Rhonda Button v. Dakota, Minnesota & Eastern Railroad Corporation, doing business as Canadian Pacific…

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-1398
___________________________
Rhonda Button
lllllllllllllllllllllPlaintiff - Appellant
v.
Dakota, Minnesota & Eastern Railroad Corporation, doing business as Canadian
Pacific Railway
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: February 11, 2020
Filed: June 30, 2020
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Before SMITH, Chief Judge, COLLOTON and STRAS, Circuit Judges.
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SMITH, Chief Judge.
Rhonda Button sued the Dakota, Minnesota & Eastern Railroad Corporation,
doing business as Canadian Pacific Railway (CP) under the Missouri Human Rights
Act (MHRA) and the Family and Medical Leave Act (FMLA). Specifically, she
alleges that CP discriminated against her on the basis of her gender and her use of

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FMLA leave when it terminated her. CP contends the termination occurred as part of
a reduction in force (RIF) without discriminatory intent. The district court1 granted
summary judgment to CP. We affirm.
I. Background
A. Operations Supervisors
CP is a railway offering transportation services and supply chain expertise
across North America. CP’s Operations Supervisors manage the safe, efficient, and
timely movement of its trains within a designated territory. Their work includes
ensuring that train operators have the information needed to safely navigate the
territory. An Operations Supervisor’s failure to provide the necessary information to
the trains may cause delays or potentially serious injuries. An Operations Supervisor
must become qualified to dispatch, that is, control the movement of trains at a
particular desk.2 Thus, he or she must be able to dispatch with little, if any, assistance.
Before CP’s 2016 RIF, 16 Operations Supervisors3 handled 3 desks in CP’s Southern
Region: the Missouri desk, the Iowa desk, and the Kansas City desk.
In 2002, Button started working as an Operations Supervisor at the Kansas City
desk when it was owned by another railroad company. After CP acquired that railroad
in 2008, Button continued to work at the Kansas City desk at the Truman Bridge.
Nicole Marthe, Manager of Train Dispatching, supervised Button from April 2011
until her termination. Button was the only female assigned to the Kansas City desk
throughout her employment. In February 2016, Heidi Peterson, CP’s Director of Train
1The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
2A desk is “an assignment that covers a specific territory or territories.” J.A.
481. Each desk controls its assigned territories and the trains passing through those
territories. J.A. 450.
3The Operations Supervisors included 14 males and 2 females.
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Dispatching, made a two-week trip to fill in at the Kansas City desk. During
Peterson’s presence, Button recalled Peterson remarking that the Kansas City desk
“wasn’t a place for a woman.” J.A. 129. After Peterson returned home from Kansas
City, she messaged Button that she would only move to the Kansas City desk “if they
change[d] the bathroom. LOL!” J.A. 1020.
B. RIF Decisions
Also in 2016, CP implemented a RIF. It planned to eliminate the Missouri desk
and redistribute the territories associated with that desk to the Iowa and Kansas City
desks. Under this plan, CP would eliminate 6 of the 16 Operations Supervisor
positions by April 1, 2016. To prepare for the RIF, CP scheduled a meeting to
evaluate each Operations Supervisor. Amanda Cobb, a member of Human Resources,
e-mailed a spreadsheet with information about each Operations Supervisor to guide
discussion during the meeting. Cobb included Peterson on the e-mail. However,
Peterson never responded to the e-mail, did not attend the RIF meeting, and gave no
input on the RIF terminations. The RIF spreadsheet included each Operations
Supervisor’s performance management program (PMP) rating for the prior three
years, efficiency test scores, two-year discipline record, twelve-month attendance
record, and current work status. The spreadsheet showed that Button received a 2015
PMP rating of 100. The PMP ratings ranged from 0–120. Every Operations
Supervisor with a 2015 PMP rating of less than 100 was included in the RIF except
for one. As to efficiency tests, Button had the highest failure rate of all of the
Operations Supervisors. In addition, Button had been disciplined twice in the two-
year period. Only one other Operations Supervisor had more discipline events. He
was also terminated.
