1 The Honorable Dean Whipple, United St ates District Judge for the Western District of Missouri. 

## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 07-3378

___________ David McNary, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Schreiber Foods, Inc., * * Appellee. *

___________ Submitted: May 15, 2008 Filed: August 1, 2008

___________ Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.

___________ SMITH, Circuit Judge.

David McNary sued Schreiber Foods, Inc. ("Schreiber"), alle ging that Schreiber terminated him in violation of the Americans with Disabilities Act (ADA), 42 U.S.C.A. § 12101, et seq. The district court 1 granted Schreiber's motion for summary judgment, holding that McNary failed to show that there was a genuine issue of material fact as to whether Schreiber's pr offered reason for McNary's termination was pretextual. We affirm.2 Graves disease is an autoimmune diso rder that involves overactivity of the thyroid gland. Possible symptoms include protruding eyes, fatigue, double vision and eye irritation. See http://www.nlm.nih.gov/medlineplu s/ency/article/000358.htm (last visited July 23, 2008).

3 McNary now claims that he worked for an hour and a half be fore he felt sick. He deduces this hour and a half number fro m the fact that Swarnes and Johnston saw him resting from 2:55 p.m. until about 3:05 p. m., and McNary estimates he spent ten to fifteen minutes in the cage—therefore, he began resting hi s eyes around 2:50 p.m.

-2- I. Background We recite the facts in the light most favorable to McNary, the nonmoving party. Dovenmuehler v. St. Cloud Hosp. , 509 F.3d 435, 437 (8th Cir. 2007). McNary, who suffers from Graves disease 2and diabetes, was employed by Schreiber from 1978 until his termination in 2005. From 1999 until McNary's termination, Schreiber, a dairy product manufacturer and distributor, employed McNary in its Sanitation Department in Carthage, Missouri. At Schr eiber, sanitation employees perform major clean-up, and they sanitize and set-up equipment on all plant lines.

According to McNary, he has had many conversations with his co-workers, including supervisors, regarding his need for breaks and his various other limitations caused by his medical conditions. On occas ion, when McNary felt he could not perform certain tasks due to dizziness and other symptoms, his co-workers assisted him. However, McNary worked without any restrictions imposed or acknowledged by Schreiber. According to the summary j udgment record, McNary's physicians stated that he is able to work without restrictions.

On September 22, 2005, McNary came into work on overtime to clean the wet and dry trash compactors. According to McNary, this job should take four to five hours. McNary clocked in at 1:25 p.m. Afte r he clocked in, McNary prepared to clean the compactors for a few minutes. After McNary began cleaning the compactors, 3 heand he clocked in at 1:25 p.m. so he work ed for over an hour before resting. However, the record evidence indicates McNary worked for only ten to fifteen minutes before resting—he stated so in his depositi on, and he did not deny the paragraph of Schreiber's uncontroverted ma terial facts in which Schr eiber stated McNary became sick ten to fifteen minutes into cleani ng the compactors. Although we give McNary the benefit of reasonable inferences at this stage, the record i ndicates McNary worked ten to fifteen minutes before becoming si ck. Even assuming thatMcNary had worked over an hour before resting, as we explai n below, the issue is not whether he was actually on an authorized break but whethe r his supervisors reasonably believed him to be sleeping while not on break.

4 Schreiber employees are entitled to take a fifteen minute regular break if the employee works for approximately four hours. The record indicates that generally an employee needs to work for an hour or two before breaks should be taken.

-3- became dizzy, sick to his stomach, and light -headed. He left the compactors and went to the sanitation cage where he sat down, put his feet up on a table, and closed his eyes. According to McNary, he simply took a break4 but was not sleeping—instead he rested his eyes for ten or fifteen mi nutes. Then, he realized Tom Johnston, his supervisor, and Jeremy Swarnes, interim T eam Leader in the Sanitation Department, were standing near him.

According to Swarnes's affidavit, Swarnes entered the sanitation cage at 2:55 p.m. and observed McNary sitting at a table with his eyes closed. Based on Swarnes's personal observation, he belie ved McNary to be sound asleep as McNary showed no signs of having heard the noise caused when the gate shut behind Swarnes. Swarnes reported to Johnston that McNary was sleep ing in the sanitation cage. Johnston and Swarnes returned to the sanitation cage shortly after 3 p.m., and McNary was in the same position as he had been when Swarne s left the sanitation cage to get Johnston. According to Johnston's affidavit, McNary was sitting at a table with his head back, his mouth open, and his eyes shut, and he did not appear to have heard an intercom that sounded as Johnston entered the san itation cage. Based on Johnston's personal-4- observation, he believed thatMcNary was asleep. According to Johnston, when he spoke to McNary and shook his shoulders, McNary reacted as if just awakened.

