United States Court of Appeals

For the Eighth Circuit

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No. 17-3673

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Sandra Lovelace; Stephen Lovelace

lllllllllllllllllllllPlaintiffs - Appellants

v.

Washington University School of Medicine; Barnes-Jewish Hospital

lllllllllllllllllllllDefendants - Appellees

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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Submitted: April 16, 2019

Filed: July 25, 2019 

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Before SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.

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SMITH, Chief Judge.

Sandra Lovelace sued her employers, Washington University School of

Medicine (WUSM) and Barnes Jewish Hospital (BJH), claiming they unlawfully

terminated her in retaliation for exercising her rights under the Family and Medical

Leave Act (FMLA) and the Missouri Human Rights Act (MHRA). Lovelace’s
husband, Stephen, also sued for loss of consortium. The district court granted

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summary judgment in favor of WUSM and BJH. We affirm.

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I. Background

WUSMemployed Lovelace as a Medical Assistant(MA) fromNovember 2003

to August 5, 2015. MAs assist doctors’ clinical teams by performing non-medical

tasks such asscheduling, answering phones, and placing orders. Lovelace worked for

one doctor’s team from November 2003 to 2007 and for a different doctor’s team

from 2007 to December 2014. Clinical Nurse Manager Paula Goldberg, a BJH

employee, began supervising Lovelace in 2007, and MA Supervisor Dee Brinkley,

a WUSM employee, also began supervising her in September 2014. In 2009,

Lovelace applied for and received FMLA leave without incident. Both Goldberg and

Brinkley supervised Lovelace when the instant dispute arose.

Beginning in December 2014, Lovelace stopped working for a single doctor’s

team and started “floating” among different teams. Lovelace began to experience

problems at work shortly after the switch from a single, permanent team placement

to several, temporary placements. On December 10, Lovelace was assigned to work

with Dr. Douglas Adkins’s team. That same day, Lovelace left early due to back pain.

A few days later, after Lovelace had not returned to work, Goldberg e-mailed

Lovelace advising her of the potential need to complete FMLA paperwork. Lovelace

subsequently applied for and was granted FMLA leave.

Initially, Lovelace planned to return from leave on February 9, 2015. That very

morning, however, Lovelace e-mailed Goldberg that she would not be returning that

The Honorable Rodney W. Sippel, Chief Judge, United States District Court

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for the Eastern District of Missouri. 

Lovelace filed a motion to supplement the record after the instant case had

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been appealed. We deny the motion, finding the record before us sufficient.

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day. Goldberg forwarded Lovelace’s e-mail to Brinkley. The two supervisors

expressed frustration at the timing of Lovelace’s notice. In one e-mail, Goldberg

suggested to Brinkley that she could hire someone else if Lovelace did not return in

a month.

Lovelace had back surgery on February 20. Though the surgery wassuccessful,

Lovelace required certain minor work accommodations, such as taking breaks to

stand, stretch, or walk. Lovelace returned to work on March 4, and Brinkley assigned

her back to Dr. Adkins’s team. However, Dr. Adkins’s teamhad recently hired an MA

named Angela Butcher, and once Butcher was trained, Lovelace began “floating”

among teams again. 

From April to July, Lovelace worked with Dr. Manik Amin and nurse Deb Orf.

Lovelace apparently worked well with Dr. Amin’s team initially, but Orf soon began

reporting issues with Lovelace. Orf stated that Lovelace “would refuse to do tasks,

sometimes stating that she did not know how to do them.” Statement of Material

Facts, Decl. of Debbie Orf at 2, Lovelace v. Washington Univ. Sch. of Med., No. 4:15-

cv-01694-RWS (E.D. Mo. Apr. 14, 2017), ECF No. 38-10. Orf reported her concerns

to Brinkley, explaining “that it was more challenging to get the work done with Ms.

Lovelace than without an MA at all,” and in July, she also reported her concerns to

Goldberg. Id. at 3. 

During Lovelace’s annual performance review in April 2015, Goldberg

discussed Lovelace’s performance following her return fromFMLA leave. Goldberg

mentioned Lovelace’s frequent absences from her work station, but Lovelace

reminded Goldberg about her need to stand, stretch, and walk post-surgery. After

their meeting, Goldberg invited Lovelace to revise her evaluation to reflect more

positively on her performance, and Lovelace did so. Shortly thereafter, Lovelace met

with Bob Barczewski, WUSM Director of Business Operations, to complain about

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Goldberg’s treatment of her since her return. She also met with Human Resources

Consultant Sandra Sledge. 