The RIF spreadsheet rated each Operations Supervisor in several different work
categories. The categories included “Independent Worker Understands Impact of their
decisions on the Operations,” “Demonstrates Strong Verbal and Written
Communication Skills,” and “Gets results.” J.A. 1263. The spreadsheet used a rating
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scale of Outstanding, Exceeds Expectations, Achieves Expectations, Partially
Achieves, or Unsatisfactory. Button received a Partially Achieves rating in each of
the categories. Every Operations Supervisor with a Partially Achieves rating was
scheduled to be terminated in the RIF.
On February 24, 2016, the RIF team, including Marthe, Human Resources
Business Partner Sheri Perkins, and several other employees, met to discuss the
Operations Supervisors’ experience and qualifications relative to territories that
would be redistributed between the Iowa and Kansas City desks. At the time, Button
had only worked at the Kansas City desk, which utilized Central Traffic Control as
its communication system. The other territories used Traffic Warrant Control (TWC),
which Button had little experience using, and Automatic Block Signaling (ABS),
which Button had no experience using. Further, Button had no experience dispatching
any territory to be added to Kansas City except for the territory from Laredo to
Davenport. Marthe explained that Button would need significant training to learn
ABS and TWC and to become qualified in the new territories.
Based on the spreadsheet and Button’s lack of experience in the new territories
and communications systems, the RIF team believed that Button was not suitable for
a larger territory. At the end of the meeting, the RIF team identified six Operations
Supervisors—including the two female Operations Supervisors4—as the least
qualified Operations Supervisors and planned to terminate them in the RIF by April 1.
C. FMLA
On February 5, 2016, Button notified CP that her doctor requested she take
time off work for a medical issue. CP granted Button FMLA leave, and Button did
4Although the other female Operations Supervisor was scheduled to be
terminated in the RIF, CP did not ultimately terminate her after several other
Operations Supervisors resigned or were terminated before the scheduled RIF date.
See infra Part I.D.
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not return to work until March 4. At the time of the RIF meeting, Button was on
FMLA leave, but no one present at the meeting said anything negative about her
FMLA leave. The other female Operations Supervisor also took FMLA leave before
the RIF meeting, but her position was ultimately not eliminated. In addition, two
other Operations Supervisors took FMLA leave, but they also were not terminated in
the RIF. Finally, Button had previously taken FMLA leave from February 15, 2010,
to March 10, 2010, without any adverse employment action.
D. The RIF Termination
Before the RIF, CP terminated two of the Operations Supervisors scheduled to
be terminated in the RIF for unrelated reasons. Another Operations Supervisor
scheduled to be terminated resigned. And, one of the Operations Supervisors who was
not scheduled to be terminated resigned and took a position elsewhere. Therefore, CP
only needed to eliminate two positions to reach its restructuring goal. On March 31,
2016, Marthe and Perkins informed Button that she was being terminated as a result
of the RIF. CP then eliminated the Missouri desk, and the territory realignment went
into effect in April 2016.
Button filed this case, alleging that CP discriminated against her on the basis
of her gender and because of her use of FMLA. CP filed a motion for summary
judgment. The district court first considered Button’s MHRA gender discrimination
claim and found that Button had failed to show that gender was a contributing factor
in her termination. The district court then found that Button failed to establish a
FMLA discrimination claim because Button did not show that CP’s RIF was pretext
for discrimination. Consequently, the district court granted summary judgment in
favor of CP. Button appeals.
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II. Discussion
We review the district court’s grant of summary judgment de novo, granting
Button “the benefit of all reasonable inferences from the evidence without resort to
speculation.” Baker v. Silver Oak Senior Living Mgmt. Co., 581 F.3d 684, 687 (8th
Cir. 2009) (quoting Roberts v. Park Nicollet Health Servs., 528 F.3d 1123, 1126 (8th
Cir. 2008)). “Summary judgment is appropriate if there is no genuine issue of material
fact, and [CP] is entitled to judgment as a matter of law.” Id. (citing Fed. R. Civ. P.
