## The Honorable Ann D. Montgomery, United States District Judge for the 1 

## District of Minnesota, sitting by designation. United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 97-3575

Harold W. Mathews, Jr., * * Plaintiff-Appellant, * * Appeal from the United States
v. * District Court for the Western * District of Missouri Trilogy Communications, Inc., * * Defendant-Appellee. *

Submitted: March 9, 1998 Filed: May 14, 1998

Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and MONTGOMERY, District Judge. 1

MONTGOMERY, District Judge Harold J. Mathews, Jr. ("Mathews"), sued Trilogy Communications , Inc. ("Trilogy") under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. , the Missouri Human Rights Act ("MHRA"), Mo. Rev. Stat. §§ 213.010 et seq. , and the Employee Retirement Income Security Ac t ("ERIS A"), 29 U.S.C. § 1140 ("Section 510"), alleging that Trilog y terminated him because he suffers from diabetes and the company did no t want to continue paying his diabetes-related health care

## The Honorable Joseph E. Stevens, Jr., United States District Judge for the 2 

## Western District of Missouri.

-2- expenses through its self-insured medical plan. The district court grante d 2 Trilogy's motion for summary judgment on the grounds that Mathews faile d to est ablish a prima facie case of discrimination under the ADA and MHRA, or a p rima facie case of retaliation under Section 510 of ERISA. Mathews appeals from the judgment, and we affirm.

I. Viewed in the light most favorable to Mathews, t he record reveals the fo llowing facts. Mathews is an insulin-dependent diabetic. He bega n working for Trilogy as a traveling sales representative in August 1992

. During the first three months he worked for the company, Mathews had three diabetic attacks in the presence of other Trilogy employees. On two of the occasi ons he lost consciousness and required hospitalization. Following Mathew s' third attack in October 1992, Trilogy's Human Resources Manager, Dou g Kelly, became concerned about Mathews' diabetic condition and th e possibility of an a diabetic epis ode while with a client. Thus, Kelly met with M athews to determine what, if anything, Trilogy could do to help him better con trol his condition. At the meeting, Mathews insisted that hi s
con dition was not a problem and that he would have no further diabeti c episodes as he could sense when they were coming on and tak e the necessary preventative measures. Although he has difficulty recalling the specifics of what K elly said, Mathews claims to have left the meeting with th e distinct impression that Trilogy would be watching him and "that th e
com panywould view [another diabetic episode] as a possibility fo r dismissal."

Mathews continued in his employment without another diabetic attack for almost two years and received favorable performance reviews fro m Trilogy in both August 1993 and August 1994. In September 1994, Mathews' sup ervisor, Neil Brasfield, attended a meeting in Kansas City, Missour i with Mathews and a prospective client.

### -3-

Mat hews' unusual behavior while the two were together--high strung an d easilyexcited one evening then very subdued to the point of not payin g attent ion the next morning--led Brasfield to question whether Mathews was prope rlymonitoring his medication. Brasfield memorialized hi s observat ions in a memo to Kelly, who in turn consulted with Mathews ' physician, Dr. Mark Schroeder. Dr. Schroeder indicated that Mathews wa s taking his medication as directedand there was no reason for concern over his healt h. Given Dr. Schroeder's assurances, Kelly took no furthe r act ion. Neither Kelly nor Brasfield were aware of any other diabeti c episodes M athews experienced prior to his termination in August 1995.

InFebruary 1995, Trilogy entered into a contract with a new insuranc e carri er, Chandler Sampson Insurance, Inc. ("Chandler Sampson"). Shortl y thereafter, Chandler Sampson requested driving records of the employee s
covere d by the new policy. Mathews' record revealed that he had bee n ticketed for speeding on June 30, 1993, and March 18, 1994, and that hi s drive r's license had been suspended for driving under the influence o f alcohol on June 22, 1993. The record also showed that Mathe ws' license had not been rei nstated until June 15, 1994. Based on its review of th e emp loyees' records, Chandler Sampson notified Trilogy that Mathews an d three other employees had problem driving records. In July 1995, Chandler Sampson informed Trilogy that it planned to monitor Mathews and anothe r employee, and that they would be excluded from coverage for any additional driving violations.

