United States Court of Appeals
                               For the Eighth Circuit
                            ___________________________

                                    No. 23-1087
                            ___________________________

                                  Tonya C. Huber

                                       Plaintiff - Appellant

                                          v.

                                 Westar Foods, Inc.

                                      Defendant - Appellee
                                   ____________

                     Appeal from United States District Court
                      for the District of Nebraska - Omaha
                                    ____________

                          Submitted: December 13, 2023
                               Filed: July 1, 2024
                                    ____________

Before ERICKSON, MELLOY, and STRAS, Circuit Judges.
                                    ____________


MELLOY, Circuit Judge.

       In December 2019, Tonya Huber experienced a diabetic episode that caused
her to miss work. Days later, her employer, Westar Foods, Inc., fired her. Thereafter,
Huber brought this action alleging disability discrimination under the Americans
with Disabilities Act (“ADA”) and Nebraska Fair Employment Practices Act
(“NFEPA”), as well as interference with and retaliation for exercising her rights
under the Family and Medical Leave Act (“FMLA”). Westar filed a motion for
summary judgment, which the district court granted. Huber appeals. We reverse and
remand for further proceedings consistent with this opinion.

                                          I.

       On appeal from a grant of summary judgment, we view the facts in the light
most favorable to Huber as the nonmoving party and draw all reasonable inferences
in her favor. Lightner v. Catalent CTS (Kansas City), LLC, 

 (8th
Cir. 2023).

       Westar Foods operates a number of Hardee’s restaurants in the Midwest,
employing more than 200 people. In December 2018, Westar hired Huber as a store
manager for a Nebraska Hardee’s location. Prior to employment with Westar, Huber
had worked in the fast-food industry for fifteen years. Westar hired Huber to work
full-time at fifty hours per week. Huber’s ten-hour shifts typically began at 5 a.m.
and ended at 3 p.m., while Huber’s duties included managing restaurant staff,
overseeing store operations, and ensuring the store was opened each day.

       Soon after Huber started working at Westar, she was diagnosed with diabetes.
In March 2019, Huber had to start taking insulin, including at work. Over the course
of her employment, Huber’s insulin dosage increased. To manage her diabetes,
Huber needed a room temperature location where she could store her insulin. The
restaurant’s kitchen and office ran upwards of ninety degrees, and Huber struggled
to find a room temperature place for insulin storage. As such, she asked her district
manager at the time, Matt Thayer, for help finding suitable storage, but he responded,
“That’s a [you] problem, not a [me] problem.” After Cindy Kelchen became Huber’s
district manager in September 2019, Huber renewed her request for help finding a
room temperature location for her insulin, and Kelchen advised storing it in the
freezer. When Huber pointed out that the freezer was not room temperature, Kelchen
responded, “Then I don’t know what to tell you.”



                                         -2-
       In addition to insulin storage, Huber also needed to find time during her shift
to eat a meal so she could take her insulin. Huber was often too busy to take meal
breaks during her shifts, so she sought help from Kelchen. Kelchen responded by
telling Huber to get better at time management.

      In December 2019, Huber began to feel sick because of her diabetes. When
Huber woke up for her shift on the morning of December 20, her blood glucose level
was low, and she was experiencing symptoms consistent with hypoglycemia. 1
Indeed, because of her blood glucose level, Huber “felt out of it” and did not know
who or where she was. Huber realized she needed to go to work but then forgot and
became confused as to what was happening or where she was supposed to be.
Eventually, Huber was able to drive herself to a nearby doctor’s office where she
was given an IV and medications that sedated her.

       Throughout the day of her stay at the doctor’s office, Huber called her son and
her boyfriend, Richard Grondin, on multiple occasions. One call to Grondin lasted
45 minutes. According to Grondin, Huber was groggy and incoherent when he spoke
with her. Huber’s son recalled that her communication was “all over the place” and
difficult to comprehend. Huber does not remember these calls due to the impact of
her diabetic episode.

       On the day of the diabetic episode, Westar first discovered that Huber had not
come into work when a customer notified Kelchen that Hardee’s was not open.
Kelchen tried calling Huber, who did not answer, so Kelchen called Huber’s son,
who was listed as her emergency contact. Huber’s son told Kelchen that Huber was
at the doctor’s office, that her “levels were off,” and that Huber would call back.
Huber did not end up calling Kelchen that day.

      1
        “Hypoglycemia is an abnormally low concentration of glucose in the blood
which may lead to tremulousness, cold sweat, headache, hypothermia, irritability,
confusion, hallucinations, bizarre behavior, and ultimately convulsions and coma.”
Wood v. Omaha Sch. Dist., 

, 438 n.2 (8th Cir. 1993) (citing Dorland’s
Illustrated Medical Dictionary 804 (27th ed. 1988)).
                                        -3-
       The doctor’s office kept Huber under its care until it closed for business. When
Huber was discharged in the evening, the medical staff would not permit her to drive
because of her condition, so she called Grondin for a ride. Because of her state,
Huber was unable to convey to Grondin the directions to where she was, “so he had
to use an app to locate her.” When they eventually arrived at Huber’s home, Huber
was delirious, disoriented, and ill, so Grondin decided to stay overnight out of
concern for her safety.

       Huber slept until 7:45 a.m. the next day, December 21. She had been
scheduled to work at 5 a.m. that morning, but she was still ill and recovering from
the medications administered at the doctor’s office the day before. Westar’s
attendance policy has a “call-in” requirement, which states that if a store manager is
going to be late for work or if they are unable to work, they must call their district
manager immediately and at least two hours prior to the start of their shift “when
possible.” Additionally, the attendance policy states that “[t]exting, emailing or
leaving a message is not” an acceptable way to notify management of an absence or
tardiness. Huber was aware of the call-in policy, so immediately upon awaking, she
called Kelchen and emailed her a doctor’s note excusing her from work through
December 26. On the call, Huber conveyed her experience and the nature of the
diabetic episode to Kelchen. Kelchen took notes of the conversation and wrote that
Huber was at the doctor’s office because “her levels of her diabetic [sic] was off.”
During the call, Kelchen was yelling at Huber; indeed, her voice was so loud that it
woke Grondin, who was asleep in an adjacent room. When Kelchen asked Huber
why she did not notify her in accordance with the call-in policy on either December
20 or 21, Huber explained how the diabetic episode made it extremely difficult to
call, mentioning to Kelchen that she could do an internet search to understand the
symptoms better. Kelchen did not understand or believe that Huber could not have
called, especially when she was able to call her boyfriend and son and drive herself
to the doctor’s office. During the conversation, Kelchen asked Huber five times why
she did not make a “simple phone call” to inform Westar about her absence.



                                         -4-
       Immediately following her call with Huber, Kelchen called Frank
Westermajer, Westar’s owner and president, to convey her conversation with Huber.
It is undisputed that during the call, the decision was made to fire Huber when she
returned from sick leave on December 26. The parties disagree as to whether
Westermajer was the sole decision-maker, or whether Kelchen was also a decision-
maker.

      In the days following her diabetic episode, Huber continued to struggle with
her health, experiencing fluctuating blood glucose levels that required hourly
readings. On December 22, pursuant to her doctor’s guidance, Huber emailed
Kelchen and Amy Rowe, Westar’s HR representative, requesting FMLA paperwork.
Huber did not receive a response and followed up on December 23 to request FMLA
forms ahead of a follow-up doctor’s appointment that day. Rowe did not provide the
paperwork but responded that she had the doctor’s note excusing Huber from work
and therefore needed nothing additional from Huber’s doctor.

