United States Court of Appeals

For the Eighth Circuit

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No. 16-3631

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Aaron C. Rooney,

lllllllllllllllllllll Plaintiff - Appellant,

v.

Rock-Tenn Converting Company; Rock-Tenn Services, Inc; Westrock Company;

lllllllllllllllllllll Defendants - Appellees.

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Appeal from United States District Court 

for the Western District of Arkansas - Fayetteville

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 Submitted: April 6, 2017

 Filed: January 9, 2018

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Before COLLOTON and BENTON, CircuitJudges, and GERRARD, DistrictJudge. 1

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GERRARD, District Judge.

Aaron C. Rooney wasfired and sued his former employer, alleging that he was

discriminated against for being male and non-Jewish. But his former employer,

The Honorable John M. Gerrard, United States District Judge for the District 1

of Nebraska, sitting by designation.
Rock-Tenn Services, Inc., contends that Rooney was fired for poor performance. 2

The district court granted summary judgment for Rock-Tenn. We affirm.

3

I.

Rooney was hired in March 2010 by Dean Metter, Rock-Tenn’s vice-president

of business development and key retailers, as an account executive in Rock-Tenn’s

Bentonville, Arkansas office. Rock-Tenn was in the business of making packaging

and displays for retail merchants, and Rooney was responsible for developing and

selling in-store displays in the market served by the Bentonville office. One of his

primary responsibilities was Rock-Tenn’s account with Alcon.

Rooney reported to Metter until September 2013, when Nancy Collom was

hired and became Rooney’s direct supervisor. But Rooney’s November 2013

performance evaluation was still completed by Metter, who gave Rooney an overall

rating of 3 out of a possible 5, described as “Met Expectations/Solid Performer.” At

several points, however, Metter noted issues with office attendance and

communication, and Rooney was only rated 2 out of 5 on some aspects of

performance affected by those concerns: “Met Most Expectations/Inconsistent

Performer.” Metter criticized Rooney’s “collaborative team work skills” and noted

that Rooney did “not communicate effectively in the office,” and also noted that

Rooney “fights the new office alignment,” presumably referring to Collom’s hiring.

Rooney also named Rock-Tenn Converting Company as a defendant, because 2

he thought that entity was his actual employer. And in 2015, Rock-Tenn Services

became WestRock Services asthe result of a corporate merger. The distinction is not

significant, and we will refer to the defendants collectively as “Rock-Tenn.”

The Honorable Timothy L. Brooks, United States District Judge for the

3

Western District of Arkansas.

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According to Collom, Rooney was “polite but disrespectful” to her after she

became his superior. Collom, like Metter, was dissatisfied with Rooney’s

communication; in particular, Collom did not believe Rooney kept her sufficiently

apprised of his schedule and whereabouts. 

The record also reflects issues with the Alcon account. The responses on

Alcon’s June 2014 Rock-Tenn customer satisfaction survey indicate general

satisfaction with Rock-Tenn’s performance: although the Alcon representative

completing the survey complained about Rock-Tenn’s manager at Alcon’s site, Jake

Kramer, the survey said that Alcon was otherwise “pleased” with the account

management. But later that month, Ashley Olson, Alcon’s manager for retail

displays, emailed Rock-Tenn seeking a “full process review” of Rock-Tenn’s

operations due to recent problems, and listing the Rock-Tenn employees she expected

to attend the meeting at Alcon. 

Despite that, quality control and shipping problems persisted. In July 2014, an

Alcon job was printed upside-down, and by August, Olson informed Rock-Tenn that

because of Rock-Tenn’s mistakes, Alcon was in danger of missing its own delivery

deadlines to Walmart. And, she wrote, Alcon was losing sales as a result of reduced

in-store availability. If an expected delivery wasn’t made on time, Olson wrote,

Alcon would expect Rock-Tenn to cover any fines Walmart imposed.

Later in August, Metter emailed Rooney about a particular Alcon project,

instructing him: “Need to be proactive and push everyday. We want to micro manage

this project.” But a few days later, Metter wrote in a separate email to Rock-Tenn’s

human resources director that despite Olson’s request to micro-manage the project,

“[Rooney] did not follow up per [Olson]’s request.” Metter also forwarded an overall

assessment of the Bentonville office, which noted Rooney’s success in growing the

business, but opining that Rooney “is lazy and lacks desire to help grow the local

marketplace. His internal communication skills are severely lacking both to his boss

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[Collom] and the office. He should be replaced because of attitude but we must find

Alcon replacement.”

