Tonya C. Huber v. Westar Foods, Inc.

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-1087
___________________________
Tonya C. Huber
Plaintiff - Appellant
v.
Westar Foods, Inc.
Defendant - Appellee
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Equal Employment Opportunity Commission
Amicus on Behalf of Appellant(s)
____________
Appeal from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: October 24, 2024
Filed: May 30, 2025
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Before COLLOTON, Chief Judge, LOKEN, SMITH, GRUENDER, BENTON,
SHEPHERD, KELLY, ERICKSON, GRASZ, STRAS, and KOBES, Circuit Judges,
En Banc.
____________
STRAS, Circuit Judge, with whom LOKEN, GRUENDER, BENTON, GRASZ, and
KOBES, Circuit Judges, join.

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Tonya Huber suffered a diabetic episode that kept her out of work for several
days. The question is what claims, if any, she has after Westar Foods, Inc. fired her
for failing to notify a supervisor. An interference claim under the Family and
Medical Leave Act survives, see 29 U.S.C. § 2615(a)(1), but we otherwise affirm
the grant of summary judgment to Westar.
I.
Westar runs Hardee’s restaurants across Nebraska and Iowa. Huber managed
one, which meant a full-time schedule that often involved beginning her shift at
5 a.m. and opening the restaurant an hour later.
Huber had trouble following Westar’s attendance policy, specifically the
requirement that late or absent employees “call the management person in charge
immediately.” Her first violation involved leaving a shift without notifying her
district manager. A few months later, she violated it twice more by missing a shift
without notice and leaving another without “call[ing] . . . and speak[ing] directly” to
her supervisor. At that point, Westar informed her that any “further unscheduled or
unexcused absences” risked “further disciplinary action, up to and including
termination.”
Huber was also experiencing health difficulties. About two months into the
job, she received a diabetes diagnosis, which required her to take insulin at work and
eat meals during her shifts. According to Huber, her supervisors provided no help.
One said that finding a room-temperature location to store her insulin was a “[you]
problem, not a [me] problem.” Another, Cindy Kelchen, suggested she put it in a
cooler. Later, when Huber struggled to find time to eat, Kelchen told her to get better
at time management.
Diabetes also caused her to miss work. As relevant here, she woke up one
morning feeling “out of it” and “in a complete fog,” with a blood-sugar level “in the
low 60s.” She did not “know . . . who [she] was, what [she] was, [or] where help

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was.” She drove herself to a nearby clinic, where a doctor placed her on an IV for
the rest of the day. She made several calls to her boyfriend and son, but she does
not remember any of them. They recalled her being “all over the place” and “very
groggy, out of it.”
Meanwhile, the Hardee’s opened more than five hours late because she never
notified anyone that she would be absent. Westar only found out when a customer
called to complain that the restaurant was closed, which set off a flurry of activity.
Kelchen eventually reached Huber’s son, who explained that she was at the hospital
because “her levels were off.” Until then, no one at Westar had any idea she was ill.
Huber did not call until the next day, several hours after her next 5 a.m. shift
was set to start. During the call, Huber told Kelchen what had happened and
informed her that she needed to take sick leave. Huber did not remember the
conversation clearly because she was still groggy, but her boyfriend, who had been
sleeping in an adjacent room, did. According to him, Kelchen was “screaming” at
her.
Kelchen’s notes say that Huber had been at the doctor because “her levels of
her diabetic w[ere] off.” They also mention she had been “too drugged out [to call],
couldn’t concentrate, and . . . would contact [Kelchen] later.” When Kelchen
reminded Huber about “needing to make that simple phone call,” she responded that
she was “out of it” and “not making sense” because of “a serious medical
happening.” She pointed to a doctor’s note she had just sent. When Kelchen asked
Huber why she could drive to the doctor on her own, yet not “call at all” despite
knowing she had to open both days, she had no response. About thirty minutes after
the call, Westar’s president decided to fire her.
Before she found out about Westar’s decision, Huber tried to request FMLA
leave for the days she missed. To her surprise, not only did Westar deny it for
“fail[ing] to provide notice” of her request “as soon as possible and practical,” but
she had lost her job for once again “fail[ing] to follow [Westar’s] notice procedures.”

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Based on these events, Huber filed this lawsuit alleging interference and
retaliation under the FMLA and disability discrimination under the Americans with
Disabilities Act and the Nebraska Fair Employment Practice Act. On cross-motions
for summary judgment, the district court granted Westar’s, which ended Huber’s
case.
II.
We review the district court’s summary-judgment ruling de novo. See
Bharadwaj v. Mid Dakota Clinic, 954 F.3d 1130, 1134 (8th Cir. 2020). “Summary
judgment is appropriate when the evidence, viewed in a light most favorable to the
nonmoving party, shows no genuine issue of material fact exists and the moving
party is entitled to judgment as a matter of law.” Id. (citation omitted). A genuine
issue for trial exists when “a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A.
The FMLA allows eligible employees to take unpaid leave “[b]ecause of a
serious health condition.” 29 U.S.C. § 2612(a)(1)(D). When employees seek leave,
employers cannot “interfere with, restrain, or deny” it, id. § 2615(a)(1), nor retaliate
against an employee who requests it, id. § 2615(a)(2). Huber alleged in her
complaint that Westar did both when it terminated her.
1.
To succeed on an interference claim, Huber must show that “she was eligible
for . . . leave,” that Westar “knew she needed [it],” and that it “denied her a[] . . .
benefit to which she was entitled.” Smith v. AS Am., Inc., 829 F.3d 616, 621 (8th
Cir. 2016); see Lovland v. Emps. Mut. Cas. Co., 674 F.3d 806, 811 (8th Cir. 2012)
(stating that “terminating an employee while on FMLA leave” can be interference).

