                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1552
                                   ___________

James A. Schierhoff,                     *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the Eastern
                                         * District of Missouri.
GlaxoSmithKline Consumer                 *
Healthcare, L.P., a Limited Partnership, *
                                         *
             Appellee.                   *
                                   ___________

                             Submitted: December 14, 2005
                                Filed: April 14, 2006
                                 ___________

Before MELLOY, COLLOTON, and BENTON, Circuit Judges.
                          ___________

COLLOTON, Circuit Judge.

      James A. Schierhoff brought an action under the Missouri Human Rights Act
(“MHRA”), Mo. Rev. Stat. § 213.010 et seq., alleging that GlaxoSmithKline
Consumer Healthcare, L.P. (“GSK”), discriminated against him on the basis of his age
and physical disabilities. The district court1 granted summary judgment for GSK.
Reviewing that decision de novo, and considering all reasonable inferences in favor
of Schierhoff as the non-movant, we affirm.

      1
        The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
       In 2002, Schierhoff was a 48-year-old man employed by GSK as a packaging
mechanic. He was terminated in April 2002. Prior to his termination, Schierhoff was
absent from work frequently for various combinations of medical and personal leave.
According to the memorandum that effected his termination,2 Schierhoff used 12
weeks of Family Medical Leave during 2000 and took an additional 40 days off that
same year. In 2001, and through March 11, 2002, he used 12 weeks of Family
Medical Leave and was absent an additional 36 days. For the time between June 12,
2000, and March 11, 2002, Schierhoff was absent a total of 172 days, or almost 40
percent of the time. The memorandum explained that this absenteeism was the reason
for Schierhoff’s termination: “The Company has made numerous efforts to
accommodate your personal absences. However, such absenteeism can no longer be
tolerated. Your absences have impaired the operation of the Department and
diminished your effectiveness to the Company. As a result, a decision has been made
to terminate your employment . . . .” (Appellant’s App. at 276).

        Schierhoff does not quarrel with GSK’s assertion that he was absent frequently,
but he disputes whether this was the real reason for his termination. According to
Schierhoff, in the fall of 2001, his immediate supervisor, Edward Rohowetz,
commented to him, “[y]ou know, I bet you got something hurting all over your body
all the time, you’ve had a rough life. You’ve done a lot of things. At any given time
I bet you got something hurting on your body. You know as old and worn out as you
are, why don’t you just quit? You don’t need the money anyway.” Schierhoff
understood this comment to mean that Rohowetz regarded him as “generally disabled
and unable to perform [his] job,” and he asserts that the comment, coupled with
Rohowetz’s role in his termination, demonstrates that the termination was undertaken
because of Schierhoff’s age or disability. In addition, Schierhoff heard from a co-
worker that another manager, Vertis Thomas, once spoke about “mechanics whose


      2
       The parties both represent that Schierhoff was terminated in April 2002,
although the memorandum that purports to terminate him was dated March 11, 2002.

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knees are worn out by the time they reach age 50,” and said that “[t]hey should be
given a chance to retire or bow out gracefully before then.” Schierhoff says this
comment also demonstrates a discriminatory motive on behalf of GSK.

       In further support of this claim, Schierhoff points to positive performance
evaluations and the lack of any warning of his upcoming termination. According to
Schierhoff, GSK’s policies for handling attendance problems necessitated a warning
or progressive discipline rather than termination. He also notes that his absences were
due to recovery from a scheduled surgery and other injuries, and argues that because
the leave was taken with GSK’s permission, it cannot be the reason for his
termination.

       Where a plaintiff relies on indirect proof of discrimination, claims of age or
disability discrimination under the MHRA, like those under the federal anti-
discrimination statutes, are analyzed under the burden-shifting analysis set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Kiel v. Select
Artificials, Inc., 169 F.3d 1131, 1137 (8th Cir. 1999) (en banc). This framework
requires that the plaintiff set forth a prima facie case in order to shift the burden of
producing a legitimate, nondiscriminatory reason for the employment decision to the
employer. McDonnell Douglas Corp., 411 U.S. at 802-04; see also West v. Conopco
Corp., 974 S.W.2d 554, 556-57 (Mo. Ct. App. 1998); Cook v. Atoma Int’l of Am., Inc.,
930 S.W.2d 43, 45 (Mo. Ct. App. 1996). If the employer proffers a nondiscriminatory
reason, then the employee must prove that the reason is a pretext for discrimination.
McDonnell Douglas, 411 U.S. at 804. Summary judgment is appropriate where the
moving party has demonstrated that even with all facts and inferences construed in the
light most favorable to the non-moving party, there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ.
P. 56(c).




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       To establish a prima facie case of age discrimination under the MHRA, a
plaintiff must show that he is a member of a protected age group, that he met
applicable job qualifications, that he was discharged, and that he was subsequently
replaced by a younger employee. See Calder v. TCI Cablevision of Mo., Inc., 298
F.3d 723, 729 (8th Cir. 2002). To establish discrimination on the basis of disability,
a plaintiff must demonstrate that he is disabled and can perform his job with or
without reasonable accommodation, that he was discharged because of his disability,
and that there is evidence from which a jury could infer that his protected status was
a factor in the discharge. Devor v. Blue Cross & Blue Shield of Kansas City, 943
S.W.2d 662, 665-66 (Mo. Ct. App. 1997).

