author: BEAM, Circuit Judge.

text:
    Charlotte KOKOCINSKI, derivatively ON BEHALF OF MEDTRONIC, INC., Plaintiff-Appellant v. Arthur D. COLLINS, Jr.; William A. Hawkins; Gary Ellis; Richard H. Anderson; David L. Calhoun; Victor J. Dzau; Shirley Ann Jackson; James T. Lenehan; Denise M. O’Leary; Kendall J. Powell; Robert C. Pozen; Jean-Pierre Rosso; Jack W. Schuler; Michael R. Bonsignore; Gordon M. Sprenger; William R. Brody; Omar Ishrak; Medtronic, Inc., Defendants-Appellees Special Litigation Committee, Movant-Appellee
    No. 15-3519
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 19, 2016
    Filed: March 1, 2017

      Counsel who presented argument on behalf of the appellant was Francis A. Botti-ni, Jr., of La Jolla, CA. The following attorney(s) appeared on the appellant brief; Garrett D Blanchfield, Jr., of Saint Paul, MN, Albert Y. Chang, of La Jolla, CA, and Yury A. Kolesnikov, of La Jolla, CA.
    Counsel who presented argument on behalf of the appellees Collins, et al., was Linda T. Coberly, of Chicago, IL. Also appearing on Collins, et al., brief were Lee B. Muench of Chicago, IL; Michelle S. Grant of Minneapolis, MN, and Kristin K. Zinsmaster of Minneapolis, MN.
    Counsel who presented argument on behalf of Special Litigation Committee and Medtronic was Steve Gaskins, of Minneapolis, MN. The following attorney(s) appeared on the Medtronic and Special Litigation Committee’s brief; Scott Gregory Knudson, of Minneapolis, MN, Patrick S. Williams, of Minneapolis, MN, Robert W. Vaccaro, of Minneapolis, MN, Paul C Dwo-rak, of Minneapolis, MN., Jordan L. Weber, of Minneapolis, MN and Daniel P. Brees of Minneapolis, MN.
    Before GRUENDER, BEAM, and SHEPHERD, Circuit Judges.
   BEAM, Circuit Judge.

Charlotte Kokocinski brought a shareholder derivative action on behalf of Med-tronic, Inc., against current and former directors and officers of Medtronic, and against Medtronic as a nominal defendant. The district court dismissed the action on the basis of a report by a special litigation committee, and we now affirm.

1. BACKGROUND

From roughly 2006 to 2008 Medtronic was the subject of a well-publicized controversy involving whistle-blower lawsuits, settlement and eorporate-compliance-and-governance agreements with federal agencies, and a congressional and media investigations. These events stemmed from Medtronic’s alleged improper promotion to physicians of the “off-label” use of its “Infuse” product, a surgically implanted medical device that stimulates bone growth. Infuse was also the subject of a 2008 Public Health Notification by the Food and' Drug Administration (FDA). Medtronic’s revenue and share price suffered as a result of this negative publicity. In 2012, without first making a demand on Medtronic, Kokocinski brought a shareholder derivative action against Medtronic directors and officers (the individual defendants) seeking declaratory and injunctive relief and damages. The complaint alleged various bad acts and false and misleading statements by which the individual defendants violated § 14(a) of the Exchange Act, 15 U.S.C. § 78n(a), breached their fiduciary duties, wasted corporate assets, and had been unjustly enriched. Later that year, in response to demand letters and derivative complaints by other stockholders presenting similar allegations, Med-tronic’s board of directors (the Board) formed a special litigation committee (SLC) to investigate the claims. The district court dismissed Kokoeinski’s complaint without prejudice in 2013 for failing to establish demand futility. See Fed. R. Civ. P. 23.1(b). Kokocinski then exercised her statutory right to review Medtronic’s corporate records, Minn. Stat. § 302A.461, subd. 4, and in April 2014 she filed an amended complaint with bolstered allegations.

The SLC formed by Medtronic was initially composed of three members: John Matheson, a law professor and expert in corporate and business law; former Henne-pin County District Court Judge George McGunnigle; and former Governor of Utah Michael Leavitt. Of these three, only Governor Leavitt was a Board member. Governor Leavitt left the SLC in December 2012 due to the possible perception of in-terestedness due to his having formerly been the Secretary of Health and Human Services, which oversees the FDA, the agency tasked with approving Infuse. Professor Matheson and Judge McGunnigle proceeded to engage in an eighteen-month investigation in which they engaged an accountant, a loss-causation analyst, and an economist; retained independent legal counsel; reviewed over 2.6 million documents; and interviewed sixty individuals, including current and former directors, officers, and employees of Medtronic, Med-tronic sales representatives, consulting physicians, a physician who had been solicited to use Infuse, and one unaffiliated surgeon who had used the Infuse product. In May 2014, the SLC issued a 69-page report concluding that it would not be in Medtronic’s best interest to pursue litigation. It noted that setting forth detailed factual findings would not be in Medtronic’s interest as Medtronic was currently involved in securities fraud and personal injury litigation involving similar allegations. Further it noted that it did not find support for the allegations and rejected the claims of the demand letters and derivative complaints.

The individual defendants, Med-tronic, and the SLC (even though it was not a named party to the litigation and had not filed a motion to intervene) each brought a motion to dismiss Kokocinski’s amended complaint on the basis of the SLC’s report. Applying Minnesota law, the district court determined the SLC’s investigation and methodologies warranted deference to its report under the business-judgment rule (BJR), and it granted the motions. After entering judgment, the district court denied Kokocinski’s motion for relief from, or to amend, the judgment, and entered judgment on that motion as well. Kokocinski timely appeals from both memorandum orders and judgments, arguing that (1) the SLC was not properly formed; (2) it was not entitled to deference under the BJR; and (8) the district court committed reversible error in failing to permit the parties to engage in discovery.

II. DISCUSSION

Our standard of review on appeal depends on the proper way in which to construe the defendants’ motions made on the basis of the SLC’s report. The district court determined the motions should. be construed as akin to a motion seeking voluntary dismissal of a shareholder’s derivative action under Rule 23.1(c), borrowing from Rule 56 procedures. Borrowing a term from other cases, we will refer to the defendants’ motions collectively as a “motion to terminate” the litigation. Kokocin-ski argues that the motion should have been converted to a Rule 56 motion for summary judgment warranting de novo review because it relied on the SLC’s report, a matter outside the pleadings. This is a matter of first impression for our circuit.

The First Circuit, applying Delaware law, has followed the lead of Delaware courts and classified such a motion as a “hybrid summary judgment motion for dismissal,” reviewing de novo. Sarnacki v. Golden, 778 F.3d 217, 221 (1st Cir. 2015) (quoting Zapata Corp. v. Maldonado, 430 A.2d 779, 787 (Del. 1981)). Other circuits have regarded it as a Rule 56 motion, also reviewing de novo. E.g., Booth Family Trust v. Jeffries, 640 F.3d 134, 139 (6th Cir. 2011); Gaines v. Haughton, 645 F.2d 761, 769 (9th Cir. 1981), overruled on other grounds by Churchill v. The F/V Fjord (In re McLinn), 739 F.2d 1395, 1397 (9th Cir. 1984) (en banc). The Eleventh Circuit, looking to Delaware law, has instead construed a motion to terminate as one arising under Rule 23.1 and applied an abuse-of-discretion standard of review. Peller v. S. Co., 911 F.2d 1532, 1536 (11th Cir. 1990). Minnesota courts have not characterized such motions consistently. See Janssen, 662 N.W.2d at 889-90.

