                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-1301
                                   ___________

Jose Juan Macias Soto,                 *
                                       *
           Plaintiff - Appellant,      *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * District of Minnesota.
Core-Mark International, Inc.,         *
                                       *
           Defendant - Appellee.       *
                                  ___________

                             Submitted: October 5, 2007
                                Filed: April 1, 2008
                                 ___________

Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
                           ___________

BYE, Circuit Judge.

       Jose Juan Macias Soto appeals the district court's1 order, granting summary
judgment in favor of Core-Mark International, Inc. (Core-Mark), on his claim for
retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. §§ 2000e-2000e-5, and in violation of the Minnesota Human
Rights Act (MHRA), Minn. Stat. § 363A.03. We affirm.


      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
                                           I

       Mr. Soto worked as a driver for Core-Mark from July 2002 until he was
terminated on December 30, 2003. In June 2003, he sustained a back injury while on
the job. As a result of the injury, he was temporarily reassigned from his driver
position to light duty. His doctor restricted his work activities to certain lift/carry
maximums, push/pull maximums, twisting/turning at waist limitations, and bending
at waist limitations. Additionally, the doctor ordered him to be allowed to alter his
posture as needed, sit/stand as needed, walk frequently, and perform back stretching
exercises upon the onset of back pain or after performing tasks which required
physical labor. His supervisors and managers, including the Human Resources
Manager, Ms. Toni Gonzalez, knew about his injury and his work restrictions.

      In November 2003, Mr. Soto spoke with his supervisors because he believed
he was being discriminated against based on his national origin. He claimed only
white employees were allowed to wear jackets over their uniforms and use their cell
phones. Thereafter, Core-Mark posted a memo reiterating the use of cell phones and
beepers was prohibited.2 About one month later, he again told his supervisor white
employees were wearing jackets over their uniforms and again asked for permission
to wear a jacket over his uniform. The supervisor explained to him no workers were
allowed to wear jackets over their uniforms.

       Later that same day, Mr. Soto asked to leave work early because of
experiencing chest pain. His supervisor told him if he left work early his employment
would be terminated. He stayed until his shift was over, then went to an urgent care
clinic where a doctor diagnosed him with pneumonia and ordered he stay home from
work for about ten days. He returned to work in mid-December. On his first day


      2
        The parties dispute whether, nonetheless, Core-Mark continued to allow white
drivers to use cell phones and wear jackets over their uniforms.

                                         -2-
back, he wore a jacket over his uniform. When his supervisor told him he was not
allowed to wear the jacket, he responded the white workers were allowed to wear
jackets over their uniforms and this constituted discrimination.

       On the same day, Mr. Soto received a letter concerning his "continued
unacceptable conduct and behavior." Joint Appendix ("J.A.") at 79. The letter
informed him he could no longer contact Ms. Gonzalez about previously resolved
issues. Moreover, it stated if he wanted to meet with Ms. Gonzalez he would have to
contact a manager ahead of time to schedule an appointment. The letter further
advised if he chose to continue conducting himself in such a "disruptive manner" he
would be "at risk for disciplinary action up to and including termination of
employment." Id. Soon after receiving the letter, he began the process of filing a
discrimination charge with the Minnesota Department of Human Rights.

       On December 26, 2003, Mr. Soto was assigned to clean an office. The
assignment required him to bend over to peel stickers off of the floor. The bending
caused him back pain so he sat down to rest and stretch his back. He leaned forward,
put his head on his forearms, and pushed his back forward and up, keeping his eyes
open the entire time.

      One of Mr. Soto's coworkers observing him and, believing he was sleeping at
his workstation, reported the incident to Mr. Richard Laliberte, a Core-Mark manager.
Mr. Laliberte went over to his workstation to observe for himself. He had his head
down and his eyes closed. Mr. Laliberte stood over him for several minutes and he
never moved. According to Mr. Laliberte, at this point, he woke him up and sent him
home for the day. He maintains he was awake, his eyes were open, and his head was
facing towards the ground. According to him, he did not realize Mr. Laliberte was
observing him until he saw Mr. Laliberte's shoes, at which time he explained to Mr.
Laliberte he was stretching, not sleeping.



                                         -3-
     The same day, Mr. Laliberte sent an email to Ms. Gonzalez (and copied Mr.
Hunter) explaining the incident. The email provided the following summary:

      I went to look at [Mr. Soto] and he had his head down and so I walked
      up to him and stood right next to him. I waited by him for about 3
      minutes and I could tell that he was sleeping. I moved and he woke up.
      I asked him why he was sleeping and he said that he was resting his back
      and that he was not sleeping. I told him that I was standing right by him
      for 3 min or longer and he never moved and that sleeping on the job
      would not and could not be tolerated. I told him that he would be written
      up for this and that I had better not catch him doing it again or I would
      terminate him. All the time that I was talking to him he denied that he
      was sleeping.

J.A. at 69. Mr. Laliberte subsequently filed a written report of the incident.

