                       United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT



                                  No. 97-3575


Harold W. Mathews, Jr.,                          *
                                          *
            Plaintiff-Appellant,          *
                                          *             Appeal from the United
States
      v.                                  *             District Court for the
Western
                                          *             District of Missouri
Trilogy Communications, Inc.,                    *
                                          *
            Defendant-Appellee.           *


                               Submitted: March 9, 1998
                                       Filed: May 14, 1998


Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
      MONTGOMERY, District Judge.1


MONTGOMERY, District Judge

      Harold J. Mathews, Jr. ("Mathews"), sued Trilogy Communications, Inc.
("Trilogy") under the Americans with Disabilities Act ("ADA"), 42 U.S.C.
§§ 12101 et seq., the Missouri Human Rights Act ("MHRA"), Mo. Rev. Stat.
§§ 213.010 et seq., and the Employee Retirement Income Security Act
("ERISA"), 29 U.S.C. § 1140 ("Section 510"), alleging that Trilogy
terminated him because he suffers from diabetes and the company did not
want to continue paying his diabetes-related health care




      1
        The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota, sitting by designation.
expenses through its self-insured medical plan. The district court2 granted
Trilogy's motion for summary judgment on the grounds that Mathews failed
to establish a prima facie case of discrimination under the ADA and MHRA,
or a prima facie case of retaliation under Section 510 of ERISA. Mathews
appeals from the judgment, and we affirm.

                                     I.
      Viewed in the light most favorable to Mathews, the record reveals the
following facts.    Mathews is an insulin-dependent diabetic.      He began
working for Trilogy as a traveling sales representative in August 1992.
During the first three months he worked for the company, Mathews had three
diabetic attacks in the presence of other Trilogy employees. On two of the
occasions he lost consciousness and required hospitalization. Following
Mathews' third attack in October 1992, Trilogy's Human Resources Manager,
Doug Kelly, became concerned about Mathews' diabetic condition and the
possibility of an a diabetic episode while with a client. Thus, Kelly met
with Mathews to determine what, if anything, Trilogy could do to help him
better control his condition. At the meeting, Mathews insisted that his
condition was not a problem and that he would have no further diabetic
episodes as he could sense when they were coming on and take the necessary
preventative measures. Although he has difficulty recalling the specifics
of what Kelly said, Mathews claims to have left the meeting with the
distinct impression that Trilogy would be watching him and "that the
company would view [another diabetic episode] as a possibility for
dismissal."

      Mathews continued in his employment without another diabetic attack
for almost two years and received favorable performance reviews from
Trilogy in both August 1993 and August 1994. In September 1994, Mathews'
supervisor, Neil Brasfield, attended a meeting in Kansas City, Missouri
with Mathews and a prospective client.




      2
      The Honorable Joseph E. Stevens, Jr., United States District Judge for the
Western District of Missouri.
                                        -2-
Mathews' unusual behavior while the two were together--high strung and
easily excited one evening then very subdued to the point of not paying
attention the next morning--led Brasfield to question whether Mathews was
properly monitoring his medication.          Brasfield memorialized his
observations in a memo to Kelly, who in turn consulted with Mathews'
physician, Dr. Mark Schroeder. Dr. Schroeder indicated that Mathews was
taking his medication as directed and there was no reason for concern over
his health.    Given Dr. Schroeder's assurances, Kelly took no further
action.   Neither Kelly nor Brasfield were aware of any other diabetic
episodes Mathews experienced prior to his termination in August 1995.


      In February 1995, Trilogy entered into a contract with a new insurance
carrier, Chandler Sampson Insurance, Inc. ("Chandler Sampson"). Shortly
thereafter, Chandler Sampson requested driving records of the employees
covered by the new policy.     Mathews' record revealed that he had been
ticketed for speeding on June 30, 1993, and March 18, 1994, and that his
driver's license had been suspended for driving under the influence of
alcohol on June 22, 1993. The record also showed that Mathews' license had
not been reinstated until June 15, 1994.       Based on its review of the
employees' records, Chandler Sampson notified Trilogy that Mathews and
three other employees had problem driving records. In July 1995, Chandler
Sampson informed Trilogy that it planned to monitor Mathews and another
employee, and that they would be excluded from coverage for any additional
driving violations.

