govinfo:USCOURTS-moed-4_24-cv-01359-0

UNITED STATES DISTRICT COURT 
 EASTERN DISTRICT OF MISSOURI 
 EASTERN DIVISION 
 
DARIUS JOSHGHANI, ) 
) 
Plaintiff, ) 
) 
v. )      Case No. 4:24-CV-1359-ZMB 
  ) 
SERVICESOURCE, INC., ) 
) 
Defendant. ) 
 
MEMORANDUM AND ORDER 
This matter is before the Court on cross -motions for summary judgment. In this 
discrimination action, Plaintiff Darius Joshghani brings a dozen claims against Defendant 
ServiceSource for wrongful treatment related to his disabilities and status as a veteran. He moves 
for partial summary judgment on two issues: (1) that he is disabled for purposes of the Americans 
with Disability Act (ADA) and Missouri Human Rights Act (MHRA), and (2) that ServiceSource 
has produced no evidence to support an affirmative defense of failure to mitigate damages. At the 
same time, ServiceSource seeks summary judgment on all of Joshghani’s claims. Because there is 
no genuine dispute of material fact that Joshghani is disabled or that other comparable positions 
were available before he found a new job, the Court grants him partial summary judgment on both 
issues. Further, a reasonable jury could find that ServiceSource’s cited basis for his termination 
was pretextual, so the Court must deny summary judgment on the disability-discrimination claims. 
However, Joshghani has failed to establish even a prima facie  case for his other claims, so the 
Court grants the remainder of ServiceSource’s motion.  
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BACKGROUND 
I. Factual Background1 
ServiceSource is a contractor that offers a variety of service s for government facilities. 
Doc. 39 ¶ 3; Doc. 39-7 at 23–24. In 2019, the company hired Joshghani as a SCIF Representative 
knowing that he was a Navy veteran with certain disabilities. Doc. 3 ¶¶ 8, 18, 23, 26; Doc. 15 ¶¶ 8, 
18, 23, 26; Doc. 49 ¶  3. Specifically, Joshghani “suffers from bulging discs in his back, PTSD, 
anxiety, migraines, and . . . bilateral leg radiculopathy.” Doc. 48 ¶¶ 1, 9. These conditions cause him 
difficulty in sitting, standing, running, and lifting. Id. ¶ 15. As such, “ServiceSource provided 
[Joshghani] with reasonable accommodation[s] under the ADA,” which included allowing him to 
wear sneakers instead of dress shoes and to take frequent breaks to move around. Id. ¶¶ 18, 20–22.  
At some point during his tenure, Joshghani hear d colleagues make negative comments  
about veterans and his disability accommodations. In particular, unnamed coworkers said that 
veterans “were milking and gaming the system” and “were brainwashed to die for their country,” 
“Marines are bullet sponges,” and “[t]o suck it up because you served in the military.” Doc. 53 
¶ 24. Joshghani also heard Vice President of Operations Richard Stonestreet tell a veteran “that he 
should calm down because he was not being shot at,” id. ¶¶ 25–26, 28, and another veteran was 
called “thumbs” behind his back on account of missing fingers on his hands, id. ¶ 32. Regarding 
his own disabilities, Joshghani heard “disparaging comments about [his] use of accommodations 
and wearing tennis shoes,” including a supervisor’s comment that he “shouldn’t be allow to” wear 
them and that they did not “look professional.” Id. ¶¶ 20–21. Other coworkers said Joshghani “was 
avoiding work or not working hard enough because [he] utilized his accommodation of frequent 
breaks,” and Stonestreet similarly told him that “he could take on more work.” Id. ¶¶ 22–23.  
 
1 The Court accepts as true the allegations that ServiceSource admitted in its Answer, Doc. 15, and the uncontroverted 
facts from each Statement of Uncontroverted Material Fact s (SUMF), Docs. 41, 44, 51. The latter category includes 
responses such as “fails to state a material fact” and “denied” that do not provide a specific basis for contesting an 
asserted fact or cite to  evidence from the record.  See E.D. MO. L.R. 4.01(E) (“All matters set forth in the moving 
party’s Statement of Uncontroverted Material Facts shall be deemed admitted for purposes of summary judgment 
unless specifically controverted by the opposing party.”); see also FED. R. CIV. P. 56(c)(2).  
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During his time at  ServiceSource, Joshghani received two promotions. Doc. 49 ¶  3. 