In July 2015, Goldberg and Brinkley discussed Lovelace’s performance with

several of the hospital’s doctors and nurses. During one of these discussions, Dr.

Brian Van Tine reported that Lovelace, who is white, allegedly commented that a

black coworker, Angela Butcher, did not like working with white people (“the

Butcher comment”). On July 10,Goldberg e-mailed Sledge summarizing her concerns

about Lovelace. Goldberg expressed her opinion that Lovelace was “not prepared for

the demands ofthe [MA] position,” asthe position’s requirements had “evolved” over

time. Resp. to Statement of Material Facts, Ex. 7 at 1, Lovelace v. Washington Univ.

Sch. of Med., No. 4:15-cv-01694-RWS (E.D. Mo. June 9, 2017), ECF No. 51-8. She

explained that Lovelace’s lack of readiness “cause[d] her to avoid work, push work

off and have others do the work” and suggested that Lovelace would be more

effective in “a less stressful, demanding position in another department.” Id. Finally,

Goldberg noted that she had “enough to fire [Lovelace],” and while she believed she

could issue a written warning, she planned on issuing a verbal warning instead. Id.

Sledge advised “pointing out to [Lovelace] the needs of the position and where she

is and is not meeting” expectationsinstead ofsuggesting a different position, and she

encouraged Goldberg to continue accommodating Lovelace’s “need for rest times

(within reason).” Id.

On July 13, Goldberg, Brinkley, and Lovelace met to discuss Lovelace’s

performance and conduct, and Goldberg specifically inquired about the Butcher

comment. Lovelace denied making the comment and claimed her supervisors were

accusing her of racism. At her deposition, Lovelace admitted that no one had called

her a racist and that no “negative comments [were] ever made about [her] race or

ethnicity in the workplace.” Statement of Material Facts, Dep. of Sandra Lovelace at

20, Lovelace v. Washington Univ. Sch. of Med., No. 4:15-cv-01694-RWS (E.D. Mo.

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Apr. 14, 2017), ECF No. 38-1. When asked how she had been a victim of racial

discrimination, she explained that she “was labeled a racist.” Id. at 14. 

Following the July 13 meeting, Lovelace met with Sledge to complain about

her supervisors allegedly labeling her a racist. She also claimed her supervisors were

retaliating against her for taking FMLA leave. Sledge began investigating Lovelace’s

claims, but Lovelace, dissatisfied with Sledge’s review process, presented her

complaints directly to Human Resources Manager Leanne Stewart on July 21 and 24.

Stewart ultimately concluded there had been no retaliation.

Brinkley and Sledge scheduled a follow-up meeting with Lovelace for July 31

to again discuss her performance. Goldberg was not present. Brinkley presented

Lovelace with a checklist of her duties to guide the discussion and reiterated the

complaints they had received fromdifferent teams. The criticism upset Lovelace, and

she was unable to discuss the matters with Brinkley or Sledge. She was particularly

upset by Brinkley’s attempt to discuss performance issues with her after she had filed

an FMLA retaliation complaint. Lovelace asked to go home, and Sledge agreed. 

Shortly thereafter, Brinkley went to check on Lovelace at her work station.

According to Brinkley, when Lovelace saw her, she jumped, yelled at Brinkley not

to touch her and to get away from her, and called her “evil.” Lovelace v. Washington

Univ. Sch. of Med., No. 4:15-cv-01694-RWS, 2017 WL 5278118, at *2 (E.D. Mo.

Nov. 13, 2017). A coworker also reported hearing Lovelace repeatedly yell “get away

from me” at Brinkley. Statement of Material Facts, Decl. of Natalie Taylor at 2,

Lovelace v. Washington Univ. Sch. of Med., No. 4:15-cv-01694-RWS (E.D. Mo. Apr.

14, 2017), ECF No. 38-9. This coworker described Lovelace’s behavior as “very

unprofessional and disruptive” and “out of control.” Id. By contrast, Lovelace

maintained thatshe did not shout orscreamduring the incident. And, another witness,

a nurse, told human resources (HR) that no one was shouting but that Lovelace was

crying. Following the incident, Brinkley informed Sledge about the confrontation,

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and Sledge sent Lovelace home. Lovelace asked whether she was being fired. Sledge

said no. 