In September 2014, Rock-Tenn failed to deliver Alcon sample products to a

trade show. Olson emailed Rooney and Kramer on September 3, making them aware

that it was “important that [the shipment] arrive on [September 10],” preferably in the

morning, for the September 11 event. But it was discovered on September 10 that the

products were damaged, and they hadn’t been shipped. At the same time, on

September 9, Olson had emailed Rooney and others at Rock-Tenn about a different

problem: an unexpected surplus of a particular display was showing in Rock-Tenn’s

inventory, without explanation. It was discovered that the shipment tracking had

been inaccurate, and that the surplus inventory was actually product that had not been

delivered. Olson was “baffled how this has happened twice now,” and was “really

confused” by the oversight. She wrote, “We have to get this under control.”

On September 18, Olson emailed Metter complaining, not just about missed

shipments (and there were more by then), but about the lack of response from RockTenn to persistent inquiriesfromAlcon’s representatives. Olson wrote that “we have

our people working to try to help resolve the issues but that lack of responses is just

not acceptable.” Rock-Tenn, she wrote, “need[ed] to stop the bleeding with missed

shipments and late shipments . . . .” Alcon had been fined three percent of invoice by

Walmart for late ordersin August and September, and asked Rock-Tenn to reimburse

those expenses.

Olson repeatedly emailed Rock-Tenn’s representatives–including Metter,

Kramer, and Rooney–complaining about Rock-Tenn’s failure to respond to Alcon’s

requests for information and assistance. In late September, there was another delay

in shipping Alcon products, occasioned in part by internal questions about production

going unanswered. In October, another set of displays that were supposed to have

been shipped went missing, and Olson had to email repeatedly because Rock-Tenn’s

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investigation into the matter did not proceed promptly. In the end, Metter wrote,

“[Alcon] istremendously frustrated. Key comment is around Alcon is why should we

use these folks. They always screw up and they are far away . . . .” Alcon, Metter

wrote, “also feels that we do not care about responding quickly.”

At around the same time, Metter directed Rooney to move his “base location”

to his home, and out of the Bentonville office. Rooney was to be “focused on Alcon”

and the move would, Metter wrote, “maximize” Rooney’s time. Design activity and

project management for Alcon was moved to Rock-Tenn’s Winston-Salem office. 

But the same sort of problems with the Alcon account persisted. On December 19,

Olson emailed Rooney to ask when a particular product would be shipped. On

January 8, 2015, Olson emailed again asking for an update. Rooney replied,

promising updated costs for the project in a few days, to be submitted to Alcon for

approval. Olson replied that she did not “understand what [was] taking so long to

reprice” because the issue that required repricing “was discovered prior to the

holidays.” Rooney explained that there had been difficulty “aligning all the team

members” and that certain price quotations were running more slowly. Olson replied

again–this time including Metter on the email–emphasizing that she did not know

why it wastaking so long, and asking for the matter to be expedited. Metter promised

to take care of the problem.

Metter decided to fire Rooney, and Rooney was fired on February 5. Rooney

says he wastold he wasfired because of “difficulties with interacting with coworkers

and failure to support Alcon.” But Rooney has a different explanation for why he

was fired: he asserts that he was discriminated against by Metter and Collom for not

being Jewish, and by Collom for being a man.

To begin with, Rooney testified to his belief that Metter, who is Jewish, had

experienced a “Jewish resurgence” and was building a “Jewish empire” atRock-Tenn

that included Collom. According to Rooney, Metter made remarks about networking

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with the “Jewish network” of potential customers. Metter also, according to Rooney,

described Collom as a “greatJewish lady from Philadelphia” and told Rooney that he

would “have to start learning to take direction from a Jewish woman.” Rooney also

said he overheard Collom and another employee speaking either Yiddish or Hebrew

in the office. (Rooney was not sure he could distinguish between the two

4

languages.) And Rooney says that after he was fired he was replaced on the Alcon

account by a Jewish employee, while Kramer–who was also Jewish–was transferred

to another office instead of being fired for mishandling the Alcon account. 

Rooney’s gender discrimination argument is premised on several remarks he

attributes to Collom. According to Rooney, after she was hired, Collom said that she

couldn’t “wait until there’s more ladies in the office.” And after hiring another

female employee, Collom said it meant that “we have just as much women in the

office as men.” When another woman was hired, Collom allegedly said that “the

women now overpower the men.” And after an office remodel, Rooney claims,

Collom similarly remarked that “[n]ow the ladies outnumber the men.” According

to Rooney, he wasreplaced on his Starbucks and Walmart accounts by women before

he was fired.