56(c)). Button raises three arguments on appeal: (1) that the district court erred in
considering Marthe’s and Perkins’s affidavits; (2) that the district court erred in
granting summary judgment to CP on Button’s MHRA gender discrimination claim;
and (3) that the district court erred in granting summary judgment to CP on Button’s
FMLA discrimination claim.
A. Sham Affidavit
Button argues that the district court improperly considered two sham affidavits
by Marthe and Perkins. Button acknowledges that “this case involves an atypical
application of the sham-affidavit rule.” Appellant’s Br. at 17. Typically, sham
affidavits appear as a plaintiff’s stratagem to defeat summary judgment. “It is
well-settled that parties to a motion for summary judgment cannot create sham issues
of fact in an effort to defeat summary judgment.” Bass v. City of Sioux Falls, 232 F.3d
615, 618 (8th Cir. 1999) (emphasis added) (cleaned up). In contrast, Button argues
that the district court improperly considered sham affidavits from the defense in
deciding to grant summary judgment.
The Marthe and Perkins affidavits are not shams. An affidavit is a sham
affidavit if it contradicts prior testimony or is a “sudden and unexplained revision of
testimony [that] creates an issue of fact where none existed before.” Id. (internal
quotation omitted). However, if the affidavit merely explains portions of a prior
deposition that may have been unclear, it is not a sham affidavit. City of St. Joseph
v. Sw. Bell Tel., 439 F.3d 468, 476 (8th Cir. 2006).
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Button bases her sham-affidavit averment on two contentions. First, she asserts
that Marthe’s affidavit added two factors to the RIF discussions that she never
mentioned in her deposition: (1) training on communication systems and (2)
knowledge of new territories. However, Marthe’s deposition described how the RIF
team’s discussions addressed each Operations Supervisor’s qualifications to dispatch
the different desks alone. Those qualifications included knowledge of the different
communication systems and territories. Thus, Marthe’s affidavit merely expands on
the discussion of Operations Supervisor qualifications. It does not contradict her
deposition testimony. See Bass, 232 F.3d at 618 (explaining that an affidavit that
expands on information not specifically asked about in a deposition is not a sham
affidavit). We conclude Marthe’s affidavit is not a sham.
Button also characterizes Perkins’s affidavit as a sham. In her affidavit, Perkins
recounted that the purpose of the RIF meeting was to gather feedback on the
Operations Supervisors. Button correctly notes that Perkins’s affidavit said the RIF
team believed that Button could not handle the new work. She points out, however,
that Perkins had previously stated in her deposition that she did not remember
specifics of the RIF meeting. Button thus argues that Perkins’s later, more detailed
memory in the affidavit contradicts the deposition and is thus a sham. But, even if
Perkins’s statement could be construed as contradictory to her deposition, the district
court was not obligated to disregard it. Excluding the affidavit “is limited to situations
where the conflicts between the deposition and affidavit raise only sham issues.”
Baker, 581 F.3d at 690 (internal quotation omitted). Here, Perkins’s testimony simply
mirrored Marthe’s testimony and the information listed on the spreadsheet. Perkins’s
affidavit raised no sham issues.
Therefore, the district court did not err in relying on Marthe’s and Perkins’s
affidavits in its grant of summary judgment.
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B. Gender Discrimination
Button next alleges that CP terminated her because of her gender in violation
of the MHRA. The MHRA makes it unlawful for an employer “to discharge any
individual, or otherwise to discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . sex.” Mo. Rev. Stat. § 213.055.1(1)(a). In considering Button’s
MHRA claim, “[w]e primarily apply Missouri law but may also apply federal
employment discrimination law to the extent federal law is applicable and
authoritative under the MHRA.” Heuton v. Ford Motor Co., 930 F.3d 1015, 1019 (8th
Cir. 2019) (internal quotation omitted). “Missouri courts follow federal law so long
as it is ‘consistent with Missouri law.’” Id. (quoting Daugherty v. City of Maryland
Heights, 231 S.W.3d 814, 818 (Mo. 2007), abrogated on other grounds by Mo. Rev.