       At the follow-up appointment, the doctor provided Huber with another note
requiring her to be out of work through January 2 due to her diabetes. After the
doctor’s appointment, Huber once again requested FMLA paperwork, but received
no response. The next morning, on December 24, Rowe responded, once again not
providing paperwork, but instead requesting a meeting that afternoon despite her
awareness of Huber’s medical leave. Rowe planned to fire Huber at the meeting.
Huber, whose condition was not stable, responded by declining the meeting,
providing the new doctor’s note, and asking once again for the FMLA paperwork.

      Because Huber’s sick leave was extended, the December 26 meeting did not
occur, and Rowe instead sent Huber a termination letter. The letter stated that the
reason for the termination was because Huber “failed to follow the Company’s
notice procedures for [her] absences on December 20, 2019 and on December 21,
2019.” The letter noted that Huber was “fully aware” of the company’s notice
procedures in part because the company had previously disciplined her for not
abiding by them. The letter further explained that because Huber was “driving and
                                        -5-
in contact with [her] son” on the day of her diabetic episode, she “should have been
able to provide notification of [her] absences to the Company . . . or at the very least
prior to [her] scheduled shift on Saturday, December 21.”

       In addition to providing a reason for termination, Westar’s letter also
addressed Huber’s FMLA request, stating that “[b]ased on [her] explanation that
[she] drove [herself] to the clinic on December 20th and the circumstances on
December 21, 2019,” and because she had “failed to provide notice as soon as
possible and practical [and] did not request any need for an accommodation until
after the unscheduled absences,” her absences would not be covered under the
FMLA.

       Thereafter, Huber brought this lawsuit alleging Westar violated the ADA and
NFEPA by discriminating against her on the basis of her diabetes. Huber also alleged
that Westar interfered with her rights and retaliated against her in violation of the
FMLA. Westar moved for summary judgment on all claims. Huber then filed a
partial motion for summary judgment on Westar’s affirmative defenses.
Subsequently, Huber also moved to strike two affidavits that Westar filed in
opposition to her partial motion for summary judgment. The district court granted
Westar’s motion for summary judgment. Additionally, the district court denied both
of Huber’s motions without further discussion. Huber now appeals.

                                          II.

       The Court “review[s] a grant of summary judgment de novo.” Wages v. Stuart
Mgmt. Corp., 

 (8th Cir. 2015). “Summary judgment is proper if,
after viewing the evidence and drawing all reasonable inferences in the light most
favorable to the nonmovant, no genuine issue of material fact exists and the movant
is entitled to judgment as a matter of law.” Corkrean v. Drake Univ., 

 (8th Cir. 2022) (citation omitted); Fed. R. Civ. P. 56(a). “A court at this stage
‘does not weigh the evidence, make credibility determinations, or attempt to discern
the truth of any factual issue’ but focuses on whether there are genuine disputes of
                                          -6-
material fact for trial.” Walz v. Randall, 

 (8th Cir. 2021) (quoting
Morris v. City of Chillicothe, 

 (8th Cir. 2008)).

                                         III.

       We first address Huber’s disability discrimination claim. Under the ADA,
employers are prohibited from discriminating against qualified individuals on the
basis of their disability. Gruttemeyer v. Transit Auth., 

 (8th Cir.
2022); 

(a)–(b). 2 To establish that an employer took an adverse
employment action motivated by discriminatory animus, a plaintiff may present
“evidence of disparate treatment or other proof that will vary according to the
specific facts of the case.” Lipp v. Cargill Meat Solutions Corp., 

(8th Cir. 2018). Such evidence can be “direct” or “indirect,” terms that refer to the
causal strength of the evidence, not necessarily whether evidence is circumstantial.
Id.; St. Martin v. City of St. Paul, 

 (8th Cir. 2012). Direct
evidence provides a strong causal “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 adverse employment
action.” St. Martin, 

 (quoting Griffith v. City of Des Moines, 

 (8th Cir. 2004)). “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

      2
        “The disability discrimination provision[s] in the NFEPA are patterned after
the ADA, and the statutory definitions of ‘disability’ and ‘qualified individual with
a disability’ contained in the NFEPA are virtually identical to the definitions of the
ADA.” Ryan v. Cap. Contractors, Inc., 

, 777 n.3 (8th Cir. 2012)
(citation omitted) (discussing 

(9) & (10); 

, 12111(8)). “In construing the NFEPA, Nebraska courts have looked to
federal decisions, because the NFEPA is patterned after Title VII and the ADA.” 

See also, e.g., Haffke v. Signal 88, LLC, 

, 113–14 (Neb. 2020). As
such, our analysis and conclusions for Huber’s ADA claims also apply to the NFEPA
claims.
                                         -7-
motivating factor.” Lipp, 

 (quoting Schierhoff v. GlaxoSmithKline
Consumer Healthcare, L.P., 

 (8th Cir. 2006)). Direct evidence
often, though not always, comes in the form of blatant statements expressing
discriminatory animus.

       Indirect evidence, on the other hand, provides a weaker causal connection but
may nonetheless establish discrimination. Where a plaintiff puts forth indirect
evidence, we apply the McDonnell Douglas burden-shifting framework. St. Martin,

. Under the McDonnell Douglas framework, the plaintiff must first
make a prima facie showing of discrimination by establishing: “(1) that the plaintiff
was disabled within the meaning of the ADA; (2) that the plaintiff was qualified to
perform the essential functions of the job; and (3) a causal connection between an
adverse employment action and the disability.” Oehmke v. Medtronic, Inc., 

 (8th Cir. 2016). After the plaintiff establishes their prima facie case, the
burden then shifts to the employer to put forth “a legitimate, nondiscriminatory
reason for the adverse action.” 

 Finally, if the employer offers such a reason, the
burden shifts back to the plaintiff, who must establish pretext, i.e., “that a
[prohibited] reason more likely motivated the employer.’” Torgerson v. City of
Rochester, 

 (8th Cir. 2011) (citation omitted) (alteration in
original). Although the burden of production shifts, the burden of persuasion always
remains with the plaintiff. Donathan v. Oakley Grain, Inc., 

 (8th
Cir. 2017).

       The district court found that Huber did not present direct evidence, and we
agree. Huber has offered no evidence with the causal strength to dispositively show
disability discrimination; therefore, we apply the McDonnell Douglas burden-
shifting framework. The burden for establishing a plaintiff’s prima facie case is not
onerous, and the district court assumed without determining that Huber met her
prima facie burden. 

 The employer’s burden is likewise not onerous, and the
district court found that Westar offered a legitimate, nondiscriminatory reason for
terminating Huber’s employment. Torgerson, 

. Finally, the district
court found that Huber failed to show Westar’s reason for firing her was pretextual.
                                         -8-
       Huber disputes the district court’s conclusions. Specifically, Huber argues that
genuine issues of fact exist as to whether Westar’s reason for firing Huber was
pretextual. When considering whether an employer’s reason for firing is pretext, “the
ultimate question is whether the plaintiff presents evidence of ‘conduct or statements
by persons involved in [the employer’s] decision-making process reflective of a
discriminatory attitude sufficient to allow a reasonable jury to infer that that attitude
was a motivating factor in [the employer’s] decision to fire [the plaintiff].’” Kiel v.
Select Artificials, Inc., 

 (8th Cir. 1999) (en banc) (alterations in
original) (quoting Feltmann v. Sieben, 

 (8th Cir. 1997)). There are
at least two ways a plaintiff may show a question of fact exists regarding pretext: a
plaintiff may present evidence that (A) “the employer’s explanation is unworthy of
credence . . . because it has no basis in fact” or (B) “a prohibited reason more likely
motivated the employer.” Gardner v. Wal-Mart Stores, Inc., 

 (8th
Cir. 2021) (alteration in original) (citations omitted).

