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 Act

("ERISA"), 29 U.S.C. § 1140 ("Section 510"), alleging that Trilogy

terminated him because he suffers from diabetes and the company did not

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.

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expenses through its self-insured medical plan. The district court granted

2

Trilogy's motion for summary judgment on the grounds that Mathews failed

to establish a prima facie case of discrimination under the ADA and MHRA,

or a prima 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, the record reveals the

following facts. Mathews is an insulin-dependent diabetic. He began

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

occasions he lost consciousness and required hospitalization. Following

Mathews' third attack in October 1992, Trilogy's Human Resources Manager,

Doug Kelly, became concerned about Mathews' diabetic condition and the

possibility of an a diabetic episode while with a client. Thus, Kelly met

with Mathews to determine what, if anything, Trilogy could do to help him

better control his condition. At the meeting, Mathews insisted that his

condition was not a problem and that he would have no further diabetic

episodes as he could sense when they were coming on and take the necessary

preventative measures. Although he has difficulty recalling the specifics

of what Kelly said, Mathews claims to have left the meeting with the

distinct impression that Trilogy would be watching him and "that the

company would view [another diabetic episode] as a possibility for

dismissal." 

Mathews continued in his employment without another diabetic attack

for almost two years and received favorable performance reviews from

Trilogy in both August 1993 and August 1994. In September 1994, Mathews'

supervisor, Neil Brasfield, attended a meeting in Kansas City, Missouri

with Mathews and a prospective client.
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Mathews' unusual behavior while the two were together--high strung and

easily excited one evening then very subdued to the point of not paying

attention the next morning--led Brasfield to question whether Mathews was

properly monitoring his medication. Brasfield memorialized his

observations in a memo to Kelly, who in turn consulted with Mathews'

physician, Dr. Mark Schroeder. Dr. Schroeder indicated that Mathews was

taking his medication as directed and there was no reason for concern over

his health. Given Dr. Schroeder's assurances, Kelly took no further

action. Neither Kelly nor Brasfield were aware of any other diabetic

episodes Mathews experienced prior to his termination in August 1995. 

 

In February 1995, Trilogy entered into a contract with a new insurance

carrier, Chandler Sampson Insurance, Inc. ("Chandler Sampson"). Shortly

thereafter, Chandler Sampson requested driving records of the employees

covered by the new policy. Mathews' record revealed that he had been

ticketed for speeding on June 30, 1993, and March 18, 1994, and that his

driver's license had been suspended for driving under the influence of

alcohol on June 22, 1993. The record also showed that Mathews' license had

not been reinstated until June 15, 1994. Based on its review of the

employees' records, Chandler Sampson notified Trilogy that Mathews and

three other employees had problem driving records. In July 1995, Chandler

Sampson informed Trilogy that it planned to monitor Mathews and another

employee, and that they would be excluded from coverage for any additional

driving violations. 

Meanwhile, Mathews suffered another diabetic incident at his home on

June 6, 1995. Mathews passed out, broke his leg in the fall, and was

hospitalized for six days. The medical bills related to this incident were

$15,000. Trilogy maintains a self-insured health plan for its employees;

therefore, less a $100 deductible, Trilogy paid Mathews' medical bills in

their entirety. Mathews did not tell anyone at the company that the

incident was related to his diabetic condition. Instead, Mathews told

Brasfield that he had tripped over some clutter in his house. There is no

evidence in the record that anyone 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. See Aff. 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). 

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On August 14, 1995, Chandler Sampson checked Mathews' driving record

again and discovered that he had received another speeding violation on

April 13, 1995. Thus, the insurance company excluded Mathews from further

coverage under Trilogy's policy. On August 15, 1995, Brasfield contacted

Mathews by phone to inform him that he was no longer covered by the

company's insurance carrier and that he was not to drive the company

vehicle or his personal vehicle on company business until other

arrangements for insurance coverage could be made. Brasfield also told

Mathews that if he could verify the amount of his personal insurance

coverage, Trilogy might consider using Mathews' personal insurance policy

assuming it met all the legal requirements. Mathews failed to offer any

proof of personal insurance, and it was later decided that having an

employee use his or her personal insurance would be both unworkable and not

in the company's best interest.