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Here, Westar’s main argument is that it did not know about Huber’s need for leave
before it decided to fire her.
A jury could see things differently. See Woods v. DaimlerChrysler Corp., 409
F.3d 984, 991 (8th Cir. 2005). An employee does not need to “invoke the FMLA by
name.” Thorson v. Gemini, Inc., 205 F.3d 370, 381 (8th Cir. 2000). Rather, “the
employer’s duties are triggered when the employee provides enough information to
put the employer on notice that the employee may be in need of FMLA leave.” Id.
In this case, Huber provided Westar with a doctor’s note explaining the seriousness
of her condition, including the need to be off work while she recovered. Add the
fact that Kelchen’s notes from her call with Huber state that “her levels of diabetic
w[ere] off,” and a reasonable jury could conclude that Westar knew she “need[ed]
FMLA leave” for a serious health condition. Murphy v. FedEx Nat’l LTL, Inc., 618
F.3d 893, 903 (8th Cir. 2010) (citation omitted).
A jury could also find that she was entitled to it, despite the late notice.
Employees must provide advance notice “[w]hen the leave is foreseeable.” Hager
v. Ark. Dep’t of Health, 735 F.3d 1009, 1016 (8th Cir. 2013). When it is not, notice
must be “as soon as practicable under the facts and circumstances of the particular
case.” Id. (quoting 29 C.F.R. § 825.303(a)). Westar questions whether a call the
morning after she received emergency medical treatment was soon enough, given
that she made several calls to her son and boyfriend in the meantime.
If Huber’s account is to be believed, the answer is yes. “As soon as
practicable” means what it says: when it is “both possible and practical” to give
notice. Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 852 (8th
Cir. 2002) (quoting 29 C.F.R. § 825.302(b)). Evidence points both ways. On the
one hand, her calls to her son and boyfriend suggest that she could have called
Kelchen sooner, perhaps while at the clinic. On the other, she reported being “in a
complete fog,” under heavy medication, and “out of it.” See 29 C.F.R. § 825.302(b);
see also id. § 825.303(c) (“[I]f an employee requires emergency medical treatment,
he or she would not be required to follow the call-in procedure until his or her

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condition is stabilized . . . .”). Exactly when it was “possible and practical” for
Huber to notify Westar of her need for FMLA leave presents a classic jury question.
Spangler, 278 F.3d at 852 (quoting 29 C.F.R. § 825.302(b)); see Phillips v. Mathews,
547 F.3d 905, 909 (8th Cir. 2008).
So does Westar’s argument that it terminated Huber for the “wholly
unrelated” reason that she violated the company’s attendance policy. See Stallings
v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir. 2006) (noting that there is no
interference when the “reason for dismissal is insufficiently related to FMLA
leave”). Employees can be terminated while on leave if “the employer would have
discharged” them anyway. Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d
972, 980 (8th Cir. 2005). But not when the termination is “connected with [their]
FMLA leave.” Dalton v. ManorCare of W. Des Moines, IA, LLC, 782 F.3d 955, 960
(8th Cir. 2015) (emphasis added) (citation omitted).
Our decision in Clinkscale v. St. Therese of New Hope, 701 F.3d 825 (8th Cir.
2012), shows this principle at work. The issue there was whether a nurse who was
fired for “patient abandonment” could sue for interference when the “supposed
abandonment . . . was precipitated by a panic attack—a symptom of her anxiety
disorder and the reason she required medical leave.” Id. at 828–29. We concluded
that the answer was yes. See id. at 829. There, just like here, “the notice had been
provided . . . late.” Id. at 828. It did not matter. “Given the evidence suggesting a
causal connection between [the nurse’s] condition and her” alleged misconduct, the
hospital could not “reasonably claim her termination bore no relation to her FMLA-
qualifying condition.” Id. at 829. The question went to a jury. See id.
Huber’s evidence suggests the same causal relationship may be present here.
Her alleged misconduct of failing to make a timely call to her supervisor was
“precipitated by” her diabetic episode, “the reason she required medical leave.” Id.
“Given the evidence suggesting a causal connection between [Huber’s] condition
and her [violation of the attendance policy], the district court erred in concluding as
a matter of law that” her misconduct was “not related” to a “serious health

