                 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
                                 ____________

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

MURPHY, Circuit Judge.

       Lyle Ridout, a rendering superintendent at a pork processing plant owned by
JBS USA, LLC, was discharged after an incident arising from an equipment failure
and later replaced by two employees substantially younger than he. Ridout brought
this action against JBS under the Age Discrimination in Employment Act (ADEA),
29 U.S.C. § 623, and the Iowa Civil Rights Act (ICRA), Iowa Code § 216.6, alleging
that age was the real reason for his discharge. JBS moved for summary judgment,
which the district court granted after concluding 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 plant engineer Cyrus Thill, plant manager
Todd Carl, and general manager Troy Mulgrew.

      Part of Ridout's job was overseeing equipment in the rendering department,
including an instrument known as the "prehogor." The prehogor was used to grind
scraps and bones of pork byproduct 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 continuously 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 such 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 machine. 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 shift supervisor was then forced to shut
down production for several 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, plant 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 their discussion, and that he complained that
management wanted to "point[] fingers" rather 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 testified in his deposition that Mulgrew 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 efforts, he maintains that he never behaved in an aggressive
manner. He admits that he raised his voice because the conversation took place
directly next to a large piece of equipment, 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 in the JBS factory for over forty years and
that his hearing loss causes him to speak loudly. 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 that 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 discussion differently and asked to return to work. He also
proposed that if he could not remain rendering 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 older supervisory level employees: Linn Knox
and Dean Welton. Although both had been ostensibly terminated for safety violations,
they claimed that that was a pretext and that each had been more carefully 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 historical performance. Mulgrew and Carl
claimed in discovery that they had expressed concerns about Ridout "resisting"
changes in the rendering department, but they provided no specifics or
contemporaneous evidence of any such behavior. While Ridout's supervisors later
claimed that Ridout's performance had been declining prior to May 14, they presented
no specific examples or contemporaneous evidence 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 performance 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 year and a half later
due to inadequate performance. Mulgrew then hired John Holden, 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 district 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 were a pretext for age
discrimination and granted summary judgment for JBS. Ridout appeals.

                                          II.

       We review the district court's grant of summary judgment to JBS de novo,
viewing the facts in the light most favorable 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 entitled 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 Iowa 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 different 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) with DeBoom v. Raining
Rose, Inc., 772 N.W.2d 1, 13 (Iowa 2009) (ICRA plaintiff need only show that age
discrimination was a "motivating factor"). The difference is not important in this case
because Ridout has produced sufficient evidence to allow a rational factfinder to find
in his favor under either statute.



                                         -5-
        In reviewing a grant of summary judgment under either the ADEA or ICRA,
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 the 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 shifts 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 returns 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 prima 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 terminating Ridout is declining performance.
While "it is possible for strong evidence of a prima facie case to also 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

                                          -6-
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.
2001). In other words, a strong showing that the 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 company considered his performance satisfactory
until he was suspended without pay. He had never been counseled or warned about
any declining performance prior to his termination. There is evidence that Ridout was
a productive and satisfactory employee for over forty years. While his supervisors
complained after his termination that he had been "resistant" to proposed changes in
the rendering department, they offer no specific examples and no contemporaneous
evidence to provide substance to their assertions. On this record a rational trier of fact
could find that termination was not the true reason for Ridout's termination.

       JBS's other proffered reason for firing Ridout is insubordination. An employee
can demonstrate pretext "by showing that it 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 responded 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 circumstances he may well have appeared
to be annoyed, he has presented evidence to suggest that JBS's decision to terminate

                                           -7-
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
admitted that heated arguments involving 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 that younger employees were treated more
leniently when they committed infractions of comparable seriousness. After his
termination, the post of rendering superintendent was filled successively by two
employees who were in their thirties and thus substantially younger than Ridout. The
first, Richett, was subsequently demoted for poor performance. Ridout argues that
this demotion tends to show that it was not JBS's policy to terminate employees for
declining performance. The second, Holden, was rehired as rendering superintendent
after having been fired five years earlier for racist behavior. Ridout argues that this
tends to show that JBS did not view a behavioral 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 documents 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 engaged in the same conduct without any 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.



                                          -8-
       The "similarly situated co-worker inquiry is a search for a substantially similar
employee, not for a clone." Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 916
(7th Cir. 2010). In order to rely on comparator evidence such as Ridout offers, he
must prove only that the other employees were "similarly situated in all relevant
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 situated," he "need only establish that he or
she was treated differently than other employees whose violations were of comparable
seriousness." Id. at 488 (quotation omitted, emphasis added). In Lynn we explicitly
rejected the notion that comparator analysis requires that the compared employees
engaged in "the exact same offense." Id. We observed that demanding that the
compared employees have engaged in precisely identical conduct 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 law dictates that we reject such an
approach." Id.

       The Kohler rule 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). We do not interpret Kohler to present a conflict because it
simply stands for the unremarkable proposition that the ideal comparator will match
the characteristics of the plaintiff employee 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 comparator evidence will be greatest when the
circumstances faced by the putative comparators 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. See Lynn,
160 F.3d at 489.

                                          -9-
       The facts in Lynn are instructive. In that case, nurse Lynn had been previously
disciplined for tardiness, a disrespectful attitude, lack of productivity, failure to assist
a patient with therapeutic equipment, and incorrect document preparation. 160 F.3d
at 486. He was eventually discharged because his work performance reflected "a
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 erred 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 offense 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 disciplinary histories, at least arguably the
result of disparate treatment. Id. Lynn had a sterling performance record prior to
working under his last supervisor who was 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 discharge," the comparator analysis was
sufficient to create a genuine fact issue over pretext. Id. at 489.

       On the record before the court, it is evident 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 the same supervisor (Mulgrew), while in
the same position (rendering superintendent), and he received only a demotion while
Ridout lost his position with the company. See Kohler, 335 F.3d at 776. Holden is
a valid comparator for JBS's insubordination justification for its discharge of Ridout.

                                           -10-
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 rehire Holden for Ridout's former position was
evidence that younger employees received more lenient treatment when engaging in
offenses of comparable severity to Ridout's ourburst on the factory floor amid
frustration over the breakdown of the prehogor.

       Ridout's final type of evidence is that a 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., supervisory) 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 at JBS's plant are unionized and thus their
termination occurs through a markedly different 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 salaried employees were over forty. A
reasonable inference of a discriminatory pattern may however be drawn from evidence
that nearly all the terminated employees were over forty. Acevedo-Parilla v. Novartis
Ex-Lax, Inc., 696 F.3d 128, 146 (1st Cir. 2012).



                                         -11-
       Taken together, Ridout's evidence is sufficient to allow a rational factfinder to
find that JBS's proffered reasons for terminating 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 dissembling 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 pretext is not always sufficient to send a case to a jury, we
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 Rothmeier 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 alleged 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 unlawful 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.

                        ______________________________



                                          -12-