At this point, Johnston asked McNary if he was asleep, and McNary told him that he was not asleep but that he had a headache and eye pain . Johnston again asked McNary if he was asleep and, again, McNary told him that he had not been sleeping. McNary told Johnston and Swarnes that he had Graves disease and diabetes and that he had had eye surgery which often caused hi m pain so he had been resting his eyes. Johnston told McNary that was not Johnston's problem, that it was McNary's problem. Johnston told McNary that if he was not feeling well, he shoul d go home, but McNary told Johnston he would finish up the job a nd then he would leav e. Either Swarnes or Johnston asked McNary what time he had co me in that day and McNary told them around one or one thirty. After that, McNary finished cleaning the compactors and went home.

After this conversation with McNary , Swarnes and Johnson pulled McNary's time record for the day to determine wh en he had reported for work. Knowing McNary's start time and the assigned task, they surmised that McNary was not on an approved break when he was found in the sanitation cage with his eyes closed. Johnston and Swarnes then wrote up a Co rrective Action Form which placed McNary on a five-day suspension due to sleepi ng on duty, a Group III violation—the highest possible. Schreiber's Work Rules and Co rrective Action Policy defines sleeping on duty as "intentionally leaving work area, other than regular break time, for the purpose of sleeping." McNary was given this Co rrective Action Form and notified of his suspension on September 23, 2005, and Johns ton and Swarnes presented the facts underlying the Corrective Action Form to the management team. The management team agreed that McNary should be terminated, and Schreiber terminated McNary. Upon learning of Schreiber's decision to terminate him, McNary requested peer review. The peer review committee reviewed and upheld the termination.-5- In January 2006, McNary filed the comp laint in the current matter against Schreiber alleging a violation of the ADA. McNary contended that Schreiber discriminated against him based upon his phys ical condition. McNary alleged that he had informed Schreiber of his Graves' disease and diabetes, including advising Schreiber that he would need to take brief breaks to relieve eye pain or dizziness symptoms. Following discovery, the district court granted Schreiber's motion for summary judgment. The district court, fo r purposes of deciding the case, assumed McNary stated a prima facie case of discrimination under the ADA. The court then found that Schreiber provided a legitimat e, nondiscriminatory reason for McNary's termination—sleeping on the job in violati on of company policy. The court granted summary judgment for Schreiber because Mc Nary failed to show that there was a genuine issue of material fact as to whether Schreiber's proffered reason was pretextual.

II. Discussion McNary argues on appeal that the district court erred in granting summary judgment for Schreiber because he produced sufficient evidence that the reason given for his termination was a pretext for disc rimination. "We review de novo the district court's grant of summary judgment to [Sch reiber]. Summary judgment is appropriate when there is no genuine issue of materi al fact and the moving party is entitled to judgment as a matter of law." Dovenmuehler, 509 F.3d at 439 (internal citations omitted). We view the facts in the light most favorable to McNary, the non-moving party and we give him the benef it of all reasonable inferences. Van Horn v. Best Buy Stores
, L.P. , 526 F.3d 1144, 1148 (8th Cir. 2008).

The ADA prohibits discrimination by an employer "against a qualified individual with a disability because of th e disability of such individual . . . ." 42 U.S.C. § 12112(a).-6- ADA . . . claims are analyzed under the well-known McDonnell Douglas burden shifting analysis. The employee bears the initial burden of proving a prima facie case of discrimi nation. The employer then has the burden to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Finally, to prevail, plaintiff must show that the defendant's proffered reason wa s a pretext for discrimination.

Dovenmuehler , 509 F.3d at 439 (8th Cir. 2007) (discussing McDonnell Douglas Corp.
v. Green , 411 U.S. 792, 802 (1973) (internal citations omitted).

"To establish a prima facie case of disability discrimination, a plaintiff must show: (1) that she was disabled, (2) thatshe was qualified to do the essential job function with or without reasonable acco mmodation, and (3) that she suffered an adverse action due to her disability." Buboltz v. Residential Advantages, Inc. , 523 F.3d 864, 868 (8th Cir. 2008). We need not addr ess whether McNary established a prima facie case. The district court's decision assumed McNary established a prima facie case of discrimination. Neither party has app ealed any issue related to McNary's prima facie case.

The decision below turned on the issue of pretext. The district court found that Schreiber had provided a legitimate, nondiscriminatory reason for McNary's termination—violating the company policy prohibiting sleeping on the job. We agree. See Twymon v. Wells Fargo & Co. , 462 F.3d 925, 935 (8th Cir. 2006) ("We have consistently held that violating a compa ny policy is a legitimate, non-discriminatory rationale for terminating an employee").

To demonstrate pretext, a plainti ff must present sufficient evidence to demonstrate both that the employer's articulated reason for the adverse employment action was false and that discrimination was the real reason. This burden will not be met by simply showing that the reason advanced by the employer was false; rather, [theplaintiff] must demonstrate that a discriminatory animus lies behind th e defendants' neutral explanations.-7- Specifically, the plaintiff must do mo re than simply create a factual dispute as to the issue of pretext; he must offer sufficient evidence for a reasonable trier of fact to infer discrimination.

