#30478-aff in pt & rev in pt-SRJ 2024 S.D. 75
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
ANGEL MATTA, Plaintiff and Appellant,
v.
DAKOTA PROVISIONS, Defendant and Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BEADLE COUNTY, SOUTH DAKOTA
THE HONORABLE KENT A. SHELTON Judge
TUCKER J. VOLESKY Mitchell, South Dakota Attorney for plaintiff and appellant.
REED RASMUSSEN of Siegel, Barnett & Schutz, L.L.P. Aberdeen, South Dakota Attorneys for defendant and appellee.
CONSIDERED ON BRIEFS JUNE 4, 2024 OPINION FILED 12/11/24 #30478
JENSEN, Chief Justice
[¶1.] Angel Matta was hired as a production worker by Dakota Provisions in
February 2020. Throughout his short tenure, Dakota Provisions documented
concerns with Matta’s work attendance. Matta was injured at work on March 23,
2020, which caused him to miss several weeks of work. Matta filed a workers’
compensation claim due to his injuries and Dakota Provisions terminated Matta one
month later. Matta filed suit alleging wrongful termination and that his
termination violated public policy. Dakota Provisions moved for summary
judgment on Matta’s claims which the circuit court granted. Matta appeals the
circuit court’s entry of summary judgment. We affirm in part and reverse in part.
Factual and Procedural Background
[¶2.] Dakota Provisions is a meat production and processing business
located in Huron. Matta began working for Dakota Provisions on February 17,
2020, and was provided several employment forms including an employee handbook
(the Handbook) and an acknowledgment form which indicated that he had received
and read the Handbook. The Handbook acknowledgment included a statement that
Matta was “an ‘at will’ employee” and that the Handbook did not “constitute a
contract between [Matta] and Dakota Provisions.” The Handbook further explained
that “Dakota Provisions is an at-will employer. Employees are free to terminate
their employment at any time, for any reason, with or without notice and [Dakota
Provisions] may terminate the employee’s employment at any time, with or without
cause and with or without notice.”
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[¶3.] The Handbook also included an explanation of the “No Fault
Attendance Policy” (the Policy). The Policy outlined the importance of regular and
punctual attendance for work and assessed “points” for different forms of
attendance concerns, including a half point each time an employee reported late for
work. The Policy also assessed points for missed work due to health-related issues,
even when a doctor’s excuse was provided:
If an employee has an illness lasting more than one workday and a Doctor’s excuse is provided, the employee will only be charge [sic] with one point for consecutive days of illness; regardless of the duration. However, if an employee is absent for more than one consecutive day and does not provide a Doctor’s excuse, a point will be assessed for each day absent. Failing to report for work and failing to call in [] counts as two (2) points; (NO CALL/NO SHOW) for three (3) consecutive days will result in immediate termination of employment.
[¶4.] The Policy provided that an employee would be automatically
terminated upon the accumulation of ten points within one calendar year but
clarified that “[t]he following attendance guidelines do not constitute a contract,
expressed or implied and are not intended as limitations upon [Dakota Provisions’]
judgment to expand, alter or to otherwise modify them as determined by the facts of
each individual situation.” In addition to the explanation of the Policy in the
Handbook, Matta also received and signed a one-page summary of the Policy, and
acknowledged that he had read and understood “the No Fault Attendance Policy as
stated in the [Handbook].”
[¶5.] Approximately one month after Matta began working for Dakota
Provisions, he was cited for “poor attendance during [his] probationary period” in a
disciplinary action form dated March 15, 2020. Matta signed the form,
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acknowledging that it was his final warning and any future instance of late or
missed work without excuse would result in termination.
[¶6.] On March 23, 2020, Matta slipped and fell on ice in Dakota Provisions’
parking lot and suffered a fractured sacrum and coccyx. He immediately reported
his injuries to Dakota Provisions and sought medical treatment. Dakota Provisions
received a health care note on April 1 from Matta’s care provider who recommended
Matta not return to work for at least one week. During this time, Dakota
Provisions assisted Matta with filing a workers’ compensation claim, and he
received workers’ compensation benefits for the injuries he sustained from the fall
and for the time he missed work. Matta was later medically cleared to work for five
hours per day and returned to work under these conditions on April 13. Upon his
return, Matta received a second written disciplinary action from Dakota Provisions
on April 16 after he reported late for work on April 15. 1
[¶7.] By April 22, Matta was cleared by his medical provider to return to
work full time but was directed to call if a full day of work was “too much”. Matta
reaggravated his injury while working on April 30 and sought medical treatment.