Stat. § 213.101.4).
Under the MHRA, Button must show “that (1) [s]he suffered an adverse
employment action; (2) [her] sex was a contributing factor in that adverse action; and
(3) [she] incurred damages as a direct result.” Denn v. CSL Plasma, Inc., 816 F.3d
1027, 1032 (8th Cir. 2016). Missouri’s “‘contributing factor’ standard, which stems
from the MHRA’s prohibition of ‘any unfair treatment,’ is less rigorous than the
‘motivating factor’ standard employed in federal discrimination cases under Title
VII.” Id. (quoting Daugherty, 231 S.W.3d at 819).5 “A contributing factor has been
5The contributing factor standard “led Missouri to abandon the McDonnell
Douglas burden-shifting analysis.” Id. at 1032; see also Daugherty, 231 S.W.3d at
818–20. On August 28, 2017, a Missouri statute abrogated this less stringent standard
and required courts to return to the use of the McDonnell Douglas burden-shifting
framework. Mo. Rev. Stat. § 213.101.4. As the Missouri Supreme Court explained,
“statutes are presumed to operate prospectively unless the legislature specifically
provides for retroactive application of the statute or the statute is procedural.” R.M.A
v. Blue Springs R-IV Sch. Dist., 568 S.W.3d 420, 425 n.3 (Mo. 2019). The Missouri
Supreme Court has assumed that Mo. Rev. Stat. § 213.010, which now requires
application of the motivating factor standard, is not retroactive. Id. Doing the same
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defined as one that contributed a share in anything or has a part in producing the
effect.” Williams v. Trans States Airlines, Inc., 281 S.W.3d 854, 867 (Mo. Ct. App.
2009) (internal quotations omitted), overruled on other grounds by Wilson v. City of
Kan. City, 598 S.W.3d 888 (Mo. 2020).
Button may prove gender discrimination under the MHRA by presenting direct
evidence of discrimination. Schierhoff v. GlaxoSmithKline Consumer Healthcare,
L.P., 444 F.3d 961, 965 (8th Cir. 2006) (citing West v. Conopco Corp., 974 S.W.2d
554, 556 (Mo. Ct. App. 1998)). To be considered direct evidence of discrimination,
a remark must be by a decisionmaker and “show a specific link between a
discriminatory bias and the adverse employment action, sufficient to support a finding
by a reasonable fact-finder that the bias motivated the action.” Torgerson v. City of
Rochester, 643 F.3d 1031, 1045–46 (8th Cir. 2011) (en banc). Button alleges that
Peterson directly discriminated against her by telling her that the Kansas City desk
was no place for a woman.
Even if Peterson’s statement showed discriminatory intent, it cannot be direct
evidence of discrimination because Peterson was not a decisionmaker. “[S]tray
remarks in the workplace, statements by nondecisionmakers, and statements by
decisionmakers unrelated to the decisional process do not constitute direct evidence.”
Schierhoff, 444 F.3d at 966 (internal quotations omitted). In this case, it is undisputed
that Peterson did not attend the RIF meeting or participate in any part of the decision
regarding whom to terminate in the RIF. Button attempts to argue Peterson should be
considered a decisionmaker because she was closely involved in the process or in a
position of influence. However, in Schierhoff, we held that a supervisor who gathered
attendance records for a termination and told the plaintiff that she was being
here, we analyze Button’s claim under the “contributing factor” standard because she
filed this suit on May 10, 2017. See id. (“The applicable statute is typically the one
in effect when the petition was filed.”).
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terminated did not influence the plaintiff’s termination and was not a decisionmaker.