 

On August 17, 1995, Brasfield sent a memo to Mathews outlining a

possible discrepancy on his motor vehicle record regarding his driving

privileges. According to the record, Brasfield noted that Mathews had

received an administrative suspension for driving under the influence of

alcohol on June 22, 1993. Although the record reflected that the end date

of the suspension was September 20, 1993, Mathews' license was not

reinstated until June 15, 1994. Brasfield requested that Mathews compare

this information with his own records and provide management with some

documentation if the information was incorrect. Mathews denied incurring

the violations 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. 

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On August 18, 1995, Jim Wonn, Trilogy's Vice President of Domestic

Operations, notified Kelly that after reviewing Mathews' driving records

he had concluded that Mathews had demonstrated a pattern of unsafe driving;

had given management false explanations for his various violations; had put

4

Trilogy at risk because he was uninsurable; and had operated a company car

without a proper driver's license. Accordingly, Wonn directed Kelly to

terminate Mathews immediately. Kelly and Brasfield notified Mathews 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, 117

th

S.Ct. 274, 136 L.Ed.2d 197 (1996). Summary judgment is proper when the

record reveals "no genuine issue as to any material fact ... and the moving

party is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). When evaluating a motion for summary judgment, we must draw all

reasonable inferences in favor of the non-moving party and refrain from

assessing credibility. Miller v. Nat'l Cas. Co., 61 F.3d 627, 628 (8 Cir. th

1995). The non-moving party, however, may not simply rest upon the

pleadings, 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). 

The ADA prohibits employment discrimination against a qualified

individual because of a disability. See 42 U.S.C. § 12112(a). To make out

a prima facie case of disability discrimination under the ADA, Mathews

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). 

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perform the essential functions of the job, with or without reasonable

accommodation; and 3) he suffered an adverse employment action under

circumstances 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

1995). The district court granted Trilogy summary judgment based on

5

Mathews' failure to establish the second element. The court concluded that

because Mathews was uninsurable under the company's automobile insurance

policy for reasons unrelated to his diabetes, he was not qualified to

perform one of the essential functions of a traveling salesperson-- driving

to the locations of clients. 

Mathews argues that the district court's analysis "short-circuited"

the burden-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 for

discharging him when evaluating whether he had presented a prima facie

case. Under the McDonnell Douglas test, once a plaintiff has set forth a

prima facie case of discrimination, the burden of production shifts to the

employer to articulate a legitimate, nondiscriminatory reason for its

actions. 411 U.S. at 802, 93 S. Ct. at 1824, 36 L.Ed.2d 668. If the

employer does so, the burden of production shifts back to the plaintiff to

demonstrate that the employer's proffered reason is a pretext for unlawful

discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-508, 113

S. Ct. 2742, 2747-48, 125 L.Ed.2d 407 (1993). Mathews contends that the

district court should have given him the opportunity to demonstrate to a

jury that Trilogy's inability to secure coverage for him under its

automobile insurance policy did not disqualify him from performing an

essential function of his job, but rather was a pretext for the company to

terminate him because of his diabetes.
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Mathews relies primarily on two cases: Miners v. Cargill

Communications., Inc., 113 F.3d 820 (8 Cir. 1997) and MacDonald v. Eastern th

Wyoming Mental Health Ctr., 941 F.2d 1115 (10 Cir. 1997). In Miners, the th

plaintiff brought an ADA claim against her employer after she was

terminated for driving a company vehicle under the influence of alcohol and

refusing to attend a chemical dependency treatment program. Id. at 822.