He was given a doctor’s note recommending only light work until they were able to
receive Matta’s MRI reports. The note further indicated that an appointment was
1. The disciplinary action form showed he was previously assessed points for absenteeism on March 10, 12, and 13 which presumably were the absences that led to his initial written discipline on March 16. The form also showed a “no call/no show” event on March 24, the day after his fall in the parking lot. Matta claimed in his deposition that he was medically excused from work on March 10, 12, and 13 because of intestinal problems. However, the disciplinary action form in early March indicated that he failed to notify Dakota Provisions prior to these absences and the record does not show that Matta provided a doctor’s note to Dakota Provisions to excuse these absences. -3- #30478
being set up with an orthopedist. On May 1, Matta’s health care provider wrote an
additional note stating that Matta was “off work until [he could see an] orthopedic
doctor . . . on May 6[.]” 2 After meeting with the orthopedist, Matta was referred to a
spine specialist and was ordered not to return to work until May 19. It is unclear
whether this information was communicated to Dakota Provisions.
[¶8.] The personnel action form in Matta’s personnel file shows that he was
terminated on May 1, 2020, for “poor attendance during [his] probationary period.”
Matta claims he first learned of his termination approximately a week and a half
later through a child support enforcement letter from the Department of Social
Services (DSS). Upon receiving the DSS letter, Matta called Dakota Provisions who
informed him that he was terminated because he had “missed some days” at work.
Matta was informed that he would continue to receive workers’ compensation
benefits for the medical bills associated with his injuries but would no longer be
receiving weekly disability payments.
[¶9.] Matta’s attorney also reached out to Dakota Provisions and inquired
about Matta’s termination. Despite the earlier form indicating that Matta had been
terminated on May 1, Dakota Provisions’ human resources (HR) director responded
to Matta’s attorney with a letter dated May 30, 2020, and explained that Matta was
terminated “because of attendance issues effective 5-6-20.” In addition to the
previously noted attendance concerns, the letter stated that on May 1, 4, and 5
2. The record shows that the May 1 note was faxed to Dakota Provisions on May 1 at 3:50 p.m. Dakota Provisions does not dispute receiving the May 1 note. -4- #30478
“[Matta] did not come to work or call in. This constitutes grounds for termination
as it is 3 days in a row—no call no show.”
[¶10.] Matta filed this action against Dakota Provisions alleging he was
wrongfully terminated in retaliation for filing a workers’ compensation claim in
violation of SDCL 62-1-16. Matta subsequently amended his complaint by
removing a reference to SDCL 62-1-16 and broadly alleging his termination “was in
violation of the law and contrary to public policy.” 3
[¶11.] Dakota Provisions filed a motion for summary judgment on May 5,
2023. In its brief in support of summary judgment, Dakota Provisions asserted that
Matta was an at-will employee who could be terminated from employment “for
virtually any reason.” In his resistance, Matta argued that the Policy created an
express or implied contract that limited Dakota Provisions’ ability to terminate him
before he had accumulated ten attendance points. Matta also argued that he was
terminated against public policy on the basis of a disability or in retaliation for
filing a workers’ compensation claim in violation of SDCL 62-1-16. Matta also filed
a summary judgment motion arguing, as a matter of law, that he was wrongfully
terminated by Dakota Provisions. In addition to his summary judgment motion,
3. Matta’s amended complaint does not otherwise specify his claims against Dakota Provisions. Dakota Provisions expressed before the circuit court that it was difficult to determine the claims Matta was making and his complaint seemed to be a “moving target.” However, it did not move to dismiss the complaint nor moved for a more definitive statement under SDCL 15-6-12(e) before moving for summary judgment. Further, in their written and oral arguments to the circuit court, the parties argued and addressed all three of Matta’s claims for wrongful discharge based on express or implied contract; wrongful termination based upon public policy under SDCL 20-13-10; and retaliatory discharge under SDCL 62-1-16. The parties have also fully argued and presented all three theories as issues on appeal. -5- #30478
Matta also filed a motion to conduct discovery on punitive damages. Dakota
Provisions filed a brief responding to each of the claims made by Matta in his
resistance to summary judgment and in support of his own motion for summary
judgment.
