# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 12-3220

___________________________ Lyle Ridout

lllllllllllllllllllll Plaintiff - Appellant

v. JBS USA, LLC, also known as Swift Beef Company

lllllllllllllllllllll Defendant - Appellee

____________ Appeal from United States District Court for the Southern District of Iowa - Des Moines

____________ Submitted: April 11, 2013 Filed: June 14, 2013 (Corrected 6/25/13)

____________ Before MURPHY, BEAM, and BYE, Circuit Judges.

____________ MURPHY, Circuit Judge.

Lyle Ridout, a rendering superintendentat a pork processing plant owned by JBS USA, LLC, was discharged after an in cident arising from an equipment failure and later replaced by two employees subs tantially younger than he. Ridout brought this action against JBS under the Age Di scrimination in Employment Act (ADEA), 29 U.S.C. § 623, and the Iowa Civil Rights Act (ICRA), Iowa C ode § 216.6, alleging that age was the real reason for his discharge. JBS moved for summary judgment,which the district court granted after conc luding that Ridout had not shown that his employer's nondiscriminatory reasons were a pretext for age discrimination. Ridout appeals, and we reverse and remand.

I.

Lyle Ridout began working for JBS, a pork processor, in 1968. In over forty years of employment at JBS's Marshalltown, Iowa plant he rose through the ranks and eventually became superintendent of the rendering department. As rendering superintendent, Ridout was supervised by pl ant engineer Cyrus Thill, plant manager Todd Carl, and general manager Troy Mulgrew.

Part of Ridout's job was overseeing e quipment in the re ndering department, including an instrument known as the "prehogor." The prehogor was used to grind scraps and bones of pork byproduc t in order to create a material known as "crackling." From time to time the components of the prehogor wore out and needed to be replaced. These repairs were usually scheduled during overnight shift breaks because the prehogor was operated almost con tinuously throughout the day and night. Equipment downtime could back up the overall process significantly. The maintenance department and Ridout, as rendering superintendent, were jointly responsible for ensuring that equipment su ch as the prehogor was kept in working order and was repaired quickly when it broke down.

On May 13, 2010 the prehogor operator during the first shift reported to Ridout that there were problems with the m achine. Although the prehogor was still functional, Ridout determined that the rotating assembly needed to be replaced. He directed the maintenance department to bring a backup assembly to the rendering department and install it during the overnight shift break. During the second shift the machine broke down entirely. The second sh ift supervisor was then forced to shut down production for seve ral hours so that repairs could be made immediately.

-2-Although the prehogor was restored to operation by the end of the third shift, a significant backlog of product had piled up during the downtime.

The next day plant engineer Thill, pl ant manager Carl, and general manager Mulgrew visited the rendering department. The backlog of product had not yet been cleared. Carl located Ridout in his office, and then all four men went over to the prehogor to discuss its failure the previous day. Mulgrew claims that Ridout became visibly upset and raised his voice during thei r discussion, and that he complained that management wanted to "point[] fingers" rath er than allow him to spend his time fixing the problem. Mulgrew alleges that he told Ridout to "[t]one it down" or else he would be sent home. Ridout testif ied in his deposition that Mu lgrew told him to "go home" when he raised his voice so he left work.

While Ridout admits that at the time he was frustrated that his supervisors were interfering with his repair effo rts, he maintains that he ne ver behaved in an aggressive manner. He admits that he raised his voice because the conversation took place directly next to a large piece of equipmen t, and employees in that area had to speak loudly to be heard over the noise. Ridout also points out that he had experienced considerable hearing loss due to working inthe JBS factory for over forty years and that his hearing loss causes him to speak loudl y. At the time of the meeting with his supervisors Ridout was sixty two years old.