The employer argued that the plaintiff could not establish, as part of her

prima facie case, that she was "otherwise qualified" to perform her job

because 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 rejected the argument, noting that to accept it

"would allow an employer's proffered reason for an unfavorable action

toward an employee, pretextual or not, to prevent a plaintiff from

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 Age

Discrimination in Employment Act. 941 F.2d at 1117. The court ruled in

favor of the employer, finding that the plaintiffs offered no 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

articulated reasons for discharging the plaintiffs could not be used to

defeat their prima facie case, but could only be considered at the pretext

stage of the analysis. Id. at 1119-1121. The court then found that the

plaintiffs were qualified as they had established that they possessed "the

objective professional qualifications they held when they were hired." Id.

at 121. 

Whether considered at the prima facie stage or the pretext stage of

the analysis, the fact that Mathews' was no longer insurable under the

company's insurance plan entitled Trilogy to summary judgment. Unlike the

plaintiffs in Miners and MacDonald, at the time Mathews was terminated he

no longer possessed the same objective professional qualifications as when

he was hired. See Bienkowski v. American
6Mathews claims that Trilogy could have obtained insurance coverage for him

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. 

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Airlines, Inc., 851 F.2d 1503 (5 Cir. 1988) (Plaintiff's qualifications

th

placed in issue where he has suffered "loss of a professional license or

some other occurrence rendering the plaintiff unfit for the position for

which he was hired."). When Trilogy hired Mathews he possessed a valid

driver's license and was an insurable driver under the company's insurance

policy. Because Trilogy's sales personnel must be able to drive to the

locations of various clients, possessing a valid driver's license and being

insurable under the company's insurance policy are not merely company

rules, but rather objective professional qualifications for the job.

Chandler Sampson decided that Mathews' was no longer an insurable driver

due to his poor driving record while working for Trilogy. Thus,

independent of any subjective decision made by Trilogy, Mathews could not

establish that he was objectively qualified to perform the essential

functions of his job at the time he was terminated. Accordingly, Mathews 6

failed to establish a prima facie case of disability discrimination. 

Even assuming, however, that Mathews successfully established a prima

facie case, he has not presented sufficient evidence from which a jury

could conclude that Trilogy terminated him because of his diabetes.

Trilogy offers two legitimate, non-discriminatory reasons for its decision

to terminate Mathews: 1) he was excluded from Trilogy's automobile

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 policy. As noted above, after an employer

offers a legitimate, non-discriminatory reason for its actions, the burden

shifts back to Mathews to prove that the proffered reason was merely a

pretext for discrimination. Christopher v. Adam's Mark Hotels, 137 F.3d

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
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evidence for a reasonable trier of fact to infer discrimination. Rothmeier

v. Inv. Advisers, 85 F.3d 1328, 1335 (8 Cir. 1996). th

To show pretext, Mathews initially points to Trilogy's adoption of an

automobile usage policy just days prior to his termination. He argues that

the policy was specifically drafted to justify his termination and that

Trilogy did not retroactively discipline any other employees under the

policy. The evidence shows, however, that Kelly began drafting the policy

in June 1995, almost three months before he or Brasfield were informed that

Mathews had a problem driving record and was therefore being denied

insurance coverage. The fact that Mathews was the only employee

disciplined under the policy is of little significance. Plaintiff does not

present evidence that any of Trilogy's other employees were denied

insurance coverage or drove a company vehicle without a valid driver's

license. 

Next, Mathews contends that Kelly made direct expressions of

discriminatory bias concerning his 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 not

remember the specifics of the conversation. Mathews Dep. at 216. Rather,

he can only recall that he left the meeting with the impression that if he

had another diabetic incident it would jeopardize his job. Mathews Dep.

at 219. There is no linkage between any purported discriminatory animus

Kelly expressed during that meeting and Mathews' termination three years

later. At the time of Mathews' termination, Kelly was unaware that

Mathews' had suffered another diabetic attack in his home three months

earlier. Furthermore, Mathews was successfully employed by Trilogy for

three years following this meeting with Kelly and he received favorable

work evaluations in the interim. Such vague and remote evidence of

discriminatory bias is insufficient to link Mathews' termination with his

diabetic condition. 