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condition.” Id. at 829; see Stallings, 447 F.3d at 1050 (“[A]n employee can prove
interference with an FMLA right regardless of the employer’s intent.”); see also
Wallace v. FedEx Corp., 764 F.3d 571, 590 (6th Cir. 2014) (noting that a “failure to
report for work” is not a “legitimate and independent reason for dismissal” when the
“absences and cause for discharge relate directly to the FMLA leave”). “[A] jury
must ultimately decide whether [Westar] denied [her] a benefit” under the FMLA.
Black v. Swift Pork Co., 113 F.4th 1028, 1032 (8th Cir. 2024).
2.
Retaliation claims are different. At their core, they are about discrimination,
situations in which an employer treats an employee differently because of a request
for a statutory benefit. See Lovland, 674 F.3d at 811−12. Unlike interference claims,
the dispute often centers on whether an employer was motivated by “retaliatory
intent.” Stallings, 447 F.3d at 1051; see Pulczinski v. Trinity Structural Towers, Inc.,
691 F.3d 996, 1006 (8th Cir. 2012) (requiring proof “that the employer was
motivated by the employee’s exercise of rights under the FMLA” when it took the
adverse action). Here, Huber claims that Westar fired her because of her “use of
leave.” Stallings, 447 F.3d at 1051 (citation omitted). It treated her differently, in
other words, because she engaged in protected conduct by seeking FMLA leave. See
Evans v. Coop. Response Ctr., Inc., 996 F.3d 539, 552 (8th Cir. 2021).
Retaliatory intent can be proven directly or indirectly. See id. at 551. Directly
establishing it is rare, because it requires a “specific link” to “the challenged
decision.” Ebersole v. Novo Nordisk, Inc., 758 F.3d 917, 924 (8th Cir. 2014). To
qualify, the evidence “must be strong and clearly point to an illegal motive.” Id.
Nothing in this case rises to that level. Huber identifies a few stray comments by
Kelchen and a prior supervisor months before Westar fired her. Among them were
unhelpful suggestions about where she could store her insulin at work and to get
better at time management, but none provide a “specific link” to FMLA leave, much
less the request she made months later. See Bone v. G4S Youth Servs., LLC, 686
F.3d 948, 954 (8th Cir. 2012) (holding that comments made six months before the

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decision to fire an employee were not direct evidence of discrimination); Browning
v. President Riverboat Casino-Mo., Inc., 139 F.3d 631, 635 (8th Cir. 1998)
(“‘[D]irect evidence’ does not include ‘stray remarks in the workplace’ . . . .”
(quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor, J.,
concurring in the judgment))).
Without direct evidence, her only option is to establish retaliatory intent
circumstantially, through the three-part McDonnell-Douglas burden-shifting
framework. See Ebersole, 758 F.3d at 924; see also McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). The first step is to establish a prima facie case, which
requires evidence that: “(1) she engaged in a protected activity; (2) she suffered a
materially adverse employment action; and (3) a causal connection existed between
the” two. Boston v. TrialCard, Inc., 75 F.4th 861, 869 (8th Cir. 2023). If she
overcomes that hurdle, the next step requires Westar to come up with “a legitimate,
nondiscriminatory reason” for its actions. Hudson v. Tyson Fresh Meats, Inc., 787
F.3d 861, 866 (8th Cir. 2015). At the final step, the focus shifts back to Huber to
show that the nondiscriminatory reason was just a pretext for unlawful
discrimination. See id.
Huber’s retaliation claim likely does not make it past the first step,
establishing a prima-facie case. Her causal chain is built entirely on timing: Westar’s
decision to fire her came just 30 minutes after she spoke to Kelchen about her
diabetic episode and mentioned her need to take off work, so requesting leave must
have led to her firing. Temporal proximity between a protected activity and a
decision to fire, demote, or take other adverse action against an employee can
support an inference of causation. See Hite v. Vermeer Mfg. Co., 446 F.3d 858, 866
(8th Cir. 2006). But cf. Boston, 75 F.4th at 869 (“Generally, more than mere
temporal proximity between protected activity and adverse action is required.”). But
the ultimate question at step one remains whether the evidence “gives rise to an
inference of a retaliatory motive.” Hite, 446 F.3d at 866 (citation omitted).

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On these facts, we doubt it does. Even taking the facts in a light most
favorable to Huber, as we must, Kelchen confirmed during the call that Huber’s
diabetic episode created a need for FMLA leave and that she had violated the
attendance policy twice more, despite receiving warnings that “further unscheduled
or unexcused absences . . . may lead to further disciplinary action.” The
“coincidental timing” in this situation does not create an inference that her firing was
caused by retaliatory intent. Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir.
1997).
Besides, even if the “coincidental timing” matters more at the pretext stage,
id., nothing would change, see Smith v. Allen Health Sys., Inc., 302 F.3d 827, 834
(8th Cir. 2002) (observing that “the employee must . . . point to some evidence that
the employer’s [legitimate, nondiscriminatory reason] is pretextual”). Both before
and after her firing, Westar consistently pointed to her violations as a legitimate,
non-discriminatory concern about her performance. In these circumstances, when a
violation of company policy was “a problem before the employee engaged in the
protected activity,” it both “undercuts the significance of the temporal proximity”
and provides “an explanation” for it “other than a retaliatory motive.” Id.; see
Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 1101 (8th Cir. 2011) (“A plaintiff’s
prima facie retaliation case, built on temporal proximity, is undermined where the
alleged retaliatory motive coincides temporally with [a] non-retaliatory motive.”).
Without any other evidence that Westar’s “real reason” for firing her “was retaliation
for her exercise of her [FMLA] rights,” Huber has not “carried the burden” needed
to survive summary judgment. Smith, 302 F.3d at 836.
B.
Much the same goes for Huber’s disability-discrimination claims under the
Americans with Disabilities Act and the Nebraska Fair Employment Practice Act.
See Ryan v. Cap. Contractors, Inc., 679 F.3d 772, 777 n.3 (8th Cir. 2012) (making
clear that the analysis under the two statutes is the same). Now the focus shifts from
her request for FMLA leave to her diabetes, which the parties agree is a disability.