That evening, Sledge e-mailed Barczewski to describe developments with

Lovelace and to recommend placing Lovelace on leave.Barczewski notified Lovelace

on August 2 that she was being placed on administrative leave. On August 4, Sledge,

Stewart, Brinkley, and Goldberg met to discuss Lovelace’s status. The group

ultimately decided to recommend Lovelace’s termination. The next day, Barczewski

terminated Lovelace. In his discharge letter, Barczewski said Lovelace’s July 31

office behavior caused her termination. In his deposition, Barczewski explained that

while he had considered input from Stewart, Sledge, Brinkley, and Goldberg, it was

his decision to terminate Lovelace and that he had written her discharge letter. 

Lovelace sued both WUSM and BJH following her termination, alleging

violations of the FMLA and MHRA. Specifically, she alleged that WUSM and BJH

violated the FMLA by retaliating against her for taking leave and violated the MHRA

by retaliating against her for making complaints about racial and disability

discrimination. 

The district court treated WUSM and BJH as Lovelace’s joint employers and

granted summary judgment in their favor. The court determined that Lovelace had

failed to state a prima facie case of FMLA retaliation, as she had not met her burden

of proving a causal connection between her termination and her FMLA leave. The

court noted that “[c]onsidering the record as a whole, the evidence demonstrates that

Lovelacewasterminated for unrelated intervening non-retaliatory reasons.” Lovelace,

2017 WL 5278118, at *5. The court also determined that Lovelace had failed to

establish a genuine issue of material fact demonstrating retaliation based on a

complaint of racial or disability discrimination. The district court also denied

Stephen’s loss of consortium claim on the basis that such a claim is “a derivative

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claim that arises out of the original injury to the spouse.” Id. at *7 (internal quotation

omitted).

II. Discussion

We review de novo a district court’s grant of summary judgment.

Summary judgment is proper if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law. We consider the facts in the light most

favorable to [Lovelace] and give her the benefit of all reasonable

inferences in the record. There is no discrimination-case exception to a

district court’s power to grant summary judgment.

Ebersole v. Novo Nordisk, Inc., 758 F.3d 917, 923 (8th Cir. 2014) (cleaned up).

A. FMLA Discrimination Claim

On appeal, Lovelace renews her claims that WUSM and BJH terminated her

in retaliation for taking FMLA leave. 

The FMLA provides that “an eligible employee shall be entitled to a total of

12 workweeks of leave during any 12-month period” if the employee satisfies certain

statutory requirements. 29 U.S.C. § 2612(a)(1). The FMLA “makesit unlawful for an

employer to ‘interfere with, restrain, or deny the exercise of or the attempt to

exercise’ rights provided under the FMLA.” Pulczinski v. Trinity Structural Towers,

Inc., 691 F.3d 996, 1005 (8th Cir. 2012) (quoting 29 U.S.C. § 2615(a)(1)). One type

of FMLA claim that we have recognized

arises when an employer takes adverse action against an employee

because the employee exercises rights to which he is entitled under the

FMLA. In this scenario, the employer does not prevent the employee

from receiving FMLA benefits. Rather, it is alleged that after the

employee exercised his statutory rights, the employer discriminated

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against him in the terms and conditions of employment. An employee

making this type of claim must prove that the employer was motivated

by the employee’s exercise of rights under the FMLA. The textual basis

for such a claim is not well developed in our cases, but the claim likely

arises under the rule of § 2615(a)(1) that an employer may not interfere

with, restrain, or deny the exercise of or the attempt to exercise rights

defined by the FMLA.

Id. at 1006 (cleaned up). 

While the parties and district court refer to this type of claim as a retaliation

claim, it is “more properly characterized as[a] discrimination claim.” Jackson v. City

of Hot Springs, 751 F.3d 855, 858 n.1 (8th Cir. 2014) (citing Pulczinski, 691 F.3d at

1006). We apply the McDonnell Douglas burden-shifting framework to FMLA

discrimination claims. Pulczinski, 691 F.3d at 1007. “To establish a prima facie case

of FMLA discrimination, an employee must show: (1) that he engaged in activity

protected under the Act, (2) that he suffered a materially adverse employment action,

and (3) that a causal connection existed between the employee’s action and the

adverse employment action.” Id. The “employee must prove that [her] exercise of

FMLA rights ‘played a part’ in the employer’s decision.” Id. (citation omitted). 

To establish causation, an employee must present “evidence that gives rise to

an inference of . . . a [discriminatory] motive.” Kipp v. Mo. Highway & Transp.