Mathews also claims that Kelly's discriminatory bias is evidenced by

his referral
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to Mathews as a "diabetic poster boy." The reference was made during

Kelly's deposition after litigation had commenced and was intended to

describe the manner in which Mathews viewed his own condition--not the

manner in which Kelly viewed Mathews' condition. See Kelly Dep. at 69.

Statements by decisionmakers that are unrelated to the decision process

itself do not constitute direct evidence 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 comment

made in a deposition two years after his termination are insufficient to

raise an inference of discriminatory bias.

Similarly, Mathews' final two attempts to show pretext are wholly

unpersuasive. Mathews claims that Trilogy gave particular scrutiny to his

driving record after he suffered his diabetic attack in June 1995. There

is no evidence, however, that anyone at Trilogy was aware that Mathews'

broken leg was the result of a diabetic incident until long after he was

terminated. Furthermore, it was Chandler Sampson, not Trilogy who

scrutinized Mathews' driving record. Neither Kelly nor Brasfield was

informed of Mathews' poor driving record until August 1995, over two

months after Mathews' diabetic attack. At that point, they attempted to

verify the accuracy of the records before deciding to terminate Mathews'

employment. 

Finally, Mathews contends that Trilogy created post-hoc justifications

for his termination, giving rise to an inference that the justifications

were merely a pretext for discrimination. It is clear from the record,

however, that Trilogy has consistently asserted as reasons for Mathews'

termination the inability to obtain insurance coverage for him and his

operation of a company vehicle without a valid driver's license. Mathews'

has failed to present sufficient evidence for a jury to conclude that his

termination was based on anything other than Trilogy's legitimate, nondiscriminatory justifications; therefore, the district court properly

dismissed his ADA and MHRA claims.
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III.

Mathews also appeals from the district court's summary judgment of his

retaliation claim under Section 510 of ERISA. Under Section 510, an

employer may not discharge an employee "for exercising any right to which

he is entitled under the provisions of an employee benefit plan ... or for

the purpose of interfering with the attainment of any right to which such

participant may become entitled under the plan." 29 U.S.C. § 1140. The

same burden-shifting framework that applied to Mathews' ADA claim also

applies to his claim under Section 510. Rath v. Selection Research, Inc.,

978 F.2d 1087, 1089 (8th Cir.1992). 

To establish a prima facie case of retaliation, Mathews needed to

establish a causal connection between his participation in Trilogy's selfinsured medical plan and his termination. Kinkead v. Southwestern Bell

Tel. Co., 49 F.3d 454, 456 (8 Cir. 1995). The connection may be

th

established either through direct evidence of retaliation or circumstantial

evidence "such as proof that the discharge followed an exercise of

protected rights so closely in time as to justify an inference of

retaliatory motive." Rath, 978 F.2d at 1090. Mathews' only evidence of

causal connection is his termination two months after submitting a $15,000

claim under Trilogy's self-insured medical plan. Mathews claims that he

was terminated because of the substantial amount of the claim and because

his medical condition would result in large medical bills in the future.

While a time lapse of only two months between the exercise of

protected rights and a discharge may create the inference of a retaliatory

motive, we agree with the district court that under the circumstances of

this case, no such inference arises. The record reveals that Mathews had

claimed substantial benefits for hospitalizations resulting from two

diabetic attacks in 1992 and suffered no adverse employment action at that

time. Significantly, Trilogy did not learn that Mathews' June 1995

hospitalization was the result of a diabetic attack until after Mathews was

terminated in August 1995. Consequently, when Trilogy made the decision

to terminate Mathews
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it had no reason to believe that Mathews would incur substantial diabetesrelated medical expenses in the future. Furthermore, five other Trilogy

employees had submitted claims against its health insurance plan in excess

of Mathews' claims yet remained employed by the company. Finally, as

explained above in section II, Trilogy has set forth two legitimate, nondiscriminatory reasons which account for the timing of Mathews'

termination. We affirm the district court's decision to dismiss Mathews'

ERISA claim.

A true copy.

Attest:

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