We agree that because of its reliance on the SLC’s report, and because it does not go to the adequacy of the pleadings, the defendants’ motion cannot be construed as a motion under Rule 12(b)(6). On the other hand, a ruling granting the motion would not go to the merits of Kokoeinski’s claims, and so it does not fit neatly into the summary-judgment box either. Further, unlike a motion for summary judgment, an assessment of the independence and adequacy of an SLC’s investigation involves making findings based on credibility determinations and the weighing of evidence, and in the event the motion is denied the movant is not entitled to litigate those fact questions afterwards. See Johnson v. Hui, 811 F.Supp. 479, 485 (N.D. Cal. 1991); Janssen v. Best & Flanagan, 662 N.W.2d 876, 889-90 (Minn. 2003) (holding that once an SLC’s investigation is deemed inadequate, suit must proceed to merits). Therefore, neither do we think it proper to construe the defendants’ motion to terminate as one arising under Rule 56.

We agree with the district court and the Eleventh Circuit that the closest' fit for a motion to terminate in the Federal Rules is Rule 23.1(c). That Rule states in part that “[a] derivative action may be settled, voluntarily dismissed, or compromised only with the court’s approval.” Although Rule 23.1(c) applies only to derivative plaintiffs, Burks v. Lasker, 441 U.S. 471, 485 n.16, 99 S.Ct. 1831 (1979), a shareholder’s derivative claim actually belongs to the corporation, Ross v. Bernhard, 396 U.S. 531, 538, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). Thus, a Rule 23.1(c) “voluntary dismissal” appears to be a close analog to a corporate defendant’s motion to terminate litigation which it possesses the right to pursue. Of corn’se, this similarity is only skin deep where, as here, the corporation is a nominal defendant antagonistic to the action. But in the absence of a better fit, Rule 23.1(c) is most closely concerned with the issues raised in a motion to terminate. Review of an SLC’s decision' and its investigative methodologies ensures a “disinterested independence and ... an unprejudicial exercise of judgment” into whether litigation is in the best interest of the corporation. Auerbach v. Bennett, 47 N.Y.2d 619, 419 N.Y.S.2d 920, 393 N.E.2d 994, 1001 (1979). Similarly, Rule 23.1 in part “clearly contemplate[s] judicial review of the conduct of derivative actions to insure, that the actions are in the best interests of the corporation.” Johnson, 811 F.Supp. at 484; see also 7C Charles A. Wright et al., Federal Practice & Procedure § 1839 (3d ed. 2007) (“[B]y requiring court approval and notice to the stockholders of any proposed dismissal or settlement, the corporate interests ... can better be protected from unfair or disadvantageous agreements.”).

This characterization of the defendants’ motion leads us to conclude the proper standard of review is for an abuse of the district court’s discretion. The district court’s inquiry on a motion to terminate involves determining whether the legal criteria of Minnesota law have been met based on its familiarity with the case, its weighing of the evidence, and- its credibility determinations. As the Supreme Court has held, abuse-of-discretion is an appropriate standard in circumstances in which the district court must apply a fact-intensive legal standard, particularly where: (1) the district court is better positioned than the reviewing court to decide the issue because of its familiarity with the' evidence-in such instances the normal “law-clarifying benefits” of the circuit courts will not be advanced with more searching review; and (2) the facts of each case- are of a “multifarious, fleeting, special, [and] narrow” nature resulting in close calls, so as not to be susceptible of “useful generalization.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401-05, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (quoting Pierce v. Underwood, 487 U.S. 552, 561-62, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)). Such is -the case here. The district court must assess the weight and credibility of the evidence in order to evaluate the independence and adequacy of the SLC’s investigation. In re UnitedHealth Grp. Inc. S’holder Derivative Litig. (UnitedHealth I), 754 N.W.2d 544, 561 (Minn. 2008). The range of circumstances district courts may face — the size of the corporation, the history and various relationships the SLC members may have with respect to the board and the corporation, the array of various methodologies an SLC may employ in its investigation, the nature and quality of its report, the size of the SLC, and the nature of the derivative claims— will result in myriad, case-specific situations, often vague, best able to be resolved with the experience and case familiarity possessed by the district court. We therefore review the district court’s decision for an abuse of its discretion.

A. The Board’s Resolution Establishing an SLC

Kokocinski argues that the Board never in fact formed an SLC to which deference could be afforded because the Board’s resolution establishing the SLC did not delegate enough authority. In forming an SLC, “[t]he key element is that the board delegates to a committee of disinterested persons the board’s power to control the litigation. A mere advisory role of the special litigation committee fails to bestow a sufficient legitimacy to warrant deference to the committee’s decision by the court.” Janssen, 662 N.W.2d at 884 (citation omitted). The Board’s resolution designated an SLC “that has complete power and authority to investigate the Derivative Claim and analyze the legal rights or remedies of the Company and determine whether those rights or remedies should be pursued.” The district court found the resolution adequate, not least because the resolution’s language was taken almost, directly from Minnesota Statutes § 302A.241, subdivision 1, which both authorizes boards to form and sets out the duties of an SLC. Further, it noted that substantially similar language was used in a resolution establishing an SLC deemed independent in In re UnitedHealth Group Inc. Shareholder Derivative Litigation (UnitedHealth II), 591 F.Supp.2d 1023, 1028 (D. Minn. 2008). Kokocinski appears to make two arguments in her briefing: (1) that the SLC must be given authority itself to “pursue” litigation of the claims should it decide to do so; and (2) that the resolution must make clear that the SLC’s decision to pursue the claims or not is binding on the Board.

Kokocinski relies on Janssen to argue that the Board must delegate to the SLC the authority to pursue, i.e., to itself direct or conduct, the litigation. But the express language in Janssen — “that the board delegates to a committee of disinterested persons the board’s power to control the litigation,” 662 N.W.2d at 884-does not compel a reading that significantly deviates from the normal rule that the board must simply delegate the authority to the SLC to make a binding decision on whether to pursue litigation, and nothing more. Minnesota case law both before and after Janssen refer only to an SLC’s “recommendation.” UnitedHealth I, 754 N.W.2d at 559; Drilling v. Berman, 589 N.W.2d 503, 506-07 (Minn. Ct. App. 1999). Janssen itself sets out this narrower take— SLCs “are charged with ... deciding whether pursuit of litigation is in the best interests of the corporation.” 662 N.W.2d at 884 (emphasis added). Further, the Janssen court described the resolution at issue in that case as instructing the SLC “to determine on behalf of [the corporation]’s board of directors whether or not [the corporation] should join in legal action against” a third party. Id. at 880 (emphasis added). The court’s analysis of the adequacy of the resolution makes no mention that this language is insufficient. Id. at 888-89. Therefore we read Janssen as merely setting out the status quo of Minnesota law. Kokocinski cites no controlling authority for the proposition that the term “control” as used in that case means something more than this.

Kokocinski also argues that the resolution does not state clearly enough that the SLC’s decision is binding. She points to the resolution in Toretta v. Lachinski, No. A12-0779, 2013 WL 491523 (Minn. Ct. App. Feb. 11, 2013), deemed adequate by the Minnesota Court of Appeals, which stated, “Any action duly taken or decision duly made by the [SLC] within the course and scope of its authority shall be binding on the Companies.” Id. at *9 (alteration in original) (emphasis added). But the resolution here follows precisely the language of § 302A.241. We think it would be passing strange to hold that a resolution employing the very statutory language setting forth the powers and duties of an SLC is itself insufficient as a matter of Minnesota law to form an SLC. That provision states only that an SLC “consider” whether claims “should be pursued.” Minn. Stat. § 302A.241, subd. 1. In any event, we think the language also meets the standard articulated in Jans-sen — that the SLC’s role be more than advisory. The SLC was given “complete power and authority” to determine — i.e., to “decide or settle ... conclusively and authoritatively,” Determine, The American Heritage Dictionary (2d college ed. 1982)— whether the litigation should be pursued— i.e., whether the Board has an “obligation or duty” to do so, Should, The American Heritage Dictionary. Further, the Board’s bylaws task SLCs with determining “whether it is in the best interests of the corporation” to pursue litigation, and under Minnesota law a director is obligated under her fiduciary duty to the corporation “to act ... in the best interests of the corporation.” Shepherd of the Valley Lutheran Church of Hastings v. Hope Lutheran Church of Hastings, 626 N.W.2d 436, 442 (Minn. Ct. App. 2001). Finally, the Board’s bylaws state both that the SLC is not subject to the control of the Board and that “[t]he good faith determinations of the [special litigation] committee are binding upon the corporation and its directors.” Thus it is abundantly clear that the Board, under the resolution, its fiduciary duties, and its bylaws, is bound by the SLC’s decision whether to pursue litigation. This is enough to constitute an SLC under Minnesota law.