                                           A.

      Huber first argues that Westar’s reason for terminating her is “unworthy of
credence” and “has no basis in fact.” 

 Westar maintains that it terminated Huber
because she violated the company call-in policy on December 20 and 21. Violation
of company policies is a legitimate, nondiscriminatory reason for employment
termination. See, e.g., Miner v. Bi-State Dev. Agency, 

, 913–14 (8th Cir.
1991). Huber disputes that she violated company policy on the days she was
experiencing a diabetic episode. In rejecting Huber’s argument, the district court
concluded that even assuming Huber did not violate the call-in policy, Westar
presented evidence that it had a “good-faith belief that she violated the call-in policy
on both occasions.”

       In reaching its decision, the district court cited Pulczinski, where we held that
“[t]aken alone, that the employer’s belief turns out to be wrong is not enough to
prove discrimination.” Pulczinski v. Trinity Structural Towers, Inc., 

 (8th Cir. 2012). Indeed, typically the “rule in discrimination cases is that if an
                                          -9-
employer honestly believes that an employee is terminated for misconduct, but it
turns out later that the employer was mistaken about whether the employee violated
a workplace rule, the employer cannot be liable for discrimination.” Richey v. City
of Indep., 

 (8th Cir. 2008); see also Pulczinski, 

.
Therefore, “[i]f the employer takes an adverse action based on a good faith belief
that an employee engaged in misconduct, then the employer has acted because of
perceived misconduct, not because of protected status or activity.” Richey, 

. “The relevant inquiry is whether the [employer] believed [the employee] was
guilty of the conduct justifying discharge.” 

 (quoting Scroggins v. Univ. of Minn.,

 (8th Cir. 2000)) (alterations in original).

       In Pulczinski, an employer had a genuine belief that the discharged employee
had engaged in impermissible activity—specifically, activity that would slow down
work. 

. This activity was wholly unrelated to the employee’s
disability. 

 Following an unexcused absence, which the employee argued resulted
from his disability, the employer, not believing the employee, conducted a formal
investigation into the absence. 

. During the investigation, the employer
learned that the employee had planned to miss work that day to go gambling,
encouraged his colleagues to come with him to the casino or to also skip work, and
actively discouraged his colleagues from working overtime. 

 Based on
uncontroverted evidence, the employer terminated the employee not for missing
work, which the plaintiff maintained was due to his disability, but rather for
“attempting to cause a slowdown in work by discouraging others from working
overtime.” 

 The plaintiff sued.

       On an appeal from a motion for summary judgment, the Pulczinski employee
argued that the district court’s decision should be reversed because there was “a
genuine issue of fact about whether he truly discouraged overtime work,” which the
plaintiff argued showed pretext. 

. We held that even if the employer erred
in coming to its conclusion that the plaintiff had sought to cause a work slowdown,
the reasoning, like the justification for termination, was unrelated to the plaintiff’s
disability. 

 at 1003–04. See also, e.g., Johnson v. Securitas Sec. Servs. USA, Inc.,
                                         -10-


 (8th Cir. 2014) (applying good faith principle to age
discrimination claim); Liles v. C.S. McCrossan, Inc., 

, 821–22 (8th Cir.
2017) (applying good faith principle to claim of sex discrimination); Main v. Ozark
Health, Inc., 

, 324–26 (8th Cir. 2020) (same).

       Notwithstanding the principle articulated in Pulczinski, an employer’s
argument of good faith will not always preclude a discrimination case from reaching
a jury. Where an employer seeks to assert a good faith argument, the underlying
“reasons for firing must be ‘sufficiently independent from’” the protected status or
activity. Gilooly v. Missouri Dep’t of Health & Senior Servs., 

, 740 (8th
Cir. 2005) (quoting Womack v. Munson, 

 (8th Cir. 1980));
Richey, 

. Thus, if the reason for an employer’s adverse employment
action is “so inextricably related to” the disability, “they cannot be considered
independently of one another.” Womack, 

. Indeed, we recently
explained that where “a disability caused missed work, and missed work caused
termination, it [is not] much of a stretch to conclude that . . . [the] disability caused
[the] termination.” Weatherly v. Ford Motor Co., 

 (8th Cir. 2021).3

      3
        We have explained that where, as here, the disability may have caused the
conduct and the conduct caused the termination, “accommodation and termination
claims are two sides of the same coin.” Weatherly, 

; see also
Humphrey v. Mem’l Hosps. Ass’n, 

, 1139–40 (9th Cir. 2001) (“Often
[accommodation and discrimination] claims, are, from a practical standpoint, the
same. For the consequence of the failure to accommodate is . . . frequently an
unlawful termination. . . . For purposes of the ADA . . . conduct resulting from a
disability is considered to be part of the disability, rather than a separate basis for
termination. The link between the disability and termination is particularly strong
where it is the employer’s failure to reasonably accommodate a known disability that
leads to discharge for performance inadequacies resulting from that disability.”
(citations omitted)). Indeed, employers have a duty under the ADA to reasonably
accommodate an employee’s known disability. See Kowitz v. Trinity Health, 

 (8th Cir. 2016); Ehlers v. Univ. of Minn., 

 (8th Cir.
2022) (explaining that an employer may violate the ADA where it fails to “make a
good faith effort to assist the employee in seeking accommodation” and “the
employee could have been reasonably accommodated but for the employer’s lack of
good faith”).
                                          -11-
       Huber’s case is distinguishable from Pulczinski 4 because a reasonable jury
could conclude her diabetic episode was not independent from her firing. Gilooly,
421 F.3d at 740. Here, Huber was fired because she failed to call in to work on days
she was experiencing a diabetic episode. As such, Huber argues that her disability
precluded her from calling in. Kelchen, on the other hand, did not believe Huber and
assumed she was able to abide by the call-in policy on the days of her diabetic
episode. Westar’s decision to terminate Huber was based on this assumption.
Although Westar argues that its termination decision was underscored by Huber’s
failure to follow the call-in policy on two prior occasions, a factfinder could
determine this evidence weighs in favor of Huber. Indeed, a factfinder may conclude
that Westar’s decision not to terminate Huber on two prior occasions, where her
failure to call in was unrelated to her disability, only bolsters Huber’s pretext
argument.

       In these situations, whether the employee’s disability caused the conduct that
violated company policy and whether the employer acted in good faith are both
questions of fact. See Townsend v. Bayer Corp., 

 (8th Cir. 2014).
Therefore, we cannot say as a matter of law that Huber was capable of calling in
during her diabetic episode on December 20 and 21, and a jury must decide whether
Westar’s termination decision was made in good faith or supports a showing of
pretext.



      4
        The dissent also cites two cases that are similar to Pulczinski and thus
distinguishable from the facts here. In McNary v. Schreiber Foods, Inc., the plaintiff
asserted that he had not actually violated company policy when he was caught
sleeping at work—the plaintiff never argued that his disability caused him to sleep.

, 768–70 (8th Cir. 2008). Bharadwaj v. Mid Dakota Clinic likewise is
distinguishable, but there, in addition to the plaintiff never asserting that his
disability was the cause of the conduct that led to his termination, it was questionable
whether the plaintiff even had a disability. 