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Also undisputed is that she “was qualified to perform the essential functions of the
job.” Oehmke v. Medtronic, Inc., 844 F.3d 748, 755 (8th Cir. 2016). The
disagreement is once again over causation: whether Westar’s decision to fire Huber
was “actually motivated” by her diabetes. Raytheon Co. v. Hernandez, 540 U.S. 44,
52 (2003) (citation omitted); see Lowery v. Hazelwood Sch. Dist., 244 F.3d 654,
657–58 (8th Cir. 2001) (requiring “evidence of a causal connection between . . . [the]
disability and the adverse employment action”). Using analysis that resembles our
treatment of Huber’s FMLA retaliation claim, we conclude that no reasonable jury
could conclude it was.
Just like under the FMLA, there are two ways to establish the necessary causal
link: direct evidence or the McDonnell-Douglas burden-shifting framework. See
Lipp v. Cargill Meat Sols. Corp., 911 F.3d 537, 544 (8th Cir. 2018). This time,
Huber claims to have direct evidence of discrimination in the form of “conduct or
statements by [decisionmakers] that may be viewed as directly reflecting [an]
alleged discriminatory attitude” toward her diabetes. Id. at 543 (citation omitted).
Huber relies on two facts: Kelchen’s anger the morning after her diabetic
episode and her supervisors’ refusal to assist her in storing her insulin and taking
meal breaks at work. Even if we assume Kelchen qualifies as a decisionmaker, see
Gruttemeyer v. Transit Auth., 31 F.4th 638, 648 (8th Cir. 2022) (noting that the focus
is on “individuals with influence over decisionmaking”), neither directly establishes
a discriminatory motivation for the firing. See Torgerson v. City of Rochester, 643
F.3d 1031, 1045–46 (8th Cir. 2011) (en banc).
Start with Kelchen’s anger toward her during the call. It no doubt showed a
lack of compassion for her situation, but an obvious explanation was the lack of a
call the day before, which resulted in the restaurant opening several hours late. It
directly shows Kelchen was angry, but not why she was angry. See Massey-Diez v.
Univ. of Iowa Cmty. Med. Servs., 826 F.3d 1149, 1161 (8th Cir. 2016) (explaining
when a statement is “blatant” enough to be direct evidence); cf. Stacks v. Sw. Bell
Yellow Pages, Inc., 27 F.3d 1316, 1324 (8th Cir. 1994) (holding that a statement that

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women in sales were “‘the worst thing’ that had happened to the company” was
direct evidence of sex discrimination). Was it the absences, the restaurant opening
late, the diabetes, or the failure to call? The evidence is just too vague to be direct.
See Torgerson, 643 F.3d at 1045–46.
The statements by her supervisors are also indirect. Recall that she requested
meal breaks and a place to store her insulin, but her supervisors did not help with
either request. They no doubt could—and probably should—have done more, but
their refusal is not direct evidence of disability discrimination for two reasons. First,
the remarks may directly show indifference, but not a discriminatory attitude. See
Lipp, 911 F.3d at 543 (explaining that a statement must “directly reflect[] the alleged
discriminatory attitude” (citation omitted)). Second, no reasonable jury could find
that the statements were direct evidence of disability discrimination because she
cannot explain why, if Westar really did act because of her disability, it waited so
long to fire her. They were, in other words, not “sufficiently related to [her]
termination.” Quick v. Wal-Mart Stores, Inc., 441 F.3d 606, 609 (8th Cir. 2006).
Indirect evidence, however, still has a role to play under the McDonnell-
Douglas burden-shifting framework. We can assume, without deciding, that Huber
has established a prima-facie case of disability discrimination. The burden then
shifts to Westar to provide a legitimate, nondiscriminatory reason for its decision to
fire her. See Boston, 75 F.4th at 867. The reason it offered was Huber’s repeated
violations of the company’s attendance policy. See Price v. S-B Power Tool, 75 F.3d
362, 365–66 (8th Cir. 1996) (noting that “violat[ing] the company’s attendance
policy” is a “legitimate[,] nondiscriminatory reason for . . . dismissal”).
Westar has consistently relied on this explanation. In fact, it became a focus
even before the company decided to fire her, when Kelchen reminded Huber during
the call about the “need[] to make that simple phone call” before missing work or
coming in late. The termination letter, sent five days later, was even more explicit:
her firing was due to the “fail[ure] to follow [Westar’s] notice procedures for [her]
absences” despite being “fully aware” of them after several warnings.