      Meanwhile, Mathews suffered another diabetic incident at his home on
June 6, 1995.    Mathews passed out, broke his leg in the fall, and was
hospitalized for six days. The medical bills related to this incident were
$15,000. Trilogy maintains a self-insured health plan for its employees;
therefore, less a $100 deductible, Trilogy paid Mathews' medical bills in
their entirety.    Mathews did not tell anyone at the company that the
incident was related to his diabetic condition.     Instead, Mathews told
Brasfield that he had tripped over some clutter in his house. There is no
evidence in the record that anyone at Trilogy knew Mathews' broken leg was
the result of a diabetic attack.




                                    -3-
      On August 14, 1995, Chandler Sampson checked Mathews' driving record
again and discovered that he had received another speeding violation on
April 13, 1995. Thus, the insurance company excluded Mathews from further
coverage under Trilogy's policy. On August 15, 1995, Brasfield contacted
Mathews by phone to inform him that he was no longer covered by the
company's insurance carrier and that he was not to drive the company
vehicle or his personal vehicle on company business until other
arrangements for insurance coverage could be made. Brasfield also told
Mathews that if he could verify the amount of his personal insurance
coverage, Trilogy might consider using Mathews' personal insurance policy
assuming it met all the legal requirements. Mathews failed to offer any
proof of personal insurance, and it was later decided that having an
employee use his or her personal insurance would be both unworkable and not
in the company's best interest.

      On August 17, 1995, Brasfield sent a memo to Mathews outlining a
possible discrepancy on his motor vehicle record regarding his driving
privileges.   According to the record, Brasfield noted that Mathews had
received an administrative suspension for driving under the influence of
alcohol on June 22, 1993. Although the record reflected that the end date
of the suspension was September 20, 1993, Mathews' license was not
reinstated until June 15, 1994. Brasfield requested that Mathews compare
this information with his own records and provide management with some
documentation if the information was incorrect. Mathews denied incurring
the violations but he was unable to provide management with evidence that
the motor vehicle record was inaccurate.3




      3
      Although there is conflicting evidence in the record concerning the length of
time Mathews was without driving privileges while employed by Trilogy, the
evidence conclusively shows that he was without valid driving privileges at least
from May 15, 1994, to June 15, 1994. See Aff. of Anne McEowen, Supervisor of
the Administrative Alcohol Section for the Missouri Department of Revenue
(Appellant's App. at 111); Letter from Richard A. James, Esq., to Doug Kelly,
August 24, 1995(Appellant's App. at 279).
                                         -4-
      On August 18, 1995, Jim Wonn, Trilogy's Vice President of Domestic
Operations, notified Kelly that after reviewing Mathews' driving records
he had concluded that Mathews had demonstrated a pattern of unsafe driving;
had given management false explanations for his various violations;4 had put
Trilogy at risk because he was uninsurable; and had operated a company car
without a proper driver's license. Accordingly, Wonn directed Kelly to
terminate Mathews immediately. Kelly and Brasfield notified Mathews of his
termination by telephone that same afternoon.

                                    II.
      We review the district court's entry of summary judgment de novo.
Price v. S-B Power Tool, 75 F.3d 362, 364 (8th Cir.), cert. denied, 117
S.Ct. 274, 136 L.Ed.2d 197 (1996). Summary judgment is proper when the
record reveals "no genuine issue as to any material fact ... and the moving
party is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). When evaluating a motion for summary judgment, we must draw all
reasonable inferences in favor of the non-moving party and refrain from
assessing credibility. Miller v. Nat'l Cas. Co., 61 F.3d 627, 628 (8th Cir.
1995).   The non-moving party, however, may not simply rest upon the
pleadings, but must point to evidence in the record sufficient to raise a
genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106
S. Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
      The ADA prohibits employment discrimination against a qualified
individual because of a disability. See 42 U.S.C. § 12112(a). To make out
a prima facie case of disability discrimination under the ADA, Mathews
needed to establish the following: 1) he was a disabled person within the
meaning of the ADA; 2) he was qualified to