Additionally, although the details are unclear, he was asked to take on the duties of a “Buyer” in 
Spring 2023. See id. ¶ 31. Joshghani refused to accept the new responsibilities due to “perceived 
discrimination,” id., as ServiceSource “expect[ed] people that served in the military to just shut up 
and do their job,” Doc. 44-1 at 167. Significantly, he did not believe the extra responsibilities had 
any relation to his disabili ties. Id. In contrast, another employee who was neither a veteran nor 
disabled received a promotion with a pay raise when she became a Buyer. Doc. 53 ¶¶ 29–30. 
On April 28, 2023, ServiceSource HR Generalist Jacqua Outlaw received a verbal 
complaint about Joshghani from one of his coworkers . Doc. 44-3 at 1.  While disputing some of 
the allegations , Joshghani acknowledges that Julie Brown submitted a  written harassment  
complaint that accuses him of revealing a picture of her in a burlesque-style costume to others in 
the office  and mocking her . Doc. 49 ¶ 13; Doc. 44 -2 at 19–21. Outlaw apparently informed 
Joshghani of the complaint in some fashion and placed him on administrative leave  pending an 
investigation. Doc. 49 ¶  15; Doc. 49-1 at 103 . She then interviewed several w itnesses. Doc. 49 
¶ 16. One described Joshghani’s comments as “childish,” id. ¶ 17, while another reported that he 
said, “Look at this [picture] and don’t throw up in your mouth ,” Doc. 44-3 at 4. According to 
Outlaw, Joshghani denied knowing about the photo, but he insists he was never asked about it. Id. 
¶ 18. After the investigation, ServiceSource fired Joshghani—purportedly for violating its policies 
by “ harassing and bullying a transgendered employee and not being truthful during the 
investigation.” Id. ¶ 19. Joshghani disputes that justification and instead cites discriminatory and 
retaliatory animus. Id.  
To support his discrimination claim, Joshghani highlights a separate complaint that Brown 
made against another employee three months earlier. Specifically, Brown accused Stonestreet of 
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misgendering her in the workplace  on two separate occasions . Doc. 53 ¶ ¶ 4–5; Doc. 44-3 at 20. 
Brown twice raised the issue to Outlaw, noting that she felt disrespected and “considered the 
workplace a hostile work environment.” Doc. 53  ¶¶ 4–5, 7. But Outlaw did not have Brown 
complete a written complaint, id. ¶  6, and Stonestreet received only a verbal warning on both 
occasions, id. ¶ 8, despite ServiceSource’s “progressive discipline policy,” which called for at least 
a written warning, id. ¶ 3. 
II. Procedural Background 
Joshghani originally filed suit in Missouri state court, but ServiceSource timely removed 
the case. Doc. 1. In his Petition, Joshghani asserts 12 counts against ServiceSource that stem from 
violations of the ADA, MHRA, and Uniformed Services Employment and Reemployment Rights 
Act (USERRA). Doc. 3 ¶¶ 51–179. Specifically, he advances claims for: (1) discrimination based 
on disability and veteran status; (2) harassment (i.e. hostile work environment) based on his 
disabilities and veteran status; (3) a failure -to-promote claim based on his disabilities; and (4) 
retaliation for engaging in protected activity based on his disabilities. Id. ServiceSource answered 
the Petition, Doc. 15, and the case proceeded to discovery, Doc. 18.  
At the close of discovery, the parties filed cross-motions for summary judgment. Docs. 39, 
42. Joshghani moved for partial summary judgment on two issues: (1) whether he is disabled under 
the ADA and MHRA and (2) whether ServiceSource identified sufficient evidence to support its 
affirmative defense that he  failed to mitigate damages. Doc. 39. ServiceSource countered by 
moving for summary judgment on all counts. Doc. 42. The parties filed several SUMFs, Docs. 41, 
44, 51, and responses, Docs. 48, 49, 53. Both motions are now ripe. 
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LEGAL STANDARD 
Summary judgment must be granted where “the movant shows that there is no genuine 
dispute as to any material fact and the movant is entitled to judgment as a matter of law . FED. R. 
CIV. P. 56(a). “When deciding a motion for summary judgment, a court is required to view disputed 
facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in its favor.” 
Sherr v. HealthEast Care Sys. , 999 F.3d 589, 597 (8th Cir. 2021) (citation omitted). Courts may 
not “weigh the evidence, make credibility determinations, or attempt to discern the truth of any 
factual issue.” Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008) (citation omitted). 