After exhausting his administrative remedies,Rooney sued, alleging violations

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and pendant

state-law claims. But the district court granted Rock-Tenn’s motion for summary

judgment, finding that although Rooney had established a prima facie case of

discrimination based on religion and sex, Rock-Tenn articulated legitimate, nondiscriminatory reasons for firing him, and Rooney was unable to show that the

reasons proffered by Rock-Tenn were pretexts for discrimination. Rooney appeals.

Collom testified thatshe has not practiced Judaismsince she was 12 years old, 4

and that she speaks neither Yiddish nor Hebrew. But for purposes of reviewing

summary judgment, the Court gives Rooney the benefit of the doubt.

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II.

We review the grant of summary judgment on each of Rooney’s claims de

novo. Blake v. MJ Optical, Inc., 870 F.3d 820, 825 (8th Cir. 2017). We affirm

summary judgment if there is no genuine dispute as to any material fact. Id. (citing

Fed. R. Civ. P. 56(a)). In assessing whether such a dispute exists, we view the

evidence in the light most favorable to Rooney and afford him all reasonable

inferences. Id. But there must still be enough evidence to allow a rational trier of

fact to find for Rooney on the required elements of his claims. Id.

More specifically, to survive a motion for summary judgment on a

discrimination claim, a plaintiff must either present admissible evidence directly

indicating unlawful discrimination, or create an inference of unlawful discrimination

under the burden-shifting framework established in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). Cherry v. Siemens Healthcare Diagnostics, Inc., 829

F.3d 974, 976 (8th Cir. 2016). Rooney does not contend that he provided direct

evidence of discrimination, and the district court proceeded under the McDonnell

Douglas framework. Under this framework, if an employee carries his burden of

establishing a prima facie case of discrimination, the burden then shifts to the

employer to articulate a legitimate, non-discriminatory reason for the adverse

employment action. Id. “If the employer meets this burden of production, the

employee must then ‘prove by a preponderance of the evidence that the legitimate

reasons offered by the employer were not its true reasons, but were a pretext for

discrimination.’” Grant v. City of Blytheville, Ark., 841 F.3d 767, 773 (8th Cir. 2016)

(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).

Rooney’s argument on appeal is essentially twofold. His first argument is

procedural: he contends that the district court erred by expanding the nondiscriminatory grounds proffered for Rooney’s discharge beyond the reasons

provided to Rooney at the time he was fired. Second, Rooney contends that the

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district court erred in finding Rooney’s evidence insufficient to show that those

reasons were pretextual.

A.

First, Rooney argues that the district court impermissibly “depart[ed] from the

rubrics of review when it expanded the ‘legitimate non-discriminatory reasons for

adverse action’ beyond the parties’ stipulation” that, at the time he wasfired, Rooney

was told “that the basis of his termination was his ‘interaction with coworkers and

failure to support Alcon.’” Rooney points to the district court’s observation that

Rock-Tenn “clearly and specifically articulate[d] a number of reasons for Rooney’s

discharge, with the main reason being Metter’s belief that Rooney’s performance was

poor.” And he takes issue with the court’s conclusion that Rock-Tenn “offered

numerous legitimate nondiscriminatory reasons for Rooney’s discharge, including

poor performance, customer complaints, and negative interactions with co-workers.” 

These observations, Rooney suggests, “increased [his] burden of defending against

Rock-Tenn’s” motion for summary judgment.

But the McDonnell Douglas framework is not as narrow as Rooney suggests. 

While it istrue that the district court mentioned some ofRooney’s performance issues

on accounts other than Alcon, the employer’s burden under the McDonnell Douglas

framework to articulate non-discriminatory reasons for an adverse employment action

does not arise when the adverse employment action is taken–rather, it is triggered

during litigation, when an employee meets his burden of establishing a prima facie

case of discrimination. Title VII does not impose a legal obligation to provide an

employee an articulated basis for dismissal at the time of firing, and an employer is

certainly not bound as a matter of law to whatever reasons might have been provided. 

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Instead, it is well-established that a employer may elaborate on its explanation

for an employment decision. See Mervine v. Plant Eng’g Servs., LLC, 859 F.3d 519,

528 (8th Cir. 2017); Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1004

(8th Cir. 2012); see also Smith v. Allen Health Sys., Inc., 302 F.3d 827, 835 (8th Cir.

2002). Evidence of a substantial shift in an employer’s explanation for a decision

may be evidence of pretext, but an elaboration generally is not. Mervine, 859 F.3d

at 528; Pulczinski, 691 F.3d at 1004.