Comm’n., 280 F.3d 893, 897 (8thCir. 2002). Though temporal proximity between the

use of leave and termination may establish a causal link between the two events, such

proximity is “rarely” sufficient by itself, id., unless the time relation is “extremely

close.” Ebersole, 758 F.3d at 925. Furthermore, an employee’s use of FMLA does not

insulate her from employment decisions that are based on grounds other than FMLA

usage. Id. at 923.

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Lovelace argues that the timing of her termination suggests retaliation. We

disagree. The opposite is true. About nine months elapsed from the beginning of

Lovelace’s FMLA leave and her termination and about five months between her

return from leave and her termination. “[W]e have [previously] determined that a

one-month or two-month lag is too long [to establish a causal connection] absent

other evidence.” Id. at 925. Given the time span in this case, Lovelace was required

to present “something more” than temporal proximity. Sisk v. Picture People, Inc.,

669 F.3d 896, 901 (8th Cir. 2012). Lovelace’s use of FMLA leave some half-year

prior to her termination is insufficient to show her termination was an act of

discrimination.

As additional evidence, Lovelace alleges that her supervisors conspired against

her to “create” performance issues justifying her termination. Appellants’ Br. at 28.

As proof, Lovelace notes thatshe received positive evaluations during her prior years

of employment with WUSM and BJH. However, an employee’s prior satisfactory

service does not insulate her from adverse consequences following a later lapse in

performance. And, Lovelace presents no evidence that the performance and

behavioral complaints voiced by her colleagues—in particular, Orf and Dr. Van

Tine—were not genuine. These complaints, whether true or false, provided a

nondiscriminatory basis for Lovelace’s supervisors to discuss her work performance.

Lovelace’s supervisors offered her the opportunity to revise her initially negative

performance review. The events that followed the July 31 meeting have not been

shown to be related to Lovelace’s use of FMLA or any animus towards that use. The

decision to terminate Lovelace based on the office incident may have been mistaken

or imprudent, but in order to be actionable, it must be shown to be connected to

Lovelace’s use of FMLA leave. The record in this case simply does not establish this

connection.

Lovelace admits thatshe was unwilling to discuss her performance with Sledge

and Brinkley on July 31 and that she asked to be excused from the meeting.

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Barczewski’s August 5 termination letter identified Lovelace’s July 31post-meeting

behavior as the cause for her termination. Lovelace does not dispute that Barczewski

would have had the right to terminate her for the reported outburst.3

Lovelace’s “intervening unprotected conduct”— i.e., her refusal to engage with

Brinkley and Sledge on July 31 and her subsequent outburst—ended any connection

there might have between her FMLA leave and her eventual termination. See Kiel v.

Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en banc) (“Although

contesting an unlawful employment practice is protected conduct, the

anti-discrimination statutes do not insulate an employee from discipline for violating

the employer’s rules or disrupting the workplace.”).

The district court did not err in granting WUSM and BJH summary judgment

on Lovelace’s FMLA discrimination claim. 

B. MHRA Retaliation Claim

The MHRA 

makes it an unlawful discriminatory practice to retaliate or discriminate

in any manner against any other person because such person has

Lovelace argues “cat’s paw” retaliation in an attempt to establish the requisite 3

connection between her FMLA leave and Barczewski’s decision to terminate her,

essentially arguing that Goldberg and Brinkley duped Barczewski into terminating

Lovelace based on their “disgust” at her having taken FMLA leave. Appellants’ Br.

at 25. However, “cat’s paw” liability “requires that there be a person possessing both

(1) the necessary [discriminatory] animus and (2) influence, leverage or control over

the decisionmaker, such that it could be said the decisionmaker was acting at the

person’s bidding.” Edwards v. Lynch, 111 F. Supp. 3d 989, 1003 (W.D. Mo. 2015).

Here, among other things, there is no evidence that Barczewski did not terminate

Lovelace of his own volition, based on the July 31 incident. In fact, Goldberg was not

even present at the July 31 meeting that precipitated Lovelace’s termination. 

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opposed any practice prohibited by this chapter. To establish a prima

facie case of retaliation under the MHRA, a plaintiff must prove that: (1)

he complained of discrimination; (2) the employer took adverse action

against him; and (3) a causal relationship existed between the complaint

and the adverse action.

McCrainey v. Kansas City Mo. Sch. Dist., 337 S.W.3d 746, 752–53 (Mo. Ct. App.

