

Provisions was informed that Matta would not be able to work until after that date.

[¶35.] Viewing the evidence in the light most favorable to Matta, a

reasonable jury could infer that his termination was a pretext for retaliation

against him for filing a workers’ compensation claim based upon the proximity of

the termination to the filing of his claim, the change in the stated termination

dates, and the inconsistent reasons provided for the termination. See Logan, 416

F.3d at 883. This is even more true when the second reason offered by Dakota

Provisions is unsupported by the undisputed evidence in the record before this

Court. See id. at 881 (“One method of proving pretext is to show that the employer’s

proffered explanation has no basis in fact.” (citation omitted)). Thus, genuine issues

of material facts remain as to whether Matta was terminated in retaliation for filing

a lawful workers compensation claim in violation of SDCL 62-1-16, and summary

judgment should not have been granted on this claim.

6. In response to Matta’s statement of undisputed facts, Dakota Provisions
admitted that “[t]he said no work order was provided to Dakota Provisions on
May 1, 2020, stating that [Matta] would be ‘off work’ until he could see an
orthopedic doctor which was scheduled for May 6, 2020.”
-18-
#30478

Conclusion

[¶36.] We affirm the circuit court’s grant of summary judgment as to Matta’s

claim that he was terminated in violation of the alleged contract created by the

Policy as well as Matta’s claim that his termination violated public policy as stated

in SDCL 20-13-10. We reverse the circuit court’s grant of summary judgment with

respect to Matta’s claim for retaliatory discharge in violation of SDCL 62-1-16 and

remand for further proceedings.

[¶37.] KERN, SALTER, DEVANEY, and MYREN, Justices, concur.

-19-