So, for instance, in Smith, we found no merit to an employee’s argument that

she had proven pretext by changing its explanation for firing her after the fact. The

employee, a secretary for a charitable foundation, argued that she was originally told

she was discharged for failing to timely mail donor receipts, but that the foundation’s

chief executive officer later suggested she was also fired for concealing from her

supervisor how behind she wasin her work. Smith, 302 F.3d at 835. We rejected her

argument, explaining that the foundation “certainly did not back off from the original

explanation, but only pointed out an additional aspect of the same behavior.” Id. The

foundation’s additional evidence was “not different from the reason originally given,

but only a slight elaboration of that reason”–and so, it was not a “substantial change”

in the foundation’s explanation, and was “not probative of pretext.” Id.

The same is true here: there is no contradiction between the explanation given

to Rooney at the time of his termination and the non-discriminatory reasons for

termination that Rock-Tenn articulated during this litigation. Rock-Tenn did proffer

additional examples of Rooney’s poor performance, with clients other than Alcon,

“[b]ut this supplemental explanation is not evidence of a substantial shift.” 

Pulczinski, 691 F.3d at 1005. “The additional justification is consistent with the

company’s proffered belief” that Rooney interacted poorly with coworkers and failed

to support the Alcon account. Id. As such, it is not evidence of pretext. 

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B.

Rooney also contends that he offered sufficient evidence that Rock-Tenn’s

proffered reasons for firing him were pretexts for discrimination. His argument is,

naturally, focused on the only two reasons for termination he believes were properly

articulated–and, as explained above, our inquiry is not so limited. But even as to

those two reasons, Rooney has not shown pretext.

An employee may demonstrate pretext by two different methods. See

Guimaraes v. SuperValu, Inc., 674 F.3d 962, 975 (8th Cir. 2012); Stallings v.

Hussmann Corp., 447 F.3d 1041, 1052 (8th Cir. 2006). He may show pretext by

persuading the Court that retaliatory animus more likely motivated his employer. See

Guimaraes, 674 F.3d at 975; Stallings, 447 F.3d at 1052. Or he may show that the

employer’s explanation is unworthy of credence because it has no basis in fact. See

Guimaraes, 674 F.3d at 975; Stallings, 447 F.3d at 1052. Either route amounts to

showing that a prohibited reason, rather than the employer’s stated reason, actually

motivated the termination. Guimaraes, 674 F.3d at 975.

Rooney argues that Rock-Tenn’s explanation is not credible because it has no

basis in fact. Beginning with his alleged failure to support the Alcon account,

Rooney pointsto Alcon’s general satisfactionwithRock-Tenn’s accountmanagement

team on its June 2014 customer satisfaction survey, and a January 6, 2015

conversation between Metter and Rooney in which Metter said, referring to the Alcon

account, that “we’re doing much better, and there’s no two ways about it[.]” “Rock5

Rooney’s brief also asserts that “[o]n or about 06 January 2015, [Alcon Head 5

of Marketing Shawn]Millerick had given Metter a performance evaluation which was

very favorable to the account management beyond the on-site position.” But to

support that assertion, the brief cites to Rooney’s testimony that he had seen a

favorable performance evaluation. Rooney did not say when he had seen the

evaluation, or when it had been completed, and we have found no evaluation in the

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Tenn,” Rooney argues, “offered no evidence of any ‘failure’ on Rooney’s part after

this date.”

But it did: just two days later, Alcon’s Ashley Olson had to email Rooney to

follow up on a problem that had gone unaddressed for three weeks–a problem that

eventually required Metter’s intervention. And that came on the heels of the series

of mistakes detailed above, all of which came after the generally (but not completely)

positive June 2014 customer satisfaction survey. Nothing in Rooney’s argument

rebuts, or even mitigates, Rock-Tenn’s evidence of repeated errors and omissions on

the Alcon account, and there is nothing in Rooney’s argument to suggest that Rooney

was not responsible for the mismanagement.6

Next, Rooney contends it was “unworthy of credence,” see Guimaraes, 674

F.3d at 975, that he was fired for poor interaction with coworkers. But he begins,

again, by attempting to narrow Rock-Tenn’s explanation: he asserts that “[t]he only

co-worker Rock-Tenn identified by name who ‘interacted’ with Rooney is Nancy

Collom[,]” and then limits his argument to Rooney’s relationship with Collom. But

there are a number of instances in the record in which Rooney was criticized for his

record after the June 2014 customer satisfaction survey. The most reasonable

understanding of Rooney’s deposition testimony is that he was referring to the June

2014 survey. But at the very least, it is clear that Rooney’s citation to the record does

not support his assertion. See Roemmich v. Eagle Eye Dev., LLC, 526 F.3d 343, 352

n.7 (8th Cir. 2008).