, 1134 n.2 (8th Cir. 2020).
Here, no one disputes that Huber missed work because of her diabetic episode, and,
as a result, a genuine issue of fact exists as to whether she was able to abide by the
call-in policy.
                                          -12-
                                         B.

      Huber also argues that “a prohibited reason more likely motivated” Westar’s
termination decision as evidenced by the actions of her two district supervisors,
Kelchen and Thayer. Gardner, 2 F.4th at 748. The district court determined that
Kelchen and Thayer were not decision-makers, and therefore did not consider their
actions as evidence of pretext. Because the issue of who qualifies as a decision-
maker is critical to whether Huber presented evidence of pretext sufficient to survive
a motion for summary judgment, we address that first.

                                          1.

       Where an employer “attempt[s] to confine decisionmaking power to a small
number of individuals, those individuals will have a limited ability to exercise
independent discretion when making decisions and will likely rely on other workers
who actually interact with the affected employee.” Vance v. Ball State Univ., 

 (2013). “Under those circumstances, the employer may be held to
have effectively delegated the power to take tangible employment actions to the
employees on whose recommendations it relies.” 

 Thus, “[e]ven if an employer
concentrates all decisionmaking authority in a few individuals, it likely will not
isolate itself from . . . liability.” 

 at 446–47. Moreover, one need not be a
“decision-maker” for an employer to face liability: “Evidence of discriminatory
animus among individuals with influence over decisionmaking can be sufficient for
a reasonable jury to conclude discrimination was a motivating factor.” Gruttemeyer,

; see also Kiel, 

 (explaining that a factfinder will
consider evidence of discriminatory animus by “persons involved” in the adverse
employment action).

      Huber argues that Kelchen and Thayer were decision-makers or had influence
over the decision-making process, and therefore their actions should be considered
for evidence of discriminatory animus. The district court concluded that only
Westar’s CEO, Westermajer, was a decision-maker, and therefore did not consider
                                        -13-
Kelchen and Thayer’s actions as evidence of discriminatory animus. But it is
undisputed that Kelchen and Thayer were Huber’s direct supervisors, and as such,
Huber went to them when she requested accommodations for her diabetes. A
factfinder could interpret their responses to Huber’s accommodation requests as
exercising delegated decision-making authority.

      Moreover, Kelchen called Westermajer immediately after her call with Huber
to convey the conversation about Huber’s missed absence. During that call,
Westermajer made the termination decision. A reasonable factfinder could
determine that, at the very least, Kelchen wielded decision-making influence over
Westermajer’s termination decision. Accordingly, we conclude that Huber has
presented sufficient evidence to raise a genuine issue as to whether Kelchen and
Thayer were decision-makers or influenced the decision-making process.

                                           2.

       Because a factfinder could determine that Kelchen and Thayer were decision-
makers or influenced the decision-making process, we consider whether their actions
show that “a prohibited reason,” i.e., discriminatory animus, more likely motivated
Westar’s termination decision. A plaintiff may raise a question of fact as to pretext
by showing “‘a specific link between the alleged discriminatory animus and the
challenged decision, sufficient to support a finding . . . that an illegitimate criterion
actually motivated’ the adverse employment action.” Othman v. City of Country
Club Hills, 

 (8th Cir. 2012) (quoting Torgerson, 

).

      To support her pretext argument, Huber first asserts that Kelchen’s comments
and conduct show discriminatory animus. Comments “uttered by individuals closely
involved in employment decisions may” provide evidence of discriminatory animus.
Beshears v. Asbill, 

 (8th Cir. 1991). Moreover, where conduct
and actions indicate contempt toward an employee’s disability, we have found a
question of fact exists regarding discriminatory animus. Kells v. Sinclair Buick-GMC
Truck, Inc., 

, 833–34 (8th Cir. 2000), abrogated on other grounds by
                                          -14-
Torgerson, 

 (2011). Huber alleges that Kelchen displayed contempt
and anger toward her when explaining her absence from work on account of her
diabetic episode. Huber alleges that Kelchen was angry over the phone, which is
corroborated by Grondin, who stated that he was awoken by Kelchen “screaming”
through the phone at Huber and observed that Kelchen was not “very receptive” to
what Huber was explaining. A factfinder could infer discriminatory animus from
Kelchen’s actions and words.

       Second, Huber asserts that the close temporal proximity between Kelchen’s
angry call and Westar’s termination decision is further evidence of discriminatory
animus. Indeed, close temporal proximity between an employer’s discovery of the
disability and the adverse employment action can contribute to an inference of
discrimination, though on its own this is typically not sufficient to establish pretext.
See Sprenger v. Fed. Home Loan Bank of Des Moines, 

 (8th Cir.
2001); Smith v. Allen Health Sys., Inc., 

, 833 (8th Cir. 2002). We have
clarified that an interval of two months is likely not enough, but “a matter of weeks”
could contribute to a finding of discrimination. See Sprenger, 253 F.3d at 1113–14;
see also Kipp v. Mo. Highway & Transp. Comm’n, 

 (8th Cir.
2002); Allen Health Sys., Inc., 302 F.3d at 833–34. On the other hand, “a ‘mere
coincidence of timing’ can rarely be sufficient.” Kipp, 

 (citation
omitted). Here, according to Kelchen’s notes, she learned of Huber’s disability and
the nature of her diabetic episode during their phone call. Immediately after ending
the call, Kelchen spoke with Westermajer, during which time the decision was made
to terminate Huber. On its face, this timing does not appear coincidental; rather, the
timing of the call to Westermajer is strong evidence of pretext.

       Huber also argues that Westar demonstrated discriminatory animus when it
failed to help her with accommodations. We have held that “[f]ailing to provide an
employee with reasonable accommodations can tend to prove that the employer also
acted adversely against the employee because of the individual’s disability.” Kells,

. As noted above, Huber presented evidence that Kelchen and Thayer
were ambivalent toward Huber’s insulin storage and meal break requests. Huber also
                                         -15-
provides evidence of Kelchen and Rowe’s shared contempt toward accommodating
her sick leave after the diabetic episode. Moreover, Kelchen not only yelled at Huber
over the phone on December 21, Kelchen equivocated on whether she expected
Huber to find coverage for her shifts despite her sick leave. Kelchen stated that
Huber was expected to find coverage for her shifts while on medical leave, then
backtracked and explained that employees with doctor’s notes are not expected to
find coverage during leave. Kelchen’s expectation that Huber work while sick is
further suggested in Kelchen’s disciplinary notes from December 23, where she
wrote that Huber provided “[n]o communication to [Westar] for her store
responsibilities and coverage.” Moreover, on December 24, Rowe and Kelchen
requested a meeting with Huber even though they were aware of Huber’s doctor’s
note excusing her from work through December 26. Reviewing the facts in the light
most favorable to Huber, a reasonable factfinder could interpret Westar as showing
contempt toward Huber’s disability accommodations.