A few days later Ridout was suspended without pay, and the human resources department asked his supervisor for a recommendation as to whether he should be terminated. Plant manager Carl suggested th at they meet with Ridout to get his side of the story. At the meeting with Carl and the human resources department, Ridout expressed contrition for his statements to Mulgrew on May 14. He agreed that he should have handled the discu ssion differently and asked to return to work. He also proposed that if he could not remain rende ring superintendent, he would agree to take a demotion to whatever position the company would see fit. Ridout also mentioned

-3-the recent terminations of two other ol der supervisory level employees: Linn Knox and Dean Welton. Although both had been oste nsibly terminated for safety violations, they claimed that that was a pretext and th at each had been morecarefully scrutinized because of their age. The human resources director later testified that he believed Ridout was trying to "fram[e] it up to say this was about [his] age" and denied that that was the basis for his termination.

Ridout's meeting with the human resources department focused mostly on the events of May 14 and not his overall hi storical performance. Mulgrew and Carl claimed in discovery that they had expr essed concerns about Ridout "resisting" changes in the rendering department, but they provided no specifics or contemporaneous evidence of any such beha vior. While Ridout's supervisors later claimed that Ridout's performance had been d eclining prior to May 14, they presented no specific examples or contemporaneous evid ence of such a decline. In fact Ridout's last performance review had rated him as "meeting expectations." There was no mention of any issues with Ridout's perform ance until after the May 14 incident at the prehogor.

After the meeting the supervisors decided to terminate Ridout. General manager Mulgrew replaced Ridout with Chad Richett, who was between thirty five and thirty eight years old. Richett was subsequently demoted by Mulgrew a y ear and a half later due to inadequate performance. Mulgrew then hired John Ho lden, age thirty three, as the new rendering superintendent even though Holden had been terminated by JBS five years earlier for making a mock Ku Klux Klan hood out of industrial materials and displaying it to a black employee.

Ridout sued, alleging that his discharge was because of his age in violation of the Age Discrimination in Employment Act and the Iowa Civil Rights Act. JBS moved for summary judgment, and the distri ct court concluded that Ridout had made out a prima facia case of age discrimination. It then proceeded to analyze the two

-4-nondiscriminatory reasons JBS gave for Ridout's termination: that he had raised his voice to his supervisors and that his performance had declined. The district court concluded that Ridout had not demonstrated that these reasons we re a pretext for age discrimination and granted summary judgment for JBS. Ridout appeals.

II.

We review the district court's gran t of summary judgment to JBS de novo, viewing the facts in the light most favorab le to Ridout and giving him the benefit of all reasonable inferences. Glascock v. Linn Cnty. Emergency Med., PC , 698 F.3d 695, 697–98 (8th Cir. 2012). Summary judgment is appropriate if there is no genuine dispute of material fact and JBS is entitle d to judgment as a matter of law. Fed. R. Civ. P. 56(a). Summary judgment will be denied if Ridout has produced sufficient evidence to allow a rational jury to find in his favor. See Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (citing Ricci v. DeStefano , 557 U.S. 557, 585 (2009)).

Ridout brings this action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1), and the Io wa Civil Rights Act (ICRA), Iowa Code § 216.6(1)(a). Both statutes provide a right of action for an employee who is terminated "because of" his age. 29 U.S.C . § 623(a)(1); Iowa Code § 216.6(1)(a). The statutes require slightly differe nt showings of causation, compare Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 178 (2009) (ADEA plaintiff must show that age discrimination was a "but[] for" cause of his termination) withDeBoom v. Raining Rose, Inc. , 772 N.W.2d 1, 13 (Iowa 2009) (ICRA pl aintiff need only show that age discrimination was a "motivating factor"). Th e difference is not important in this case because Ridout has produced sufficient eviden ce to allow a rational factfinder to find in his favor under either statute.