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As is often the case, this discrimination claim comes down to pretext. To
survive summary judgment, Huber’s evidence must create a genuine dispute on the
ultimate question, which is whether “discrimination was the real reason” for her
firing. Wilking v. County of Ramsey, 153 F.3d 869, 874 (8th Cir. 1998) (citation
omitted). Evidence that “the employer’s explanation . . . has no basis in fact” or
“that a [prohibited] reason more likely motivated the employer” can get her there,
Torgerson, 643 F.3d at 1047 (alteration in the original) (citation omitted), but only
if it would allow a reasonable jury to conclude that discrimination really motivated
the employer’s decision. See Fed. R. Civ. P. 56(a). That is, the attendance policy
was just an excuse for the decision to fire her. See Raytheon, 540 U.S. at 53 (noting
that the claim requires the employer to act “based on [the employee’s] status as
disabled”).
To make that point, she tries to establish pretext through what amounts to a
strong prima-facie case. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th
Cir. 1999) (en banc). Once again, the linchpin is timing: Kelchen’s anger and the
decision to fire her occurred while she was still recovering from her diabetic episode.
See Gibson v. Geithner, 776 F.3d 536, 541 (8th Cir. 2015) (noting that
“[p]roximity . . . can . . . establish causation for a prima facie case”). Further support
can be found in the alleged hostility of her supervisors, who refused to reasonably
accommodate her requests for meal breaks and storage of her insulin. See Kells v.
Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 833–34 (8th Cir. 2000) (noting that
the plaintiff had “presented prima facie evidence of [his employer’s] repeated
denials of requests for reasonable accommodations” (emphasis added)), abrogated
on other grounds by Torgerson, 643 F.3d at 1059. Viewed separately or together,
however, neither creates a genuine issue of material fact on pretext. See Torgerson,
643 F.3d at 1052.
It is true that the timing looks bad for Westar. But as we have recognized
before, close timing can rarely show pretext on its own. See Corkrean v. Drake
Univ., 55 F.4th 623, 632 (8th Cir. 2022). “[A]ttempt[ing] to prove pretext or actual
discrimination,” after all, “requires more substantial evidence [than it takes to make

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a prima facie case] . . . because . . . [it] is viewed in light of the employer’s
justification.” Smith, 302 F.3d at 834 (third alteration in original) (citation omitted).
Even if the timing here is enough to establish a prima-facie case, it falls short of
establishing pretext. The reason is the point we highlighted earlier: Westar’s
legitimate nondiscriminatory reason for firing her, the violations of the attendance
policy, “coincide[d]” with her diabetic episode. Id. Given that the violations had
posed a “problem before,” it “undercuts the significance of the temporal proximity”
and provides “an explanation . . . other than” discrimination. Id.
Kelchen’s anger during the call is just another variation on the same theme.
Although it is possible that it reflected animus toward Huber’s diabetes, Huber has
not shown why animus was the more likely explanation over the attendance-policy
violations. See Twymon v. Wells Fargo & Co., 462 F.3d 925, 935 (8th Cir. 2006).
Nothing from the call, even when viewed in the light most favorable to her, rules out
the nondiscriminatory reason, leading us right back to inferring discrimination based
on temporal proximity. See id. (affirming summary judgment to the employer
because the allegations of pretext did not “debunk[] the asserted rationale for . . .
termination”); see also Sprenger v. Fed. Home Loan Bank of Des Moines, 253 F.3d
1106, 1111 (8th Cir. 2001) (requiring “more substantial evidence” because claims
of pretext must be “viewed in light of the employer’s justification”). The
“coincidental timing” is not enough here, at least at the pretext stage. Smith, 109
F.3d at 1266.
Nor is Kelchen’s statement disclaiming knowledge about Huber’s diabetes.1
To start, it is not even clear Kelchen “falsely denied” anything. Post, at 18. Read
1 The dissent emphasizes this point, even if Huber never has. Her opening
brief barely mentions it. There is a reference to it in her reply brief, largely in
response to Westar’s assertion that it was “unaware of Huber’s diabetes until after
her termination.” Raising a legal argument for the first time in a reply brief,
however, is too late to preserve the point for appeal. See Gatewood v. City of
O’Fallon, 70 F.4th 1076, 1079–80 (8th Cir. 2023) (“Appellate courts do not
generally review arguments first raised in a reply brief.” (citation omitted)); see also
ASARCO, LLC v. Union Pac. R.R. Co., 762 F.3d 744, 753 (8th Cir. 2014) (“Judges