       For its part, Westar denies having ever known about Huber’s diabetes until
after the company had already decided to terminate her employment on December
21. Yet Westar’s own records contradict this assertion. Both Kelchen’s notes and the
termination letter from Rowe suggest that the company knew about Huber’s diabetes
at least as early as Kelchen’s call with Huber’s son, who conveyed that Huber’s
“levels were low.” Although “levels were low” did not explicitly say glucose or
diabetes, a trier of fact could find that Westar knew nonetheless, especially since
those exact words were used in the termination letter Westar sent Huber. Regardless,
Westar’s company notes confirm that immediately prior to Kelchen’s call with
Westermajer, Kelchen had learned from talking with Huber that the reason she
missed work on December 20 and 21 was due to her diabetes. The fact that Westar
was aware of Huber’s disability yet continues to deny awareness is strong evidence
of pretext. Reeves v. Sanderson Plumbing Prods., Inc., 

 (2000)
(holding that a “trier of fact can reasonably infer from the falsity of the explanation
that the employer is dissembling to cover up a discriminatory purpose”); see also
Ridout v. JBS USA, LLC, 

 (8th Cir. 2013) (same).


                                         -16-
      In sum, viewed in the light most favorable to Huber, genuine issues of fact
exist regarding whether Westar’s termination decision was motivated by
discriminatory animus and therefore whether its reason for firing Huber was
pretext.5

                                         IV.

       We next turn to Huber’s FMLA claims. The FMLA requires employers to
provide 12 weeks of unpaid leave to employees who experience “a serious health
condition that makes the employee unable to perform the functions of the
employee’s job.” 

(a)(1)(D); 

; Darby v. Bratch,

 (8th Cir. 2002). Under the FMLA, an employee must notify their
employer that they plan to take leave, while an employer is prohibited from
“discriminating against employees for asserting rights under the Act.” Darby, 287


      5
        In concluding that “[n]o jury could find Westar liable for disability
discrimination on this record,” the dissent disregards the Court’s standard of review
and construes the facts in the light most favorable to Westar, not Huber. For example,
the dissent splits hairs over whether a “cooler” or a “freezer” was involved, choosing
to focus on the former even though the record reflects that both words were used,
and, regardless, neither a cooler nor a freezer would have accommodated Huber’s
insulin storage. The dissent also omits the critical fact that Westar claims it was
unaware of Huber’s disability until after its termination decision. This is despite the
fact that Kelchen’s notes, taken immediately before the termination decision was
made, reflect the company’s awareness of Huber’s diabetes. Reeves, 

(explaining that an employer’s false explanation may indicate pretext).

       Courts are not free to disregard standards of review. In fact, here we “are
required to view the facts and draw reasonable inferences ‘in the light most favorable
to the party opposing the [summary judgment] motion.’” Scott v. Harris, 

 (2007) (citation omitted) (alteration in original). Standards of review serve
as procedural safeguards to place reasonable constraints on courts and insure we do
not exceed our authority. These safeguards are especially important on an appeal
from a grant of summary judgment where a plaintiff’s Seventh Amendment right to
a jury trial is implicated. Harris v. Interstate Brands Corp., 

 (8th
Cir. 2003).
                                           -17-
F.3d at 679; 

(e)(2), 2615(a)(2). Huber asserts two types of FMLA
discrimination claims: interference and retaliation. 

(a)(1)–(2).
Huber argues that genuine issues of fact exist as to both her interference and
retaliation claims against Westar. An interference claim “alleges that an employer
denied or interfered with his substantive rights under the FMLA,” while a retaliation
claim “alleges that the employer discriminated against him for exercising his FMLA
rights.” Stallings v. Hussmann Corp., 

 (8th Cir. 2006) (citing 

(a)(1)–(2)). We address each of Huber’s FMLA claims in turn.

                                          A.

       “An employer is prohibited from interfering with, restraining, or denying an
employee’s exercise of or attempted exercise[] of any right contained in the FMLA.”
Stallings, 

 (8th Cir. 2006) (citing 

(a)(1)). “An
employer’s action that deters an employee from participating in protected activities
constitutes an ‘interference’ or ‘restraint’ of the employee’s exercise of his rights.”

 “Interference includes . . . ‘manipulation by a covered employer to avoid
responsibilities under FMLA.’” 

 (quoting 

(b)).

       To succeed on an FMLA interference claim, an employee need only show
they were “denied substantive rights under the FMLA for a reason connected with
[their] FMLA leave.” 

 Thus, to prevail on an FMLA interference claim the
employee must establish (1) they were eligible for FMLA leave, (2) the employer
was on notice of the need for FMLA leave, and (3) the employer denied the
employee an FMLA benefit. Smith v. AS Am., Inc., 

 (8th Cir. 2016).
On appeal, Westar does not seriously contest that Huber became eligible for FMLA
leave when her diabetic episode caused her to miss more than three days of work.
See Rankin v. Seagate Techs., Inc., 

, 1147–49 (8th Cir. 2001). Rather,
the parties dispute whether Westar was on notice of Huber’s eligibility for FMLA
leave prior to the company’s decision to terminate Huber’s employment.



                                         -18-
         “An employee need not invoke the FMLA by name in order to put an
employer on notice that the Act may have relevance to the employee’s absence from
work.” Thorson v. Gemini, Inc., 

, 381 (8th Cir. 2000). “Under the
FMLA, the employer’s duties are triggered when the employee provides enough
information to put the employer on notice that the employee may be in need of
FMLA leave.” Spangler v. Fed. Home Loan Bank of Des Moines, 

(8th Cir. 2002) (citation omitted). For the employer to be on notice of the need for
FMLA leave, they must be aware of a “serious health condition” and not simply that
an employee is “sick.” 

 at 852–53. A serious health condition would not typically
include the common cold. Rankin, 

. Instead, a serious health
condition includes an “illness” or “impairment” that causes “[a] period of incapacity
. . . of more than three consecutive calendar days” or “[t]reatment two or more times
by a health care provider.” 

 (citing 

(a)(2)); see also 

(11)(B).

       If a factfinder determines that an employer was on notice of an employee’s
serious health condition, the inquiry does not end there. First, the employee must
have notified the employer as “soon as practicable.” Spangler, 

(quoting 

(a)). “This ordinarily means at least verbal notification
to the employer within one or two business days of when the need for leave becomes
known to the employee.” 

 (citation omitted) (alterations omitted). Moreover, there
must be a causal connection between the termination and the employee’s need for
FMLA leave. Stallings, 447 F.3d at 1050–51.

       Huber argues that she put Westar on notice of her need for FMLA leave at
least as early as her December 21 call with Kelchen. Westar, on the other hand,
asserts that Huber first notified them of her need for FMLA leave when she emailed
her request for FMLA paperwork on December 22, after the decision to fire her had
been made. As such, Westar argues that Huber failed to provide notification “as soon
as practicable.” Additionally, Westar argues that even if Huber had notified Westar
as soon as practicable, Huber still could not establish FMLA interference because
Westar terminated her “for reasons wholly unrelated” to her FMLA needs.
                                        -19-
       To resolve this issue, we find Clinkscale v. St. Therese of New Hope controls.

 (8th Cir. 2012). There, the employee was a nurse with undiagnosed
situational anxiety disorder. 

. While at work one day, the employee had a
panic attack. 

 During the attack, the employee spoke to her employer’s HR
department who instructed her to go home. 

 The next day, the employee met with
her personal physician regarding the panic attack, after which, she was given a
doctor’s note requiring her to take sick leave. 

 The employee promptly provided
the doctor’s note to her HR department, who in turn provided FMLA forms for her
physician to complete. 

 Later that day, the employer called and fired her on
grounds of patient abandonment. 

. The employee sued alleging FMLA
interference. The employer contended that it had not interfered with the employee’s
FMLA rights, because the termination occurred before she put the employer on
notice. 

. Furthermore, the employer argued that the employee was
“terminated for reasons ‘wholly unrelated to the FMLA.’” 

. The district
court granted summary judgment to the employer.

