United States Court of Appeals

For the Eighth Circuit

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No. 17-3067

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Todd E. Lindeman

lllllllllllllllllllllPlaintiff - Appellant

v.

Saint Luke's Hospital of Kansas City

lllllllllllllllllllllDefendant - Appellee

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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Submitted: April 11, 2018

Filed: August 9, 2018

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Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.

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SHEPHERD, Circuit Judge.

Over eight years, Todd Lindeman worked in a number of positions for St.

Luke’s Hospital of Kansas City. Though much of that time was uneventful, he

quickly progressed through the stages of St. Luke’s disciplinary policy from January

to April 2014. After his fourth infraction, Lindeman was terminated. Thereafter, he

sued St. Luke’s, alleging discrimination in violation of the Americans with

Disabilities Act (ADA) and Age Discrimination in Employment Act (ADEA). St.
Luke’s filed a motion for summary judgment, which the district court granted. 1

Lindeman appeals, and we affirm.

I.

Lindeman began working for St. Luke’s in 2006 when he was 40 years old. 

Although he enjoyed a good employment record for much of his tenure, this changed

when Todd Isbell and Rosa Parodi became his supervisors at some point in 2013. 

According to Lindeman—who suffers fromobsessive compulsive disorder, attention

deficit disorder, bipolar disorder, and other physical limitations—Isbell and Parodi

were much more demanding, and much less pleasant to work with, than his previous

supervisor, Lorra Embers.

2

St. Luke’s has a progressive discipline system under which an employee

receives a verbal warning for the first infraction, a written warning for a second

infraction, a suspension or second written warning for a third infraction, and 

termination for any subsequent infraction. Further, the hospital has clear rules

prohibiting the dissemination of confidential patient information, including patient

names. When he began his employment at St. Luke’s, Lindeman received copies of

these policies, and the hospital also periodically conducted additional training

sessions on patient confidentiality. 

On January 1, 2014, Lindeman received a verbal warning after he became

argumentative when receiving coaching for failing to answer or return a supervisor’s

The Honorable Stephen R. Bough, United States District Judge for the

1

Western District of Missouri.

Lindeman alleges that Isbell and Parodi made statementsto Lindeman such as 2

“I better see the whites of your eyes or else” and “I’ll match your ADD with my ADD

and I will win.”

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phone calls. Later that month, Lindeman received a written warning for failing to

abide by the hospital’s timecard and call-in procedures at least five times in two

weeks. In late February,Lindeman received a temporary suspension for failing to call

in prior to missing a scheduled shift. Finally, in April 2014, Lindeman mentioned the

name of a patient to a number of individuals inside and outside of the St. Luke’s

facility, which violated the hospital’s confidentiality policies. This fourth infraction

qualified him for termination, which occurred on April 25, 2014. 

Lindeman then brought this suit against St. Luke’s, asserting claims under the

ADA and ADEA. After discovery, St. Luke’s moved for summary judgment, and the

district court granted the motion. Lindeman appeals.

II.

Lindeman asserts that the district court erred in granting St. Luke’s motion for

summary judgment. We “review[] de novo a grant ofsummary judgment,” Torgerson

v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc), “viewing the

evidence and drawing all reasonable inferences in the light most favorable to

[Lindeman], the nonmoving party.” Kirkeberg v. Canadian Pac. Ry., 619 F.3d 898,

903 (8th Cir. 2010). We will affirm if “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

Specifically, Lindeman argues on appeal that he has shown that St. Luke’s reason for

his termination is pretext for intentional disability discrimination and that he 3

exhausted his administrative remedies on his failure-to-accommodate claim. We

address each in turn.

In its opening brief, St. Luke’s assertsthat Lindeman waived his ADEA claim

3

by not mentioning it in his opening brief. Even assuming that Lindeman properly

presented the ADEA claim on appeal, his allegation of pretext under the ADEA fails

for the same reasons that his comparable claim under the ADA is insufficient.

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A.

The ADA prohibits discrimination “on the basis of disability.” 42 U.S.C.