       On December 30, 2003, Ms. Gonzalez conducted an investigation of the
December 26, 2003, incident. She obtained written statements from two witnesses:
Mr. Fortin, who had reported the incident to Mr. Laliberte, and Ms. Taylor. In their
statements, both witnesses indicated Mr. Soto appeared to have been sleeping. Ms.
Gonzalez spoke with Mr. Laliberte, who reiterated his opinion as to Mr. Soto having
been asleep. She then discussed the matter with the director of operations, Jim
Hunter, and the director of corporate human resources. They determined Mr. Soto
should be terminated. It does not appear from the record anyone from Core-Mark
interviewed or spoke with him directly regarding the incident.

     On December 30, 2003, Mr. Soto was terminated for sleeping on the job.3 A
few weeks later, Ms. Gonzalez sent him a written termination letter. The letter stated


      3
       In the proceedings below, Mr. Soto claimed during the meeting Ms. Gonzalez
laughed at him and Mr. Hunter told him they knew he was going to file a
discrimination report.

                                         -4-
he was terminated for sleeping on the job and references the December 26, 2003,
incident.

      Mr. Soto filed a claim for discriminatory discharge against Core-Mark with the
Equal Employment Opportunity Commission (EEOC). Following an investigation,
the EEOC concluded no probable cause existed to believe Core-Mark had engaged in
an unfair discriminatory practice and, therefore, it dismissed Mr. Soto's claim.

       In September 2005, following the EEOC's dismissal, Mr. Soto filed a lawsuit
against Core-Mark in the United States District Court, District of Minnesota, asserting
claims for national origin discrimination and retaliation in violation of Title VII and
the MHRA. Core-Mark moved for summary judgment, arguing the plaintiff could
not, as a matter of law, establish Core-Mark's stated reason for his termination–that
he was sleeping on the job–was a pretext for discrimination or retaliation. The district
court agreed with Core-Mark and, in an order dated January 3, 2007, granted Core-
Mark's motion for summary judgment.

     Mr. Soto appeals the district court's order granting Core-Mark summary
judgment on his claim of retaliation in violation of Title VII and the MHRA.

                                           II

      This Court reviews a district court’s grant of summary judgment de novo,
drawing all reasonable inferences in favor of the non-moving party. Hitt v. Harsco
Corp., 356 F.3d 920, 923-24 (8th Cir. 2004). We use the three-part, burden-shifting
analysis set forth in Texas Department of Community Affairs v. Burdine, 450 U.S.
248 (1981), to review claims of retaliatory discrimination where the plaintiff fails to
produce direct evidence of discrimination. See Scott v. County of Ramsey, 180 F.3d
913, 917 (8th Cir. 1999).



                                          -5-
       Initially, the plaintiff has the burden of establishing a prima facie case of
retaliation. To establish this, the plaintiff must show he engaged in a protected
activity, the defendant took adverse action against him, and there is a connection
between the two. See Scott, 180 F.3d at 917 (citing Montandon v. Farmland Indus.,
Inc., 116 F.3d 355, 359 (8th Cir. 1997)). If the plaintiff makes a prima facie showing
of retaliation, the burden shifts to the defendant to articulate a legitimate,
non-retaliatory reason for the adverse action, in this case Mr. Soto's termination. Id.
(citing Ryther v. KARE 11, 108 F.3d 832, 836 (8th Cir. 1997) (en banc)). If the
defendant advances a legitimate reason for the termination, the plaintiff bears the
burden of demonstrating the defendant’s stated reason is a pretext for retaliation.
Burdine, 450 U.S. at 253; see also Cronquist v. City of Minneapolis, 237 F.3d 920,
926 (8th Cir. 2001); Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir . 1980).

       In order to survive summary judgment at this stage, the plaintiff must establish
there is a factual dispute whether the defendant's proffered reason is pretextual and
whether retaliation was a determinative factor in the defendant's termination.
Cronquist, 237 F.3d at 926. Throughout this analysis, the ultimate burden of
persuasion remains with the plaintiff to show the termination was motivated by
intentional retaliation. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508 (1993).

                                            III

        Mr. Soto challenges the district court's determination he failed to raise a factual
dispute as to the pretextual nature of Core-Mark's proffered reason for termination and
failed to create a reasonable inference it was motivated by retaliation. Mr. Soto makes
two arguments in support of his appeal. First, he argues, in concluding he failed to
produce sufficient evidence of pretext, the district court viewed the disputed evidence
in the light most favorable to the employer, the moving party, in direct contravention
of well-settled summary judgment principles. Second, he argues, in analyzing



                                           -6-
whether a retaliatory motive was a determinative factor in the employer's termination
decision, the district court failed to consider the totality of the evidence.

A. Evidence Of Pretext

       Before the district court, Mr. Soto maintained the December 26, 2003, incident
was a pretext for retaliation because he was not sleeping on the job; rather, he was
stretching and resting his back consistent with his doctor's orders, of which his
employer was aware. According to the plaintiff, the Court improperly chose to adopt
the employer's version of the December 26, 2003, incident, rather than his, in direct
violation of basic principles of summary judgment.

