No. 20-1831 ___________________________

Daniel J. Gardner

Petitioner - Appellant

v.

Wal-Mart Stores, Inc.; Wal-Mart Stores East, LP; Wal-Mart Transportation, LLC

Defendants - Appellees ____________

Appeal from United States District Court for the Southern District of Iowa - Central ____________

Submitted: April 14, 2021 Filed: June 23, 2021 ____________ Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges. ____________ BENTON, Circuit Judge.

Daniel J. Gardner sued his former employer, Wal-Mart Stores, Inc., for age discrimination under the Iowa Civil Rights Act (ICRA). The district court 1 granted summary judgment to Walmart. Gardner v. Walmart Stores, Inc., No. 4-18-cv-450,

1 The Honorable Charles R. Wolle, District Judge for the Southern District of Iowa. Docket No. 55, at 4 (S.D. Iowa Mar. 23, 2020). Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Gardner worked for Walmart from 1993 until February 2017. He served as a private fleet safety manager in Mount Pleasant, Iowa, responsible for implementing Walmart’s safety program.

In January 2016, Gardner disclosed an employee’s medical condition during a training session. Walmart placed him on a “Third Written”—meaning he could be fired if disciplined again. One of Gardner’s job responsibilities was enforcing Walmart’s Hazardous Materials Endorsement (HME) policy. It required him to “identify all current and new hire drivers without a valid hazmat endorsement and notify the local Transportation Operations Managers.” In January 2017, Gardner violated the policy. As acknowledged in his statement of undisputed material facts, a driver failed to get an HME after the 90-day deadline, but Gardner did not notify Operations that the driver continued working. Instead, after about 30 more days, he suspended the driver.

In February 2017, Walmart gave Gardner the option to resign or be dismissed. He resigned. He then sued, alleging he was fired because of age (58). The district court granted summary judgment to Walmart, ruling he could not show that its proffered reason for the firing was a pretext for age discrimination.

This court reviews de novo a grant of summary judgment, viewing the facts most favorably to the nonmoving party. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Iowa discrimination law governs this diversity action. See Junk v. Terminix Int’l Co., 628 F.3d 439, 450 (8th Cir. 2010). See also Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 7 (Iowa 2009) (“When interpreting discrimination claims under Iowa Code chapter 216, we turn to federal law, including Title VII of the United States Civil Rights Act . . . .”). -2- II.

ICRA prohibits age discrimination in the workplace. Iowa Code § 216.6(1)(a). Although Gardner did not present direct evidence of discrimination, he claims to satisfy the McDonnell Douglas burden-shifting framework. See Hedlund v. Iowa, 930 N.W.2d 707, 719-20 (Iowa 2019) (collecting Iowa cases applying McDonnell Douglas to discrimination claims), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 2

Like the district court, this court assumes that Gardner met his prima facie burden.3 Gardner acknowledges that Walmart offered a legitimate, non-

2 The standard for ICRA claims, at summary judgment, is unsettl