        In reversing the district court, we first considered whether the employee had
put her employer on notice when she spoke with HR during her panic attack or when
she provided her employer with a doctor’s note and received FMLA paperwork. 

at 827–28. We determined that whether the employer was on notice prior to its
termination decision was a material question of fact for the jury. 

 Additionally,
we held that the panic attack was the cause of the alleged patient abandonment and
the reason for her need for FMLA leave. 

 at 828–29. We explained: “Given the
evidence suggesting a causal connection between [the employee’s] condition and
her ‘patient abandonment,’ the district court erred in concluding as a matter of law
that [the] ‘refusal to work . . . [was] not related to a medical diagnosis of anxiety.’”

.

      Similarly, we conclude that genuine issues of fact exist here. We cannot
determine as a matter of law: (1) whether Westar was on notice of Huber’s need for
FMLA leave prior to its decision to terminate her; (2) whether Huber notified Westar
                                         -20-
as soon as practicable; and (3) whether there is a causal connection between Huber’s
diabetic episode and her failure to abide by Westar’s call-in policy. Indeed, viewing
the facts in the light most favorable to Huber, a reasonable jury could determine that
Westar was on notice of Huber’s FMLA needs as early as Kelchen’s call with
Huber’s son. This conclusion is buttressed by the fact that Huber had previously
brought her disability to the attention of both Kelchen and Thayer when she
requested accommodations related to her diabetes. Likewise, a jury could determine
that Huber’s call to Kelchen on the morning of December 21 was the soonest she
could practicably notify Westar. If Westar was on notice, Rowe’s refusal to provide
Huber with FMLA paperwork on multiple occasions, along with Westar’s
termination of Huber, could constitute FMLA interference. Accordingly, we find
that genuine issues of fact remain as to Huber’s FMLA interference claim.

                                          B.

       Huber also asserts an FMLA retaliation claim. “The difference between
[interference and retaliation] claims is that the interference claim merely requires
proof that the employer denied the employee his entitlements under the FMLA,
while the retaliation claim requires proof of retaliatory intent.” Stallings, 

. “Basing an adverse employment action on an employee’s use of leave, or
in other words, retaliation for exercise of Leave Act rights, is therefore actionable.”
Allen Health Sys., Inc., 302 F.3d at 832. Where a plaintiff asserts an FMLA
retaliation claim, absent direct evidence, we use the same McDonnell Douglas
burden-shifting framework as ADA discrimination claims. Hudson v. Tyson Fresh
Meats, Inc., 

 (8th Cir. 2015). A plaintiff must show: (1) they
“engaged in protected conduct”; (2) they “suffered a materially adverse employment
action”; and (3) “the materially adverse action was causally linked to the protected
conduct.” Wierman v. Casey’s Gen. Stores, 

 (8th Cir. 2011). A
“materially adverse action” is one that “deter[s] a reasonable employee from making
a charge of employment discrimination.” 

 (citation omitted). Termination from
employment is a materially adverse action. 

 If a plaintiff establishes their prima
facie case, the burden of production shifts to the employer to “articulate a legitimate,
                                         -21-
nondiscriminatory reason for its action,” after which the burden shifts back to the
plaintiff to show the employer’s reason is pretextual. 

       Regarding the first element of a plaintiff’s prima facie case, an employee must
provide their employer with notice as soon as practicable that they may need FMLA
leave. 

. Thus, here, as with Huber’s interference claim, a genuine issue of
fact exists regarding whether she provided notice to Westar of her need for FMLA
leave and, if so, whether she provided Westar with notice as soon as practicable.

       Regarding Huber’s burden of showing both a causal connection between her
FMLA rights and Westar’s termination decision, as well as pretext, we are faced
with issues of fact similar to Huber’s ADA discrimination claim. For example, the
very close temporal proximity between Huber’s exercise of her FMLA rights and
Westar’s adverse employment action may support a finding of causation or pretext.
See Allen Health Sys., Inc., 302 F.3d at 833 (finding two weeks between protected
FMLA activity and adverse employment action were “extremely close in time” and
therefore raised an issue of fact on retaliation). Moreover, because Westar’s reason
for terminating Huber may be causally connected to her need for FMLA leave, a
genuine issue of fact remains. See Wierman, 

 (finding that, on an
FMLA retaliation claim, an employer’s reason for terminating pregnant employee—
because she “was tardy or absent from work for pregnancy-related reasons”—was
intertwined with the employee’s disability); see also Clinkscale, 

;
Caldwell v. Holland of Texas, Inc., 

 (8th Cir. 2000). Accordingly,
we also find that genuine issues of fact remain for Huber’s FMLA retaliation claim.

                                         V.

    For the foregoing reasons, we reverse and remand the district court’s grant of
summary judgment to Westar on Huber’s ADA, NFEPA, and FMLA claims.6


      6
      Huber also appeals the district court’s denial of her motion to strike and
motion for partial summary judgment. The district court did not discuss these
                                      -22-
STRAS, Circuit Judge, concurring in part and dissenting in part.

      The court takes a wrong turn in this case. Westar Foods, Inc., fired Tonya
Huber after she violated the company’s attendance policy for the third time in less
than a year. No matter, the court says, a reasonable jury could find that the
termination was “on the basis of” her diabetes, rather than her misconduct. 

(a). Like the district court, I would come out the other way. No jury could
find Westar liable for disability discrimination on this record.

                                          I.

       Everyone agrees on the basic facts. One morning when Huber was set to open
the Hardee’s location she managed on Westar’s behalf, she had a diabetic episode
that required medical attention. She made a few calls throughout the day, but none
to Westar. Nor did she ask her boyfriend or son to call, so no one knew she was
missing from work. Instead, Westar found out when a customer called to complain
that the restaurant had not yet opened. And then the next day, she did not report her
absence until it was too late, nearly three hours after the start of her shift.

       She violated company policy both days. Employees must “call the
management person in charge” two hours ahead of time, “when possible,” if they
will “be late” or not “able to work.” Huber had violated this policy before, once
within days of starting, when she abandoned her shift without notifying a supervisor.
Then, several months later, she received a written warning for “fail[ing] to call and
notify her supervisor . . . that she was leaving her shift.” In fact, according to the
form, she had missed her previous shift too, also without providing sufficient notice.

       The warning also notified her that “any further violations” could “lead to
further disciplinary action, up to and including termination.” It did little good


motions in its order granting summary judgment to Westar. Accordingly, to the
extent the district court denied these motions, we vacate.
                                         -23-
because, just two months later, she once again failed to notify a supervisor about
consecutive absences. At that point, Westar decided to terminate her.

                                         II.

      Despite the multiple violations, the court holds that a reasonable jury could
conclude that the reason was her diabetes. 

(a) (prohibiting
discrimination “on the basis of disability”). That is, her diabetes “actually
motivated” the decision to fire her, Raytheon Co. v. Hernandez, 

(2003) (citation omitted), not her repeated violations of the company’s attendance
policy. See Lindeman v. Saint Luke’s Hosp. of Kan. City, 

 (8th
Cir. 2018); see also Wierman v. Casey’s Gen. Stores, 

 (8th Cir.
2011) (explaining that “violations of company policy” constitute a “legitimate,
nondiscriminatory reason[] for termination”). In my view, neither conclusion is
reasonable.