B. Deference to the SLC Under the Business-Judgment Rule

Kokocinski next argues that the district court erred in deferring to the SLC under the BJR. Minnesota law provides that a corporate board of directors may form “a special litigation committee consisting of one or more independent directors or other independent persons to consider legal rights or remedies of the corporation and whether those rights and remedies should be pursued.” Minn. Stat. § 302A.241, subd. 1. If a shareholder brings derivative claims based on a cause of action investigated by an SLC, and the SLC determines the corporation should not pursue those claims, the defendant may move the district court to defer to the SLC’s decision and dismiss the complaint under the BJR. The BJR is “a presumption ‘developed by state and federal courts to protect boards of directors against shareholder claims that the board made unprofitable business decisions.’ ” United-Health I, 754 N.W.2d at 551 (applying B JR to decision by SLC) (quoting Janssen, 662 N.W.2d at 882).

The two predominant analyses of motions to terminate derivative litigation on the basis of an SLC’s recommendation were set out in Auerbach, 419 N.Y.S.2d 920, 393 N.E.2d 994, and Zapata, 430 A.2d 779. Auerbach emphasized deference to the SLC’s business judgment, evaluating only its investigative methodologies and procedures. Zapata added an additional step, wherein the court applies its own independent business judgment to the SLC’s substantive decision. The Minnesota Supreme Court, following the Auerbach approach, has instructed that courts must apply the BJR and defer to an SLC’s decision “if the proponent of that decision demonstrates that (1) the members of the SLC possessed a disinterested independence and (2) the SLC’s investigative procedures and methodologies were adequate, appropriate, and pursued in good faith.” UnitedHealth I, 754 N.W.2d at 561. Koko-cinski argues that neither element has been met here.

1. Whether the SLC Possessed a Disinterested Independence

In UnitedHealth I, the Minnesota Supreme Court stated that whether an SLC is disinterested and independent should be assessed by considering the totality of the circumstances. 754 N.W.2d at 560. The court set out a non-exhaustive list of eleven factors to consider. Id. at 560 n.11. The district court carefully considered the factors and determined that the SLC was disinterested and independent. Kokocinski does not object to the district court’s overall weighing of those factors, but rather argues specifically that the SLC was not disinterested and independent because: (1) its members were compensated in violation of the Board’s bylaws; (2) its members were paid excessive compensation; (3) and its members’ compensation and access to indemnification were controlled by the conflicted Board.

SLC members may be composed of “independent directors or other independent persons.” Minn. Stat. § 302A.241, subd. 1. Whether or not an SLC member is a director, however, she is “deemed to be [a] director[ ],” id. § 302A.241, subd. 7, for the purposes of Minnesota law regarding director standards of conduct, id. § 302A.251, conflicts of interest, id. § 302A.255, and indemnification, id. § 302A.521. The Board’s bylaw 2.9 states in relevant part:

Directors who are not salaried officers of the corporation shall receive such fixed sum and expenses per meeting attended or such fixed annual sum or both as shall be determined from time to time by resolution of the Board of Directors. Nothing herein contained shall be construed to preclude any director from serving this corporation in any other capacity and receiving proper compensation therefor.

The SLC members were paid at an hourly rate, rather than a sum per meeting or per annum. The district court apparently agreed with Kokocinski that the SLC members’ status as directors under Minnesota law meant that they were directors for the purpose of bylaw 2.9. But it noted that the final sentence of that provision allows for “proper compensation” for directors serving Medtronic in “any other capacity,” and it reasoned serving on the SLC was such an “other capacity.” The SLC members, both lawyers, were paid their standard hourly rate and therefore the district court concluded that their comr pensation was not an improper personal benefit.

Kokocinski argues first that the SLC members are deemed to be directors under Minnesota law, and so their method of compensation violated bylaw 2.9. She reasons that because their compensation violates the bylaws, the activities they conducted for that compensation were ultra vires. We reject this argument. To begin with, it is a non sequitur to conclude from the fact that Minnesota law deems SLC members to be directors for three limited purposes — standards of conduct, conflicts of interest, and indemnification — that they must be deemed directors for all purposes in interpreting the Board’s bylaws. Those bylaws indicate, to the contrary, that SLC members are not directors by virtue of their membership on the SLC. Bylaw 2.10 states that committee members “need not be directors,” and that an SLC is to be composed of “two or more disinterested directors or other disinterested persons.” Neither Professor Matheson nor Judge McGunnigle was a Board member, and so we do not even concede, as the district court appeared to, that they were directors for the purposes of 2.9. But even if we did agree with that assessment we would reach the same conclusion as the district court — that they were serving the Board in an “other capacity.” Further, it is not clear that a violation of the bylaws’ rules on compensation would, per se, mean the SLC was not independent. Under the mul-ti-factor, totality-of-the-cireumstances approach set forth in UnitedHealth I, this would only be one factor to consider. Kok-ocinski does not offer any meaningful argumentation on why this one factor would tip the balance in her favor. Finally, if the provision on compensation was violated, it is not clear why this would render the SLC’s actions ultra vires, as their activities were inarguably within the ambit of authority delegated them by the Board’s resolution. Kokocinski appears to conflate the act of payment — which if made in violation of the bylaws may very well be ultra vires — with the SLC’s act of investigating legal rights and remedies, which is itself not implicated by bylaw 2.9.

Second, Kokocinski argues that the members were paid excessive compensation because they were paid “presumably in excess of several hundreds of thousands of dollars.” Kokocinski notes that the SLC members are seasoned lawyers with presumably high rates and that they took eighteen months to investigate and complete their report. Minnesota law precludes articles of incorporation from limiting the personal liability of a director “for any transaction from which the director derived an improper personal benefit.” Minn. Stat. § 302A.251, subd. 4(d). Koko-cinski argues that the SLC members’ excessive compensation is just such an improper personal benefit, which exposes them to liability and thereby renders them interested in the results of the investigation. In our view, it is difficult to see how payment of the SLC members’ standard hourly rate as attorneys could be considered improper. If anything, an hourly rate encourages thorough, time-intensive investigation. Moreover, it would be unfair to boards to encourage them to find competent, disinterested professionals to serve on an SLC, while finding that payment to those professionals of their standard rates constituted excessive compensation.

Third, Kokocinski argues that because the conflicted Board set the SLC members’ compensation, and because it determines whether they are eligible for indemnification, Minn. Stat. § 302A.521, subd. 6(1), the SLC members were not disinterested and independent. We find this fact alone insufficient to overcome Medtronic’s showing of independence, particularly in light of the fact that this arrangement appears to be exactly what is contemplated under Minnesota law. Kokocinski offers no evidence that either the SLC members’ compensation or indemnification was contingent on their recommendation. The district court did not abuse its discretion in determining that the SLC was independent and disinterested.

