                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-2492
                        ___________________________

                                 Walter Engelhardt

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

                        Qwest Corporation; Tim Buchholz

                      lllllllllllllllllllllDefendants - Appellees
                                      ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                           Submitted: October 18, 2018
                             Filed: March 22, 2019
                                 ____________

Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
                              ____________

SMITH, Chief Judge.

       Plaintiff Walter Engelhardt sued Qwest Corporation, a subsidiary of
CenturyLink, and Tim Buchholz, CenturyLink’s operations director, alleging that
CenturyLink and Buchholz terminated him in violation of the Fair Labor Standards
Act (FLSA) and the Minnesota Whistleblower Act (MWA). He also sued for tortious
interference with a prospective business relationship. Engelhardt claimed that
CenturyLink and Buchholz terminated him in retaliation for legal action he had taken
against the company. CenturyLink and Buchholz averred that they terminated
Engelhardt for low productivity. The district court1 granted summary judgment in
favor of the defendants and dismissed the MWA claim for lack of standing. On
appeal, Engelhardt argues that the district court erred in granting summary judgment
because genuine issues of material fact remain as to CenturyLink and Buchholz’s
motives for terminating him; he also claims the district court erred in finding he
lacked standing under the MWA. We disagree and affirm the district court’s
judgment.

                                   I. Background
      Engelhardt began working for CenturyLink as a St. Paul-based technician in
2000. In 2007, he joined a class action lawsuit (“the Brennan lawsuit”) of over 300
employees against the company. The suit settled, and Engelhardt received a payment.
Then, in 2008, CenturyLink terminated Engelhardt for low productivity.

       In 2011, Engelhardt applied for work through MP Nextlevel (MP). MP supplies
contractors to telecommunications companies, including CenturyLink. MP initially
placed Engelhardt with a company in Big Lake, Minnesota, but Engelhardt requested
a transfer to CenturyLink in St. Paul. While the transfer was pending, Engelhardt’s
former CenturyLink supervisor Chris Fry noticed Engelhardt’s request. Fry then
notified his superior, Tim Buchholz, of Engelhardt’s impending return. Fry expressed
confusion about how a terminated employee could return to the company as a
contractor.

       Six days after Engelhardt’s assignment to CenturyLink through MP, Buchholz
released Engelhardt. Buchholz terminated Engelhardt after seeing his name on the
company’s “Do Not Rehire” list. This list contained names of employees who had


      1
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.

                                        -2-
been fired for workplace violations, including productivity and performance issues.
CenturyLink placed former employees’ names on the list if they were fired for a
qualifying reason. These employees would be marked as “not rehirable” in the
CenturyLink system. Fry testified he believed Engelhardt had been marked as “not
rehirable” after his termination because of low productivity.

       About a month after being released, Engelhardt contacted Buchholz and
threatened to sue CenturyLink for retaliation. Engelhardt believed he was being
punished for his participation in the Brennan lawsuit. Buchholz and Engelhardt
communicated over the course of several weeks. After investigating the matter,
Buchholz informed Engelhardt on a Friday that he had been cleared to return to work
as a contractor. The following Monday, an MP employee accidentally sent an e-mail
to Engelhardt claiming that “[a CenturyLink employee] told me on Friday that he or
anyone else at Century Link will have no contact with Walt.” Decl. of Charles A.
Delbridge, Ex. 16, at 135, Engelhardt v. Qwest, No. 0:15-cv-04591-ADM-SER (D.
Minn. Feb. 16, 2017), ECF No. 27-1. Two days later, however, that same employee
reassured Engelhardt that he had indeed been cleared to return as a contractor.
Because of the approaching seasonal slow down, Engelhardt did not ever actually
report to CenturyLink. The company laid off all its contractors for the winter shortly
after Buchholz cleared Engelhardt to return.

      That next year, in 2012, Engelhardt moved to North Dakota and did not reapply
to work as a CenturyLink contractor. In 2015, however, a friend of Engelhardt’s
informed him that CenturyLink was hiring technicians and suggested he apply.
Skeptical, Engelhardt contacted former associates at CenturyLink and MP. In
response to Engelhardt’s inquiries, Fry told Engelhardt’s former union steward that
Engelhardt was welcome to come back. MP supervisor Tedd Elliot personally assured
Engelhardt there was nothing in his employment file that should impede his return.
A CenturyLink manager reporting to Buchholz also told Elliot there was no reason
Engelhardt should not be able to return.