Meanwhile, Mathews su ffered another diabetic incident at his home on June 6, 1995. Mathews passed out, broke his leg in the fall, and wa s hospitalized for six days. The medical bills related to thi s incident were $15,00 0. Trilogy maintains a self-insured health plan for its employees; theref ore, less a $100 deductible, Trilogy paid Mathews' medical bills in their ent irety. Mathews did not tell anyone at the company that th e incid ent was related to his diabetic condition. Instead, Mathews tol d Brasfield that he had tripped ove r some clutter in his house. There is no evidence in the record that anyon e at Trilogy knew Mathews' broken leg was the result of a diabetic attack.

## Although there is conflicting evidence in the record concerning the length of 3 

## time Mathews was without driving privileges while employed by Trilogy, the evidence conclusively shows that he was without valid driving privileges at least from May 15, 1994, to June 15, 1994. SeeAff. of Anne McEowen, Supervisor of the Administrative Alcohol Section for the Missouri Department of Revenue (Appellant's App. at 111); Letter from Richard A. James, Esq., to Doug Kelly, August 24, 1995(Appellant's App. at 279).

-4- On August 14, 1995, C handler Sampson checked Mathews' driving record again an d discovered that he had received another speeding violation o n April 13, 1995. Thus, the insura nce company excluded Mathews from further

covera ge under Trilogy's policy. On August 15, 1995, Brasfield contacted Mathews by phone to inform him that he was no longer covered by th e company' s insurance carrier and that he was not to drive the compan y veh icle or his personal vehicle on company business until othe r arrangem ents for insurance coverage could be made. Brasfield also tol d Mathews that if he could verify the amount of his personal insuranc e
covera ge, Trilogy might consider using Mathews' personal insurance policy assuming it met all the legal requirements. Mathews failed to offer an y proof of personal insurance, and it was later decided that having a n employee use his or her personal insurance would be both unw orkable and not in the company's best interest.

On August 17, 1995, Brasfield sent a memo to Mathews outlining a pos sible discrepancy on his motor vehicle record regarding his drivin g privi leges. According to the record, Brasfield noted that Mathews ha d receiv ed an administrative suspension for driving under the influence of alcohol on June 22, 1993. Althou gh the record reflected that the end date of the suspension was September 20, 1993, Mathews' license was no t reinst ated until June 15, 1994. Brasfield requested that Mathews compare this information with his own records and provide management with som e docume ntation if the information was incorrect. Mathews denied incurring the vi olations but he was unable to provide management with evidence that the motor vehicle record was inaccurate. 3

## When Mathews was arrested in 1993 for driving under the influence of 4 

## alcohol he spent six days in jail on another matter involving unpaid child support. Mathews told his supervisor that he was in jail for failure to pay child support but did not mention his citation for driving under the influence.

-5- On August 18, 1995, Jim Wonn, Trilogy's Vice President of Domesti c Opera tions, notified Kelly that after reviewing Mathews' driving record s he had concluded that Mathews had demonstrated a pattern of unsafe driving; had given management false explanations for his various violations; had pu t 4 Trilogy at risk because he was un insurable; and had operated a company car without a proper driver's license. Accordingly, Wonn directed Kelly t o terminate Mathews immediately. Kelly and Brasfield notifiedMathews of his termination by telephone that same afternoon.

II. We review the district court's entry of summary judgment de novo

. Price v. S-B Power Tool , 75 F.3d 362, 364 (8 Cir.), cert. denied , 11 7 th S.Ct. 274, 136 L.Ed.2d 197 (1996). Summary judgment is proper when th e record reveals "no genuine issue as to any material fact ... and the moving party is ent itled to a judgment as a matter of law." Fed. R. Civ. P

. 56(c). When evaluating a motion for summary judgment, we must draw al l reasonab le inferences in favor of the non-moving party and refrain fro m assessing credibility. Miller v. Nat'l Cas. Co. , 61 F.3d 627, 62 8 (8 Cir. th 19 95). The non-moving party, however, may not simply rest upon th e pleadi ngs, but must point to evidence in the record sufficient to raise a genuine issue for trial. Celotex Corp. v. Catrett , 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Th e ADA prohibits employment discrimination against a qualifie d individual because of a disability. See 42 U.S.C. § 12112(a ). To make out

a pr ima facie case of disability discrimination under the ADA, Mathew s needed to establish the following : 1) he was a disabled person within the meaning of the ADA; 2) he was qualified to