2. Whether SLC’s Investigative Methodologies and Procedures Were Adequate, Appropriate, and Pursued in Good Faith

Kokocinski next argues that the SLC’s report was deficient because it did not address with sufficient particularity the allegations raised in her complaint. To show that an investigation was adequate, appropriate, and pursued in good faith under Minnesota law, “the proper inquiry is into the adequacy of the committee’s procedures and methodologies as a whole.” Drilling, 589 N.W.2d at 509. A district court’s review of the SLC’s investigation must be “robust,” UnitedHealth I, 754 N.W.2d at 559, so as to ensure that the SLC engaged in a “comprehensive weighing and balancing of factors” including the corporation’s economic health, internal relations, public relations, and “other factors common to reasoned business decisions.” Janssen, 662 N.W.2d at 889. However, “[w]hat has been uncovered and the relative weight accorded in evaluating and balancing the several factors and considerations are beyond the scope of judicial concern.” Drilling, 589 N.W.2d at 508 (emphasis omitted) (quoting Auerbach, 419 N.Y.S.2d 920, 393 N.E.2d at 1003). “Factors underlying the decision include: (1) the length and scope of the investigation; (2) the committee’s use of independent counsel or experts; (3) the corporation’s or the defendants’ involvement, if any, in the investigation; and (4) the adequacy and reliability of the information supplied to the committee.” UnitedHealth II, 591 F.Supp.2d at 1029.

The SLC’s report stated, “The SLC investigated the allegations in the demand letters and derivative complaints” and “considered the legal and factual strengths and weaknesses of all of the claims.” After setting out a non-exhaustive list of twenty-seven factors it considered, the SLC concluded litigation would not be in Medtronic’s best interest and that “it ha[d] not found support for and rejected] the core proposition of the demand letters and derivative complaints.” The district court concluded on the basis of the factors quoted above that the investigation was adequate, appropriate, and pursued in good faith. Kokocinski argues that the SLC’s report is inadequate because it does not lay out specific factual findings and documents it relied upon, because it does not specifically address particular allegations in her complaint, and because it did not consider then-pending litigation in an action that had been filed shortly before the report was issued.

We conclude that the SLC’s investigation easily met the requirements of Minnesota’s BJR. The investigation was extensive in both its length and scope. The SLC reviewed over 2.6 million documents and' interviewed sixty individuals over an eighteen month period. It relied on the advice of independent experts and counsel. Koko-cinski presents no evidence that Medtronic or the individual defendants were involved in the investigation, and she has not raised any complaint about the quality of the information received. Kokocinski primarily relies upon Janssen, but that case involved an SLC with a single member who neglected to interview the plaintiff or the plaintiffs attorneys and who “gave no indication that he had undertaken the careful consideration of all the germane benefits and detriments to” the corporation. 662 N.W.2d at 889. Here, by contrast, the SLC laid out twenty-seven factors it considered, touching on myriad aspects of Medtronic’s business, including its economic health, officer and director responsibility, the evidence, the nature of the legal claims, credibility of the witnesses, policies of federal law, findings of previous investigations, Medtronic’s relationship with its customers, employee morale, and the effect on Medtronic’s future business relationships. In addition, the SLC’s report stated that it considered “the existence of and possible effects on parallel litigation in state and federal courts.” As to Kokocinski’s arguments, we agree with the district court that, in effect, Kokocinski seeks review of the substance and rationality of the SLC’s decision. This is something we are precluded from reviewing under Minnesota law. We find no abuse of discretion in the district court’s determination that the SLC’s investigation was adequate, appropriate, and pursued in good faith.

C. Discovery

Finally, Kokocinski argues that it was reversible error for the district court to decline to order discovery before deciding on the motion to terminate. “We review the district court’s discovery decisions for an abuse of discretion.” Schoffstall v. Henderson, 223 F.3d 818, 822 (8th Cir. 2000). “Our review of questions concerning discovery matters is very deferential. The trial court is afforded great latitude in such matters, and this court will not generally interfere with the trial court’s ruling.” SDI Operating P’ship v. Neuwirth, 973 F.2d 652, 655 (8th Cir. 1992). Both of the seminal cases on termination of a derivative claim by an SLC treat discovery as discretionary. See Zapata, 430 A.2d at 788 (“Limited discovery may be ordered to facilitate such inquiries.”); Auerbach, 419 N.Y.S.2d 920, 393 N.E.2d at 1003-04. The district court concluded that “the evidence available was enough to establish the SLC’s independence and the validity of its methodology.”

Kokocinski argues that further discovery would have allowed access to documents relating to: compensation of the SLC’s members; formation of the SLC and selection of its members; adoption of the SLC’s recommendations; and retention and compensation of experts consulted by the SLC. Kokocinski primarily relies on Parkoff v. General Telephone & Electronics Corp., 53 N.Y.2d 412, 442 N.Y.S.2d 432, 425 N.E.2d 820 (1981), which noted that ‘⅞ would be unreasonable to hold plaintiff in cases such as this to the customary requirement that he show that facts essential to the defeat of the motion may exist although they cannot be stated” where “all possible evidentiary data with respect to the areas of permissible inquiry were within the exclusive possession of defendants.” Id., 442 N.Y.S.2d 432, 425 N.E.2d at 822. But that case dealt with a peculiar situation in which the lower court had essentially placed on the plaintiff the burden of showing fraud or bad faith in order to be permitted to engage in discovery. Nothing of the sort exists in the present case.

The defendants met their burden with affidavits including the SLC’s report, demand letters and complaints from shareholders, the Board’s resolution, and Med-tronic’s marketing policies. Kokocinski filed- an affidavit in opposition that included the Board’s bylaws and a letter from counsel for the SLC refusing a request for specific information on how the SLC members were compensated, but acknowledging that they were paid their standard hourly rates. Presented with this and other evidence, the district court exercised its sound discretion in concluding that discovery was not -necessary. Although Kokocin-ski has identified areas she would like to have investigated further, she points to no indication in the existing evidence that further discovery may be fruitful. “To speculate that something might be caught on a fishing expedition provides no basis to postpone decision” on a motion to terminate. Auerbach, 419 N.Y.S.2d 920, 393 N.E.2d at 1004. To the extent any object of discovery would go to the substantive decision by the SLC, that is irrelevant to the analysis under UnitedHealth I, which examines only the procedural reliability of the investigation. Given the deference we afford discovery matters, we do not believe the district court abused its discretion in denying Kokocinski’s motion for discovery.

III. CONCLUSION

For the foregoing reasons, we affirm the district court.

      . The Honorable John R. Tunheim, Chief Judge, United States District Court for the District of Minnesota.

      . An off-label use is one that has not been approved by the Food and Drug Administration.

      . Rule 23.1 imposes certain prerequisites, pleading requirements, and procedures specific to derivative shareholder suits.

      . At all times relevant to this dispute Med-tronic was incorporated in Minnesota. Therefore, Minnesota law governs application of the BJR to the SLC’s recommendations respecting derivative state law claims. Burks v. Lasker, 441 U.S. 471, 478, 99 S.Ct. 1831, 60 L.Ed.2d 404 (1979). When a derivative suit raises a federal question, the law of the state of incorporation ”govern[s] the authority of independent directors to discontinue derivative suits to the extent such [state] law is consistent with the policies of” the asserted federal right. Id. at 486, 99 S.Ct. 1831. In Abbey v. Control Data Corp., 603 F.2d 724, 731-32 (8th Cir. 1979), we applied Burks in concluding that a claim under § 14(a) of the Exchange Act was properly dismissed under state law. But see Galef v. Alexander, 615 F.2d 51, 62-64 (2d Cir. 1980) (holding dismissal of § 14(a) claim under BJR would frustrate federal policy). Abbey set out a fact-specific analysis that does not conclusively dictate the applicability of state law to the § 14(a) claim brought under the circumstances of this case. Neither party, however, disputes the issue and so we will assume without deciding that Minnesota law governs the SLC's recommendation respecting Koko-cinski’s federal as well as state claims.

