A driver who complained about national origin discrimination to his employer, then subsequently terminated for sleeping on the job, was not discharged in retaliation for his complaints, the Eighth Circuit says.

As a result of a work injury, the employee was under doctor’s orders to perform stretching exercises upon the onset of back pain or after performing physical labor. During one assignment which caused him back pain, he sat down to rest with his head on his forearms, pushing his back up. A co-worker observed him, believed that he was sleeping, and reported this to a manager. The manager observed him for three minutes, said the employee’s head was down and eyes closed and that he never moved until the manager woke him up. The employee claimed that he saw the manager’s shoes, and explained that he was stretching, not sleeping.

After he was terminated, the driver charged that the company had used the incident as a pretext to retaliate against him for his prior complaints. The Court says that in determining pretext, “the key question is not whether the stated basis for termination actually occurred, but whether [the company] actually believed it to have occurred.” There was no factual dispute about the employer’s “good faith belief” that he was sleeping on the job, rules the Court in dismissing the case. Soto v. Core-Mark International, Inc.