1 The Honorable John R. Tunheim, United St ates District Judge for the District of Minnesota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-1301

___________ Jose Juan Macias Soto, *
* Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. Core-Mark International, Inc., * * Defendant - Appellee. *

___________ Submitted: October 5, 2007 Filed: April 1, 2008

___________ Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.

___________ BYE, Circuit Judge.

Jose Juan Macias Soto appeals the district court's 1 order, granting summary judgment in favor of Core-Mark Internati onal, Inc. (Core-Mark), on his claim for retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §§ 2000e- 2000e-5, and in violation of the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363A.03. We affirm.2The parties dispute whether, nonethele ss, Core-Mark continued to allow white drivers to use cell phones and wear jackets over their uniforms.
-2-

I

Mr. Soto worked as a driver for Core-Mark from July 2002 until he was terminated on December 30, 2003. In June 2003, he sustained a back injury while on the job. As a result of the injury, he was temporarily reassigned from his driver position to light duty. His doctor restrict ed his work activities to certain lift/carry maximums, push/pull maximums, twisting/turning at waist limitations, and bending at waist limitations. Additionally, the doctor ordered him to be allowed to alter his posture as needed, sit/stand as needed, walk frequently, and perform back stretching exercises upon the onset of back pain or after performing tasks which required physical labor. His supervisors and managers, including the Human Resources Manager, Ms. Toni Gonzalez, knew about his injury and his work restrictions.

In November 2003, Mr. Soto spoke with his supervisors because he believed he was being discriminated against based on his national origin. He claimed only white employees were allowed to wear j ackets over their uniforms and use their cell phones. Thereafter, Core-Mark posted a me mo reiterating the use of cell phones and beepers was prohibited. 2About one month later, he again told his supervisor white employees were wearing jackets over thei r uniforms and again asked for permission to wear a jacket over his uni form. The supervisor explained to him no workers were allowed to wear jackets over their uniforms.

Later that same day, Mr. Soto as ked to leave work early because of experiencing chest pain. His supervisor toldhim if he left work early his employment would be terminated. He stayed until his sh ift was over, then went to an urgent care clinic where a doctor diagnosed him with pneumonia and ordered he stay home from work for about ten days. He returned to work in mid-December. On his first day-3- back, he wore a jacket over his uniform. When his supervisor told him he was not allowed to wear the jacket, he responde d the white workers were allowed to wear jackets over their uniforms and this constituted discrimination.

On the same day, Mr. Soto received a letter concerning his "continued unacceptable conduct and behavior." Join t Appendix ("J.A.") at 79. The letter informed him he could no longer contact Ms. Gonzalez about pr eviously resolved issues. Moreover, it stated if he wanted to meet with Ms. Gonzalez he would have to contact a manager ahead of time to schedule an appointment. The letter further advised if he chose to con tinue conducting himself in such a "disruptive manner" he would be "at risk for disciplinary ac tion up to and including termination of employment." Id. Soon after receiving the letter, he began the process of filing a discrimination charge with the Minnesota Department of Human Rights.

On December 26, 2003, Mr. Soto was assigned to clean an office. The assignment required him to bend over to peel stickers off of the floor. The bending caused him back pain so he sat down to rest and stretch his back. He leaned forward, put his head on his forearms, and pushed his back forward and up, keeping his eyes open the entire time.

One of Mr. Soto's coworkers observing him and, believing he was sleeping at his workstation, reported the incident to Mr. Richard Laliberte, a Core-Mark manager. Mr. Laliberte went over to his workstation to observe for himself. He had his head down and his eyes closed. Mr. Laliberte stood over him for several minutes and he never moved. According to Mr. Laliberte, atthis point, he woke him up and sent him home for the day. He maintains he was awak e, his eyes were ope n, and his head was facing towards the ground. According to hi m, he did not realize Mr. Laliberte was observing him until he saw Mr. Laliberte's s hoes, at which time he explained to Mr. Laliberte he was stretching, not sleeping.3 In the proceedings below, Mr. Soto cl aimed during the meeting Ms. Gonzalez laughed at him and Mr. Hunter told hi m they knew he wa s going to file a discrimination report.
-4- The same day, Mr. Laliberte sent an email to Ms. Gonzalez (and copied Mr. Hunter) explaining the incident. The email provided the following summary:

I went to look at [Mr. Soto] and hehad his head down and so I walked up to him and stood right next to him. I waited by him for about 3 minutes and I could tell that he wa s sleeping. I move d and he woke up. I asked him why he was sleeping and hesaid that he was resting his back and that he was not sleeping. I toldhim that I was standing right by him for 3 min or longer and he never moved and that sleeping on the job would not and could not betolerated. I told him that he would be written up for this and that I had better not catch him doing it again or I would terminate him. All the time that I was talking to him he denied that he was sleeping.

J.A. at 69. Mr. Laliberte subsequently filed a written report of the incident.