      Start with the fact that Westar has consistently pointed to the
attendance-policy violations as the “actual[] motivat[ion]” for its decision. Raytheon
Co., 

 (citation omitted). When Huber finally called on that second
morning, Cindy Kelchen, her supervisor, asked “why didn’t you call?” And the
termination letter, sent only a few days later, explained that Huber had “failed to
follow the [c]ompany’s notice procedures for [her] absences.” Westar has never
wavered from this explanation, even in its briefing. See Pulczinski v. Trinity
Structural Towers, Inc., 

 (8th Cir. 2012) (explaining that if an
employer “honestly believed the nondiscriminatory reason [it] gave for the action,
pretext does not exist” (citation omitted)).

       Westar’s actions matched its words. Each time there was a violation, it acted.
See Gibson v. Am. Greetings Corp., 

 (8th Cir. 2012) (emphasizing
that the termination occurred “only after” the employee had accumulated prior
“written warnings”). The first time Huber abandoned her shift, the company gave
her an “Employee Coaching Tool” that stressed the importance of communicating
                                        -24-
schedule changes in advance. And the second time, it went a step further and warned
Huber that another violation could result in termination. When she violated the
attendance policy for the third time, the company followed through and terminated
her. Each time, Westar made clear that the progressive disciplinary steps were for
lack of communication, not because she had been sick. See Raytheon Co., 

.

       Nondiscriminatory explanations for an employment decision are given
credence, absent a showing of pretext. See Reeves v. Sanderson Plumbing Prods.,
Inc., 

 (2000) (“[A]n employer [is] entitled to judgment as a matter
of law if the record conclusively reveal[s] some other, nondiscriminatory reason for
the employer’s decision.”). Pretext is usually established by showing that the
“employer (1) failed to follow its own policies, (2) treated similarly[ ]situated
employees in a disparate manner, or (3) shifted its explanation of the employment
decision.” Winters v. Deere & Co., 

 (8th Cir. 2023) (citation
omitted). None of these things happened here.

       Instead, Huber relies on two types of evidence that plaintiffs typically use to
establish their prima facie case, not pretext. Cf. Reeves, 

 (noting that
evidence can be relevant to both). The first is temporal proximity: the close timing
between her diabetic episode and the decision to terminate her. 7 See Gibson v.
Geithner, 

 (8th Cir. 2015) (“Proximity alone can be enough to
establish causation for a prima facie case.”). The other is alleged supervisor hostility
to her past medical requests. See Kells v. Sinclair Buick-GMC Truck, Inc., 

, 833–34 (8th Cir. 2000) (noting that the plaintiff had “presented prima facie

      7
       The court’s analysis is hard to square. At one point it says that Kelchen
“learn[ing] of Huber’s disability” shortly before the termination decision “is strong
evidence of pretext.” Ante at 15. Yet at another, it relies on her supervisors’
“ambivalen[ce] toward [her] insulin[-]storage and meal[-]break requests,” which
occurred months earlier, as evidence of Westar’s “discriminatory animus.” 

Kelchen cannot have first learned of the disability when Westar fired Huber because,
by the court’s own account, she knew months earlier.

                                         -25-
evidence of [his employer’s] repeated denials of requests for reasonable
accommodations” (emphasis added)), abrogated on other grounds by Torgerson v.
City of Rochester, 

 (8th Cir. 2011) (en banc). Under our cases,
however, neither is enough to get past summary judgment.

         First up is temporal proximity. We have long held that “timing on its own
is . . . not sufficient to show that an employer’s non-discriminatory . . . reason . . . is
merely pretext.” Cody v. Prairie Ethanol, LLC, 

 (8th Cir. 2014)
(first and second alterations in original) (emphasis added) (citation omitted). Indeed,
if anything, the timing here weakens, rather than supports, Huber’s case. See
Wierman, 

 (observing that “temporal proximity[] is undermined”
when an alleged discriminatory “motive coincides temporally with the”
nondiscriminatory one). After all, her diabetic episode coincided with yet another
violation of Westar’s attendance policy—a recurrent problem that the company had
taken seriously from the start. See Smith v. Allen Health Sys., Inc., 

,
834 (8th Cir. 2002) (“Evidence that the employer had been concerned about a
problem before . . . undercuts the significance of the temporal proximity.”).

       There are similar problems with Huber’s hostility-to-diabetes evidence.
Recall that Kelchen had responded to Huber’s question about having time to eat
during her shift with an insensitive comment about improving her time management.
And then she later proposed storing her insulin in a cooler, which was not the
room-temperature solution Huber was seeking. 8 These comments, to the extent they
show discriminatory bias, are so “vague and remote” in time, having come months
earlier, that they do little to “link [the] termination with [her] diabetic condition.”


      8
        According to Huber’s own deposition, the only actual evidence on the issue,
it was a “cooler,” not a freezer. (Emphasis added.) And Westar’s human-resources
representative did not try to schedule “a meeting” with Huber “despite her awareness
of Huber’s medical leave.” Ante at 5. Rather, she asked whether Huber was
“available to speak” with her and Kelchen over the phone, either that afternoon or
later in the week. Neither of these interactions shows hostility toward Huber’s
diabetes, much less discriminatory animus. At most, they show indifference.
                                          -26-
Mathews v. Trilogy Commc’ns, Inc., 

 (8th Cir. 1998). The
timing, in other words, “dilute[s] any inference of causation,” Brown v. City of
Jacksonville, 

 (8th Cir. 2013) (citation omitted), or “pretext,”
Henderson v. Ford Motor Co., 

 (8th Cir. 2005). See Sprenger
v. Fed. Home Loan Bank of Des Moines, 

, 1113–14 (8th Cir. 2001)
(concluding there was not enough evidence of pretext, even though the employer
acted against the employee “a matter of weeks” after learning about his disability).

       Timing is less of a problem for Kelchen’s comments the morning after the
diabetic episode, but they still do not establish discriminatory bias or pretext.
Huber’s failure to call had led to serious problems the day before: the restaurant
opened several hours late, which upset at least one customer. The conversation the
next day then focused on why she did not call earlier. To be sure, Kelchen may have
acted unprofessionally by yelling, but her emphasis on the “need[] to make that
simple phone call” confirms that she was upset about Huber’s misconduct, not
hostile toward her diabetes. See Smith, 302 F.3d at 834.

       Finally, the comments of Huber’s previous supervisor, Matt Thayer, are
largely unhelpful because he played no role in terminating her. See Arraleh v.
County of Ramsey, 

 (8th Cir. 2006) (“distinguish[ing] between
comments . . . uttered by individuals closely involved in employment decisions” and
those made “by nondecisionmakers” (citation omitted)). It is true that he rudely told
her that the need to store her insulin at work was a “[you] problem, not a [me]
problem,” but the decision to fire her occurred three months after Kelchen had
replaced him. And without “unequivocal[] pro[of]” that Westar “fail[ed] to
accommodate” her, Henderson, 

, these stray remarks, just like
temporal proximity, do not provide enough for a “reasonable jury to infer that
[disability] discrimination . . . was the real reason for [her] termination,” Winters, 

. See Sprenger, 

 (“Prov[ing] pretext or actual
discrimination requires more substantial evidence” than a “prima facie case” because
the evidence “is viewed in light of the employer’s justification.”).


                                          -27-
                                          III.

       The court reaches a contrary conclusion by cobbling together a new
intertwinement test that, until now, has not existed in the disability-discrimination
context. See ante at 11 (focusing on whether the “adverse employment action is . . .
inextricably related to the disability” (citation omitted)). It will require an employer
to show that its asserted justification is “sufficiently independent” of the employee’s
disability, 

 (quoting Gilooly v. Mo. Dep’t of Health & Senior Servs., 

,
740 (8th Cir. 2005)), even when an employee has repeatedly “violated a workplace
rule” or “engaged in misconduct,” Richey v. City of Independence, 

 (8th Cir. 2008).