§ 12112(a). When presented only with circumstantial evidence, we analyze ADA

claims under the familiar McDonnell Douglas burden-shifting analysis. EEOC v.

Prod. Fabricators, Inc., 763 F.3d 963, 969 (8th Cir. 2014). To survive a motion for

summary judgment under this analysis, the employee has “the initial burden of

proving a prima facie case of discrimination.” McNary v. Schreiber Foods, Inc., 535

F.3d 765, 768 (8th Cir. 2008) (internal quotation marks omitted). The burden then

shifts to the employer “to articulate a legitimate, nondiscriminatory reason for the

adverse employment action.” Id. (internal quotation marks omitted). Finally, “the

burden shifts back to the plaintiff to show that the employer’s proffered reason is

merely a pretext for intentional discrimination.” Prod. Fabricators, 763 F.3d at 969. 

Here, on summary judgment and on appeal, the parties have assumed that Lindeman

can establish his prima facie case. Further, St. Luke’s proffered reason for

Lindeman’s termination—disclosure of confidential information in violation of

hospital policies—is a legitimate, nondiscriminatory reason for the adverse

employment action. See Twymon v. Wells Fargo & Co., 462 F.3d 925, 935 (8th Cir.

2006) (“We have consistently held that violating a company policy is a legitimate,

non-discriminatory rationale for terminating an employee.”). Our focus is therefore

limited to whether Lindeman has shown that St. Luke’s reason is pretextual. 

In order to do so, Lindeman “must present sufficient evidence to demonstrate

both that the employer’s articulated reason for the adverse employment action was

false and that discrimination wasthe real reason.” McNary, 535 F.3d at 769 (internal

quotation marks omitted). To meet this burden, Lindeman relies on two types of

evidence: First, he claims that other employees also disclosed the name of the patient

and received no discipline. Second, he argues that his history of positive performance

followed by his quick progression through the disciplinary policy demonstrates that

an unlawful reason actually motivated his termination. 

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Pretext may be demonstrated by showing disparate punishment between

similarly situated employees, but Lindeman must show that he and the alleged

comparators “were similarly situated in all relevant respects.” Ryan v. Capital

Contractors, Inc., 679 F.3d 772, 777 (8th Cir. 2012) (internal quotation marks

omitted). This is “a rigorous standard at the pretext stage.” Torgerson, 643 F.3d at

1051 (internal quotation marks omitted). To be similarly situated, a plaintiff must

show that he and the more leniently treated employees have “comparable disciplinary

histor[ies].” Forrest v. Kraft Foods, Inc., 285 F.3d 688, 692 (8th Cir. 2002). And the

employees also “must have dealt with the same supervisor, have been subject to the

same standards, and engaged in the same conduct without any mitigating or

distinguishing circumstances.” Prod. Fabricators, 763 F.3d at 970 (internal quotation

marks omitted). Lindeman asserts that two other employees also revealed the name

of the patient but were not disciplined in any way. However, Lindeman points to no

evidence that those two individuals were also at the last stage of the progressive

disciplinary policy, thereby warranting termination for an additional violation. This

is fatal to his argument. See Forrest, 285 F.3d at 692. Additionally, Lindeman

concedes that he mentioned the patient’s name after being expressly told that doing

so was a violation of St. Luke’s policies, and there is no evidence that the other

employees engaged in a similar course of conduct. See Bone v. G4S Youth Servs.,

LLC, 686 F.3d 948, 956 (8th Cir. 2012) (“[T]o be probative evidence of pretext, the

misconduct of more leniently disciplined employees must be of comparable

seriousness.” (internal quotation marks omitted)). Lindeman has therefore failed to

show that he is similarly situated to the purported comparators. 