      . Kokocinski also argues that the SLC lacks standing in this appeal because it is not a party to the litigation and did not move to intervene. The issues in this case are properly before us on the basis of Medtronic’s and the individual defendants’ motions and so we do not think it is necessary to address this issue. Under Minnesota law, the burden of proving the elements of the BJR have been met lies with the proponent of the SLC’s decision, In re UnitedHealth Grp. Inc. S'holder Derivative Litig.; 754 N.W.2d 544, 561 (Minn. 2008), and Minnesota case law indicates such a proponent need not be the SLC itself, e.g., Janssen v. Best & Flanagan, 662 N.W.2d 876, 879 (Minn. 2003) (reviewing ruling on motion to dismiss by corporate board based on recommendation by SLC); Drilling v. Berman, 589 N.W.2d 503, 505-06 (Minn. Ct. App. 1999) (same). So too as a procedural matter in the federal courts. Seidl v. Am. Century Cos., 799 F.3d 983, 989 (8th Cir. 2015). In addition we note that although the SLC is a part of this litigation as movant-appellant, Kokocinski has not moved this court to dismiss the SLC from this appeal.

      . In Abbey, 603 F.2d at 727, and Seidl, 799 F.3d at 989, we reviewed this type of motion, but in neither case did we address the issue of how the original motions to terminate should have been construed. “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” United States v. Knowles, 817 F.3d 1095, 1097 (8th Cir. 2016) (quoting Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925)).

      . Obviously this inquiry entails findings of fact, which we typically review for clear error. But “[w]hen an appellate court reviews a district court's factual findings, the abuse-of-discretion and clearly erroneous standards are indistinguishable: A court of appeals would be justified in concluding that a district court had abused its discretion in making a factual finding only if the finding were clearly erroneous.” Cooter, 496 U.S. at 401, 110 S.Ct. 2447.

      . Kokocinski also raises the fact that Judge McGunnigle owned 450 shares of Medtronic stock. However, as the district court noted, this actually aligns him with Medtronic's interest in the litigation. Furthermore, McGun-nigle disclosed his ownership and directed his financial advisor to refrain from buying or selling Medtronic stock during the investigation. The district court correctly concluded under these circumstances that this stock ownership did not render him interested.

      . We rely on the foregoing reasons as well to affirm the district court’s denial of Kokocin-ski’s motion for relief from, or to amend, the judgment. We decline Kokocinski’s request to have these issues certified to the Minnesota Supreme Court, as we do not believe the requisite conditions for certification as set forth in Hatfield ex rel. Hatfield v. Bishop Clarkson Memorial Hospital, 701 F.2d 1266 (8th Cir. 1983) (en banc), have been met in this case. Further, we deny Appellant's Motion for Request for Judicial Notice, as the referenced materials do not affect our decision.


source: Caselaw Access Project

author: BENTON, Circuit Judge. LOKEN, Circuit Judge,

license: Public Domain

text:
    LaKeysia WILSON, Plaintiff-Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES, Defendant-Appellee
    No. 16-1174
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 20, 2016
    Filed: March 1, 2017

      Counsel who presented argument and appeared on the brief on behalf of the appellant was Austin Porter, Jr., of Little Rock, AR.
    Counsel who presented argument and appeared on the brief on behalf of the appellee was Amanda Land, of Little Rock, AR.
    Before LOKEN, BEAM, and BENTON, Circuit Judges.
   BENTON, Circuit Judge.

The Arkansas Department of Human Services (DHS) terminated LaKeysia Y. Wilson, an African-American female, as a program supervisor. She sued DHS alleging disparate treatment on account of race, and retaliation in violation of Title VII, 42 U.S.C. §§ 2000e-2 and 2000e-3(a). The district court dismissed both claims. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part and reverses in part.

I.

In June 2011, Wilson was hired as a field investigator at DHS. In 2013, DHS terminated another African-American field investigator, Sharon Meeks, for violating DHS policy. Meeks filed a discrimination charge with the Equal Employment Opportunity Commission and an internal grievance with DHS. A State Appeal Panel ordered her reinstated. After DHS said there were no available positions, Meeks applied for an open program-supervisor position in the Division of Aging and Adult Services.

Patricia Robins, Wilson’s Caucasian supervisor, led the investigation resulting in Meeks’s termination. Robins urged Wilson to apply for the same open program-supervisor position that Meeks applied for. Wilson says that Robins urged her to apply because Robins “was determined to thwart the efforts of Mrs. Meeks.” Wilson and Meeks were the only applicants interviewed. In March 2014, Wilson got the job — a promotion to program supervisor. DHS then re-hired Meeks in Wilson’s old position, but fired her three months later.

Shortly before and shortly after her promotion, Wilson received positive performance evaluations. She alleges that after Meeks was fired, Robins began to unfairly criticize her work performance. On June 30, Robins gave Wilson a choice between demotion or termination, but then stripped her of supervisory duties on July 2.

Wilson filed a charge of discrimination with the EEOC on September 8, 2014, alleging harassment based on race and disability. Three weeks later, Wilson was placed on a Performance Improvement Plan (PIP). The next week, she received a written warning for work that a Caucasian female employee did not accomplish. Wilson was terminated on October 22, six weeks after filing the EEOC charge. The next day, Wilson filed a second EEOC charge alleging that between September 9 and October 22, she “was disciplined and discharged in retaliation for filing a previous charge and because of my race.”

Wilson sued DHS alleging disparate treatment, retaliation, and harassment. The district court dismissed the harassment claim as time-barred, and the disparate treatment and retaliation claims for failure to state a claim. Wilson appeals the dismissal of her disparate treatment and retaliation claims.

II.

Wilson argues that the district court erred in dismissing her claim for disparate treatment “on account of her race, when she was disciplined for something that a Caucasian female employee did not accomplish.” A plaintiff can often avoid summary judgment with evidence showing instances of dissimilar discipline. See, e.g., Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994).

The district court concluded that Wilson did not state a plausible claim for disparate treatment because “a written warning does not constitute an adverse employment action.” See Singletary v. Mo. Dep’t of Corr., 423 F.3d 886 (8th Cir. 2005) (holding that placement on administrative leave pending a disciplinary investigation was not adverse employment action where the plaintiff maintained the same pay, grade, and benefits). See also Boss v. Castro, 816 F.3d 910, 918 (7th Cir. 2016) (“[P]lacement on a PIP ... is simply not materially adverse in the discrimination context.”). But Wilson’s disparate treatment claim suffers from a more serious defect: not alleging disparate treatment. Wilson’s claim of discipline “for something that a Caucasian female employee did not accomplish” does not allege that the Caucasian employee was not disciplined or received less discipline. Without an allegation of disparate treatment, this claim fails.

III.

Wilson argues that the district court erred in dismissing the retaliation claim. This court reviews de novo the grant of a motion to dismiss. Dunbar v. Wells Fargo Bank, N.A., 709 F.3d 1254, 1256 (8th Cir. 2013). “[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible “where the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Blomker v. Jewell, 831 F.3d 1051, 1055 (8th Cir. 2016) (quotation omitted). “The plausibility standard ... asks for more than a sheer possibility that a defendant has acted unlawfully,” or “more than a mere possibility of misconduct.” Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937. “[T]he complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (citation omitted).

For a prima facie case, Wilson must show: “(1) she engaged in statutorily protected conduct; (2) she suffered an adverse employment action; and (3) a causal connection exists between the two.” Wells v. SCI Mgmt., L.P., 469 F.3d 697, 702 (8th Cir. 2006).