Instead, “the focus  is on whether there are genuine issues of material fact for trial.” Sherr, 999 
F.3d at 597 (citation omitted). “A genuine issue for trial exists when a reasonable jury could return 
a verdict for the nonmoving party.” Huber v. Westar Foods, Inc., 139 F.4th 615, 620 (8th Cir. 2025) 
(quotation omitted). “Substantive law in the relevant area dictates which facts are material, as only 
disputes over facts that might affect the outcome of the suit under the governing law will properly 
preclude the entry of summary judgment.” Sherr, 999 F.3d at 597 (quotation and alteration omitted). 
While the initial burden rests with the movant, once the motion is properly supported, “the plaintiff 
has an affirmative burden to designate specific facts creating a triable controversy.” Midwest 
Oilseeds v. Limagrain Genetics Corp., 387 F.3d 705, 714 (8th Cir. 2004). 
DISCUSSION 
Both parties have moved for summary judgment. The Court grants Joshghani’s motion for 
partial summary judgment in full, as he is entitled to judgment that he qualifies as disabled and 
that he did not fail to  mitigate his damages.  Likewise, ServiceSource demonstrates that each of 
Joshghani’s claims fail as a matter of law , with the exception of his disability discrimination by 
termination claim. The Court will address each party’s motions in turn. 
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I. Joshghani’s Motion for Partial Summary Judgment 
a. ADA and MHRA Disabilities 
First, Joshghani contends that he is entitled to a judgment that he qualifies as disabled under 
both the ADA and the MHRA. Doc. 40 at 3 –6. While the briefing on both sides was lacking, the 
Court agrees in light of ServiceSource’s failure to dispute several significant facts. 
To qualify as disabled under the ADA, Joshghani must put forward evidence that he suffers 
from “a physical or mental impairment that substantially limits one or more major life activities,” 
such as “caring for [himself], performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working, as well as sitting, standing, lifting, and reachin g.” Irving v. 
Dierbergs Mkt., No. 4:21 -CV-506-RLW, 2023 WL 2536363, at *4 (E.D. Mo. Mar. 16, 2023) 
(citations omitted). The term “substantially limits” is to be “construed broadly in favor of 
expansive coverage to the maximum extent permitted by the terms of the ADA.” 29 C.F.R. 
§ 1630.2(j)(91)(i); see also Oehmke v. Medtronic, Inc., 844 F.3d 748, 756 (8th Cir. 2016) (citation 
omitted).  Similarly, under the MHRA, disability is defined as “a physical or mental impairment 
which substantially limits one or more  . . . major life activities  . . . which with or without 
reasonable accommodation does not interfere with performing the job.” MO. REV. STAT. 
§ 213.010(5). Major life activities include those “which affect employability such as 
communication, ambulation, self-care, socialization, education, vocational training, employment, 
and transportation.” Feldman v. Patrish, L.L.C., 674 S.W.3d 59, 63 (Mo. Ct. App. 2023) (citations 
omitted). Alternatively, under both statutory schemes, a person can qualify as disabled if they are 
“regarded as having such an impairment” or have “a record of having such an impairment.” Id. 
(MHRA); see also Irving, 2023 WL 2536363 at *4 (ADA). 
Joshghani claims he suffers from various medical impairments, Doc. 40 at 3, “ including 
bulging discs in his back, PTSD, anxiety, migraines, and nerve pain in both legs (bilateral leg 
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radiculopathy).” Doc. 41 ¶ 1; Doc. 48 at ¶ 1. These impairments “limit [his] ability to sit, stand, 
run and lift. ” Doc. 41 ¶ 15; Doc. 48 at ¶ 15. To support this conclusion, Joshghani provides 
documents from AbillityOne—a program for workers with qualifying disabilities through which 
Joshghani was hired. Doc. 48 ¶¶  4–5. These records indicate that his nerve conditions and disc 
issues impact his mobility and work tolerance. Doc. 43 -2 at 13 ; see a lso id. at 7–10, 12 –18. 
Specifically, Joshghani is “unable to stand/walk for 30 minutes at a time,” id. at 17, and incapable 
of sitting for “[2] hours at a time,” id. at 9. Similarly, Joshghani needs to “take various breaks 
throughout his day to prevent pain throughout his body.” Id. at 13–14. ServiceSource admits that 
it gave Joshghani “reasonable accommodation[s] under the ADA,” which included allowing him 
“to wear sneakers  . . . for his back,” Doc. 48 ¶  18, and “tak[e] breaks and mov[e] around,” id. 