## Mathews' claims under the ADA and the MHRA are governed by the same 5 

## standards. See Tart v. Hill Began Lumber Co. , 31 F.3d 668, 671 (8 Cir. 1994) th 

## (federal employment discrimination decisions apply to MHRA).

-6- perfo rmthe essential functions of the job, with or without reasonabl e
acc ommodation; and 3) he suffered an adverse employment action unde r circu mstances from which an inference of unlawful discrimination arises

. Aucutt v. Six Flags Over Mid-America, Inc. , 85 F.3d 1311, 1318 (8 Cir

. th 1996 ); Benson v. Northwest Airlines, Inc. , 62 F.3d 1108, 1112 (8 Cir

. th 199 5). The district court granted Trilogy summary judgment based o n

5 Mathews' failure to establish the second element. The court concluded that becau se Mathews was uninsurable under the company's automobile insuranc e pol icyfor reasons unrelated to his diabetes, he was not qualified t o perform one of the essential functions of a traveling salesp erson-- driving to the locations of clients.

Mathews argues that the district court's analysis "short-circuited" the bu rden-shifting analysis set out in McDonnell Douglas Corp. v. Green , 411 U. S. 792, 802-05, 93 S. Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973), and its progeny, by considering one of Trilogy's proffered reasons fo r disch arging him when evaluating whether he had presented a prima faci e
case. Under the McDonnell Douglas test, once a plaintiff has set forth a prima facie case of discriminatio n, the burden of production shifts to the employ er to articulate a legitimate, nondiscriminatory reason for it s action s. 411 U.S. at 802, 93 S. Ct. at 1824, 36 L.Ed.2d 668. If th e employer does so, the burden of p roduction shifts back to the plaintiff to demonstrate that the employer's p roffered reason is a pretext for unlawful discrimination. St. Mary's Honor Ctr. v. Hicks , 509 U.S. 50 2, 507-508, 113 S. Ct. 27 42, 2747-48, 125 L.Ed.2d 407 (1993). Mathews contends that th e district c ourt should have given him the opportunity to demonstrate to a jur ythat Trilogy's inability to secure coverage for him under it s aut omobile insurance policy did not disqualify him from performing a n essential function of his job, bu t rather was a pretext for the company to terminate him because of his diabetes.

### -7- Mathew s relies primarily on two cases: Miners v. Cargil l Communications., Inc. , 113 F.3d 820 (8 Cir. 1997) and MacDonal d v. Eastern th Wyoming Mental Health Ctr. , 941 F.2d 1 115 (10 Cir. 1997). In Miners , the th plaintiff brought an ADA claim against her employer after she wa s terminated for driving a company vehicle under the influence of alcohol and refusing t o attend a chemical dependency treatment program. Id. at 822

. The employer argued that the plai ntiff could not establish, as part of her prim a facie case, that she was "otherwise qualified" to perform her jo b becaus e driving a company vehicle under the influence of alcohol violated the employer's written rules and was contrary to the employer's interests. Id. at 823 n.6. The Court reject ed the argument, noting that to accept it "wo uld allow an employer's proffered reason for an unfavorable actio n tow ard an employee, pretextual or not, to prevent a plaintiff fro m presenting a prima facie case in all but the most blatantly discriminatory cases under the ADA." Id.

In MacDonald , the plaintiffs filed suit against their former employer alleging that they had been discharged in violation of the Ag e Discrimi nationin Employment Act. 941 F.2d at 1117. The court ruled i n favor of the employer, finding that the plaintiffs offered n o evidence that the employer's actions were a pretext for age discrimination

. Id. at 1122. In arriving at this conclusion, however, the court held that the employer's articula ted reasons for discharging the plaintiffs could not be used t o defeat their prima facie case, bu t could only be considered at the pretext stage o f the analysis. Id. at 1119-1121. The court then found that th e plaintiffs were qualified as they had established that they possessed "the objective professional qualifications they held when they we re hired." Id. at 121.