                                         -3-
       That summer, MP rehired Engelhardt, and he was assigned to work as a
CenturyLink contractor. In mid-August, however, a little over a week into the job,
Brian Burth contacted Fry asserting Engelhardt’s productivity was low. Burth had
been hired by CenturyLink in June 2015 and was in charge of monitoring contractor
performance. Burth averred that he had not been aware of Engelhardt’s prior
relationship with the company when he contacted Fry about Engelhardt’s issues.

      Burth’s e-mail to Fry listed the number of jobs Engelhardt had completed each
day. Burth considered this number unsatisfactory and suggested terminating
Engelhardt. The list revealed that Engelhardt was completing about three jobs per
day. Burth stated that he expected technicians to complete five to six jobs per day.

       Fry forwarded Burth’s e-mail to CenturyLink’s contractor liaison, Rennell
Schank, and copied his supervisor, Buchholz. Fry explained that Engelhardt’s
production levels were low, that he was allegedly calling CenturyLink employees for
assistance, and that he was “returning work to himself for future dates, and working
at a pace that needs to be addressed.” Decl. of Charles A. Delbridge, Ex. 17, at 137,
Engelhardt v. Qwest, No. 0:15-cv-04591-ADM-SER (D. Minn. Feb. 16, 2017), ECF
No. 27-1. At his deposition, Burth stated that calling CenturyLink employees was
problematic because CenturyLink’s employees were unionized and did not appreciate
being contacted by the non-unionized contractors.

       About a half hour after Fry sent his e-mail, Buchholz responded, “Send him
home . . . ” Id. (ellipsis in original). Buchholz estimated he deliberated for about 60
seconds before recommending Engelhardt’s termination. A few minutes after
Buchholz sent his e-mail, Schank thanked Fry for the information and stated she
would have someone send Engelhardt home. Buchholz stated that he had previously
directed the release of contractors who had spent less than two weeks on the job.

       After his termination, Engelhardt sued CenturyLink and Buchholz in federal
district court. He alleged that CenturyLink and Buchholz terminated him in violation

                                         -4-
of the FLSA and the MWA. He also sued for tortious interference with a business
relationship. Engelhardt claimed that CenturyLink and Buchholz terminated him in
retaliation for his involvement in the Brennan suit and for his threatened action
against Buchholz following his 2011 termination. CenturyLink and Buchholz denied
retaliation and stated that they terminated Engelhardt for low productivity.

       The district court granted summary judgment in favor of the defendants. The
district court assumed without finding that Engelhardt could establish a prima facie
case of retaliation. The court then held, however, that Engelhardt presented
insufficient evidence of pretext to defeat CenturyLink and Buchholz’s legitimate,
nonretaliatory reason for terminating him. The court further found that, as a
contractor rather than an employee, Engelhardt lacked standing under the MWA. The
court also found no tortious interference.

                                  II. Discussion
       On appeal, Engelhardt avers that the district court erred in granting summary
judgment because genuine issues of material fact remain as to CenturyLink and
Buchholz’s motives for terminating him. Engelhardt also claims the district court
erred in holding he lacked standing under the MWA and in dismissing his tortious
interference claim.

       “We review the district court’s grant of summary judgment de novo, examining
the record in the light most favorable to [Engelhardt] to determine whether there are
genuine issues of material fact.” Humann v. KEM Elec. Co-op., Inc., 497 F.3d 810,
812 (8th Cir. 2007). Nevertheless, a plaintiff seeking to defeat summary judgment
“‘must do more than simply show that there is some metaphysical doubt as to the
material facts,’ and must come forward with ‘specific facts showing that there is a
genuine issue for trial.’” Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8thCir.
2011) (en banc) (emphasis added) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986)).


                                         -5-
                              1. FLSA Retaliation Claim
       We analyze FLSA retaliation claims “under the familiar McDonnell-Douglas
burden-shifting framework.” Wood v. SatCom Mktg., LLC, 705 F.3d 823, 828 (8th
Cir. 2013). Once a plaintiff establishes a prima facie case of retaliation, the defendant
has the burden of “com[ing] forward with evidence of a legitimate, nonretaliatory
basis for the adverse employment action.” Fezard v. United Cerebral Palsy of Cent.
Ark., 809 F.3d 1006, 1011 (8th Cir. 2016). If the defendant proffers a basis, the
burden shifts to the plaintiff, and the plaintiff must provide evidence that the
employer’s proffered basis is pretextual. Id.