¶¶ 20–22; Doc. 41 ¶¶ 20–22. Thus, Joshghani contends he had “impairments that limited one or 
more major life activities,” and that he could “perform his job duties  . . . with or without 
accommodation,” which supports a finding that he is disabled within the ADA and MHRA’s 
meaning. Id. at 5.  
In opposing summary judgment, ServiceSource offers no evidence to dispute Joshghani’s 
characterization of his disabilities. Instead,  the company contends2 that the AbilityOne 
documentation “do[es] not resolve the fact -intensive question of whether Plaintiff was 
‘substantially limited’ in any major life activity.” Doc. 47 at 3. Additionally, ServiceSource 
believes that the fact that Joshghani “worked full-time for ServiceSource for several years ” and 
“performed the essential duties of his positions with  . . . accommodations” is sufficient  for “a 
factfinder [to] conclude that any limitations were intermittent . . . or not substantially limiting.” Id.  
 
2 ServiceSource’s main argument is that the Court can assume without deciding that Joshghani is disabled because it 
prevails on its own motion for summary judgment. Doc. 47 at 2–4. But given the Court’s conclusion that the disability-
discrimination claims survive, see supra at 1, this nonargument does no work and thus will not be addressed further.   
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Joshghani is entitled to a partial judgment that he qualifies as disabled under both statutes. 
Based on his deposition testimony, the AbilityOne records, and the  unrebutted assertions in the 
SUMF, Joshghani has established that he suffers from various ailments that restrict his “ability to 
sit, stand, run and lift” compared to an “average person.” Doc. 41 ¶¶ 1–16. These facts, coupled 
with total absence of any competing evidence and ServiceSource’s own admission that it gave 
Joshghani what it believed to be ADA accommodations, Doc. 48 ¶  22, are sufficient to meet the 
relatively low burden that his disabilities substantially limited major life activities. See Williams 
v. AT&T Mobility Servs., 186 F. Supp. 3d 816, 823 (W.D. Tenn. 2016) (granting partial summary 
judgment as to an ADA -disability determination based on the  plaintiff’s undisputed testimony 
coupled with record evidence). Further, given that Joshghani’s disabilities impact his ambulation, 
and because ServiceSource admitted that Joshghani can perform his tasks without interference 
from his proffered disabilities, see Doc. 48 ¶ 15, he also meets the definition of disabled under the 
MHRA.3 
ServiceSource’s limited arguments to the contrary are unavailing. While not meaningfully 
briefed by the parties, ServiceSource may well be right an employee’s qualif ication under the 
AbilityOne Program does not automatically mean that they are disabled for purposes of the ADA 
and MHRA. See 41 C.F.R. 51-1.3 ¶ 13 (“[S]everely disabled . . . mean[s] . . . a severe physical or 
mental impairment . . . which so limits the person’s functional capabilities . . . that the individual 
is unable to engage in normal competitive employment over an extended period of time.”). But the 
company ignores the information about Joshghani’s disabilities contained in the AbilityOne 
 
3 But even if he did not meet the definition of actually disabled under the MHRA, Joshghani has provided sufficient 
evidence that his employer mistakenly regarded him as disabled. Elder v. Washington Univ. – St. Louis, --- S.W.3d --
-, 2026 WL 873473, at *12 (Mo. Ct. App. Mar. 31, 2026) (stating the standard for a “regarded as” disability under the 
MHRA). The fact that ServiceSource provided “reasonable accommodations” under the ADA indicates that it at least 
perceived Joshghani’s ailments as a disability. It is difficult to see, on this undisputed record, how ServiceSource can 
credibly argue that Joshghani was either not disabled or not regarded by it as disabled.  
 
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documents, not to mention the other uncontested record evidence that supports a finding that his 
impairments substantially limited several major life activities. See Bloomer v. Mo. Dep’t of Corr., 
No. 1:15-CV-174-RLW, 2017 WL 3129757, at *2 (E.D. Mo. July 21, 2017) (finding that a non-
movant cannot defeat summary judgment by “simply show[ing] that there is some metaphysical 
doubt as to the material facts,” but rather must “present sufficient evidence . . . which would enable 
a jury to return a verdict” in their favor). ServiceSource’s remaining point is similarly unavailing. 
Just because Joshghani could perform work tasks does not undermine a finding that he is disabled. 
Indeed, the ADA-disability inquiry is about whether Joshghani suffers from an impairment 
limiting a major life activity, not about his ability to work generally. See Irving, 2023 WL 2536363 
at *4. This argument is even less persuasive for the MHRA because the statute requires Joshghani 
be able to perform his job with or without the accommodations. See MO. REV. STAT. § 213.010(5). 