Whether considered at the prima facie stage or the pretext stage of the analy sis, the fact that Mathews' was no longer insurable under th e company's insurance plan entitledTrilogy to summary judgment. Unlike the plaint iffs in Miners and MacDonald , at the time Mathews was terminated he no longer possessed the same obje ctive professional qualifications as when he was hired. See Bienkowski v. American

## Mathews claims that Trilogy could have obtained insurance coverage for him 6 

## from another automobile insurer or that he could have used his own personal automobile insurance. There is no evidence in the record, however, to support either claim.

-8- Airline s, Inc. , 851 F.2d 1503 (5 Cir. 1988) (Plaintiff's qualification s th placed in issue where he has suffered "loss of a professional license o r
some other occurrence rendering the plaintiff unfit for the position fo r whichhe was hired."). When Trilogy hired Mathews he possessed a vali d driver's license and was an insur able driver under the company's insurance policy. Because Trilogy's sales personnel must be able to drive to th e locations of various clients, possessing a valid driver's li cense and being ins urable under the company's insurance policy are not merely compan y rules, but rather objective professional qualifications for the job

. Chandler Sampson decided that Mathews' was no longer an insurable drive r due to his poor driving record while working for Trilogy. Thus , indepe ndent of any subjective decision made by Trilogy, Mathews could not est ablishthat he was objectively qualified to perform the essentia l functions of his job a t the time he was terminated. Accordingly, Mathews 6 failed to establish a prima facie case of disability discrimination.

Even assuming, however, that Mathews successfull y established a prima facie cas e, he has not presented sufficient evidence from which a jur y
cou ld conclude that Trilogy terminated him because of his diabetes

. Trilogy offers two legitimate, non-discriminatory reasons f or its decision to ter minate Mathews: 1) he was excluded from Trilogy's automobil e insurance policy because of his unsafe driving record while working for the company; and 2) he operated a company vehicle without a valid driver' s license in violation of company p olicy. As noted above, after an employer offers a legitimate, non-discrimi natory reason for its actions, the burden shi fts back to Mathews to prove that the proffered reason was merely a pretext for discrimination. Christopher v. Adam's Mark Hotels , 137 F.3 d 1069, 1072 (8 Cir. 1988). Mathews must do more than simply create a th factual dispute as to the issue of pretext; he must offer sufficient

### -9-

evidence for a reasonable trier of fact to infer discriminat ion. Rothmeier v. Inv. Advisers , 85 F.3d 1328, 1335 (8 Cir. 1996). th

To show pretext, Mathews initially points to Tri logy's adoption of an automobile usage policy just days prior to his termination. He argues that the poli cy was specifically drafted to justify his termination and tha t Tri logydid not retroactively discipline any other employees under th e policy. The evidence shows, howe ver, that Kelly began drafting the policy in June 1995, almost three months before he or Brasfield wer e informed that Mathews had a problem driving record and was therefore being denie d insuran ce coverage. The fact that Mathews was the only employe e disciplined under the policy is of little significance. Pla intiff does not pre sent evidence that any of Trilogy's other employees were denie d insur ance coverage or drove a company vehicle without a valid driver' s license.

Nex t, Mathews contends that Kelly made direct expressions o f discriminatory bias concerning hi s diabetic condition. As evidence of such bias, Mathews initially points to the meeting with Kelly shortly after his diabetic attacks in 1992. Mathews admits, however, that he does no t remember the specifics of the conversation. Mathews Dep. at 216. Rather, he can only recall that he left t he meeting with the impression that if he had anothe r diabetic incident it would jeopardize his job. Mathews Dep

. at 219. T here is no linkage between any purported discriminatory animu s Kel lyexpressed during that meeting and Mathews' termination three year s la ter. At the time of Mathews' termination, Kelly was unaware tha t Mathe ws' had suffered another diabetic attack in his home three month s
ear lier. Furthermore, Mathews was successfully employed by Trilogy fo r three ye ars following this meeting with Kelly and he received favorabl e
wo rk evaluations in the interim. Such vague and remote evidence o f discri minatory bias is insufficient to link Mathews' termination with his diabetic condition.