      4
       When Mathews was arrested in 1993 for driving under the influence of
alcohol he spent six days in jail on another matter involving unpaid child support.
Mathews told his supervisor that he was in jail for failure to pay child support but
did not mention his citation for driving under the influence.
                                          -5-
perform the essential functions of the job, with or without reasonable
accommodation; and 3) he suffered an adverse employment action under
circumstances from which an inference of unlawful discrimination arises.
Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1318 (8th Cir.
1996); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir.
1995).5   The district court granted Trilogy summary judgment based on
Mathews' failure to establish the second element. The court concluded that
because Mathews was uninsurable under the company's automobile insurance
policy for reasons unrelated to his diabetes, he was not qualified to
perform one of the essential functions of a traveling salesperson-- driving
to the locations of clients.

      Mathews argues that the district court's analysis "short-circuited"
the burden-shifting analysis set out in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-05, 93 S. Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973), and
its progeny, by considering one of Trilogy's proffered reasons for
discharging him when evaluating whether he had presented a prima facie
case. Under the McDonnell Douglas test, once a plaintiff has set forth a
prima facie case of discrimination, the burden of production shifts to the
employer to articulate a legitimate, nondiscriminatory reason for its
actions. 411 U.S. at 802, 93 S. Ct. at 1824, 36 L.Ed.2d 668. If the
employer does so, the burden of production shifts back to the plaintiff to
demonstrate that the employer's proffered reason is a pretext for unlawful
discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-508, 113
S. Ct. 2742, 2747-48, 125 L.Ed.2d 407 (1993). Mathews contends that the
district court should have given him the opportunity to demonstrate to a
jury that Trilogy's inability to secure coverage for him under its
automobile insurance policy did not disqualify him from performing an
essential function of his job, but rather was a pretext for the company to
terminate him because of his diabetes.




      5
       Mathews' claims under the ADA and the MHRA are governed by the same
standards. See Tart v. Hill Began Lumber Co., 31 F.3d 668, 671 (8th Cir. 1994)
(federal employment discrimination decisions apply to MHRA).
                                       -6-
      Mathews relies primarily on two cases:             Miners v. Cargill
Communications., Inc., 113 F.3d 820 (8th Cir. 1997) and MacDonald v. Eastern
Wyoming Mental Health Ctr., 941 F.2d 1115 (10th Cir. 1997). In Miners, the
plaintiff brought an ADA claim against her employer after she was
terminated for driving a company vehicle under the influence of alcohol and
refusing to attend a chemical dependency treatment program. Id. at 822.
The employer argued that the plaintiff could not establish, as part of her
prima facie case, that she was "otherwise qualified" to perform her job
because driving a company vehicle under the influence of alcohol violated
the employer's written rules and was contrary to the employer's interests.
Id. at 823 n.6. The Court rejected the argument, noting that to accept it
"would allow an employer's proffered reason for an unfavorable action
toward an employee, pretextual or not, to prevent a plaintiff from
presenting a prima facie case in all but the most blatantly discriminatory
cases under the ADA." Id.

      In MacDonald, the plaintiffs filed suit against their former employer
alleging that they had been discharged in violation of the Age
Discrimination in Employment Act. 941 F.2d at 1117. The court ruled in
favor of the employer, finding that the plaintiffs offered no evidence that
the employer's actions were a pretext for age discrimination. Id. at 1122.
In arriving at this conclusion, however, the court held that the employer's
articulated reasons for discharging the plaintiffs could not be used to
defeat their prima facie case, but could only be considered at the pretext
stage of the analysis. Id. at 1119-1121. The court then found that the
plaintiffs were qualified as they had established that they possessed "the
objective professional qualifications they held when they were hired." Id.
at 121.