Accordingly, Joshghani is entitled to summary judgment on the claim that he is disabled within 
the meaning of the ADA  and MHRA . Based on the undisputed record, the Court finds that 
summary judgment on Joshghani’s disability is warranted. 
One final word is warranted regarding the scope of this partial grant of summary judgment. 
Joshghani argues that he has established that he is disabled under the ADA and MHRA as a matter 
of law, and the Court agrees. But the relevant jury instructions call for specific impairments rather 
than relying on a generic status of “disabled.” See EIGHTH CIRCUIT MANUAL OF MODEL CIVIL JURY 
INSTRUCTIONS § 9.40 (2025); MISSOURI APPROVED JURY INSTRUCTIONS (CIVIL) § 38.01(B) (8th 
ed. 2023). Without guidance from the parties, the Court based its analysis on three conditions—
paralysis of the sciatic nerve, paralysis of the anterior crural nerve, and invertible disc syndrome—
that limit Joshghani’s ability to sit or move for extended periods of time. Doc. 39-4 at 2–3. These 
conditions are the most compelling basis for a disability finding, and they also avoid the variance 
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between the Petition and Joshghani’s summary-judgment briefing.4 As such, barring additional 
justification, the Court intends to instruct the jury only on these three impairments.  
b.  Failure to Mitigate Damages 
Joshghani also argues that ServiceSource has not presented a triable issue as to whether he 
failed to mitigate his damages. Doc. 40  at 6–8. In particular, Joshghani highlights his deposition 
testimony that he worked part time, sold plasma, obtained unemployment benefits, and applied for 
multiple jobs each week before finding comparable employment one-year after his termination. 
See id. at 7–8. ServiceSource counters that a “generalized estimate[] of how many jobs [Joshghani] 
applied for during that year, without comprehensive documentation or detail about the positions’ 
equivalence” such as a  “contemporaneous log of applications” or other “documentary proof ,” 
means that summary judgment would be inappropriate on this point. Doc. 47 at 4–5. And without 
further explanation, the company argues that the remaining undisputed facts “do[] not compel the 
conclusion that [he] fully  mitigated.” Id. at 5. Joshghani counters that these arguments are an 
attempt to shift the burden from ServiceSource to him and argues that “activities and ability to 
secure another position after a year’s worth of efforts are not arguments supporting a failure to 
mitigate.” Doc. 52 at 3.  
Because Joshghani claims he was harmed by a discriminatory employment practice, he “is 
subject to an affirmative duty to mitigate his damages by reasonably seeking and accepting other 
suitable employment.” Mathieu v. Gopher News Co., 273 F.3d 769, 783 (8th Cir. 2001). That duty 
is not onerous and requires only “reasonable diligence” in finding suitable employment. Id. at 783–84. 
 
4 There are several discrepancies in Joshghani’s characterization of his disabilities. Notably, the Petition does not 
mention migraines or sinusitis. See Doc. 3 ¶ 24. But see Doc. 40 (listing both conditions); 41 ¶ 1 (listing migraines). 
Further, the description of other disabilities has shifted slightly. Compare Doc. 3 ¶  24, with Doc. 41 ¶  1. Because 
Joshghani never moved to amend his Petition to include these impairments, let alone showed good cause for his failure 
to do so by the deadline set in the case management order, the Court will assume they should not be considered as an 
independent basis for liability. See Cheeks v. Belmar , 162 F.4th 899, 907 (8th Cir. 2025) (emphasizing that the 
application of the good-cause standard is “not optional” for untimely pleading amendments). 
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For example, the duty to mitigate did not require Joshghani to “go into another line of work, accept 
a demotion, or take a demeaning position.” Townsend v. Bayer Corp., 774 F.3d 446, 466 (8th Cir. 2014) 
(quotation omitted). Significantly, ServiceSource bears the burden of production  and must show 
“that there were suitable positions and that the plaintiff failed to use reasonable care in seeking 
them.” Murphy v. FedEx Nat. LTL, No. 4:07-CV-1247-JCH, 2009 WL 1310252, at *5 (E.D. Mo. 
May 11, 2009) (quoting Denesha v. Farmers Ins. Exch., 161 F.3d 491, 502 (8th Cir. 1998)).  