       “To demonstrate pretext, the employee must show that the employer’s
proffered reason is unworthy of credence. To show pretext, the plaintiff must
demonstrate more than at the prima facie stage because, at the pretext stage, the
evidence is viewed in light of the employer’s justification.” Ebersole v. Novo Nordisk,
Inc., 758 F.3d 917, 925 (8th Cir. 2014) (cleaned up). “A plaintiff may show pretext,
among other ways, by showing that an employer (1) failed to follow its own policies,
(2) treated similarly-situated employees in a disparate manner, or (3) shifted its
explanation of the employment decision.” Edwards v. Hiland Roberts Dairy, Co., 860
F.3d 1121, 1125–26 (8th Cir. 2017) (cleaned up).


      In proving pretext by showing that similarly situated employees were
      treated more leniently, the plaintiff’s comparators must be similarly
      situated in all relevant respects. The comparators 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. The comparators need not have committed the exact
      same offense but must have engaged in conduct of comparable
      seriousness.

Ebersole, 758 F.3d at 925 (cleaned up).



                                          -6-
       Here, once CenturyLink and Buchholz proffered Engelhardt’s lack of
productivity as their reason for terminating him, it became incumbent upon
Engelhardt to produce evidence showing that this legitimate, nonretaliatory
explanation was pretextual. See Fezard, 809 F.3d at 1011. To survive summary
judgment, Engelhardt needed to come forward with “specific facts” showing genuine
uncertainty about whether the defendants used productivity as a pretext for
retaliation. See Torgerson, 643 F.3d at 1042 (quoting Celotex Corp., 477 U.S. at 324).
Engelhardt has not produced those facts. Instead, his argument relies on
unsubstantiated allegations and untenable inferences.

       Engelhardt asserts that “Buchholz held a grudge against [him] for his
participation in the [2007] Brennan Lawsuit, and—after his 2011 termination—for
threatening another lawsuit against CenturyLink.” Appellant’s Br. at 48. According
to Engelhardt, Buchholz then acted on that grudge by directing his 2015 termination.
Engelhardt’s lawsuit does not directly contest his 2008 or 2011 terminations; rather,
he contends that his 2015 termination arose from his activities in 2007 and 2011.2

      As evidence of this “grudge,” Engelhardt offers the circumstances of his 2011
termination. Essentially, Engelhardt presents his 2011 communication with
CenturyLink and Buchholz—including his threatened lawsuit—as evidence that
Buchholz harbored animus towards him in 2015. Engelhardt also suggests Buchholz
has maintained ill-will towards him since 2011, and he questions the sincerity of
Buchholz’s statement that he was cleared to return to CenturyLink following his 2011
complaints. Engelhardt admitted during his deposition that he had no evidence
“whatsoever” that Buchholz had been untruthful about his rehiring. Decl. of Charles
A. Delbridge, Ex. 1, at 9, Engelhardt v. Qwest, No. 0:15-cv-04591-ADM-SER (D.
Minn. Feb. 16, 2017), ECF No. 27-1. Nonetheless, Engelhardt now maintains the


      2
        The statute of limitations for FLSA claims is typically two years, but, in the
case of a willful violation, it extends to three years. 29 U.S.C. § 255(a).

                                         -7-
mistakenly-forwarded e-mail from the MP employee creates a question of fact as to
whether Engelhardt was truly cleared to return. We disagree.

       Notwithstanding the e-mail’s claim to the contrary, CenturyLink did, in fact,
both maintain contact with Engelhardt and clear him to return. Buchholz himself
contacted Engelhardt and cleared him to return as a contractor. The e-mail’s sender
also contacted Engelhardt after forwarding the e-mail to reassure Engelhardt that he
had been cleared. Engelhardt was not able to return in 2011 because of a seasonal
slow-down in work, not because of Buchholz’s alleged animus. It is undisputed that
CenturyLink released its entire contract workforce for the winter in November 2011.
Engelhardt speculates CenturyLink did so to avoid rehiring him, but there is no
evidence in the record to suggest the November 2011 terminations emanated from
something other than the company’s annual business cycle. On this record, no
reasonable jury could conclude that CenturyLink released its entire contractor
workforce simply to avoid rehiring Engelhardt.

       Engelhardt also maintains that Buchholz held an enduring “grudge” against
him evidenced by Buchholz’s involvement in Engelhardt’s 2015 termination after
only two weeks. Essentially, Engelhardt argues that the unusual timing and manner
of his termination suggest an improper motive. However, Buchholz testified to
terminating contractors after just two weeks in the past, and Engelhardt—who bears
the burden of production at this stage—has produced no evidence to the contrary.
Neither has Engelhardt produced evidence to counter Buchholz’s claim that he had
not even recognized Engelhardt’s name when he directed his termination; as the
district court noted, Buchholz supervised a workforce of about 325 employees and
a contractor workforce with near 100 percent yearly turnover, lending credence to this
assertion. Buchholz’s involvement in Engelhardt’s termination alone does not prove
retaliatory intent. The record simply does not support Engelhardt’s “grudge” theory.




                                         -8-
       The record, however, does support CenturyLink and Buchholz’s claim that
Engelhardt was insufficiently productive, and that this, rather than a “grudge,” played
the key role in his release. Burth, Fry and Buchholz all cited Engelhardt’s
productivity as the primary reason for his termination. Burth’s initial e-mail to Fry
included a breakdown of Buchholz’s completed jobs, indicating that Engelhardt was
falling far short of the expected five to six jobs per day. During the last five days of
his employment, Engelhardt completed no more than two or three jobs per day, with
a low of two jobs in eleven hours the Thursday preceding his Tuesday termination.
Engelhardt’s low productivity so concerned Burth that he himself suggested
terminating Engelhardt in the e-mail to Fry—well before Buchholz became involved.
Engelhardt has not challenged the accuracy of Burth’s numbers. And he has stated
that he has no reason to believe that Burth—who began working at CenturyLink years
after both the Brennan suit and Engelhardt’s first stint as a contractor—was being
dishonest or malicious. Considering the uncontroverted evidence of Engelhardt’s low
productivity, Engelhardt has failed to demonstrate pretext by any of the means
described in Edwards, or by any other means. See Edwards, 860 F.3d at 1125–26.

       Additionally, Engelhardt has not identified any similarly situated employees
who were treated differently. Specifically, he has not identified any contractors with
similarly low productivity who have not been terminated. And he has not shown that
CenturyLink and Buchholz’s explanation for his termination has shifted. Though the
exact phraseology has changed from person to person—Burth described Engelhardt
as “not contributing to the workload,” while Fry stated he was “working at a pace that
needs to be addressed”—the defendants have consistently maintained Engelhardt was
an unproductive worker. Decl. of Charles A. Delbridge, Ex. 17, at 137–38. The
various reasons stated in justification of Engelhardt’s termination are not
contradictory. Neither Engelhardt’s late dispatching nor his calls to employees
undermine the core rationale of poor production. Finally, Engelhardt’s attempts to
demonstrate pretext by casting Buchholz as a vengeful and vindictive supervisor fail
for lack of evidence.

                                          -9-
                                  2. State Law Claims
       The MWA prohibits retaliation against an “employee” for reporting in good
faith “a violation, suspected violation, or planned violation of any federal or state law
or common law or rule adopted pursuant to law to an employer or to any
governmental body or law enforcement official.” Minn. Stat. §181.932, subd. 1(1).
“Employee” explicitly excludes “independent contractors.” Id. §181.931, subd. 2.

       Engelhardt disputes the district court’s finding that, as a CenturyLink
contractor, he lacked standing to sue under the MWA. To defeat this finding,
Engelhardt claims for the first time on appeal that MP and Century Link were “joint
employers” and that he was an “employee” of both MP and Century Link. As a rule,
this court “do[es] not entertain new arguments on appeal from the grant of summary
judgment.” United States v. Mannis, 186 F.3d 863, 864 (8th Cir. 1999) (per curiam).
We decline to do so here.

       Because CenturyLink and Buchholz have not violated federal or state law, and
because their interference was not independently tortious, Engelhardt’s tortious
interference with prospective business relations claim fails as well. See Giseke ex rel.
Diversified Water Diversion, Inc. v. IDCA, Inc., 844 N.W.2d 210, 219–20 (Minn.
2014) (holding that, to succeed on a tortious interference claim, “a plaintiff must
prove . . . that the defendant’s tortious interference was intentional and either
independently tortious or in violation of a state or federal statute or regulation”).

                                 III. Conclusion
      For the foregoing reasons, we affirm the judgment of the district court.
                      ______________________________




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