[¶12.] At the conclusion of the summary judgment hearing, the circuit court
orally denied Matta’s motion for summary judgment and granted Dakota
Provisions’ motion for summary judgment. Based upon this decision, the court
declined to rule on Matta’s motion for discovery on punitive damages. Matta
appeals the circuit court’s grant of summary judgment in favor of Dakota
Provisions. He raises three issues, which we restate as follows:
1. Whether the Policy created an express or implied contract that Dakota Provisions violated by terminating Matta outside the procedures set forth in the Policy.
2. Whether Dakota Provisions violated public policy by terminating Matta because of his alleged disability.
3. Whether a genuine issue of material fact exists as to whether Matta was terminated in retaliation for filing a workers’ compensation claim in violation of SDCL 62-1- 16.
Analysis and Decision
[¶13.] This Court reviews “a circuit court’s entry of summary judgment under
the de novo standard of review.” Ries v. JM Custom Homes, LLC, 2022 S.D. 52,
¶ 14, 980 N.W.2d 217, 222 (quoting Wyman v. Bruckner, 2018 S.D. 17, ¶ 9, 908
N.W.2d 170, 174). “We will affirm a circuit court’s ‘grant of a motion for summary
judgment when no genuine issues of material fact exist, and the legal questions
have been correctly decided.’” Id. (quoting Harvieux v. Progressive N. Ins. Co., 2018
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S.D. 52, ¶ 9, 915 N.W.2d 697, 700). “Summary judgment is appropriate ‘if the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.’” Geidel
v. De Smet Farm Mut. Ins. Co. of S.D., 2019 S.D. 20, ¶ 7, 926 N.W.2d 478, 481
(quoting N. Star Mut. Ins. v. Korzan, 2015 S.D. 97, ¶ 12, 873 N.W.2d 57, 61).
1. Contract claim based upon the Policy. [¶14.] Matta initially argues that the Policy is a “self-contained document
detailing a list of specific grounds and procedures for discipline” which created an
express or implied contract that limited Dakota Provisions’ authority to terminate
him for attendance reasons. Matta argues that “the Policy contained both an
exclusive list of grounds for discipline regarding attendance and a specific procedure
for employee discipline up to termination,” without explicitly preserving an at-will
employment relationship. According to Matta, these procedures limited Dakota
Provisions’ ability to terminate his employment for attendance related reasons until
he accumulated ten points. Matta argues his termination, prior to accumulating
ten points, violated the Policy and breached the implied or express contract it
created.
[¶15.] Dakota Provisions responds that the Policy and the Handbook clearly
stated that Matta was an at-will employee and could be fired for any lawful reason.
Dakota Provisions claims that the Policy merely provided a non-exhaustive list of
reasons for disciplining Matta and simultaneously preserved Dakota Provisions’
authority to terminate Matta at will.
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[¶16.] “In the context of employment relationships, South Dakota is an
employment-at-will state per the provisions of SDCL 60-4-4.” Aberle v. City of
Aberdeen, 2006 S.D. 60, ¶ 20, 718 N.W.2d 615, 621. Accordingly, unless a statute or
employment contract states otherwise, an employment relationship “may be
terminated at the will of either party on notice to the other[.]” SDCL 60-4-4.
However, an employer may waive its statutory presumption as an at-will employer
either expressly or impliedly. Aberle, 2006 S.D. 60, ¶ 21, 718 N.W.2d at 621 (citing
Holland v. FEM Elec. Ass’n, Inc., 2001 S.D. 143, ¶ 12, 637 N.W.2d 717, 720). “In
either regard, the employer’s intent to surrender its right to terminate an employee
at will must be clear.” Henning v. Avera McKennan Hosp., 2020 S.D. 34, ¶ 16, 945
N.W.2d 526, 531 (citing Aberle, 2006 S.D. 60, ¶ 22, 718 N.W.2d at 622).
[¶17.] “An express surrender occurs when the employer affirmatively
indicates such intent by adopting written personnel policies or manuals that
explicitly state that a for-cause termination procedure must be followed.” Aberle,
2006 S.D. 60, ¶ 21, 718 N.W.2d at 621 (citation omitted). Under these
circumstances, the employment contract must express “specific terms surrendering
the statutory at-will power.” Id. ¶ 21, 718 N.W.2d at 622 (citation omitted). An
employer may also create an implied for-cause employment contract “[w]hen no
explicit surrender of the statutory at-will power is made by the employer, but
policies or handbooks ‘contain [] a detailed list of exclusive grounds for employee
discipline or discharge and a mandatory or specific procedure which the employer
agrees to follow prior to any employee’s termination[.]’” Id. (second alteration in
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original) (quoting Hollander v. Douglas Cnty., 2000 S.D. 159, ¶ 14, 620 N.W.2d 181,
185).