At no point does ServiceSource so much as suggest that there were positions available that 
Joshghani failed to apply for. Instead, ServiceSource appears to rely on the fact that the existing 
record does not resolve mitigation as a matter of law. Doc. 47 at 5. That argument may have been 
sufficient if Joshghani had the burden, but without some evidence, ServiceSource has failed to 
meet even its limited burden of production. In other words,  ServiceSource “may not simply rest 
on the hope of discrediting [Joshghani’s] evidence at trial” without at least showing that 
Joshghani’s testimony is not “internally consistent, unequivocal, and in full accord with the 
documentary evidence.” See Erickson v. Nationstar Mortg ., 31 F.4th 1044, 1048 (8th Cir. 2022) 
(citations omitted). Accordingly, summary judgment is granted as to the affirmative defense of 
failure to mitigate.5 
II. ServiceSource’s Motion for Summary Judgment  
ServiceSource also moves for summary judgment as to all of Joshghani’s claims.  At the 
outset, it is important to note how Joshghani must prove his ADA and MHRA (but not USERRA) 
claims. Because there is no direct evidence of discrimination, Joshghani must show that 
 
5 Once again, while prevailing in the abstract, Joshghani fails to specify the precise relief he seeks. In granting 
summary judgment, the Court has determined that it will not instruct the jury on the affirmative defense of failure to 
mitigate. See EIGHTH CIRCUIT MANUAL OF MODEL CIVIL JURY INSTRUCTIONS § 9.70 (2025) ( second element, first 
optional insert). But as Joshghani does not address the issue of successful mitigation, the Court intends to permit such 
evidence as it relates to his burden to prove damages. See id. (first element). 
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ServiceSource violated the ADA and MHRA  under the McDonnell Douglas burden-shifting 
framework. See Lors v. Dean , 595 F.3d 831, 834 (8th Cir. 2010). The burden first rests with 
Joshghani to prove a prima facie case of discrimination or other unlawful action. Id. Then, the 
burden “shifts to [ServiceSource] to articulate some legitimate, nondiscriminatory reason for [its] 
actions.” Id. Finally, the burden shifts back to Joshghani “to show [ServiceSource’s] justification 
is a pretext.” Id. But any pretext must provide “sufficient evidence for a reasonable trier of fact to 
infer discrimination.” Id.  
a. Disability Discrimination  
First, ServiceSource asserts entitlement to summary judgment on Joshghani’s disability 
discrimination claims. Doc. 43 at 5–8, 13–14. ServiceSource argues that Joshghani has failed to 
prove that he suffered an adverse employment action , id. at 6, and that his violation of the anti-
harassment policy was a legitimate, non-pretextual reason for terminating him, id. at 13–14.  
Joshghani resists ServiceSource’s arguments by highlighting circumstantial evidence that 
his disability was a “motivating factor in his termination and treatment.” Doc. 50 at 3. In terms of 
adverse employment actions, Joshghani highlights his termination and the “assign[ment] [of] 
additional duties without increased pay .” Id. at 3, 7. He then offers multiple examples of pretext 
to support an inference of discrimination for his termination, including , as relevant here, that 
Stonestreet was not disciplined as harshly as disabled employees  under ServiceSource’s 
progressive policy. Id. at 6. On this point, ServiceSource suggests that Stonestreet is not similarly 
situated enough to be a comparator because he is not a “non-disabled employee who [was retained] 
after being accused by multiple witnesses of mocking a coworker with a personal image, 
disregarding direction to stop, and then denying the conduct during an HR investigation.” Doc. 54 
at 3.  
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Joshghani argues  that he was discriminated against by ServiceSource when he was 
terminated and told to take on additional responsibilities. Doc. 50 at 3, 7. To make a prima facie 
case, Joshghani must show that he “(1) has a ‘disability’ within the meaning of the ADA, (2) is a 
‘qualified individual’ under the ADA, and (3) ‘suffered an adverse employment action as a result 
of the disability.” Goosen v. Minn. Dep’t of Transp., 105 F.4th 1034, 1040 (8th Cir. 2024). 6 
 The circumstances of Joshghani’s termination are sufficient to preclude summary 
judgment. “Termination, of course, is an adverse action,” Hill v. Walker, 737 F.3d 1209, 1219 (8th 
Cir. 2013), and Joshghani offers pretext as the basis to overcome ServiceSource’s assertion that 
he violated company policy—meaning that evidence of pretext is the ultimate inquiry, see Lake v. 