Rooney also says he “was surprised by his firing” because there is “no 6

evidence [he] was put on notice that he was in jeopardy of losing his job for ‘failure

to support Alcon.’” It is not clear why this would demonstrate pretext. But it is

interesting to note that Rooney surreptitiously recorded at least two conversations

with coworkers in the months before his termination–one relating to supposed

discrimination and one relating to his performance on the Alcon account–which

would be unusual behavior for someone who did not at least suspect his job might be

in the balance.

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failure to communicate with colleagues and poor teamwork. Rock-Tenn was not

required to recite an office roll call to rely on those shortcomings as a basis for

Rooney’s termination.

Even with respect to Collom, Rooney’s evidence falls short. Generally,

Rooney claims that any conflict with Collom was her fault. But it is important to

remember, as we have often said, that a federal court is not a super-personnel

department with authority to review the wisdom or fairness of business judgments

made by employers. See Guimaraes, 674 F.3d at 977; Stallings, 447 F.3d at 1052;

Wallace v. Sparks Health Sys., 415 F.3d 853, 860 (8th Cir. 2005). The evidence must

do more than raise doubts about the wisdom and fairness of the employer’s opinions

and actions–it must create a real issue as to the genuineness of the employer’s

perceptions and beliefs. Hervey v. Cty. of Koochiching, 527 F.3d 711, 725 (8th Cir.

2008). The instances pointed to by Rooney–that Collomwas aggressive towards him,

she denied him permission to conduct a project review with a client during an open

house, and she should have consulted his Outlook calendar instead of asking him to

keep her advised of his schedule–fall well short of creating such an issue.

Finally, Rooney argues his evidence showed that “retaliatory animus more

likely motivated his employer” than its stated reasons for firing him, see Guimaraes,

674 F.3d at 975, because Jewish and female employees were treated more favorably

than he was, and his replacements were either Jewish or female. But to begin with,

it is not clear how he was affected by any alleged sex discrimination. Rooney did not

dispute that Metter, not Collom, decided to fire him. Rooney has presented no

evidence suggesting that Metter harbored any animus toward men. Nor has he

presented any evidence supporting a cat’s-paw theory of liability, in which an

employer may be vicariously liable for an adverse employment action if one of its

agents–other than the ultimate decisionmaker–is motivated by retaliatory animus and

intentionally and proximately causes the action. See Bennett v. Riceland Foods, Inc.,

721 F.3d 546, 551 (8th Cir. 2013); Guimaraes, 674 F.3d at 972; see also Staub v.

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Proctor Hosp., 562 U.S. 411, 422 (2011). There is no evidence that Collom 7

intentionally and proximately caused Rooney’s termination. And without such

evidence, there is nothing to suggest that gender bias was connected to Rooney’s

firing.8

Rooney’s contention that Jewish employees were treated more favorably fares

no better. He points to two in particular–Kramer, who he says was removed from the

Alcon account and transferred to California instead of being fired, and Mark

Benjamin, who he says replaced him on the Alcon account. But Metter testified that 9

he actually did recommend Kramer’s termination–and that later, Kramer was fired. 

In any event, Rooney’s only argument with respect to Kramer is that Alcon was also

dissatisfied with him–and without a record of Kramer’s performance in other respects,

similar to the evidence presented with respect toRooney, there is no basis to conclude

that Kramer was “similarly situated in all relevant respects” to Rooney. See Wallace,

415 F.3d at 860. And in the absence of more substantial evidence of discriminatory

animus, the fact that Rooney was replaced on one of his accounts by a Jewish man is

not enough to create a reasonable inference of discrimination. See Tusing v. Des

Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 520-21 (8th Cir. 2011).

The term is derived from one of Aesop’s fables, in which "a monkey induces 7

a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so,

burning its paws in the process, the monkey makes off with the chestnuts and leaves

the cat with nothing." Staub, 562 U.S. at 415 n.1. 

Indeed, at his deposition, Rooney testified that he was “discriminated against” 8

because he wasn’t a woman, but that he was fired for not being Jewish. The only

adverse employment action placed at issue in this litigation, however, is Rooney’s

termination. 

The parties disagree about whether Benjamin actually replaced Rooney, but 9

Rooney’s argument falls short even if he is given the benefit of the doubt on that

point.

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III.

In sum, the district court did not err in concluding that Rock-Tenn articulated

legitimate, non-discriminatory reasons for firing Rooney, and that he was unable to

show the reasons proffered by Rock-Tenn were pretexts for discrimination. The

district court’s judgment is affirmed.

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