Lindeman next points to his history of positive performance, which he claims

is demonstrated by a review from Embers, his former supervisor, given on April 11,

2013. According to Lindeman, this review shows that the reason St. Luke’s offered

for his termination was pretext because he had favorable performance reviews until

Parodi and Isbell became his supervisors, at which point those individuals

intentionally began disciplining Lindeman due to his disabilities. In support of this

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argument, Lindeman relies on authority from the Tenth Circuit, and he asserts that

“[e]vidence of consistent, long-term good performance, followed closely by a series

of adverse disciplinary actions is evidence of pretext.” Appellant’s Br. 25 (citing

Greene v. Safeway Stores, Inc., 98 F.3d 554 (10th Cir. 1996)).4

There are a number of flaws in this argument. First, in this circuit, “[e]vidence

of a strong employment history will not alone create a genuine issue of fact regarding

pretext and discrimination.” Guimaraes v. SuperValu, Inc., 674 F.3d 962, 975 (8th

Cir. 2012) (internal quotation marks omitted). Thus, even were we to conclude that

one favorable performance review established that Lindeman had a “strong

employment history,” this would be insufficient to show pretext. Id. Second, the

Tenth Circuit case is clearly distinguishable because, there, the plaintiff’s

performance reviews were made by the same supervisor. Woods, 355 F. App’x at

210. It is therefore understandable why this could serve as evidence of pretext

because a single supervisor changing his rating of an employee after a protected

activity, without sufficient explanation, suggests the possibility of a discriminatory

motive. Here, as stated, we are dealing with different supervisors, so any potential

inference of discrimination is weakened substantially by another rational explanation

for the change—the shifting expectations of different supervisors. Cf. Tate v.

Weyerhaeuser Co., 723 F.2d 598, 606 (8th Cir. 1983) (stating in a Title VII case that

a change in supervisors can “suggest[] a basis other than racial [discrimination] for

the difference in the treatment”). Finally, apart from being compiled by a different

supervisor, the favorable review Lindeman relies on was made nearly one year prior

to his violation of the confidentiality rules, and “[a] review issued without that

knowledge is irrelevant to whether” Lindeman was actually terminated for the given

reason. Smith v. Allen Health Sys., Inc., 302 F.3d 827, 834 (8th Cir. 2002). 

Though he represents that he is relying on Greene, Lindeman’s quoted

4

material actually comes from that circuit’s unpublished opinion in Woods v. Boeing

Co., 355 F. App’x 206, 210 (10th Cir. 2009).

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Lindeman also briefly assertsthat he did not actually violate the confidentiality

rules because the patient had already announced her hospitalization via social media,

thus waiving any confidentiality. But this argument “misses the mark” because, at

best, it “shows only that the employer’s belief was mistaken.” Liles v. C.S.

McCrossan, Inc., 851 F.3d 810, 822 (8th Cir. 2017) (internal quotation marks

omitted); accord McNary, 535 F.3d at 770 (“Whether they were correct in their

surmise that McNary breached company policy is not the issue.”). Instead, Lindeman

needed to show that St. Luke’s did not honestly believe that he had violated its

confidentiality rules. See Liles, 851 F.3d at 822. He has not.

Lindeman has failed to show that St. Luke’s reason for his termination was

pretext for unlawful discrimination. Accordingly, the district court properly granted

summary judgment to St. Luke’s on Lindeman’s discrimination claimunder the ADA.

B.

We now turn to the issue of whether Lindeman exhausted his administrative

remedies on his failure-to-accommodate claim. In drafting the ADA, Congress

adopted the administrative procedures specified by Title VII. See 42 U.S.C.

§ 12117(a) (“The powers, remedies, and procedures set forth in [Title VII] shall be

the powers, remedies, and procedures this subchapter provides to . . . any person

alleging discrimination on the basis of disability in violation of any provision of this

chapter . . . .”). Under Title VII, a plaintiff must first exhaust his administrative

remedies before filing suit in federal court. Williams v. Little Rock Mun. Water

Works, 21 F.3d 218, 222 (8th Cir. 1994). “A plaintiff will be deemed to have

exhausted administrative remedies asto allegations contained in a judicial complaint

that are like or reasonably related to the substance of charges timely brought before

the EEOC.” Id. Lindeman conceded before the district court that “his Charge of

Discrimination does not include any allegation about needing or requesting an

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accommodation.” As a result, he failed to exhaust his administrative remedies on that

claim, and he cannot pursue it in federal court.

III.

For the foregoing reasons, we affirm the district court.

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