On December 30, 2003, Ms. Gonzalez conducted an investigation of the December 26, 2003, incident . She obtained written statements from two witnesses: Mr. Fortin, who had reported the incident to Mr. Laliberte, and Ms . Taylor. In their statements, both witnesses indicated Mr. Soto appeared to have been sleeping. Ms. Gonzalez spoke with Mr. Laliberte, who reite rated his opinion as to Mr. Soto having been asleep. She then di scussed the matter with the director of operations, Jim Hunter, and the director of corporate hum an resources. They determined Mr. Soto should be terminated. It does not app ear from the record anyone from Core-Mark interviewed or spoke with him di rectly regarding the incident.

On December 30, 2003, Mr. Soto was terminated for sleeping on the job. 3 A few weeks later, Ms. Gonzalez sent him a wr itten termination letter. The letter stated-5- he was terminated for sleeping on the job and references the December 26, 2003, incident.

Mr. Soto filed a claim for discriminatory discharge against Core-Mark with the Equal Employment Opportunity Commission (EEOC). Following an investigation, the EEOC concluded no probable cause existe d to believe Core-M ark had engaged in an unfair discriminatory practice and, th erefore, it dismissed Mr. Soto's claim.

In September 2005, following the EEOC's di smissal, Mr. Soto filed a lawsuit against Core-Mark in the United States Distri ct Court, District of Minnesota, asserting claims for national origin discrimination and retaliation in violation of Title VII and the MHRA. Core-Mark moved for summary judgment, arguing the plaintiff could not, as a matter of law, establish Core-Mark's stated reason for his termination–that he was sleeping on the job–was a pretext for discrimination or retaliation. The district court agreed with Core-Mark and, in an order dated January 3, 2007, granted CoreMark's motion for summary judgment.

Mr. Soto appeals the district court's order granting Core-Mark summary judgment on his claim of retaliation in violation of Title VII and the MHRA.

II

This Court reviews a district court’s grant of summary judgment de novo, drawing all reasonable inferences in favor of the non-moving party. Hitt v. Harsco Corp. , 356 F.3d 920, 923-24 (8th Cir. 2004). We use the three-part, burden-shifting analysis set forth in Te xas Department of Community Affairs v. Burdine , 450 U.S. 248 (1981), to review claims of retaliatory discrimination where the plaintiff fails to produce direct evidence of discrimination. See Scott v. County of Ramsey , 180 F.3d 913, 917 (8th Cir. 1999).-6- Initially, the plaintiff has the burden of establishing a prima facie case of retaliation. To establish this, the plain tiff must show he engaged in a protected activity, the defendant took adverse action against him, and there is a connection between the two. See Scott , 180 F.3d at 917 (citing Mont andon v. Farmland Indus., Inc. , 116 F.3d 355, 359 (8th Cir. 1997)). If the plaintiff makes a prima facie showing of retaliation, the burden shifts to th e defendant to articulate a legitimate, non-retaliatory reason for the a dverse action, in this case Mr . Soto's termination. Id. (citing Ryther v. KARE 11 , 108 F.3d 832, 836 (8th Cir. 1997) (en banc)). If the defendant advances a legitim ate reason for the termination, the plaintiff bears the burden of demonstrating the defendant’s stated reason is a pretext for retaliation. Burdine , 450 U.S. at 253; see also Cronquist v. City of Minneapolis , 237 F.3d 920, 926 (8th Cir. 2001); Womack v. Munson , 619 F.2d 1292, 1296 (8th Cir . 1980).

In order to survive summary judgment at th is stage, the plaintiff must establish there is a factual dispute whether the defe ndant's proffered reason is pretextual and whether retaliation was a determinative f actor in the defendant's termination. Cronquist , 237 F.3d at 926. Throughout this analysis, the ultimate burden of persuasion remains with the plaintiff to show the termination was motivated by intentional retaliation. St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 508 (1993).

III

Mr. Soto challenges the district court's de termination he failed to raise a factual dispute as to the pretextual nature of Co re-Mark's proffered reas on for termination and failed to create a reasonable inference it wa s motivated by retaliation. Mr. Soto makes two arguments in support of his appeal. Fi rst, he argues, in concluding hefailed to produce sufficient evidence of pr etext, the district court vi ewed the disputed evidence in the light most favorable to the employer, the moving party, in direct contravention of well-settled summary judgment principles . Second, he argues, in analyzing-7- whether a retaliatory motive was a determinative factor in the employer's termination decision, the district court failed to consider the totality of the evidence.

A. Evidence Of Pretext

Before the district court, Mr. Soto ma intained the December 26, 2003, incident was a pretext for retaliation because he wa s not sleeping on the job; rather, he was stretching and resting his back consistent with his doctor's orders, of which his employer was aware. According to the plai ntiff, the Court improperly chose to adopt the employer's version of the December 26, 2003, incident, rather than his, in direct violation of basic principles of summary judgment.