Wilking v. County of Ramsey , 153 F.3d 869, 874 (8th Cir. 1998) (internal quotations and citations omitted). "To prove pretext, the employee must do more than show that the employment action was ill-advised or unw ise, but rather must show that the employer has offered a 'phony excuse.'" Henderson v. Ford Motor Co. , 403 F.3d 1026, 1034 (8th Cir. 2005) (internal citation omitted).

On appeal, McNary argues that he ade quately rebutted Schr eiber's termination justification. For rebuttal, McNary relies on evidence and argument that he did not actually violate company policy. He conte nds that he was on a regular break when employees are allowed to sleep or, in the alternative, if he was on an unauthorized break there was still no policy violation becau se he had been allo wed to take breaks at his discretion for years. McNary's ar gument misses the mark. The relevant inquiry is not whether McNary actually violated th e company policy nor is it whether he was actually sleeping. "A proffered legitimate, non-discriminatory reason for termination need not, in the end, be co rrect if the employer honestly believed the asserted grounds at the time of the termination." Twymon , 462 F.3d at 935.

As we stated in an analogous but race-based discrimination case:

Whether he was sleeping or not, howev er, is irrelevant. [Appellant] has offered no evidence to dispute [appell ees'] testimony that he was fired for taking an unauthorized break. Indeed, in his brief he admits [appellees] accused him of "taking an unauthorized break," noting she testified she saw him fifteen minutes after the end of his scheduled break time. Moreover, as [appellee] argues, also irrelevant is [appellant's] belief that he was still on break when[appellee] confronted him. Rather, the relevant inquiry is whether the University believed he was guilty of-8- the conduct justifying discharge, and here there is no evidence suggesting anything other than the University's honest belief.

Scroggins v. Univ. of Minn. , 221 F.3d 1042, 1045 (8th Cir. 2000) (affirming a grant of summary judgment for employer in race discrimination case) (internal quotations and alterations omitted). The situation he re is similar. McNary simply has not produced facts showing that Johnston and Swarnes acted based on discriminatory animus for his disability. Whether they we re correct in their surmise that McNary breached company policy is not the issue.

McNary also attempts to show pret ext by claiming that Schreiber treated similarly situated employees differently. "I nstances of disparate treatment can support a claim of pretext, but [plain tiff] has the burden of proving that he and the disparately treated [employees] were similarly s ituated in all relevant respects." Sherman v. Runyon , 235 F.3d 406, 409 (8th Cir. 2000) (quoting Lynn v. Deaconess Med. Ctr. West Campus , 160 F.3d 484, 487 (8th Cir. 1998)). Mc Nary alleges that in 2005 he and Marco Marroquin, a co-worker, saw Keith Fortenbaugh, a co -worker, asleep while at work. McNary also alleges th at he saw Estell Tunnell, a nother co-worker, fall asleep at work several times—Tunnell admitted to sleeping while on breaks and to hearing about other employees sleeping while on break. Through depositions of co-workers, the record indicates co-workers of Mc Nary saw and knew of others sleeping on breaks. McNary also points us to Marr oquin's deposition in which Marroquin stated that Fortenbaugh was caught by supervisors, including possibly Johnston, sleeping at work while on an unscheduled break. Marroquin did not know if Fortenbaugh got in trouble. McNary has the burden to show thatthese other co-workers were similarly situated in all relevant respects, and McNary has not met that burden. Id . We agree with the district court that McNary has failed to present evid ence to create a genuine issue as to disparate treatment.-9- We have often reiterate d the following passage:

"[F]ederal courts do not sit as a super-personnel department that reexamines an entity's business d ecisions." One reason we emphasize this point is that a number of plain tiffs present a sympathetic situation in which the employer's judgment in imposing discipline may appear poor or erroneous to outsiders. It is tempting to think that the role of the federal courts is to offe r a remedy in that sort of case. Whether we might believe that [Schreiber] was unduly harsh in its treatment of [McNary], however, is not a matter to be consid ered in deciding this appeal. Our authority is to determine only whether there is a genuine issue for trial on the question whether [Schreiber] di scharged [McNary] because of his [disability].

Johnson v. Ready Mixed Concrete Co. , 424 F.3d 806, 812 (8th Cir. 2005) (quoting Harvey v. Anheuser-Busch, Inc. , 38 F.3d 968, 973 (8th Cir. 1994)). We hold that McNary has failed to show that there is a genuine issue of material fact as to whether Schreiber's proffered justification was pr etext for an illegal discriminatory motive based on his disability. Therefore, the distri ct court's grant of summary judgment for Schreiber was proper.

III. Conclusion Accordingly, we affirm the district court's decision.

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