In reviewing a grant of summary judgment under either the ADEA or ICRA,

-5-we apply the familiar McDonnell Douglas test. See Tusing v. Des Moines Ind. Cmty. Sch. Dist. , 639 F.3d 507, 514–16 (8th Cir. 2011). At th e first step of the analysis, the plaintiff has the burden of establishing a prima facie case of age discrimination. Id. at 515. A successful showing creates a presumption that the employer unlawfully discriminated against the plaintiff and shif ts the burden to the employer to articulate a legitimate nondiscriminatory reason for its actions. Davis v. Jefferson Hosp. Ass'n , 685 F.3d 675, 681 (8th Cir. 2012). If the employer meets this burden, the presumption of discrimination dissolves and the burden re turns to the plaintiff to demonstrate that the proffered reason is a mere pretext for age discrimination. Id.

It is undisputed that Ridout and JBS have both met their burdens at the first two steps of the McDonnell Douglas test. The district court concluded, and JBS concedes, that Ridout successfully made out a prim a facie case by producing evidence that he had been over forty years old at the time of his termination, that he had been meeting JBS's reasonable expectations at the time of his termination, and that he had been replaced by a substantially younger individual. See Haigh v. Gelita USA, Inc. , 632 F.3d 464, 468 (8th Cir. 2011). Likewise, Ridout concedes that the district court correctly concluded that JBS had met its burden of articulating a legitimate nondiscriminatory reason for his termination. JBS contends that Ridout's termination resulted not from age discrimination, but from his declining performance and insubordination. The only question here is whether Ridout has made a sufficient showing that JBS's proffered reasons are a mere pretext for age discrimination to avoid summary judgment.

JBS's first proffered reason for termin ating Ridout is declining performance. While "it is possible for strong evidence of a prima facie case to al so present a factual issue on pretext," Kiel v. Select Artificials, Inc. , 169 F.3d 1131, 1135 (8th Cir. 1999) (en banc), that is particularly true when the alleged nondiscriminatory reason is inferior performance since that"is simply the negative of one of the elements of the prima facie case." Erickson v. Farmland Indus., Inc. , 271 F.3d 718, 726 (8th Cir.

-6-2001). In other words, a strong showing thatthe plaintiff was meeting his employer's reasonable expectations at the time of termination may create a fact issue as to pretext when the employer claims that the employee was terminated for poor or declining performance. This is precisely the case here.

Although JBS alleges that Ridout was terminated for declining performance, he has presented evidence that the compa ny considered his performance satisfactory until he was suspended without pay. He had never been counseled or warned about any declining performance prior to his termin ation. There is ev idence that Ridout was a productive and satisfactory employee for ove r forty years. While his supervisors complained after his termination that he had been "resistant" to proposed changes in the rendering department, they offer no sp ecific examples and no contemporaneous evidence to provide substance to their asserti ons. On this record a rational trier of fact could find that declining performance was not the true reason for Ridout's termination.

JBS's other proffered reason for firing Ri dout is insubordination. An employee can demonstrate pretext "by showing thatit was unlikely an employer would have acted on the basis of the proffered reason." Erickson , 271 F.3d at 727. This does not mean that the employee must show that "the proffered explanation had no basis in fact" and was only conjured out of thin air. See id. The employee may demonstrate pretext by showing that "it was not the employer's policy or practice to respond to such problems in the way it responde d in the plaintiff's case." Id. It is undisputed that the alleged insubordination involved Ridout's swearing and raising his voice in the middle of the factory floor next to a very loud piece of equipment.

While Ridout admits that under the circ umstances he may well have appeared to be annoyed, he has presented evidence to suggest that JBS's decision to terminate him for this conduct was not typical of the company's policy or practice. JBS supervisors admitted in depositions that it was common to raise one's voice on the factory floor where the noise may drown out quieter voices. The supervisors also

-7-admitted that heated arguments involvi ng swearing were relatively common among the workers in the factory. None of the supervisors could recall a single other instance where any employee had been terminated for yelling or swearing.