Yellow Transp., 596 F.3d 871, 874 (8th Cir. 2010).  Pretext can be proved in a number of ways, 
including “by showing that an employer (1) failed to follow its own policies, [or] (2) treated 
similarly-situated employees in a disparate manner.” E.E.O.C. v. Prod. Fabricators, 763 F.3d 963, 
970 (8th Cir. 2014) (citation omitted). To demonstrate the lat ter, a comparator employee treated 
differently than the plaintiff “must be similarly situated in all relevant respects,” which means they 
“must have dealt with the same supervisor, have been subject to the same standards, and engaged 
in the same conduct without any mitigating or distinguishing circumstances.” Id. (quotations omitted).  
While Joshghani offers multiple comparators, the company’s divergent treatment of 
Stonestreet is sufficient to preclude summary judgment. According to Outlaw , Stonestreet and 
Joshghani are held to the same standards with respect to the anti-harassment policy. See Doc. 51-
1 at 6. Similarly, it is undisputed that Joshghani and Stonestreet both dealt with Outlaw regarding 
 
6 As noted above, Joshghani has already satisfied the first element. See supra at 8–9. 
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Brown’s complaints. Doc. 51 ¶¶ 1, 4. And contrary to ServiceSource’s assertions, Stonestreet is a 
valid comparator for the purposes of Joshghani’s claim.7  
“The similarly situated co-worker inquiry is a search for a substantially similar employee, 
not for a clone.” Doucette v. Morrison Cnty., 763 F.3d 978, 984 (8th Cir. 2014) (citation omitted). 
To be sure, the underlying policy violations here were different. Stonestreet referred to Brown by 
the wrong gender on two occasions, Doc. 53 ¶¶ 4–5, while Joshghani actively circulated a photo 
of Brown and mocked her choice of clothing, see Doc. 49 ¶ 13. Yet Stonestreet—like Joshghani—
violated the anti-harassment policy. D oc. 43-5 at 218 –19. And while misgendering could be 
inadvertent, the fact Stonestreet did it multiple times lessens the likelihood that it  was 
unintentional. The difference, then, is that Stonestreet was given multiple verbal warnings despite 
a progressive discipline policy , Doc. 43-5 at 122 ¶¶  3–8; id. at 103 ¶¶ 24–25, 104 ¶¶ 4 –7; id. at 
121 ¶¶ 16–24, while Joshghani was fired , Doc. 49 ¶  4. While it is a relatively close call, a  
reasonable jury could infer discriminatory motive based on the allegations when viewed in a light 
most favorable to Joshghani. As such, summary judgment must be denied on the discrimination-
through-termination claims. 
However, Joshghani does not fare as well on his alternative theory of adverse action: that 
he experienced a material increase in his job duties constituting adverse action. “An increased 
workload that materially changes an employee’s duties can constitute an adverse employment 
action.” Kelleher v. Wal-Mart Stores, 817 F.3d 624, 631 (8th Cir. 2016) (quotation omitted). But 
as ServiceSource notes, Joshghani’s “existing job duties did not change,” and his “own testimony 
 
7 Although ServiceSource argues that Joshghani’s denial of his conduct is relevant to the comparator analysis, it is not 
clear why. ServiceSource’s stated reason for firing Joshghani was because he violated the anti-harassment policy, see 
Doc. 43 at 13 –14, not that he was dishonest. While deceitfulness certainly could be relevant, the Court will not 
endeavor to make the argument for the company, particularly given that there is no evidence to suggest that this was 
a basis for Joshghani’s firing. 
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indicates that he was being trained for a position.” Doc. 43 at 7. Joshghani states that ServiceSource 
took “creative liberties” in interpreting his statements to undercut a claim of discrimination, but he 
did not substantively deny that he was merely training for a Buyer position. Doc. 50 at 7.  
Joshghani’s theory is untenable. He contends that he refused to accept additional duties 
without a promotion, see Doc. 53 ¶ 31, which is consistent with ServiceSource’s position that he 
was not given more responsibilities. Rather, Joshghani was, at most, “training on the duties.” Doc. 