[¶18.] This Court has made clear that a policy “memorialized in writing does
not in and of itself constitute a surrender of an employer’s statutory at-will power.”
Id. at ¶ 23, 718 N.W.2d at 622 (citing Butterfield v. Citibank of S.D., N.A., 437
N.W.2d 857, 859 (S.D. 1989)). An employer may set forth a written policy that
outlines certain expectations of employees while maintaining an explicit reservation
of its at-will employer status. Id. (citing Butterfield, 437 N.W.2d at 860). “Such an
explicit reservation does not require the use of any specific language, but it must
clearly indicate that the employer reserves the right to fire an employee at any time
when it deems discharge to be appropriate.” Id. (citing Butterfield, 437 N.W.2d at
859).
[¶19.] The acknowledgments signed by Matta at the start of his employment
represent that he had read and understood the Handbook and the Policy. 4 The
Handbook acknowledgement explicitly provided “that [Matta was] considered an ‘at
will’ employee” and that the Handbook did not “constitute a contract between
[Matta] and Dakota Provisions.” The Handbook also explained that “Dakota
Provisions is an at-will employer. Employees are free to terminate their
4. Matta argues that Dakota Provisions failed to provide a copy of the Handbook when it responded to his discovery request to provide any employee policies that were applicable to him during his employment. However, Matta admits receiving and acknowledging receipt of the Handbook when his employment began. He did not object to the submission of the Handbook by Dakota Provisions in support of its motion for summary judgment and does not claim any prejudice by not receiving the Handbook during discovery. -9- #30478
employment at any time, for any reason, with or without notice and [Dakota
Provisions] may terminate the employee’s employment at any time, with or without
cause and with or without notice.” (emphasis added). Additionally, page 15 of the
Handbook referenced Dakota Provisions’ “Disciplinary Action Policy” and stated
that “Dakota Provisions reserves the right to terminate an employee at any time for
any lawful reason with or without prior disciplinary counseling or notice. Nothing
in this Handbook or any other Dakota Provisions document is intended to . . .
[m]odify [] ‘at-will’ employment.” (emphasis added).
[¶20.] Matta has not presented any policy in the Handbook which explicitly
stated that Matta could only be terminated for cause. Matta has also failed to show
how the Handbook or the Policy impliedly established a for-cause employment
contract. In Aberle, this Court held that an implied contract waiving an employer’s
statutory authority to terminate employees at will “could not exist” when the
employment contract included an explicit reservation of its right to terminate
employees at will. 2006 S.D. 60, ¶ 25, 718 N.W.2d at 622.
[¶21.] Like Aberle, here, the statements in the Handbook and the Policy
unequivocally “serve[] as an explicit reservation of the right to terminate employees
at any time, without notice or regard to violations of [the Handbook].” Id. ¶ 25, 718
N.W.2d at 622–23. While the Policy outlines specific actions that may result in
termination, it expressly provides that the “attendance guidelines do not constitute
a contract, expressed or implied and are not intended as limitations upon [Dakota
Provisions’] judgment to expand, alter or otherwise modify them as determined by
the facts of each individual situation.” Thus, the Policy functioned to encourage and
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discourage certain behaviors, particularly with respect to attendance, without
impliedly limiting Dakota Provisions’ ability to terminate its employees for any
lawful reason. The circuit court did not err in concluding that Matta was an at-will
employee.
2. Disability claim.
[¶22.] Matta also claims that his termination violated public policy as
contained in SDCL 20-13-10, which prohibits employment discrimination based
upon a disability for any term or condition of employment. Dakota Provisions
responds that Matta is precluded from arguing he was terminated in violation of the
statute because “[i]n order for a person to pursue a claim of discrimination in
violation of SDCL 20-13-10, the party must first pursue a claim with the South
Dakota Division of Human Rights pursuant to SDCL 20-13-29.” Dakota Provisions
further argues that Matta failed to identify any judicially recognized public policy
that was violated when he was terminated by Dakota Provisions.