2011) (internal quotation omitted). While “[a] retaliation claim is not conditioned on

the success of the underlying discrimination or harassment claim,” the complaining

employee must have “had a reasonable good faith belief that there were grounds for

the claim of discrimination or harassment.” Soto v. Costco Wholesale Corp., 502

S.W.3d 38, 48 (Mo. Ct. App. 2016) (quoting Minze v. Mo. Dep’t of Pub. Safety, 437

S.W.3d 271, 275–76 (Mo. Ct. App. 2014)). “[T]he success or failure of a retaliation

claim is analytically divorced from the merits of the underlying discrimination or

harassment claim” “as long as” the employee had a reasonable good faith belief that

there were grounds to bring the claim. McCrainey, 337 S.W.3d at 753 (quoting

Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1118 (8th Cir. 2006), overruled on

other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011) (en

banc)).

Lovelace argues the district court erred by analyzing both her racial and

disability discrimination claims on the basis of their underlying success. Lovelace

misinterprets the district court’s analysis. Though Missouri law does not require an

employee bringing an MHRA retaliation claim to be certain on the claim’s success,

it does require the employee to have “a reasonable good faith belief” that there are

grounds for making the underlying discrimination claim. Soto, 502 S.W.3d at 48

(quoting Minze, 437 S.W.3d at 276). Determining whether such a belief existed

necessarily requires some reference to the elements of the type of discrimination

alleged. 

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Lovelace claims that WUSM and BJH retaliated against her for complaining

of racial discrimination to HR. She explainsthat because “race [was] involved” in the

Butcher comment, her complaint to HR about Brinkley’s questions related to the

Butcher comment constituted a complaint aboutracial discrimination. Appellants’ Br.

at 33. Lovelace misunderstands what qualifies as racial discrimination by equating

accusations of racist behavior with racist behavior itself. However, “Missouri

precedent interpreting discrimination on the basis of ‘race’ are confined to evaluating

whether an employer’s conduct constituted discrimination of an employee because

of the color of [her] skin, as opposed to the substance of the employee’s beliefs

(accurate or inaccurate) on issues relating to ‘race.’” Shore v. Children’s Mercy

Hosp., 477 S.W.3d 727, 735 (Mo. Ct. App. 2015) (second emphasis added). While

“falsely accusing someone of being a racist is morally wrong,” such accusations

cannot form the basis of an MHRA racial discrimination claim. Id. at 734. For

purposes of the MHRA, accusing an employee of racism does not constitute racial

discrimination. 

Here, Lovelace does not claim that she was discriminated against “because of

the color of [her] skin.” Id. at 735. Lovelace had no legitimate basis for believing

Brinkley was discriminating against her on the basis of her race when Brinkley asked

her whether she had made a comment based on Butcher’s race; therefore, Lovelace

also had no legitimate basis for believing she had complained of racial discrimination

to HR. Because Lovelace could not have had a reasonable good faith belief that the

conduct she opposed had constituted racial discrimination in violation of the MHRA,

her MHRA racial discrimination retaliation claim fails. See McCrainey, 337 S.W.3d

at 754.

Lovelace’s disability discrimination retaliation claim similarly fails. We have

explained that “[e]vidence of general temporary work restrictions, without more, is

insufficient to constitute a disability,” Samuels v. Kansas City Mo. Sch. Dist., 437

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F.3d 797, 803 (8th Cir. 2006), and Lovelace admits that she “complained to HR that 4

she was being harassed by Goldberg regarding work place restrictions following a

surgery.” Appellants’ Br. at 35 (emphasis added). Lovelace also admits that she was

not disabled, and she does not allege that Goldberg regarded her as disabled. 

Because Lovelace could not have had a reasonable good faith belief that the

conduct she opposed had constituted disability discrimination in violation of the

MHRA, the district court did not err in granting summary judgment in favor of

WUSM and BJH on Lovelace’s MHRA retaliation claim. See McCrainey, 337

S.W.3d at 754.

C. Loss of Consortium 

As Lovelace correctly notes, “[t]he District Court was required to dismiss the

loss of consortiumclaimbrought by Ste[ph]enLovelace because, under Missouri law,

it is a derivative spousal claim.” Appellants’ Br. at 36. Because we affirm the district

court’s decision to grant summary judgment in favor of WUSM and BJH on the

retaliation claims, we likewise affirm its decision to dismiss Stephen’s loss of

consortium claim.

III. Conclusion

The judgment of the district court is affirmed. 

______________________________

Though Samuelsis an ADA case, “[t]o the extent Missouri rulings have stated 4

a test for determining disability from working, actual or perceived, they cite and

follow Federal decisions.” Heuton v. Ford Motor Co., 309 F. Supp. 3d 714, 716

(W.D. Mo. 2018). 

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