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in context, the statement during her deposition was a reference to her lack of
knowledge in the months leading up to the diabetic episode, not a claim that she did
not learn about Huber’s condition during the conversation occurring just minutes
before the termination decision. See Merechka v. Vigilant Ins. Co., 26 F.4th 776,
782 (8th Cir. 2022) (explaining that the nonmoving party only gets the benefit of
“reasonable inference[s]” at summary judgment (emphasis added) (citation
omitted)). The immediately preceding questions, after all, were about conversations
that allegedly happened months before, like whether they “talked . . . about not
having time to eat during her shift” or where she could “store her insulin.”
Regardless, Kelchen’s supposed denial adds little. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (explaining that we can infer
discrimination from dishonesty if an employee disproves her employer’s innocent
explanation). Knowledge and timing might matter in some discrimination cases, but
not here when the only squabble is about exactly when Kelchen found out about
Huber’s diabetes. Neither the dissent nor Huber can point to any evidence rebutting
Westar’s legitimate nondiscriminatory “rationale for taking action,” which was her
repeated attendance-policy violations. Bharadwaj, 954 F.3d at 1135; see Celotex
Corp. v. Catrett, 477 U.S. 317, 322–33 (1986) (recognizing that a “failure of proof
concerning an essential element of the nonmoving party’s case” requires “entry of
summary judgment” for the moving party). A single out-of-context statement about
what Kelchen knew when—one that Huber herself barely relies upon—is not enough
to create a genuine issue of material fact. See Erickson v. Nationstar Mortg., LLC,
31 F.4th 1044, 1048 (8th Cir. 2022) (explaining that a party opposing summary
judgment “cannot force a trial merely to cross-examine [a] witness” unless “specific
facts . . . undermine [her] credibility in a material way” (citation omitted)); see also
Reeves, 530 U.S. at 147 (noting that “dishonesty about a material fact” can be
“affirmative evidence of guilt” (emphasis added) (citation omitted)).
are not like pigs, hunting for truffles buried in briefs or the record.” (citation
omitted)).

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It makes no difference that Huber’s workplace misconduct was “related to [a]
disability.” Raytheon, 540 U.S. at 54 n.6; see Bharadwaj, 954 F.3d at 1134 n.2,
1135 (affirming summary judgment based on a clinic’s determination that a doctor
had an “inability to get along with others,” which may have been a symptom of a
perceived “mental impairment” (quoting 42 U.S.C. § 12102(1)(A))); McNary v.
Schreiber Foods, Inc., 535 F.3d 765, 769–70 (8th Cir. 2008) (affirming summary
judgment even though the employer’s basis for termination, “sleeping on the job,”
was linked to the employee’s fatigue-causing thyroid disorder). As other courts have
concluded, terminating an employee for workplace misconduct, “even misconduct
related to a disability,” Neal v. E. Carolina Univ., 53 F.4th 130, 152 (4th Cir. 2022)
(citation omitted), is not discrimination “on the basis of disability,” 42 U.S.C.
§ 12112(a) (emphasis added). See Gruttemeyer, 31 F.4th at 648 (requiring proof that
the disability was a “motivating factor” for an employment decision). If the
motivating reason for the dismissal was misconduct, not the underlying disability,
there was no unlawful discrimination. See Neal, 53 F.4th at 152; McElwee v. County
of Orange, 700 F.3d 635, 641 (2d Cir. 2012); see also U.S. Equal Emp. Opportunity
Comm’n, Applying Performance and Conduct Standards to Employees with
Disabilities, § III(B)(9) (2008) (“The ADA does not protect employees from the
consequences of violating conduct requirements even where the conduct is caused
by the disability.”).
Whether Huber actually violated Westar’s attendance policy is also beside the
point. All that matters is whether the company “honestly believed” she did.
Twymon, 462 F.3d at 935; see McNary, 535 F.3d at 769 (noting that whether the
employer’s belief was correct does not “create a factual dispute as to the issue of
pretext” (citation omitted)). Recall that Huber told Kelchen during the call that she
had driven herself to the clinic and called her son while she was there. These
statements, as well as Kelchen’s response, all point toward an honest belief that
Huber could have called her the day before too. Even if Kelchen was mistaken, it
takes more to show that the reason for terminating her “ha[d] no basis in fact.”
Torgerson, 643 F.3d at 1047 (citation omitted); see Pulczinski, 691 F.3d at 1003

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(“To prove that the employer’s explanation was false, the employee must show the
employer did not truly believe that the employee violated company rules.”).
Finally, Kelchen’s “dismissive attitude” when asked for accommodations
does not create a genuine issue of material fact on pretext either. Telling Huber she
could store her insulin in a cooler was unhelpful. As was urging her to become better
at time management if she wanted a meal break during the day. But both occurred
months before Westar terminated her. See Henderson v. Ford Motor Co., 403 F.3d
1026, 1036 (8th Cir. 2005) (concluding that evidence that was “not close in time to
the alleged adverse employment action” and that did not “relate[] to the legitimacy
of [the] action” was insufficient to show pretext). More than “stray remarks . . .
unrelated to the decisional process” were necessary to survive summary judgment.
Quick, 441 F.3d at 609.
III.
We accordingly reverse the judgment in part, remand for further proceedings
on the FMLA interference claim, and otherwise affirm.2
ERICKSON, Circuit Judge, with whom COLLOTON, Chief Judge, and SMITH,
SHEPHERD, and KELLY, Circuit Judges, join, concurring in part and dissenting in
part.
I concur with the court’s conclusion in Part II.A.1 but disagree with its
conclusion that Huber’s retaliation claim and discrimination claims cannot survive
summary judgment. Huber’s evidence demonstrates a question of fact exists on the
issue of whether Westar’s stated reason for her termination was a pretext for
disability discrimination.
2 Huber also appeals the denial of her motions to strike and for partial summary
judgment. Though they likely became moot after the district court granted Westar’s
summary-judgment motion, nothing stands in the way of reconsidering them on
remand.