[¶23.] To the extent that Matta relies on SDCL 20-13-10 to assert a disability
discrimination claim, we agree with Dakota Provisions that Matta is precluded from
doing so for failing to exhaust his administrative remedies. SDCL 20-13-29
provides that “[a]ny person claiming to be aggrieved by a discriminatory or unfair
practice may file with the Division of Human Rights a verified, written charge
which shall state the name and address of the person or agency alleged to have
committed the discriminatory or unfair practice.” We have consistently required an
employee claiming discriminatory treatment under SDCL chapter 20-13 to file a
claim “with the Division [of Human Rights] before proceeding to circuit court.”
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Wiest v. Montana, 1998 S.D. 63, ¶ 8, 580 N.W.2d 613, 615. An employee’s failure to
do so, “is a palpable example of failure of a party to exhaust his/her administrative
remedies and this is fatal to a discrimination claim.” Weller v. Spring Creek Resort,
Inc., 477 N.W.2d 839, 840 (S.D. 1991) (citing Light v. Elliott, 295 N.W.2d 724, 725
(S.D. 1980)).
[¶24.] Apart from the statutory employment disability discrimination claim,
Matta also argues that SDCL chapter 20-13 establishes a public policy that
prohibits discrimination based upon a disability. He seems to argue that
termination based upon a disability creates an independent common law tort claim
for a violation of public policy. See Niesent v. Homestake Mining Co. of Cal., 505
N.W.2d 781, 783 (S.D. 1993) (holding that to state a cause of action under the public
policy exception to the employment at-will doctrine, “the employee must plead and
prove that a substantial public policy may have been violated.”). However, in
Niesent we further explained that “[p]ublic policy is found in the letter or purpose of
a constitutional or statutory provision or scheme, or in a judicial decision.” Id.
[¶25.] Here, there is no need to create a common law tort remedy when the
Legislature has created robust statutory remedies for an employee whose
employment has been adversely impacted because of a disability, or other
recognized protected status under SDCL chapter 20-13. We refrain from adopting
new exceptions to the at-will employment doctrine absent a clearly articulable
reason for doing so because “adopting unfounded public policy exceptions ‘would
eviscerate the at-will doctrine in favor of judicial management of
employee/management relations.’” Henning, 2020 S.D. 34, ¶ 18, 945 N.W.2d at 531
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(quoting Harvey v. Reg’l Health Network, Inc., 2018 S.D. 3, ¶ 50, 906 N.W.2d 382,
397). Therefore, we decline to recognize a common law public policy exception to the
at-will employment doctrine for retaliatory discharge based upon a disability. The
circuit court did not error in dismissing Matta’s public policy claim based upon his
alleged disability. 5
3. Retaliation claim for filing a workers’ compensation claim.
[¶26.] Matta also asserts that the circuit court erred in granting Dakota
Provisions’ motion for summary judgment with respect to its alleged violation of
SDCL 62-1-16 because material issues of fact remain as to whether there is a causal
link between Matta filing his workers’ compensation claim and his termination.
Matta argues that Dakota Provisions’ varying justifications for Matta’s termination,
and the proximity of Matta’s termination to the commencement of his workers’
compensation claim are “strong indicator[s] that the justification for [his]
termination was pretextual.” See Phillips v. Mathews, 547 F.3d 905, 913 (8th Cir.
2008). Dakota Provisions, on the other hand, argues that Matta failed to present
5. While Matta has presented evidence of a physical impairment, he has not presented any evidence that he is a disabled individual as required by the Americans with Disabilities Act (ADA). See Faulkner v. Douglas Cnty. Neb., 906 F.3d 728, 732–33 (8th Cir. 2018) (“A plaintiff seeking to recover under the [ADA] must establish a prima facie case of discrimination [by establishing]: ‘(1) an ADA-qualifying disability; (2) qualifications to perform the essential functions of [their] position with or without reasonable accommodation; and (3) an adverse employment action due to [their] disability.’” (quoting Norman v. Union Pac. R.R. Co., 606 F.3d 455, 459 (8th Cir. 2010)). While we have not had an occasion to address a disability claim under SDCL 20-13-10, we have previously recognized that SDCL 20-13-10 is comparable to the corresponding federal discrimination law. Huck v. McCain Foods, 479 N.W.2d 167, 169 (S.D. 1991). -13- #30478
any evidence that his termination was in retaliation for filing a workers’
compensation claim, and emphasizes the documented concerns with Matta’s work
attendance before his workers’ compensation claim was filed.