      Whether considered at the prima facie stage or the pretext stage of
the analysis, the fact that Mathews' was no longer insurable under the
company's insurance plan entitled Trilogy to summary judgment. Unlike the
plaintiffs in Miners and MacDonald, at the time Mathews was terminated he
no longer possessed the same objective professional qualifications as when
he was hired. See Bienkowski v. American




                                    -7-
Airlines, Inc., 851 F.2d 1503 (5th Cir. 1988) (Plaintiff's qualifications
placed in issue where he has suffered "loss of a professional license or
some other occurrence rendering the plaintiff unfit for the position for
which he was hired."). When Trilogy hired Mathews he possessed a valid
driver's license and was an insurable driver under the company's insurance
policy. Because Trilogy's sales personnel must be able to drive to the
locations of various clients, possessing a valid driver's license and being
insurable under the company's insurance policy are not merely company
rules, but rather objective professional qualifications for the job.
Chandler Sampson decided that Mathews' was no longer an insurable driver
due to his poor driving record while working for Trilogy.             Thus,
independent of any subjective decision made by Trilogy, Mathews could not
establish that he was objectively qualified to perform the essential
functions of his job at the time he was terminated.6 Accordingly, Mathews
failed to establish a prima facie case of disability discrimination.

      Even assuming, however, that Mathews successfully established a prima
facie case, he has not presented sufficient evidence from which a jury
could conclude that Trilogy terminated him because of his diabetes.
Trilogy offers two legitimate, non-discriminatory reasons for its decision
to terminate Mathews:      1) he was excluded from Trilogy's automobile
insurance policy because of his unsafe driving record while working for the
company; and 2) he operated a company vehicle without a valid driver's
license in violation of company policy. As noted above, after an employer
offers a legitimate, non-discriminatory reason for its actions, the burden
shifts back to Mathews to prove that the proffered reason was merely a
pretext for discrimination. Christopher v. Adam's Mark Hotels, 137 F.3d
1069, 1072 (8th Cir. 1988).    Mathews must do more than simply create a
factual dispute as to the issue of pretext; he must offer sufficient




      6
        Mathews claims that Trilogy could have obtained insurance coverage for him
from another automobile insurer or that he could have used his own personal
automobile insurance. There is no evidence in the record, however, to support
either claim.
                                        -8-
evidence for a reasonable trier of fact to infer discrimination.   Rothmeier
v. Inv. Advisers, 85 F.3d 1328, 1335 (8th Cir. 1996).

      To show pretext, Mathews initially points to Trilogy's adoption of an
automobile usage policy just days prior to his termination. He argues that
the policy was specifically drafted to justify his termination and that
Trilogy did not retroactively discipline any other employees under the
policy. The evidence shows, however, that Kelly began drafting the policy
in June 1995, almost three months before he or Brasfield were informed that
Mathews had a problem driving record and        was therefore being denied
insurance coverage.      The fact that Mathews was the only employee
disciplined under the policy is of little significance. Plaintiff does not
present evidence that any of Trilogy's other employees were denied
insurance coverage or drove a company vehicle without a valid driver's
license.

      Next, Mathews contends that Kelly made direct expressions of
discriminatory bias concerning his diabetic condition. As evidence of such
bias, Mathews initially points to the meeting with Kelly shortly after his
diabetic attacks in 1992.     Mathews admits, however, that he does not
remember the specifics of the conversation. Mathews Dep. at 216. Rather,
he can only recall that he left the meeting with the impression that if he
had another diabetic incident it would jeopardize his job. Mathews Dep.
at 219. There is no linkage between any purported discriminatory animus
Kelly expressed during that meeting and Mathews' termination three years
later.   At the time of Mathews' termination, Kelly was unaware that
Mathews' had suffered another diabetic attack in his home three months
earlier. Furthermore, Mathews was successfully employed by Trilogy for
three years following this meeting with Kelly and he received favorable
work evaluations in the interim.      Such vague and remote evidence of
discriminatory bias is insufficient to link Mathews' termination with his
diabetic condition.