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The court suggests Huber may lack even a prima facie case of FMLA
retaliation because she relies primarily on the striking overlap of her diabetic episode
with the decision to terminate her employment. Unlike in typical proximity cases,
where weeks or months separate protected activity from adverse action, Kelchen
called Westermajer within minutes of learning that Huber’s violations were caused
by her diabetes. Compare Littleton v. Pilot Travel Ctrs., LLC, 568 F.3d 641, 643,
645 (8th Cir. 2009) (concluding a seven-month gap was unable to demonstrate
causation), with Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002)
(concluding a two-week gap was “sufficient,” albeit “barely so,” to complete a
plaintiff’s prima facie case of FMLA retaliation). Although mere temporal
proximity rarely links a protected activity to adverse action strongly enough to prove
retaliation, “temporal proximity alone [may] be sufficient” if the distance is “very
close.” Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012) (cleaned up).
Huber’s connection is measured in minutes, not months, so it falls on the right side
of the line. See Lightner v. Catalent CTS (Kansas City) LLC, 89 F.4th 648, 656 (8th
Cir. 2023) (holding that plaintiff presented submissible case where adverse action
was taken within 48 hours); Marez v. Saint-Gobain Containers, Inc., 688 F.3d 958,
963 (8th Cir. 2012) (similar).
In any event, because the record was fully developed on the motion for
summary judgment, whether Huber properly made out a prima facie case is no longer
relevant, and the court may turn directly to whether there is a genuine issue for trial
on the question of discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 714–15 (1983); Johnson v. Ready Mixed Concrete Co., 424 F.3d 806,
810 (8th Cir. 2005). The court concludes Huber cannot show discrimination with
suspicious timing evidence because her violations of the call-in policy overlapped
with her diabetic episode such that the two cannot be disentangled. Then it dismisses
her other examples of hostility on the basis that they fail to rule out Westar’s
explanation. These conclusions, however, rest on disputed facts that, if resolved in
Huber’s favor, constitute indirect evidence sufficient to allow a reasonable jury to
conclude that Westar’s decision to terminate Huber was rooted in prohibited reasons
and those prohibited reasons “more likely motivated” Westar’s termination decision.

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Torgerson v. City of Rochester, 643 F.3d 1031, 1047 (8th Cir. 2011) (en banc)
(cleaned up).
As to Huber’s FMLA retaliation claim, the court reworks the timeline to favor
Westar. It states Kelchen “confirmed” during the December 21 call “that Huber’s
diabetic episode created a need for FMLA leave and that she had violated the
attendance policy twice more.” The record, when viewed in a light most favorable
to the nonmoving party as we must at this stage, shows something different. Kelchen
learned of Huber’s first violation on December 20, anticipated Huber would be
absent the following day, and confirmed her suspicions when she spoke with
Huber’s replacement. Contrary to the court’s suggestion, what Kelchen established
during the December 21 call was not the fact of the violations, but the why: Huber’s
diabetes had left her delirious and incoherent for more than a day. A reasonable jury
could conclude Kelchen’s new understanding of Huber’s medical needs more likely
motivated her to terminate Huber than her preexisting knowledge of Huber’s
attendance policy violations.
The same goes for Huber’s discrimination claims. Intentional discrimination
“must be determined by a finder of fact making important credibility
determinations.” Bassett v. City of Minneapolis, 211 F.3d 1097, 1109 (8th Cir.
2000), abrogated on other grounds by Torgerson, 643 F.3d at 1059. Kelchen’s notes
from the December 21 call acknowledge Huber is “diabetic” and reference issues
with her “levels” and “sugar level[s].” Yet Kelchen later falsely denied having “any
knowledge prior to Tonya’s termination that she had diabetes.” This conflict puts
Kelchen’s credibility squarely at issue. See Holland v. Gee, 677 F.3d 1047, 1063
(11th Cir. 2012) (concluding decisionmaker’s false denial that he knew plaintiff was
pregnant could lead a jury to make an adverse credibility determination and find
pregnancy was a motivating factor for termination). A jury could well disbelieve
Kelchen and conclude Kelchen’s neutral explanations for her decision are an
invention intended to mask discriminatory intent. See Euerle-Wehle v. United
Parcel Serv., Inc., 181 F.3d 898, 900 (8th Cir. 1999) (evaluating whether “the
reason” for termination “was created to disguise an illegal discriminatory motive”);