“[I]t is not appropriate to require a plaintiff to plead facts establishing a prima facie case” under McDonnell Douglas. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (holding that an employment discrimination complaint need not contain specific facts establishing a prima facie case under McDonnell Douglas). “The plaintiffs burden at the prima facie case stage of the analysis is not onerous.” Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1119 (8th Cir. 2006) (citation omitted), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031, 1058 (8th Cir. 2006) (en banc). See Littlejohn v. City of New York, 795 F.3d 297, 309, 316 (2d Cir. 2015) (emphasis in original) (explaining that “the allegations in the complaint need only give plausible support to the reduced prima facie requirements that arise under McDonnell Douglas,” which in turn “reduces the facts needed to be pleaded under Iqbal”).

Here, Wilson sufficiently pled the first two elements of the prima facie case: protected conduct by filing the EEOC complaint, and an adverse employment action by being fired. The issue is the causal connection between the filing and the firing.

A plaintiff must allege but-for causation. Shirrell v. St. Francis Med. Ctr., 793 F.3d 881, 888 (8th Cir. 2015) (holding that McDonnell Douglas cases are subject to the but-for causation standard set forth in University of Texas Southwestern Medical Center v. Nassar, — U.S. -, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013)). Compare EEOC v. Ford Motor Co., 782 F.3d 753, 770 (6th Cir. 2016) (en banc) (holding that to establish a prima facie case for retaliation under McDonnell Douglas, Nassar requires a showing of but-for causation), with Foster v. Univ. of Maryland-Eastern Shore, 787 F.3d 243, 248-52 (4th Cir. 2015) (observing the circuit split' and holding that under McDonnell Douglas, “Nassar does not alter the causation prong of a prima facie case of retaliation”).

The dissenting opinion emphasizes the Supreme Court’s point that the but-for standard prevents financial and reputa-tional costs for blameless employers. See Nassar, 133 S.Ct. at 2531-32. The Court’s hypothetical — quoted by the dissenting opinion — focuses this concern at the summary judgment stage. See id. at 2532 (emphasis added) (“Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage.”). See also Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam) (affirming summary judgment for the employer after discussing potential negative effects of contrived retaliation claims).

Under the “simplified notice pleading standard” that governs McDonnell Douglas retaliation claims, summary judgment motions — not motions to dismiss — should dispose of most unmeritorious claims. See Swierkiewicz, 534 U.S. at 512, 122 S.Ct. 992 (emphasis added) (“This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.”); id. at 512-13, 122 S.Ct. 992 (quotation omitted) (“The provisions for discovery are so flexible and the provisions for pretrial procedure and summary judgment so effective, that attempted surprise in federal practice is aborted very easily, synthetic issues detected, and the gravamen of the dispute brought frankly into the open for the inspection of the court.”); Johnson v. City of Shelby, — U.S. -, 135 S.Ct. 346, 347, 190 L.Ed.2d 309 (2014) (per cu-riam) (citing Swierkiewicz approvingly).

Wilson alleges she was a “victim of ... retaliation, after having complained about discrimination based on race, when she was ... ultimately terminated.” Construed most favorably to her, and viewing the complaint as a whole, the phrase “victim of ... retaliation, after having complained” alleges but-for causation. In terms of the factual allegations, Wilson emphasizes the six-week span between her EEOC charge and termination. Even at summary judgment, “[a] plaintiff can establish a causal connection between his complaints and an adverse action through circumstantial evidence, such as the timing of the two events.” Turner v. Gonzales, 421 F.3d 688, 696-97 (8th Cir. 2005). See Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013) (“[T]he but-for causation standard does not alter the plaintiffs ability to demonstrate causation at the prima facie stage on summary judgment or at trial indirectly through temporal proximity.”). As the First Circuit says, “We do not rule out that some pleadings may allege a temporal gap so attenuated as not to meet the plausibility standard for surviving motions to dismiss, but this case is a far cry from that.” Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 25 (1st Cir. 2014) (five-month interval). Accord Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 92 (2d Cir. 2015) (two-month interval). Cf. Breeden, 532 U.S. at 273-74, 121 S.Ct. 1508 (observing that three-month and four-month periods are insufficient evidence of causality). On the allegations here, the six-week period between the EEOC charge and the termination plausibly alleges a but-for causal connection.

This court considers “whether there are lawful, ‘obvious alternative explanation[s]’ for the alleged conduct” that would render Wilson’s complaint implausible. McDonough v. Anoka Cty., 799 F.3d 931, 946 (8th Cir. 2015), quoting Iqbal, 556 U.S. at 682, 129 S.Ct. 1937. “Not every potential lawful explanation for the defendant’s conduct renders the plaintiffs theory implausible.... [A] defendant is not entitled to dismissal if the facts are merely consistent with lawful conduct.” Braden, 588 F.3d at 597. “If the alternative explanations are not sufficiently convincing, however, the complaint states a plausible claim for relief, because ferreting out the most likely reason for the defendants’ actions is not appropriate at the pleadings stage.” McDonough, 799 F.3d at 946 (citation omitted). “Requiring a plaintiff.to rule out every possible lawful explanation for the conduct he challenges ... would impose the sort of probability requirement at the pleading stage which Iqbal 'and Twom-bly explicitly reject.” Braden, 588 F.3d at 597 (quotation omitted).

Here, the factual allegations consistent with an alternative explanation that Wilson was fired for poor job performance are: 1) In June, Robins criticized Wilson’s work performance and gave her the option of demotion or termination; 2) On September 30, Wilson was placed on a PIP; and, 3) In her second EEOC charge, attached to the complaint, Wilson wrote, “I was told that I was discharged for performance and for getting a second warning during a performance improvement period.”

These facts are not an obvious alternative explanation. Cf. Iqbal, 556 U.S. at 682, 129 S.Ct. 1937 (finding that “disparate, incidental impact on Arab Muslims” from the 9/11 investigation was an “obvious alternative explanation” to allegations that the government discriminated based on race or religion). The supervisor’s criticism of Wilson is not an “obvious alternative explanation” to Wilson’s complaint because there is no explanation why Wilson was criticized. See Blomker, 831 F.3d at 1060-61 (dismissing the complaint where an eight-page detailed attachment showed plaintiff was fired because of a years-long disciplinary history that included unwelcome physical contact with a supervisor, inappropriate language in the workplace, and failure to follow e-mail protocol). To construe Wilson’s placement on a PIP as an allegation of poor performance, and not as part of the retaliation, would “invert the principle that the complaint is construed most favorably to the nonmoving party.” See Braden, 588 F.3d at 597 (citation omitted).

The quoted sentence from Wilson’s second EEOC charge restating DHS’s reason for her firing is unlike the detailed factual allegations in Blomker. See Blomker, 831 F.3d at 1060-61. An employee’s one-sentence restatement of the employer’s basis for termination is not an “obvious alternative explanation” to a retaliation charge. Here, “the complaint states a plausible claim for relief, because ferreting out the most likely reason for the defendants’ actions is not appropriate at the pleadings stage.” McDonough, 799 F.3d at 946. Without a detailed explanation why DHS terminated Wilson, DHS’s alternative explanation is not “sufficiently convincing.” See id. See also Blomker, 831 F.3d at 1060-61; Braden, 588 F.3d at 597 (explaining Iqbal and Twombly “explicitly reject” a “probability requirement at the pleading stage” that plaintiff rule out “every possible lawful explanation”).

While the factual allegations here may be consistent with termination for poor performance, they are not an “obvious alternative explanation” that render Wilson’s claim implausible. Wilson’s claim “per-mites] the court to infer more than the mere possibility of misconduct.” See Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

The district court erred in dismissing the retaliation claim.

⅝ ⅜: ⅜ ⅜ ⅜ ⅝ ⅜

The judgment is affirmed in part, reversed as to the retaliation claim, and remanded for proceedings consistent with this opinion.

LOKEN, Circuit Judge,

concurring in part and dissenting in part.