       The rule lacks a firm footing. The court claims that Gilooly established it, but
it involved a situation that bears no resemblance to this one. An employee brought
a Title VII retaliation claim after a Missouri agency fired him for allegedly lying
about inappropriate conduct during a sexual-harassment investigation. See Gilooly,
421 F.3d at 737. To ward off the possibility of retaliation against employees who
report this type of misconduct, we concluded that an employer’s stated “reasons for
firing must be sufficiently independent from the filing of [a Title VII] complaint.”
Id. at 740 (citation omitted). Gilooly was all about the unique circumstances that
arise when retaliation and sexual harassment intersect, not run-of-the-mill
discrimination.

       Don’t just take my word for it. Gilooly recognized the limits of its own
holding when it said that it “cannot be true that a plaintiff can file false charges, lie
to an investigator, and possibly defame co-employees, without suffering
repercussions simply because the investigation was about sexual harassment.” Id.
That is, employers can still discipline employees for misconduct. And, as we later
clarified, the holding was “narrow” in the sense that it applied “when an employer’s
discipline was based solely on its disbelief of an employee’s harassment complaint,
without any independent corroboration.” Alvarez v. Des Moines Bolt Supply, Inc.,

 (8th Cir. 2010) (emphasis added). Here, there is no sexual
                                          -28-
harassment, alleged or otherwise. And “independent corroboration” exists based on
Huber’s prior violations and the undisputed fact that she missed the start of two
consecutive shifts without calling. 

       Nor does Weatherly v. Ford Motor Co., 

 (8th Cir. 2021), support
the court’s new intertwinement test. See ante at 11. By its own account, it was all
about whether an administrative charge filed with the Equal Employment
Opportunity Commission gave adequate notice of a disability-discrimination claim.
See Weatherly, 

. “[C]onstru[ing] [the] administrative charge[]
liberally” and noting that “th[e] issue [was] a close call,” we concluded the plaintiff
had exhausted his remedies “because an administrative investigation . . . would
likely have included a look into whether [the employer] unlawfully discriminated
against [him] when it terminated him despite his request for accommodation.” 

. To state the obvious, providing adequate notice of a possible claim is a
far cry from conclusively establishing a violation. To the extent the court insists
otherwise, it is saying something that Weatherly does not.

       The rule is also inconsistent with the Americans with Disabilities Act itself,
which prohibits discrimination “on the basis of disability.” 

(a).
This language is causal, requiring, at a minimum, that the disability be a “motivating
factor for [the] termination,” if not a but-for cause of it. Gruttemeyer v. Transit
Auth., 

 (8th Cir. 2022); see Pulczinski, 

 (noting
“doubts about the vitality” of the motivating-factor test).

       The court’s new test, however, is looser than either of those causal standards.
The flip side of “sufficient[] independen[ce],” ante at 11, is “some connection.” If
there is some connection between the disability and the termination, such that there
is not “sufficient[] independen[ce]” between the two, then the
disability-discrimination claim goes to the jury. 

       This case stands as a stark example. Huber had a diabetic episode, which in
turn allegedly limited her ability to call into work before her shift. The inability to
                                         -29-
make the call, in turn, led to a violation of the company’s attendance policy. The
attendance-policy violation then led to her termination. Notwithstanding the
attenuated causal chain, the court still sends the claim to the jury because the
“diabetic episode was not independent from her firing.” Ante at 12. The statute
requires more: the termination must have been “on the basis of [her] disability,” 

(a), not just “not independent” from it, ante at 12.

       Other courts have recognized as much. The Supreme Court, for example, has
expressed skepticism about whether basing an employment decision on “workplace
misconduct” would violate the Americans with Disabilities Act just because it was
“related to [a] disability.” Raytheon Co., 

 n.6 (noting that it had
“rejected a similar argument in the context of the Age Discrimination in
Employment Act”). Since then, other courts have outright rejected the possibility.
See, e.g., Neal v. E. Carolina Univ., 

 (4th Cir. 2022)
(“[M]isconduct—even misconduct related to a disability—is not itself a disability
and may be grounds for dismissal.” (citation omitted)); McElwee v. County of
Orange, 

 (2d Cir. 2012) (“[W]orkplace misconduct is a legitimate
and nondiscriminatory reason for terminating employment, even when such
misconduct is related to a disability.”); see also Gillen v. Fallon Ambulance Serv.,
Inc., 

, 28–29 (1st Cir. 2002) (rejecting it pre-Raytheon); Newberry v. E.
Tex. State Univ., 

, 279–80 (5th Cir. 1998) (same); Matthews v.
Commonwealth Edison Co., 

 (7th Cir. 1997) (same). And so
has the Equal Employment Opportunity Commission. See U.S. Equal Emp.
Opportunity Comm’n, The Americans with Disabilities Act: Applying Performance
and Conduct Standards to Employees with Disabilities § III(B)(9) (2008) (“The
ADA does not protect employees from the consequences of violating conduct
requirements even where the conduct is caused by the disability.”).

      Not to mention that, under the court’s new rule, some of our cases would now
come out differently. One example is McNary v. Schreiber Foods, Inc., 

 (8th Cir. 2008). There, a company terminated an employee with Graves
disease—a thyroid disorder that can cause fatigue—for sleeping on the job. See 

                                       -30-
at 766 n.2, 768. Despite the fact that “the reason for [the] employer’s adverse
employment action [was] . . . inextricably related to [his] disability,” ante at 11
(citation omitted), we affirmed the grant of summary judgment to the company, see
McNary, 

.

       The same happened in Bharadwaj v. Mid Dakota Clinic, 

 (8th
Cir. 2020), which involved a medical clinic that “pushed [a doctor] out” because of
the interpersonal difficulties that his “mental impairment” had created. 

 at 1134
n.2; 1136. Despite the lack of independence between the disability and alleged
misconduct, which was “his inability to get along with others,” we allowed the grant
of summary judgment to the clinic to stand. 

.9

       The intertwinement rule also creates a lose-lose situation for employers: let
employee misconduct go or risk drawn-out litigation. Suppose that Huber had been
late twenty times without calling, or that she had yelled at a customer. Employers
will now have to think twice about imposing discipline if there is any possibility that
the misconduct lacked “sufficient[] independen[ce]” from an employee’s disability.
Ante at 11. And if they decide to do so anyway, courts and juries will now sit as
“super[ ]personnel department[s] [to] reexamine[] [those] business decisions.”
Wilking v. County of Ramsey, 

 (8th Cir. 1998) (citation omitted).

                                          IV.

      The court’s new intertwinement rule will make a mess. It is also wrong. As
a unanimous Seventh Circuit panel put it over 25 years ago, an “employer who fires
a worker because [she] is a diabetic violates the Act; but if [the employer] fires [her]
because [s]he is unable to do [the] job, there is no violation, even though the diabetes


      9
        The court is right that the plaintiffs in McNary and Bharadwaj did not argue
that their employers discriminated against them by terminating them for
disability-related conduct. See ante at 12 n.4. But one likely explanation is that both
plaintiffs knew that the argument would not succeed.
                                           -31-
is the cause.” Matthews, 

. That statement rings as true today as it
did then. I respectfully dissent from Parts III and V of the court’s opinion.
                         ______________________________




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