Id. The Schierhoff supervisor merely acted as a messenger and was not sufficiently
involved in the termination. Id. Here, Peterson was not Button’s supervisor and did
not play any role in the entire RIF process. Peterson’s statement is not direct evidence
of discrimination.
Absent direct evidence, Button may still prove discrimination through
“circumstantial evidence.” Williams, 281 S.W.3d at 867. “Although the MHRA does
not require an employee to show that an employer’s stated reasons for taking adverse
action were pretextual, evidence undermining the credibility of those reasons can give
rise to a factual issue as to whether a discriminatory reason was a contributing factor
to an employer’s conduct.” Denn, 816 F.3d at 1033. In addition, in the context of
CP’s RIF, Button “must make some additional showing that gender was a factor in
her termination.” Hesse v. Avis Rent A Car Sys., Inc., 394 F.3d 624, 631 (8th Cir.
2005); see also West, 974 S.W.2d at 557. This could have been done with statistical
evidence of preference for men or circumstantial evidence of comments and practices
suggesting such a preference. Chambers v. Metro. Prop. & Cas. Ins., 351 F.3d 848,
856 (8th Cir. 2003). The district court found that Button failed to present any
evidence to create a genuine dispute of material fact that her gender was a
contributing factor in her termination, and we agree.
To defeat the additional showing for a RIF, Button argues that CP’s RIF was
not a genuine RIF and, therefore, was itself a pretext for discrimination. Generally,
RIF plans “include objective criteria by which to determine which jobs will be
eliminated.” Bashara v. Black Hills Corp., 26 F.3d 820, 824 (8th Cir. 1994) (internal
quotation omitted). Similar to Bashara, where the employer had an outlined plan to
eliminate 15 positions, here, CP clearly had a plan to eliminate 6 of 16 positions and
to restructure its desks. See id. at 824–25. Further, although a business decline may
be evidence of a RIF, “[w]hen a company exercises its business judgment in deciding
to reduce its work force, it need not provide evidence of financial distress to make it
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a legitimate RIF.” Rahlf v. Mo-Tech Corp., 642 F.3d 633, 639 (8th Cir. 2011)
(internal quotations omitted).
In addition, we reject Button’s argument that the RIF process was too
subjective. In Rahlf, the plaintiff similarly argued that there was no legitimate RIF
because the employer did not consider the objective evidence of high performance
reviews. Id. But, we rejected that argument because there was evidence that the
employer objectively measured productivity in making its RIF decision, and we
explained that a RIF does not have to be based solely on objective criteria. Id. Here,
CP considered several objective criteria listed in its spreadsheet described above. We
hold that the district court correctly concluded that CP implemented a legitimate RIF.
Even though the RIF was legitimate, Button may still show that gender was a
contributing factor in her termination by presenting evidence that creates an inference
of unlawful discrimination. See Buchheit, Inc. v. Mo. Comm’n on Human Rights, 215
S.W.3d 268, 277 (Mo. Ct. App. 2007). Button argues that even if Peterson’s
statement that the Kansas City desk was no place for a woman is not direct evidence
of discrimination, it should still be considered indirect evidence because the statement
was relevant evidence supporting an inference of gender discrimination. However,
Peterson’s statement “does not represent indirect evidence of discrimination because
no reasonable inference links this statement to” Button’s RIF termination. Denn, 816
F.3d at 1035 (citing Daugherty, 231 S.W.3d at 818) (explaining that a comment by
another employee was not indirect evidence of discrimination when no one involved
in the decision heard the statement). Without facts connecting the statement to the
termination, “the statement does not give rise to a genuine issue of material fact
regarding [Button’s] discrimination claim.” Id.
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Finally, pretext may be proven, “among other ways, by showing that an
employer (1) failed to follow its own policies, (2) treated similarly-situated employees
in a disparate manner, or (3) shifted its explanation of the employment decision.”
Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010).