[¶27.] SDCL 62-1-16 provides that “[a]n employer is civilly liable for wrongful
discharge if it terminates an employee in retaliation for filing a lawful workers’
compensation claim.” We have not previously addressed the showing necessary to
prove a retaliatory discharge claim under SDCL 62-1-16. However, in other
contexts, we have required an employee to present a prima facie case of retaliatory
discharge by a preponderance of the evidence, by showing the employee “‘(1) []
engaged [in a] protected activity; (2) [they] subsequently suffered adverse
employment action; and (3) [there was] a causal link between engaging in [the]
protected activity and the adverse employment action.’” Lord v. Hy-Vee Food
Stores, 2006 S.D. 70, ¶ 18, 720 N.W.2d 443, 449–50 (fourth alteration in original)
(quoting Leslie v. Hy-Vee Foods, Inc., 2004 S.D. 59, ¶ 11, 679 N.W.2d 785, 789).
Once a prima facie case of retaliation is established, the burden shifts to the
employer to produce a legitimate justification for the employee’s termination.
Leslie, 2004 S.D. 59, ¶ 11, 679 N.W.2d at 789. The employee must then prove that
the proffered reason for termination was a pretext for retaliation. Id. Ultimately,
the employee has the burden of proving the causal relationship between the
employee engaging in a protected activity and the adverse employment action. Id.
[¶28.] It is undisputed that Matta engaged in an activity protected by SDCL
62-1-16 when he filed a workers’ compensation claim and that he subsequently
suffered an adverse employment action. Thus, the dispositive issue is whether
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Matta has presented facts creating a genuine issue of material fact that a causal
link exists between Matta filing a workers’ compensation claim and his termination.
[¶29.] When analyzing whether a causal link has been established, this Court
has not required the employee to show that the protected activity was the only
reason for termination, and instead we have required the employee to show the
protected activity “was ‘merely a contributing factor’ in the decision to terminate his
employment.” Lord, 2006 S.D. 70, ¶ 20, 720 N.W.2d at 450 (quoting Wiehoff v. GTE
Directories Corp., 61 F.3d 588, 598 (8th Cir. 1995)). To establish a prima facie case
at the summary judgment stage, this Court has determined that a close proximity
in time between the protected activity and the employee’s termination may create
an inference of causation. Leslie, 2004 S.D. 59, ¶ 14, 679 N.W.2d at 790 (citing Kipp
v. Missouri Hwy. and Transp. Comm’n, 280 F.3d 893, 896–97 (8th Cir. 2002)). See
also Mathews v. Trilogy Commc’ns, Inc., 143 F.3d 1160, 1166 (8th Cir. 1998)
(concluding that a time lapse of two months between the protected activity and the
employee’s discharge may create an inference of a retaliatory motive); and Keys v.
Lutheran Fam. and Child.’s Servs. of Mo., 668 F.2d 356, 358 (8th Cir. 1981) (finding
that less than two months between a protected activity and an adverse employment
action supported an employee’s prima facie case of retaliatory discharge).
[¶30.] The evidence shows that Matta was terminated approximately one
month after he filed a workers’ compensation claim in early April. The proximity
between Matta’s workers’ compensation claim and his termination may be sufficient
to create a prima facie showing of a causal link between the two events, but Dakota
Provisions has set forth attendance issues during Matta’s probationary period as
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the legitimate reason for his termination. Thus, for summary judgment purposes
Matta had the burden to present facts creating a genuine issue of material fact that
Dakota Provisions’ stated reason for termination was pretextual. See Lord, 2006
S.D. 70, ¶ 19, 720 N.W.2d at 450 (“If the defendant produces a legitimate,
nonretaliatory reason, the burden shifts back to the plaintiff to prove by a
preponderance of the evidence that the stated reason is merely a pretext for
retaliation.”).
[¶31.] At summary judgment, when considering whether Dakota Provisions’
justification was pretextual, we must review the facts in the light most favorable to
Matta. See Johnson v. Matthew J. Batchelder Co., Inc., 2010 S.D. 23, ¶ 8, 779
N.W.2d 690, 693 (“[W]e view all evidence and favorable inferences from that
evidence in a light most favorable to the nonmoving party.” (alteration in original)
(quoting Stone v. Von Eye Farms, 2007 S.D. 115, ¶ 6, 741 N.W.2d 767, 769)).