In addition Ridout offers evidence th at younger employees were treated more leniently when they committed infractions of comparable seriousness. After his termination, the post of rendering superintendent wa s filled successively by two employees who were in their thirties and thus substantially younger than Ridout. The first, Richett, was subsequently demotedfor poor performance. Ridout argues that this demotion tends to show that it was not JBS's policy to terminateemployees for declining performance. The second, Holden , was rehired as re ndering superintendent after having been fired five years earlier for racist behavi or. Ridout argues that this tends to show that JBS did not view a be havioral offense as a bar to holding the position of rendering superintendent. While JBS argues that evidence of Holden's racist conduct is inadmissible hearsay, Ridout correctly points out that records of the disputed conduct are admissible as documen ts kept in the course of regularly conducted business. See Fed. R. Evid. 803(6).

JBS argues that Richett and Holden are not valid comparators. According to JBS, a plaintiff may not rely on evidence that other employees were treated more leniently unless they "dealt with the same supervisor, [were] subject to the same standards, and engage d in the same conduct without a ny mitigating or distinguishing circumstances." EEOC v. Kohler Co. , 335 F.3d 766, 776 (8th Cir. 2003). JBS contends that since Richett and Holden did not engage in the exact same infractions as Ridout, the two have no value as comparators.

The "similarly situated co-worker inquiry is a search for a substantially similar employee, not for a clone." Chan ey v. Plainfield Healthcare Ctr. , 612 F.3d 908, 916 (7th Cir. 2010). In order to rely on comp arator evidence such as Ridout offers, he must prove only that the other employees were "similarly situated in all relevant

-8-respects." Lynn v. Deaconess Med. Ctr.-W. Campus , 160 F.3d 484, 487 (8th Cir. 1998) (quoting Harvey v. Anheuser-Busch, Inc. , 38 F.3d 968, 972 (8th Cir. 1994)). To demonstrate that they are "similarly situ ated," he "need only establish that he or she was treated differently than other empl oyees whose violations were of comparable seriousness ." Id. at 488 (quotation omitted, emphasis added). In Lynn we explicitly rejected the notion that comparator anal ysis requires that the compared employees engaged in "the exact same offense." Id. We observed that demanding that the compared employees have engaged in pr ecisely identical c onduct would make an employee's conduct which was more serious than that of the plaintiff irrelevant to the analysis. Id. "Common sense as well as our case la w dictates that we reject such an approach." Id.

The Kohlerrule could appear inconsistent with our court's earlier precedent including the Lynn case. To the extent that there were a real conflict, however, Kohler would yield to the earlier rule. See Mader v. United States , 654 F.3d 794, 800 (8th Cir. 2011) (en banc). Wedo not interpret Kohlerto present a conflict because it simply stands for the unremarkable propositi on that the ideal comparator will match the characteristics of the plaintiff employ ee in as many respects as possible. See 335 F.3d at 766. While no employee is a precise clone of another, see Chaney , 613 F.3d at 916, the probative value of comparat or evidence will be greatest when the circumstances faced by the putative comparator s are most similar to the plaintiff's. Where evidence demonstrates that a comparator engaged in acts of "comparable seriousness" but was disciplined differently , a factfinder may decide whether the differential treatment is attributable to discrimination or some other cause. SeeLynn , 160 F.3d at 489.

The facts in Lynnare instructive. In that cas e, nurse Lynn had been previously disciplined for tardiness, a disrespectful a ttitude, lack of productivity, failure to assist a patient with therapeutic equipment, a nd incorrect document preparation. 160 F.3d at 486. He was eventually discharged because his work performance reflected "a

-9-serious lack of appropriate nursing judgment." Id. Lynn's comparator was another nurse named Mohr who had been repeatedly sleeping on the job, but who received only minor and belated discipline. Id. at 487 The district court considered Mohr's infractions to be different in type and thus not comparable; Mohr also had a less extensive disciplinary history than Lynn. Id.