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Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (citing “the
general principle of evidence law that the factfinder is entitled to consider a party’s
dishonesty about a material fact as affirmative evidence of guilt” (cleaned up)).
The court reassures that “in context, the statement during [Kelchen’s]
deposition was a reference to her lack of knowledge in the months leading up to the
diabetic episode.” When we look to context, we do so “in the light most favorable
to the nonmoving party,” drawing “all reasonable inferences in its favor,” and
leaving credibility determinations for the finder of fact. Sherr v. HealthEast Care
Sys., 999 F.3d 589, 597 (8th Cir. 2021) (cleaned up) (emphasis added). The court’s
optimistic interpretation in Kelchen’s favor is not “the only reasonable inference,”
such that it is appropriate to take a credibility determination from the jury. Merechka
v. Vigilant Ins. Co., 26 F.4th 776, 782 (8th Cir. 2022) (cleaned up); see also Hossaini
v. W. Missouri Med. Ctr., 97 F.3d 1085, 1088 (8th Cir. 1996) (“[T]he court cannot
weigh the evidence or grant summary judgment merely because it believes the
nonmoving party will lose at trial.”). Indeed, one may assume Kelchen learned of
Huber’s diabetes “just minutes before the termination,” as the court does, and still
note she denied having such knowledge “at any point” before the termination.
The court credits Westar with a consistent focus on Huber’s policy violations.
But this “consistency” requires a generous reading of the record in Westar’s favor.
This assertion also runs through Kelchen, who spoke with Amy Rowe about Huber’s
prior violations of the attendance policy. She did the same thing before Rowe sent
Huber’s termination letter, which stressed that Westar cared only about Huber’s
failure “to follow the Company’s notice procedures” on December 20 and 21. The
persuasive force of Westar’s consistency argument only works if the jury finds
Kelchen credible, and a reasonable jury, when the facts are viewed in a light most
favorable to Huber, would have more than ample reason to conclude she is not. It is
difficult to imagine a lie more material than, in a case alleging disability
discrimination, a supervisor’s lie about her knowledge of her subordinate’s
disability. See Reeves, 530 U.S. at 147; cf. Lee v. State of Minn., Dep’t of Com.,

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157 F.3d 1130, 1134–35 (8th Cir. 1998) (treating a supervisor’s false statements as
immaterial because they did not relate to a protected characteristic).
Credibility disputes aside, Westar’s focus on its attendance policy looks
different when viewed in a light most favorable to Huber. Westar handled her prior
attendance issues with coaching sessions and warnings. Later, when Kelchen linked
Huber’s diabetes with a violation, Westar skipped past these steps and moved
directly to termination. On a record like this one, Westar’s deviation from
established practice is as much circumstantial evidence of pretext as it is evidence
of Westar’s consistently neutral focus. See Erickson v. Farmland Indus., Inc., 271
F.3d 718, 727 (8th Cir. 2001) (noting evidence an employer varied from normal
practice may suggest a “discriminatory attitude”). Put differently, the court credits
Westar’s consistency even though that evidence is also highly susceptible to an
adverse interpretation. After all, while Westar has discretion over “business
judgments” like employee discipline, it cannot use this discretion to disguise
discrimination. Kincaid v. City of Omaha, 378 F.3d 799, 805 (8th Cir. 2004).
That principle is particularly important when Kelchen’s few interactions with
Huber reflect irritation with Huber’s disability. For example, Kelchen refused to
help Huber find a place to store her insulin or time for meal breaks so that she could
take her insulin. A reasonable jury might conclude this indifference—repeated so
soon before Huber’s firing and considering Kelchen’s false denial—shows Westar’s
focus on its attendance policy was really a practiced excuse for discrimination. See
Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 834 (8th Cir. 2000)
(observing “a reasonable jury could find that [the defendant] viewed with derision
[the plaintiff’s] requests for reasonable accommodations” and infer its “reasons for
transferring and discharging [him] were also related to contempt towards his
disability”), abrogated on other grounds by Torgerson, 643 F.3d at 1059; cf.
Henderson v. Ford Motor Co., 403 F.3d 1026, 1035–36 (8th Cir. 2005).
Finally, the court fragments Huber’s evidence and then concludes that no
piece rules out Westar’s explanation. At this stage, Huber need only present

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evidence that “a prohibited reason, rather than the employer’s stated reason, actually
motivated the employer’s action.” Torgerson, 643 F.3d at 1047; see also Fitzgerald
v. Action, Inc., 521 F.3d 867, 877 (8th Cir. 2008) (observing that “fact[s] which
could cause a reasonable trier of fact to raise an eyebrow” provide “additional
threads of evidence that are relevant to the jury” (cleaned up)). Huber’s claim may
proceed even if her proof of discrimination does not foreclose other possibilities.
Huber has met that burden. On this record, a reasonable jury convinced that Kelchen
is not credible could conclude Huber’s termination was motivated by discriminatory
attitudes.
Unresolved material factual disputes remain in this case, particularly with
respect to Kelchen’s credibility. These factual issues are properly left to the ultimate
finder of fact to resolve. For these reasons, I respectfully dissent from the court’s
conclusions in Parts II.A.2 and II.B.
______________________________

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