I concur in the decision to affirm dismissal of LaKeysia Wilson’s disparate treatment claim. I respectfully dissent from the decision to reverse dismissal of her retaliation claim. In my view, Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and University of Texas Southwestern Medical Center v. Nassar, — U.S. -, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), properly read, require that the district court be affirmed.

In reviewing the retaliation claim, there are three basic principles we must apply. First, Wilson did not need to plead a prima facie case, which is an evidentiary rather than a pleading standard, to survive DHS’s Rule 12(b)(6) motion to dismiss. See Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016), citing Swierkiewicz v. Sorema, 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Second, “to survive a motion to dismiss, [an employment discrimination] complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible “where the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Blomker, 831 F.3d at 1055 (quotation omitted). “The plausibility standard ... asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Third, “Title VII retaliation claims must be proved according to traditional principles of but-for causation .... This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged ’wrongful action or actions of the employer.” Nassar, 133 S.Ct. at 2533.

Wilson’s complaint alleged she was “the victim of discrimination and retaliation, after having complained about discrimination based on race, when she was issued written warnings, placed on a PIP, and ultimately terminated.” As the court acknowledges, the only fact allegation in the complaint even hinting that unlawful retaliation was the but-for cause of the alleged adverse employment actions was the temporal proximity — six-weeks—between Wilson filing her first, time-barred complaint of unlawful harassment and her ultimate termination. (The allegation that she was a victim of retaliation is “eonelusory and not entitled to be assumed true,” Iqbal, 556 U.S. at 681, 129 S.Ct. 1937.) Temporal proximity is invariably relevant in determining whether a retaliation plaintiff has sufficiently proved but-for causation, either in resisting summary judgment, or at trial. This appeal raises a different question, when is an allegation of temporal proximity, without more, sufficient to plead a plausible claim of retaliation.

“Generally ... a temporal connection alone is not sufficient to establish a causal connection.” Turner v. Gonzales, 421 F.3d 688, 697 (8th Cir. 2005); see Kipp v. Mo. Highway & Transp. Comm’n, 280 F.3d 893, 897 (8th Cir. 2002). The Fifth Circuit has stated this principle more categorically. See Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007) (“[W]e affirmatively reject the notion that temporal proximity standing alone can be sufficient proof of but-for causation.”). The Supreme Court has observed that “[t]he cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be ‘very close.’ ” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam) (citations omitted). But these cases were not decided on the pleadings. Because temporal proximity is a relevant but not determining factor in establishing the presence or absence of but-for causation, and because plausibility is a context-specific inquiry, a district court must be wary of dismissing a retaliation complaint on the ground that the element of but-for causation cannot be plausibly inferred because the complaint pleaded temporal proximity that was not “very close.”

Here, the court completes its Rule 12(b)(6) analysis of the issue in two steps: (1) “the six-week period between the EEOC charge and the termination plausibly alleges a but-for causal connection,” which of course simply assumes the issue being decided; and (2) the other fact allegations in the complaint do not provide the “obvious alternative explanation” the Supreme Court referred to in Iqbal, 556 U.S. at 682, 129 S.Ct. 1937. But the Supreme Court referred to an “obvious alternative explanation” in Iqbal when discussing the specific allegations in the Iqbal and Twom-bly complaints. Highlighting this passage permits the court to avoid properly applying the holding in Iqbal: “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’ ” 556 U.S. at 679, 129 S.Ct. 1937, quoting Fed. R. Civ. P. 8(a)(2). That is a pleading, not a summary judgment, standard.

Review of the chronology of events set forth in Wilson’s complaint leads me to conclude she alleged no more than the “mere possibility” that unlawful retaliation was the but-for cause of her termination. Wilson alleged she was:

—Promoted to program supervisor in March 2014.
—Unfairly criticized, given the choice of demotion or termination on June 30, then stripped of supervisory duties on July 2.
—Filed her initial, time-barred EEOC charge on September 8.
—Placed on a PIP on September 30.
—Given a written warning for work that a Caucasian female employee did not accomplish on October 7.
—Terminated on October 22.
—Filed the EEOC charge here at issue on October 23, in which she alleged, “I was told that I was discharged for performance.... ”

This scenario provides a far.more likely— indeed “obvious” — alternative explanation of DHS’s actions, namely, that DHS was following a regularized process of progressive discipline, begun before Wilson filed her initial charge with the EEOC, that led to her discharge when her performance did not improve. This sequence rather precisely parallels a hypothetical the Supreme Court posed in Nassar, 133 S.Ct. at 2532, in explaining why the traditional but-for causation standard applies to Title VII retaliation claims:

Consider in this regard the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation .... Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage.... It would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent.

Nassar was not the first time the Supreme Court has made this point: “Employers need not suspend previously planned transfers [or discipline] upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not definitively determined, is no evidence whatever of causality.” Breeden, 532 U.S. at 272, 121 S.Ct. 1508. True, both Breeden and Nassar were decided at the summary judgment stage, but their teaching must, in my view, be taken into account in deciding a Rule 12(b)(6) motion under the pleading standard defined in Iqbal. I read Iqbal and Nassar together as instructing lower courts to stop letting contrived retaliation claims hijack or delay legitimate employer performance decisions. I dissent from the court’s decision not to follow this controlling authority.

Accordingly, I would affirm the judgment of the district court.


author: RILEY, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. John E. WINSTON, Defendant-Appellant
    No. 16-1978
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 12, 2016
    Filed: March 1, 2017

      Rebecca L. Kurz, Research and Writing Specialist, Office of the Fed. Public Defender, Kansas City, MO (Laine Cardarel-la, Fed. Public Defender, Stephen C. Moss, Asst. Fed. Public Defender, on the brief), for appellant.
    Alison D. Dunning, Asst. U.S. Atty., Kansas City, MO (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
    Before RILEY, Chief Judge, WOLLMAN and SMITH, Circuit Judges.
   RILEY, Chief Judge.

John E. Winston began his term of supervised release January 15, 2016, after being incarcerated for more than 25 years. Upon recommendation from his probation officer, the district court later amended Winston’s supervised release to require Winston to submit his person and property to a search upon reasonable suspicion. Because we conclude the district court did not commit plain error in imposing the search condition and the search condition does not violate due process or the Ex Post Facto Clause of Article I, § 9 of the United States Constitution, we affirm.

I. BACKGROUND

On November 16, 1989, a jury found Winston guilty of one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and four counts of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and (b)(1)(B). Winston was sentenced to 365 months imprisonment and a ten-year term of supervised release. Winston was released from prison and began his term of supervised release on January 15, 2016.

Winston’s probation officer filed a status report on March 24, 2016, recommending a show cause hearing to modify Winston’s conditions of supervised release to include a condition requiring Winston to submit his person and property to a search based on reasonable suspicion. The probation officer claimed the search condition was not imposed at Winston’s sentencing because the court was not using such a condition at that time. In addition, the probation officer stated “[cjonsidering the history and characteristics of Winston and the nature and circumstances of the instant offense, 'a search condition could be essential to his effective supervision in the community.” The probation officer argued the search condition would deter Winston from future crimes and promote public safety.

At a hearing held April 4, 2016, Winston objected to the search condition as retroactive punishment in violation of the Ex Post Facto Clause. The district court responded: “I’ve never seen a case in almost 20 years I’ve been doing this now where supervision was imposed and this condition wasn’t included. I don’t see it as a punitive measure. I do see it as a measure that is meant to provide treatment and assistance to a person under supervision.”