Mathews also claims t hat Kelly's discriminatory bias is evidenced by his referral

### -10-

to Mat hews as a "diabetic poster boy." The reference was made durin g Kel ly's deposition after litigation had commenced and was intended t o descr ibe the manner in which Mathews viewed his own condition--not th e
manner in which Kelly viewed Mathews' condition. See Kelly Dep. at 69

. Sta tements by decisionmakers that are unrelated to the decision proces s itself do not constitute direct e vidence of discriminatory bias. Beshears v. Asbill , 930 F.2d 1348, 1354 (8 Cir. 1991). Mathews' impressions of a th meeting held three years before his termination and an ambiguous commen t made in a deposition two years after his termination are insufficient t o raise an inference of discriminatory bias.

Simila rly, Mathews' final two attempts to show pretext are wholl y unpersuasive. Mathews claims tha t Trilogy gave particular scrutiny to his drivin g record after he suffered his diabetic attack in June 1995. There is n o evidence, however, that anyone at Trilogy was aware that Mathews ' broken l eg was the result of a diabetic incident until long after he wa s ter minated. Furthermore, it was Chandler Sampson, not Trilogy wh o
scr utinized Mathews' driving record. Neither Kelly nor Brasfield wa s inf ormed of Mathews' poor driving record until August 1995, over tw o months aft er Mathews' diabetic attack. At that point, they attempted t o verify the accuracy of the records before deciding to terminate Mathews ' employment.
Finally, Mathews contends that Trilogy created post-hoc justification s for his termination, giving rise to an inference that the justification s
were merely a pretext for discrimination. It is clear from the record , how ever, that Trilogy has consistently asserted as reasons for Mathews ' termi nationthe inability to obtain insurance coverage for him and hi s operation of a company vehicle without a valid driver's lice nse. Mathews' has fa iled to present sufficient evidence for a jury to conclude that his ter minationwas based on anything other than Trilogy's legitimate, non

discriminatoryjustifications; therefore, the district court properl y dismissed his ADA and MHRA claims.

### -11- III. Mathews also appeals from the district court's summary judgment of hi s retaliat ionclaim under Section 510 of ERISA. Under Section 510, a n employ er may not discharge an employee "for exercising any right to which he is entitled under the provisio ns of an employee benefit plan ... or for the pu rpose of interfering with the attainment of any right to which such particip ant may become entitled under the plan." 29 U.S.C. § 1140. Th e
same burde n-shifting framework that applied to Mathews' ADA claim als o applies to his claim under Sectio n 510. Rath v. Selection Research, Inc. , 978 F.2d 1087, 1089 (8th Cir.1992).

To establish a prima facie case of retaliation, Mathews needed t o establish a causal connection bet ween his participation in Trilogy's selfinsured me dical plan and his termination. Kinkead v. Southwestern Bel l Tel. Co. , 49 F.3d 454, 456 (8 Cir. 1995). The connection may b e th established either through direct evidence of retaliation or circumstantial evi dence "such as proof that the discharge followed an exercise o f protected rights so closely in time as to justify an inference o f retaliato rymotive." Rath , 978 F.2d at 1090. Mathews' only evidence o f causal connection is his terminat ion two months after submitting a $15,000 claim under Trilogy's self-insured medical plan. Mathews claims that he was te rminated because of the substantial amount of the claim and because his medica l condition would result in large medical bills in the future

.

Whi le a time lapse of only two months between the exercise o f protected rights and a discharge may create the inference of a retaliatory motive, we agree with the district court that under the circumstances o f this c ase, no such inference arises. The record reveals that Mathews had cla imed substantial benefits for hospitalizations resulting from tw o diabetic attacks in 1992 and suff ered no adverse employment action at that time. Significantly, Trilogy did not learn that Mathews' June 199 5 hospitalization was the result of a diabetic attack until af ter Mathews was terminated in August 1995. Consequently, when Trilogy made the decisio n to terminate Mathews

### -12-

it had no reason to believe that Mathews would incur substantial diabetesrelated medical expenses in the future. Furthermore, five other Trilog y employees had submitted claims ag ainst its health insurance plan in excess of Mathews' claims yet remained employed by the company. Finally, a s explai ned above in section II, Trilogy has set forth two legitimate, nondiscriminatoryreasons which account for the timing of Mathews ' termin ation. We affirm the district court's decision to dismiss Mathews' ERISA claim.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT