                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-3673
                        ___________________________

                       Sandra Lovelace; Stephen Lovelace

                       lllllllllllllllllllllPlaintiffs - Appellants

                                           v.

       Washington University School of Medicine; Barnes-Jewish Hospital

                      lllllllllllllllllllllDefendants - Appellees
                                      ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                             Submitted: April 16, 2019
                               Filed: July 25, 2019
                                  ____________

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

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 court1 granted
summary judgment in favor of WUSM and BJH. We affirm.2

                                  I. Background
       WUSM employed Lovelace as a Medical Assistant (MA) from November 2003
to August 5, 2015. MAs assist doctors’ clinical teams by performing non-medical
tasks such as scheduling, 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


      1
        The Honorable Rodney W. Sippel, Chief Judge, United States District Court
for the Eastern District of Missouri.
      2
       Lovelace filed a motion to supplement the record after the instant case had
been appealed. We deny the motion, finding the record before us sufficient.

                                        -2-
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 was successful,
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 team had 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 from FMLA 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



                                         -3-
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 of the [MA] position,” as the 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” expectations instead of suggesting 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.



                                         -4-
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 from different 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 that she did not shout or scream during 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,

                                         -5-
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
Lovelace was terminated 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



                                         -6-
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 “makes it 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

                                           -7-
      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 (8th Cir. 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.




                                          -8-
       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 that she 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 that she was unwilling to discuss her performance with Sledge
and Brinkley on July 31 and that she asked to be excused from the meeting.

                                         -9-
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

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


                                         -10-
      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.




                                        -11-
       Lovelace claims that WUSM and BJH retaliated against her for complaining
of racial discrimination to HR. She explains that because “race [was] involved” in the
Butcher comment, her complaint to HR about Brinkley’s questions related to the
Butcher comment constituted a complaint about racial 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



                                         -12-
F.3d 797, 803 (8th Cir. 2006),4 and Lovelace admits that she “complained to HR that
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 consortium claim brought by Ste[ph]en Lovelace 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.
                     ______________________________




      4
        Though Samuels is an ADA case, “[t]o the extent Missouri rulings have stated
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).
                                         -13-