      Mathews also claims that Kelly's discriminatory bias is evidenced by
his referral




                                    -9-
to Mathews as a "diabetic poster boy."      The reference was made during
Kelly's deposition after litigation had commenced and was intended to
describe the manner in which Mathews viewed his own condition--not the
manner in which Kelly viewed Mathews' condition. See Kelly Dep. at 69.
Statements by decisionmakers that are unrelated to the decision process
itself do not constitute direct evidence of discriminatory bias. Beshears
v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991). Mathews' impressions of a
meeting held three years before his termination and an ambiguous comment
made in a deposition two years after his termination are insufficient to
raise an inference of discriminatory bias.

      Similarly, Mathews' final two attempts to show pretext are wholly
unpersuasive. Mathews claims that Trilogy gave particular scrutiny to his
driving record after he suffered his diabetic attack in June 1995. There
is no evidence, however, that anyone at Trilogy was aware that Mathews'
broken leg was the result of a diabetic incident until long after he was
terminated.    Furthermore, it was Chandler Sampson, not Trilogy who
scrutinized Mathews' driving record.    Neither Kelly nor Brasfield was
informed of Mathews' poor driving record until August     1995, over two
months after Mathews' diabetic attack. At that point, they attempted to
verify the accuracy of the records before deciding to terminate Mathews'
employment.

      Finally, Mathews contends that Trilogy created post-hoc justifications
for his termination, giving rise to an inference that the justifications
were merely a pretext for discrimination. It is clear from the record,
however, that Trilogy has consistently asserted as reasons for Mathews'
termination the inability to obtain insurance coverage for him and his
operation of a company vehicle without a valid driver's license.    Mathews'
has failed to present sufficient evidence for a jury to conclude that his
termination was based on anything other than Trilogy's legitimate, non-
discriminatory justifications; therefore, the district court properly
dismissed his ADA and MHRA claims.




                                    -10-
                                    III.
      Mathews also appeals from the district court's summary judgment of his
retaliation claim under Section 510 of ERISA.        Under Section 510, an
employer may not discharge an employee "for exercising any right to which
he is entitled under the provisions of an employee benefit plan ... or for
the purpose of interfering with the attainment of any right to which such
participant may become entitled under the plan." 29 U.S.C. § 1140. The
same burden-shifting framework that applied to      Mathews' ADA claim also
applies to his claim under Section 510. Rath v. Selection Research, Inc.,
978 F.2d 1087, 1089 (8th Cir.1992).

      To establish a prima facie case of retaliation, Mathews needed to
establish a causal connection between his participation in Trilogy's self-
insured medical plan and his termination. Kinkead v. Southwestern Bell
Tel. Co., 49 F.3d 454, 456 (8th Cir. 1995).         The connection may be
established either through direct evidence of retaliation or circumstantial
evidence "such as proof that the discharge followed an exercise of
protected rights so closely in time as to justify an inference of
retaliatory motive." Rath, 978 F.2d at 1090. Mathews' only evidence of
causal connection is his termination two months after submitting a $15,000
claim under Trilogy's self-insured medical plan. Mathews claims that he
was terminated because of the substantial amount of the claim and because
his medical condition would result in large medical bills in the future.


      While a time lapse of only two months between the exercise of
protected rights and a discharge may create the inference of a retaliatory
motive, we agree with the district court that under the circumstances of
this case, no such inference arises. The record reveals that Mathews had
claimed substantial benefits for hospitalizations resulting from two
diabetic attacks in 1992 and suffered no adverse employment action at that
time.    Significantly, Trilogy did not learn that Mathews' June 1995
hospitalization was the result of a diabetic attack until after Mathews was
terminated in August 1995. Consequently, when Trilogy made the decision
to terminate Mathews




                                    -11-
it had no reason to believe that Mathews would incur substantial diabetes-
related medical expenses in the future. Furthermore, five other Trilogy
employees had submitted claims against its health insurance plan in excess
of Mathews' claims yet remained employed by the company.       Finally, as
explained above in section II, Trilogy has set forth two legitimate, non-
discriminatory reasons which account for the timing of Mathews'
termination. We affirm the district court's decision to dismiss Mathews'
ERISA claim.

     A true copy.

           Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




                                   -12-