Button points out that “[s]ubstantial changes over time in the employer’s
proffered reason for its employment decision support a finding of pretext.” Kobrin
v. Univ. of Minn., 34 F.3d 698, 703 (8th Cir. 1994). She argues CP changed its
termination rationale when Marthe’s deposition added two reasons for terminating
her. She contends that pointing out her lack of training in communication systems and
her lack of qualification in other subdivisions constituted a shift in the reasons. She
compares her case to Kobrin. In Kobrin, we found that there was a genuine dispute
of material fact because the employer’s reasons for not hiring the plaintiff shifted, and
there was evidence that contradicted the employer’s stated reasons. Id. In that case,
the employer initially claimed to have hired another candidate because of his
experience in a subject but later asserted that it did not hire the plaintiff because her
experience was too focused on the same subject. Id.
In contrast to Kobrin, Marthe’s reasoning did not shift but simply expanded on
the previously given reasons for including Button in the RIF. Button’s case more
closely resembles Loeb v. Best Buy Co., 537 F.3d 867 (8th Cir. 2008). There, an
employer justified its termination based on the employee’s changing job functions
and later gave additional reasons: the employee’s role was ending, and he was not
qualified to perform the new work. Id. at 873–74. We explained that the additional
reasons did not provide an inference of discrimination because they were “not a
change in . . . justification for the termination but rather an elaboration.” Id. at 874.
Similarly, CP never withdrew its explanation that Button’s job performance subjected
her to the RIF because she was one of the weakest performers. Marthe’s explanation
that Button was not qualified to work the new desks simply reinforced the point that
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Button was less qualified than other Operations Supervisors considered in the RIF.
Marthe’s elaboration did not create an inference of discrimination.6
Because Button failed to provide evidence giving rise to a genuine dispute of
material fact as to whether CP considered her gender when deciding to terminate her
in the RIF, the district court properly granted CP summary judgment on Button’s
MHRA gender-discrimination claim.
C. FMLA Discrimination
It is “unlawful for any employer to interfere with, restrain, or deny the exercise
of or the attempt to exercise” any rights under the FMLA. 29 U.S.C. § 2615(a)(1). “A
discrimination claim ‘arises when an employer takes adverse action against an
employee because the employee exercises rights to which [s]he is entitled under the
FMLA.’” Hudson v. Tyson Fresh Meats, Inc., 787 F.3d 861, 866 (8th Cir. 2015)
(quoting Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1006 (8th Cir.
2012)). Button alleges that the district court erred in granting summary judgment in
favor of CP on Button’s FMLA discrimination claim.
Button argues that CP discriminated against her because she used FMLA leave.
She relies on CP’s decision to terminate her in the RIF while she was on FMLA leave
in February 2016. “To avoid summary judgment, [Button] must present sufficient
6Button also states that CP failed to follow its own policies, but she does not
identify any policy that CP failed to follow. And, she alleges that she was similarly
situated to male Operations Supervisors, but she fails to point to any particular male
who was similarly situated. See Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 994
(8th Cir. 2011) (“[T]he individuals used for comparison must have dealt with the
same supervisor, have been subject to the same standards, and engaged in the same
conduct without any mitigating or distinguishing circumstances.” (internal quotation
omitted)). Button mentions that Michael Welch, another Operations Supervisor, also
had a rule violation; however, he is not similarly situated because he reported to a
different supervisor, and he did not require additional training.
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evidence for a jury to find that [CP’s] decision to terminate her was motivated by her
exercise of rights under the FMLA.” Malloy v. U.S. Postal Serv., 756 F.3d 1088, 1090
(8th Cir. 2014). “Using FMLA leave does not give an employee any greater
protection against termination for reasons unrelated to the FMLA than was available
before.” Hudson, 787 F.3d at 866 (internal quotation omitted).