       Mr. Soto misunderstands which facts are material to the district court’s
determination of the last prong of the Burdine analysis. Even if he presented
sufficient evidence to show he was not actually sleeping during the December 26,
2003, incident, such does not equate to sufficient evidence of pretext. In determining
whether a plaintiff has produced sufficient evidence of pretext, the key question is not
whether the stated basis for termination actually occurred, but whether the defendant
believed it to have occurred. See Hitt, 356 F.3d at 924; Scroggins v. Univ. of Minn.,
221 F.3d 1042, 1045 (8th Cir. 2000) (holding the "relevant inquiry" in retaliation case
is whether the employer believed the employee was guilty of the conduct justifying
discharge) (internal quotation omitted). In this case, the evidence that he claims the
district court disregarded–his deposition testimony about his stretching his back, not
sleeping–does not create a factual dispute about the employer's good faith belief he
was sleeping on the job nor does it in any other way call into question the employer's
stated reason for terminating him.

      Moreover, notwithstanding Mr. Soto's contentions, the district court did not err
in concluding Core-Mark had a good faith belief he was sleeping on the job. The
evidence in the record shows Core-Mark's determination was based on the statements

                                          -7-
of two witnesses and information provided by Mr. Laliberte. Contrary to his
suggestions, the witnesses did not state they were unable to determine whether he was
asleep; they stated they were reasonably certain, although not positive, he was asleep.

       Nor did Mr. Laliberte state Mr. Soto was not asleep. Mr. Laliberte told Ms.
Gonzalez he went over to the plaintiff's workstation and stood right next to him; he
"waited by him for about 3 minutes and could tell that he was sleeping." J.A. at 69.
Moreover, contrary to the plaintiff's assertion, Mr. Laliberte did not state his
termination was unwarranted. Rather, Mr. Laliberte warned him if he fell asleep on
the job again he would be terminated. In an email to Ms. Gonzalez following the
incident, Mr. Laliberte summarized his actions and asked Ms. Gonzalez to let him
know if he needed to take any additional action. The fact Mr. Laliberte did not fire
the plaintiff on the spot does not show Mr. Laliberte believed the termination was
unwarranted.

      The record shows Core-Mark had a good faith belief, based on reasonable and
credible evidence, Mr. Soto was sleeping on the job. And, his appeal fails to provide
any reason to question the district court's finding on this matter.

B. Retaliatory Motive

       Mr. Soto next argues it was error for the district court to conclude, as a matter
of law and based on the totality of the evidence, no reasonable juror could find
retaliatory motive was a determinative factor in employer's decision to terminate the
employee. Specifically, he sets forth several items of evidence he believes the district
court erroneously disregarded, including: (1) the December 12, 2003, letter; (2)
statements Mr. Hunter made at the December 12, 2003, meeting; and (3) examples of
white employees being allowed to wear coats over their uniforms and use cell phones.




                                          -8-
       According to Mr. Soto, the December 12, 2003, letter from Ms. Gonzalez and
Mr. Hunter "prohibited [Mr. Soto from exercising his] right to oppose discriminatory
practices (as guaranteed by Title VII)" and "provides direct evidence of Mr. Hunter's
and Ms. Gonzalez's mindset and intention to prevent Mr. Soto from continuing to
oppose discriminatory practices." J.A. at 33. He does, however, misrepresent the
contents of the letter. The letter informed him he was no longer allowed to contact
Ms. Gonzalez directly. Instead, if he wanted to speak with Ms. Gonzalez he first had
to make an appointment through a manager. The letter did not prohibit Mr. Soto from
opposing discriminatory practices and in no way evidenced a discriminatory intent on
the part of either Mr. Hunter or Ms. Gonzalez.

       With respect to the December 12, 2003, meeting, Mr. Soto claims after he
expressed his opinion he was being discriminated against because of his national
origin, Mr. Hunter stated: "Get out of my office." Appellant’s Br. at 34. Even if Mr.
Hunter did order Mr. Soto to "get out of [his] office," this does not demonstrate a
retaliatory animus. The record shows he was repeatedly told it was against the rules
for employees to wear jackets over their uniforms or use cell phones. Nonetheless,
he continued to wear his jacket over his uniform. At most, the evidence shows Mr.
Hunter was frustrated with repeatedly having to tell him to follow the rules.

       Finally, Mr. Soto points to evidence he argues shows similarly situated white
workers received more favorable treatment than he did. However, he fails to put forth
evidence showing other white workers who wore their jackets over their uniforms
were not reprimanded or showing white workers who repeatedly complained to Ms.
Gonzalez directly were not also required to make appointments beforehand. As the
district court stated, the plaintiff "attracted attention to his behavior by repeatedly
complaining that he observed others engaging in this behavior and repeatedly asking
for permission to break the rules." J.A. at 13.




                                         -9-
       Contrary to Mr. Soto's contentions, the record shows the district court properly
concluded no reasonable juror could find retaliatory motive was a determinative factor
in the employer's decision to terminate him.

                                          IV

       Accordingly, we affirm the district court's order, granting summary judgment
in favor of Core-Mark on Mr. Soto's claim of retaliation in violation of Title VII and
the MHRA.
                      ______________________________




                                         -10-