“[M]ore substantial evidence of [retaliation] is required to prove pretext, because
evidence of pretext is viewed in the light of [the defendant’s] legitimate, non-
[retaliatory] explanation.” Davis v. Wharf Res. (USA), Inc., 2015 S.D. 61, ¶ 30, 867
N.W.2d 706, 717 (alterations in original) (quoting Jones v. United Parcel Serv., Inc.,
461 F.3d 982, 992 (8th Cir. 2006)).
[¶32.] The facts, when viewed in the light most favorable to Matta, show that
he was initially written up for attendance issues before filing a workers’
compensation claim and written up a second time and disciplined after filing for
benefits. Immediately prior to his termination, Matta reaggravated his injury on
April 30, and never returned to work. Dakota Provisions admitted to receiving
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Matta’s doctor’s note on May 1 recommending Matta remain off work until further
notice. The same day, Dakota Provisions placed a personnel action form into
Matta’s personnel file, indicating that he was terminated on May 1, 2020, for “poor
attendance during probationary period.” Matta was not informed of his termination
for more than a week and a half. Further, when Matta’s attorney inquired about
Matta’s termination, Dakota Provisions represented that Matta was terminated on
May 6, 2020, for missing work on May 1, 4, and 5 without notifying Dakota
Provisions. The letter from the HR Director represented that “this constitutes
grounds for termination as it is 3 days in a row—no call no show.”
[¶33.] Matta argues that these varying dates and reasonings indicate that
Dakota Provisions’ justification for terminating him was pretextual. However,
courts have indicated changes in the employer’s stated reasons for its employment
decision must change substantially over time to support a finding of pretext. See
Logan v. Liberty Healthcare Corp., 416 F.3d 877, 883 (8th Cir. 2005) (“Substantial
changes over time in the employer’s proffered reason for its employment decision
[may] support a finding of pretext.” (alteration in original) (citation omitted)). Thus
“slight elaborations” or further explanation of its employment decision generally are
not sufficient to provide a showing of pretext. Id. (citation omitted).
[¶34.] A review of the record in the light most favorable to Matta, presents
conflicts between the dates Dakota Provisions stated he was terminated and the
reason for his termination. The personnel form prepared by Dakota Provisions on
May 1 shows that Matta was terminated for attendance issues that occurred prior
to May 1. However, Dakota Provisions’ HR Director later indicated in a letter
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written to Matta’s attorney that Matta was terminated on May 6 because he missed
three consecutive days of work on May 1, 4 and 5 without notifying Dakota
Provisions. Not only does this explanation differ from the specific dates that were
offered in Dakota Provisions’ original justification for terminating Matta, but it is
also inconsistent with the facts available in the record. Dakota Provisions admitted
to receiving Matta’s doctor’s note on May 1 stating that Matta should not return to
work until he was able to be seen by an orthopedist on May 6. 6 Thus, Dakota
Provisions was informed that Matta would not be able to work until after that date.
[¶35.] Viewing the evidence in the light most favorable to Matta, a
reasonable jury could infer that his termination was a pretext for retaliation
against him for filing a workers’ compensation claim based upon the proximity of
the termination to the filing of his claim, the change in the stated termination
dates, and the inconsistent reasons provided for the termination. See Logan, 416
F.3d at 883. This is even more true when the second reason offered by Dakota
Provisions is unsupported by the undisputed evidence in the record before this
Court. See id. at 881 (“One method of proving pretext is to show that the employer’s
proffered explanation has no basis in fact.” (citation omitted)). Thus, genuine issues
of material facts remain as to whether Matta was terminated in retaliation for filing
a lawful workers compensation claim in violation of SDCL 62-1-16, and summary
judgment should not have been granted on this claim.
6. In response to Matta’s statement of undisputed facts, Dakota Provisions admitted that “[t]he said no work order was provided to Dakota Provisions on May 1, 2020, stating that [Matta] would be ‘off work’ until he could see an orthopedic doctor which was scheduled for May 6, 2020.” -18- #30478
Conclusion
[¶36.] We affirm the circuit court’s grant of summary judgment as to Matta’s
claim that he was terminated in violation of the alleged contract created by the
Policy as well as Matta’s claim that his termination violated public policy as stated
in SDCL 20-13-10. We reverse the circuit court’s grant of summary judgment with
respect to Matta’s claim for retaliatory discharge in violation of SDCL 62-1-16 and
remand for further proceedings.
[¶37.] KERN, SALTER, DEVANEY, and MYREN, Justices, concur.
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