Button does not offer any direct evidence that CP terminated her in the RIF for
exercising her FMLA rights, so we must analyze her claim under the McDonnell
Douglas burden-shifting framework. Id. at 866. To establish a prima facie case of
FMLA discrimination, Button “must show that: 1) she engaged in protected conduct;
2) she suffered a materially adverse employment action; and 3) the materially adverse
action was causally linked to the protected conduct.” Wierman, 638 F.3d at 999. CP
does not dispute the district court’s assumption that Button established a prima facie
case; therefore, “[w]e will assume without deciding that [Button] presented a prima
facie case establishing a causal connection between” Button’s use of FMLA leave in
February 2016 and CP’s decision to terminate her the same month. Lovland v. Emp’rs
Mut. Cas. Co., 674 F.3d 806, 813 (8th Cir. 2012). Based on the record, we agree with
the district court that CP put forth a legitimate, nondiscriminatory reason for
including her in the RIF—Button was one of the least qualified Operations
Supervisors at the time of the RIF. See id.
Because CP proffered a legitimate, nondiscriminatory reason for terminating
Button, to survive summary judgment she must provide evidence that creates a
genuine dispute of material fact that CP’s stated reason was mere pretext for FMLA
discrimination. Wierman, 638 F.3d at 999.
[Button] may prove pretext by demonstrating that [CP]’s proffered
reason has no basis in fact, that [she] received a favorable review shortly
before [s]he was terminated, that similarly situated employees who did
not engage in the protected activity were treated more leniently, that
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[CP] changed its explanation for why it fired [her], or that [CP] deviated
from its policies.
Stallings v. Hussmann Corp., 447 F.3d 1041, 1052 (8th Cir. 2006).
First, Button points out that she received a favorable review shortly before
being terminated. This constituted a thank you letter and a gift card for completing
the previous year without any incidents. A recent favorable review may be used as
evidence to show that an “employer’s proffered explanation for the adverse action
had no basis in fact or was not actually important to the employer.” Smith v. Allen
Health Sys., Inc., 302 F.3d 827, 834 (8th Cir. 2002). However, Button’s letter from
CP is not evidence of pretext because it does not undermine CP’s reasoning for
terminating her in the RIF. She may have done well by avoiding incidents and
deserved commendation, but her qualifications still compared unfavorably with other
Operations Supervisors. See id. at 834–35 (rejecting argument that evidence of a
favorable review was pretextual because the employee’s high score for
acknowledging gifts did not rebut the employer’s separate reason for firing her after
learning that she was behind on sending out receipts).
Button also attempts to point out a pattern of FMLA discrimination by CP
against employees who take FMLA leave. She relies on Hite v. Vermeer
Manufacturing Co. for support. See 446 F.3d 858 (8th Cir. 2006). Hite held that a
plaintiff demonstrated a pattern of discrimination when two employees testified that
they were retaliated against for taking FMLA leave. Id. at 868. However, Hite does
not help. The supervisor in that case regularly complained that FMLA was bad for the
company and explicitly told the plaintiff that she needed to be at work. See Ebersole
v. Novo Nordisk, Inc., 758 F.3d 917, 927 (8th Cir. 2014) (discussing Hite). This case
contains no such evidence.
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Button also fails to show that other similar CP employees had suffered FMLA
discrimination. Two of the employees that Button points to never took FMLA leave.
And, the other two employees were terminated for different reasons: CP terminated
one of the employees two years earlier in a different RIF and fired the other for
disciplinary reasons. Further, it is undisputed that CP decided to keep three
Operations Supervisors considered in the RIF who had also taken FMLA leave.
Button fails to point out a pattern of FMLA discrimination.
Finally, Button again argues that CP’s shifting explanations and failure to
follow policy are evidence of pretext. But, these arguments fail for the same reasons
they did so in her gender discrimination claim—“a lack of sufficient evidence to cast
doubt on [CP’s] legitimate, [nondiscriminatory] reason for terminating [Button].” See
Wierman, 638 F.3d at 1001. The record evidence does not support Button’s claim CP
used the RIF as pretext for FMLA discrimination. Therefore, the district court
properly granted summary judgment in favor of CP on Button’s FMLA discrimination
claim.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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