        The district court found that Schierhoff had not established a prima facie case
that his termination was the result of either age or disability discrimination. Although
it is undisputed that Schierhoff was a member of a protected age group and that he
was discharged, the court found that he had not presented sufficient evidence that he
was performing his job at the level of GSK’s legitimate expectations or that he was
replaced by a younger employee. With regard to the disability discrimination claim,
the district court determined that Schierhoff had not shown that he was “disabled” or
“regarded as disabled” within the meaning of the MHRA, and that he had not
demonstrated that he was able to perform his job.

       Schierhoff argues that the district court’s reasoning was flawed because it
considered only the McDonnell Douglas burden-shifting analysis. He contends that
he presented “direct evidence” that an illegitimate motive had infected GSK’s decision
to terminate him. See Price Waterhouse v. Hopkins, 490 U.S. 228, 278-79 (1989)
(O’Connor, J., concurring in the judgment). As Schierhoff notes, a plaintiff in an
employment discrimination case under the MHRA may avoid summary judgment by
following the McDonnell Douglas framework or by presenting direct evidence of
discrimination. West, 974 S.W.2d at 556; see Griffith v. City of Des Moines, 387 F.3d
733, 736 (8th Cir. 2004). Direct evidence in this context must be strong enough to

                                          -4-
show “a specific link between the [alleged] discriminatory animus and the challenged
decision, sufficient to support a finding by a reasonable fact finder that an illegitimate
criterion actually motivated” the employment decision. Thomas v. First Nat’l Bank
of Wynne, 111 F.3d 64, 66 (8th Cir. 1997) (internal quotations omitted) (alteration in
original).

       Schierhoff contends that the aforementioned statement by supervisor Rohowetz
constitutes direct evidence of discriminatory intent. He asserts that Rohowetz was a
decisionmaker in connection with the termination of Schierhoff’s employment in
2002, so Rohowetz’s statement in 2001 suggesting that Schierhoff should “quit”
because he was “old and worn out” constitutes “direct evidence” of unlawful
discrimination.

       Direct evidence includes “evidence of conduct or statements by persons
involved in the decisionmaking process that may be viewed as directly reflecting the
alleged discriminatory attitude,” where it is sufficient to support an inference that
discriminatory attitude more likely than not was a motivating factor. Radabaugh v.
Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir. 1993) (internal quotations omitted).
But “stray remarks in the workplace,” “statements by nondecisionmakers,” and
“statements by decisionmakers unrelated to the decisional process” do not constitute
direct evidence. Id. In this case, the undisputed evidence is that Rohowetz was not
involved in the decisionmaking process that led to Schieroff’s termination for
excessive absenteeism. GSK’s human resources manager, Mary Laws, testified that
the inquiry into attendance records was initiated by the plant manager, and that it was
not focused on Schierhoff alone.

      Schierhoff argues that a jury could infer that Rohowetz was a decisionmaker,
because he gathered attendance records for the inquiry, authored the memorandum
conveying the news of Schierhoff’s termination, and presented the termination
document to Schierhoff in a conference room. There is no evidence, however, that

                                           -5-
Rohowetz was anything more than a messenger for the human resources manager
when he communicated the decision to Schierhoff. Rohowetz, as a supervisor, did
gather attendance records for use in the review, but there was no evidence that he was
involved in the process of deciding whether to terminate Schierhoff based on the
information contained in those records. Absent stronger evidence of a substantive role
for Rohowetz in the decisionmaking process, his comment to Schierhoff about
quitting his job does not amount to direct evidence of discrimination.

       We further agree with the district court that Schierhoff has not generated a
submissible case of discrimination under the McDonnell Douglas framework. As the
district court correctly noted, the ability to perform one’s job is an element of both age
and disability discrimination. To prove age discrimination under Missouri law,
Schierhoff must demonstrate that he is able to perform his job “at a level that me[ets
his] employer’s legitimate expectations.” See Calder, 298 F.3d at 729 & n.2. To
prove disability discrimination, he must show that he can perform his job either “with
or without reasonable accommodation.” See Mo. Rev. Stat. § 213.010(4). “[R]egular
and reliable attendance is a necessary element of most jobs,” Greer v. Emerson Elec.
Co., 185 F.3d 917, 921 (8th Cir. 1999) (internal quotations omitted), and an employee
who cannot attend work cannot perform the essential functions of his job. This is true
even when the absences are with the employer’s permission. See Pickens v. Soo Line
R.R. Co., 264 F.3d 773, 777 (8th Cir. 2001) (finding that an employee could not
perform the essential functions of his job, with or without accommodation, when he
took advantage of the employer’s permissive leave policy by choosing to “lay off” his
job 29 times in a one-year period). Schierhoff’s absences, which peaked at 96 days
in a one-year period, are well beyond the level of non-attendance that we said in
Pickens amounted to an inability to perform one’s job.

      Schierhoff argues that a jury could infer that regular attendance was not actually
expected of him. But the evidence he cites – that GSK did not warn him that his
absences were excessive, and that his performance evaluations in 1998, 2000, and

                                           -6-
2001, were generally positive and did not mention his attendance problem – does not
support this inference. The evaluations are merely silent on Schierhoff’s absenteeism,
and GSK’s published policy clearly indicated that “[e]xcessive absences or tardiness”
were matters that “may call for immediate discharge.” (Appellant’s App. at 96-97).

      The judgment of the district court is affirmed.
                     ______________________________




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