Mr. Soto misunderstands which facts are material to the district court’s determination of the la st prong of the Burdine analysis. Even if he presented sufficient evidence to show he was not actually sleeping during the December 26, 2003, incident, such does not equate to suffici ent evidence of pretext. In determining whether a plaintiff has produced sufficient ev idence of pretext, the key question is not whether the stated basis for termination actually occurred, but whether the defendant believed it to have occurred. SeeHitt , 356 F.3d at 924; Scroggins v. Univ. of Minn. , 221 F.3d 1042, 1045 (8th Cir. 2000) (holding th e "relevant inquiry" in retaliation case is whether the employer believed the employee was guilty of the conduct justifying discharge) (internal quotation omitted). In th is case, the evidence that he claims the district court disregarded–his deposition te stimony about his stretching his back, not sleeping–does not create a factual dispute about the employer's good faith belief he was sleeping on the job nor does it in any other way call into question the employer's stated reason for terminating him.

Moreover, notwithstanding Mr. Soto's cont entions, the district court did not err in concluding Core-Mark had a good faith be lief he was sleeping on the job. The evidence in the record show s Core-Mark's determination was based on the statements-8- of two witnesses and info rmation provided by Mr. Laliberte. Contrary to his suggestions, the witnesses did not state they were unable to dete rmine whether he was asleep; they stated they were reasonably certain, although not positive, he was asleep.

Nor did Mr. Laliberte state Mr. Soto wa s not asleep. Mr. Laliberte told Ms. Gonzalez he went over to the plaintiff's wo rkstation and stood right next to him; he "waited by him for about 3 mi nutes and could tell that he was sleeping." J.A. at 69. Moreover, contrary to the plaintiff's a ssertion, Mr. Laliberte did not state his termination was unwarranted. Rather, Mr. Laliberte warned him if he fell asleep on the job again he woul d be terminated. In an email to Ms. Gonzalez following the incident, Mr. Laliberte summarized his ac tions and asked Ms. Gonzalez to let him know if he needed to take any additional ac tion. The fact Mr. Laliberte did not fire the plaintiff on the spot does not show Mr . Laliberte believed the termination was unwarranted.

The record shows Core-Mark had a good faith belief, based on reasonable and credible evidence, Mr. Soto was sleeping on th e job. And, his appeal fails to provide any reason to question the district court's finding on this matter.

B. Retaliatory Motive

Mr. Soto next argues it was error for the district court to conclude, as a matter of law and based on the to tality of the evidence, no reasonable juror could find retaliatory motive was a determinative factor in employer's decision to terminate the employee. Specifically, he sets forth several items of evidence he believes the district court erroneously disregarded, including: (1) the December 12, 2003, letter; (2) statements Mr. Hunter made at the December 12, 2003, meeting; and (3) examples of white employees being allowed to wear coats over their uniforms and use cell phones.-9- According to Mr. Soto, the December 12, 2003, letter from Ms. Gonzalez and Mr. Hunter "prohibited [Mr. Soto from exercising his] right to oppose discriminatory practices (as guaranteed by Title VII)" and "provides direct evidence of Mr. Hunter's and Ms. Gonzalez's mindset and intention to prevent Mr. Soto from continuing to oppose discriminatory practices." J.A. at 33. He does, however, misrepresent the contents of the letter. Th e letter informed him he wa s no longer allowed to contact Ms. Gonzalez directly. Instead, if he wantedto speak with Ms. Gonzalez he first had to make an appointment through a manager. The letter did not prohibit Mr. Soto from opposing discriminatory practices and in no way evidenced a discriminatory intent on the part of either Mr. Hunter or Ms. Gonzalez.

With respect to the December 12, 2003, meeting, Mr. Soto claims after he expressed his opinion he was being discriminated agains t because of his national origin, Mr. Hunter stated: "Get out of my o ffice." Appellant’s Br. at 34. Even if Mr. Hunter did order Mr. Soto to "get out of [his] office," this does not demonstrate a retaliatory animus. The reco rd shows he was repeatedly told it was against the rules for employees to wear jack ets over their uniforms or use cell phones. Nonetheless, he continued to wear his j acket over his uniform. At most, the evidence shows Mr. Hunter was frustrated with repeatedly having to tell him to follow the rules.

Finally, Mr. Soto points to evidence he argues shows similarly situated white workers received more favorable treatment than he did. However, he fails to put forth evidence showing other white workers who wore their jackets over their uniforms were not reprimanded or showing white wo rkers who repeatedly complained to Ms. Gonzalez directly were not also required to make appointments beforehand. As the district court stated, the plaintiff "attract ed attention to his behavior by repeatedly complaining that he observed others engagi ng in this behavior and repeatedly asking for permission to break the rules." J.A. at 13.-10- Contrary to Mr. Soto's contentions, the record shows the district court properly concluded no reasonable juror could find retaliatory motive was a determinative factor in the employer's decision to terminate him.

IV

Accordingly, we affirm the district court's order, granting summary judgment in favor of Core-Mark on Mr. Soto's claim of retaliation in violation of Title VII and the MHRA.

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