We reversed the grant of summary judgment to Lynn's employer after concluding that the district court had e rred by ignoring Lynn's comparator analysis. Id. at 488. While a factfinder could find the differences between Lynn and Mohr sufficient to defeat a claim of pretext, it would not be obligated to do so. Id. Mohr's sleeping on the job was a more serious o ffense than anything Lynn had been accused of, particularly since it had sometimes occurred while Mohr was the only nurse on duty. Id. In addition, the two had different disc iplinary histories, at least arguably the result of disparate treatment. Id. Lynn had a sterling performance record prior to working under his last supervisor who wa s notably quicker to discipline him than Mohr. Id. Since Mohr's record showed "the same kind of 'serious lack of appropriate nursing judgment' that resulted in Lynn's di scharge," the comparator analysis was sufficient to create a genuine f act issue over pretext. Id. at 489.

On the record before the court, it is ev ident that Richett is a valid comparator for Ridout even under the strictest reading of Kohler . Richett was accused of the same infraction as Ridout (poor performance), by th e same supervisor (Mulgrew), while in the same position (rendering s uperintendent), and he received only a demotion while Ridout lost his position with the company. SeeKohler , 335 F.3d at 776. Holden is a valid comparator for JBS's insubordination justification for its discharge of Ridout. Crafting a mock Ku Klux Klan hood and displaying it to an African American employee was at the very least "comparabl [y] serious[]" to raising one's voice during an argument on a loud factory floor. See Lynn , 160 F.3d at 488. Thus, a factfinder could find that JBS's decision to rehireHolden for Ridout's former position was evidence that younger employees received mo re lenient treatment when engaging in

-10-offenses of comparable severity to Ri dout's ourburst on the factory floor amid frustration over the breakdown of the prehogor.

Ridout's final type of evidence is thata number of other older employees were terminated around the same time as he. A demonstrated pattern of preference for younger employees can help prove discriminatory intent. Holley v. Sanyo Mfg., Inc. , 771 F.2d 1161, 1166 (8th Cir. 1985). Ridout presented evidence in the district court that four of five salaried (i.e., supervis ory) employees terminated by JBS between July 2009 and July 2010 were over forty years of age. In its written summary judgment opinion, the district court explained that it discounted this evidence because the ranks of hourly (i.e., nonsupervisory) employees terminated in that period contained a much lower percentage of employees over forty. That was not the relevant group for comparison, however.

The relevant group of which Ridout was a part was made up of the salaried, supervisory employees. Hourly employees atJBS's plant are unionized and thus their termination occurs through a markedly differe nt procedure and raises different issues. It is difficult to weigh the probative value of Ridout's statistics without also knowing what percentage of the unterminated sa laried employees were over forty. A reasonable inference of a discriminatory pattern may however be drawn from evidence that nearly all the terminated employees we re over forty. Aceve do-Parilla v. Novartis Ex-Lax, Inc. , 696 F.3d 128, 146 (1st Cir. 2012).

Taken together, Ridout's evidence is suffi cient to allow a rational factfinder to find that JBS's proffered reasons for termin ating him were pretextual. Demonstrating that JBS's reasons are "unworthy of credence" would support a finding of age discrimination because "a trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembli ng to cover up a discriminatory purpose. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 147 (2000). While a prima facie case and evidence of pret ext is not always sufficient to send a case to a jury, we

-11-have concluded that it is enough "unless the evidence of pretext . . . is, standing alone, inconsistent with a reasonable inference of age discrimination." Maschka v. Genuine Parts Co. , 122 F.3d 566, 571 (8th Cir. 1997) (citation and internal quotation marks omitted). Thus, in Rothmeie r v. Inv. Advisers, Inc. , we affirmed summary judgment for the employer where the plaintiff's proof of pretext tended to show that he was fired for confronting his superiors about alle ged securities law violations. 85 F.3d 1328, 1337 (8th Cir. 1996).

Here, by contrast, Ridout's evidence is not inconsistent with a reasonable inference of age discrimination; in fact it is entirely consistent with such an inference. See Maschka , 122 F.3d at 571. On such a record the ultimate question as to whether Ridout's termination was a result of unlaw ful discrimination is not one for summary judgment.

III.

For all these reasons, we reverse the grant of summary judgment and remand to the district court for further proceedings consistent with this opinion.

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