The government did not offer anything other than what the probation officer included in his recommendation. The district court then ordered Winston, as an additional condition to his terms of supervision:

[Sjhall submit his person, and any property, house, residence, office, vehicle, papers, computer, other electronic communication or data storage devices or media and effects to a search at any time, conducted by a U.S. Probation Officer at a reasonable time and in a reasonable manner, based upon reasonable suspicion of contraband or evidence of a violation of a condition of release, failure to submit to a search may be grounds for revocation; the defendant shall warn any other residents that the premises may be subject to searches pursuant to this condition.

Winston appeals, and, having appellate jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

II. DISCUSSION

Winston argues the district court improperly imposed the search condition because (1) under 18 U.S.C. § 3588(d), such a condition is only applicable to felons required to register under the Sex Offender Registration and Notification Act (SOR-NA), 42 U.S.C. § 16911, et seq.; (2) the district court violated Winston’s right to due process by imposing the condition; and (3) the condition violated the Ex Post Fac-to Clause. Because “[djistrict courts enjoy broad discretion in the imposition or modification of conditions for terms of supervised release, ... we review only for abuse of discretion,” but we review de novo “[uftderlying questions regarding compliance with the rules of criminal procedure and the provision of due process.” United States v. Davies, 380 F.3d 329, 332 (8th Cir. 2004). If a defendant fails to object to a procedural error in the district court, we review for plain error. See United States v. Alvizo-Trujillo, 521 F.3d 1015, 1018 (8th Cir. 2008).

In the district court, Winston objected to the search condition only on the ground it was 'an ex post facto violation; thus, we review Winston’s first two claims for plain error. Winston must show ‘“(1) there was an error, (2) the error is clear or obvious under current law, (3) the error affected [his] substantial rights, and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” United States v. Iceman, 821 F.3d 979, 984 (8th Cir. 2016) (quoting United States v. Melton, 738 F.3d 903, 905 (8th Cir. 2013)). “We review [Winston’s] ex post facto claim de novo” United States v. Carter, 490 F.3d 641, 643 (8th Cir. 2007).

Winston first argues the search condition is only applicable to felons required to register under SORNA. The search condition at issue here is very similar to the condition § 3583(d) explicitly allows for felons required to register under SORNA. The government does not dispute Winston is not a felon required to register under SORNA.

There is nothing in the language of § 3583(d) limiting the search condition only to felons who are required to register under SORNA. The Sentencing Commission recognizes a search condition “may otherwise be appropriate in particular cases,” United States Sentencing Guidelines (U.S.S.G. or Guidelines) § 5D1.3(d)(7)(C), and 18 U.S.C. § 3583(d)(3) permits a district court to impose “any other condition it considers to be appropriate.” Noting this provision, the Seventh Circuit Court of Appeals rejected the proposition that the search condition is limited to certain offenders: “[W]hile the Sentencing Commission recommends that persons convicted of sex offenses against minors always be subject to a special condition permitting warrantless searches, U.S.S.G. § 5D1.3(d)(7), the Commission has also said that the same- condition ‘may otherwise be appropriate in particular cases.’ ” United States v. Neal, 810 F.3d 512, 520-21 (7th Cir. 2016) (quoting U.S.S.G. § 5D1.3(d)).

Under § 3583(d), the “other” condition “must be ‘reasonably related’ to five matters: the nature and circumstances of the offense, the defendant’s history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant’s educational, vocational, medical or other correctional needs.” United States v. Crume, 422 F.3d 728, 733 (8th Cir. 2005) (quoting 18 U.S.C. § 3583(d)(1)) (citing 18 U.S.C. § 3553(a)(2)(B), (a)(2)(C), (a)(2)(D)). In addition, “the conditions must ‘involvef ] no greater deprivation of liberty than is reasonably necessary’ to advance deterrence, the protection of the public from future crimes of the defendant, and the defendant’s correctional needs. Finally, the conditions must be consistent with any pertinent policy statements issued by the sentencing commission.” Id. (alteration in original) (citation omitted) (quoting 18 U.S.C. § 3583(d)(2)).

The district court did not commit plain error in imposing the search condition. It is not “clear or obvious under current law” the search condition is not reasonably related to Winston’s offenses and criminal history, involves a greater deprivation of liberty than necessary, or is inconsistent with any pertinent policy statements. Iceman, 821 F.3d at 984; see, e.g., United States v. Sharp, 931 F.2d 1310, 1311 (8th Cir. 1991) (determining a condition of supervised release subjecting a defendant convicted of drug crimes to unrestricted warrantless searches “was within the district court’s power”).

Winston also argues the district court denied him procedural due process by fading to consider whether the search condition is reasonably related to the § 3553(a) factors and whether the search condition involved no greater deprivation of liberty than is reasonably necessary. “When crafting a special condition of supervised release, the district court must make an individualized inquiry into the facts and circumstances underlying a case and make sufficient findings on the record so as ‘to ensure that the special condition satisfies the statutory requirements.’ ” United States v. Wiedower, 634 F.3d 490, 493 (8th Cir. 2011) (quoting United States v. Curry, 627 F.3d 312, 315 (8th Cir. 2010)). “While this court encourages detailed individual findings, where the basis for the special condition can be discerned from the record, the condition need not be vacated.” United States v. Hart, 829 F.3d 606, 609 (8th Cir. 2016).

The district court noted the condition “is meant to provide treatment and assistance to a person under supervision.” The record also includes the probation officer’s motion hearing recommendation arguing a search condition is essential to Winston’s effective supervision in the community, given the history and characteristics of Winston and the instant offense, and that such a condition would deter Winston from future criminal conduct and promote public safety. Any potential error here is not plain. See Iceman, 821 F.3d at 983-84.

Finally, Winston argues the imposition of the search condition violates the Ex Post Facto Clause because the search condition retroactively increased his penalty. The Ex Post Facto Clause prevents increasing punishment for a criminal act after the act has been committed. See U.S. Const. art. I, § 9; Doe v. Miller, 405 F.3d 700, 719 (8th Cir. 2005). In determining whether a condition is in violation of the Ex Post Facto Clause, we examine whether the condition at issue is punitive either in its purpose or in its effect. See Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).

The district court noted the search condition is not “a punitive measure,” so the search condition is not punitive in purpose. The search condition also is not punitive in its effect. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963) (identifying seven factors to determine whether a provision is sufficiently punitive to override express intent, including “whether it has historically been regarded as punishment,” whether it promotes the “traditional aims of punishment,” namely “retribution and deterrence,” and “whether it appears excessive in relation to the alternative purpose assigned”). Though the search condition does deter future crimes, deterrence may “serve non-punitive goals.” United States v. Jackson, 189 F.3d 820, 824 (9th Cir. 1999). The search condition also is not excessive in relation to the alternative purpose because it is limited to searches conducted in a reasonable manner at a reasonable time and only upon reasonable suspicion. Other circuits have held similar conditions are not punitive. See, e.g., United States v. Coccia, 598 F.3d 293, 298-99 (6th Cir. 2010) (holding a condition of supervised release requiring the defendant to provide a DNA sample, which the court could not impose at the time of the defendant’s sentencing, did not violate the Ex Post Facto Clause because the condition was not punitive); Jackson, 189 F.3d at 823-24 (determining imposing mandatory drug testing as a condition of supervised release pursuant to the Guidelines in effect at the time of the defendant’s sentencing and not at the time of the commission of the offense was not an ex post facto violation because the condition was not punitive). Because the search condition here is not punitive, it does not violate the Ex Post Facto Clause.

III. CONCLUSION

We affirm.

      . The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri.

      . In relevant part, § 3583(d)(3) reads:
      The court may order, as an explicit condition of supervised release for a person who is a felon and required to register under the Sex Offender Registration and Notification Act, that the person submit his person, and any property, house, residence, vehicle, papers, computer, other electronic communications or data storage devices or media, and effects to search at any time, with or without a warrant, by any law enforcement or probation officer with reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the person, and by any probation officer in the lawful discharge of the officer’s supervision functions.