43-1 at 107 ¶¶ 12–25; see In re Kemp, 894 F.3d 900, 906 (8th Cir. 2018) (“Minor changes in duties 
or working conditions that cause no materially significant disadvantage do not meet the standard 
of an adverse employment action.” (citation omitted)). As such, while Joshghani’s discrimination 
claims survive summary judgment, they do so only as to  the adverse employment action of 
termination. 
b. Hostile Work Environment  
ServiceSource also moves for summary judgment as to Joshghani’s claims of a hostile 
work environment . ServiceSource contends that the remarks Joshghani highlights were not 
sufficiently “severe or pervasive harassment” to warrant relief.8 Doc. 43 at 9. Joshghani alleges 
that the workplace was permeated with discriminatory remarks  about his disability , which 
included: comments by co -workers and a supervisor that “he shouldn’t be allowed to” wear 
sneakers and that they did not “look professional”; comments that he was avoiding work by 
utilizing his accommodation of moving around and taking breaks; and Stonestreet’s statement that 
he could take on more work because he moved around a lot. Doc. 50 at 10. Joshghani also suggests 
other comments about veterans show a hostile work environment, including that: “Stonestreet told 
 
8 Joshghani is simply incorrect  that ServiceSource “ makes no argument challenging [his] claim of a hostile work 
environment based on [his] veteran status in violation of USERRA .” Doc. 50 at 9 n.3 . But see Doc. 43 9 (“ [T]he 
comments here are workplace slights, which when considered as whole, are not considered as workplace harassment 
where court would grant relief.”). 
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a veteran to calm down in the office because he was not being shot at ”; managers referred to 
another veteran as “thumbs” to mock a combat related hand-injury; other co-workers claimed “that 
veterans ‘game’ or ‘milk’ the system”; “a coworker commented that veterans are brainwashed”; 
and he was “told to suck it up because [he] served in the military.” Id. at 10–11. Joshghani believes 
that Stonestreet’s position make his comments “inherently severe ,” and the fact that coworkers 
made their comments openly makes it that ServiceSource “should have known of the harassment.” 
Id. at 11. Ultimately, Joshghani argues that a reasonable jury could find in his favor because 
“[h]ostility existed in the general work atmosphere and was directed at [him].” Id.  
To prevail on hostile work environment claims,9 a plaintiff must prove “that he is a member 
of the class of people  . . . , that he was subject to unwelcome harassment, that the harassment 
resulted from his membership in the protected class, and that the harassment was severe enough 
to affect the terms, conditions, or privileges of his employment. ” Moses v. Dassault Falcon Jet -
Wilmington Corp, 894 F.3d 911, 921–22 (8th Cir. 2018) (citation omitted). When allegations of 
harassment involve non-supervisors, a plaintiff must prove “a fifth element: that the employer 
knew or should have known of the harassment and failed to take proper action.” Ryan v. Capital 
Contractors, 679 F.3d 772, 778 (8th Cir. 2012) (citation omitted). To prove that harassment 
affected a term, condition, or privilege of employment, the plaintiff must show that the harassment 
was “both subjectively and objectively offensive, as well as extreme in nature and not merely rude 
 
9 Although the Eighth Circuit has not directly considered this issue, other courts have recognized that USERRA creates 
a cause of action for a hostile work environment claim because it includes language from Title VII that has been 
interpreted to authorize such claims. See Hackett v. City of South Bend, 956 F.3d 504, 508–09 (7th Cir. 2020). Given 
the textual similarity to Title VII,  the Court will assume that  a hostile work environment claim is properly analyzed 
under the Title VII framework. See Id. (taking this approach); see also Annarumma v. City of High Springs , 846 F. 
App’x 776, 785 (11th Cir. 2021) ( same). Because the elements of a Title VII hostile work environment claim mirror 
that of the ADA, see Warmington v. Board of Regents of Univ. of Minn., 998 F.3d 789, 799 (8th Cir. 2021), the Court 
analyzes the USERRA and ADA hostile claims under the same framework. Further, hostile work environment claims 
brought under the MHRA have been treated as equivalent to claims under the ADA. See Shaver v. Independent Stave 
Co., 350 F.3d 716, 719 (8th Cir. 2003). 
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or unpleasant. ” Id. at 779 (quotation omitted). Courts thus  “consider the totality of the 
circumstances, including the frequency and severity of the conduct, whether it is physically 
threatening or humiliating, and whether it unreasonably interferes with [ the employee’s ] job 
performance.” Moses, 894 F.3d at 922 (quotation omitted).  But such claims are held  to a 
demanding standard to “filter out . . . [s]imple teasing, offhand comments, and isolated incidents” 
which arise to “ complaints concerning the ordinary tribulations of the workplace .” Anderson v. 
Durham D & M, L.L.C., 606 F.3d 513, 519 (8th Cir. 2010). 
Joshghani’s allegations fall short of this standard. While he has identified unprofessional 
comments, he offers no evidence to show that those statements interfered with his employment or 
job performance or that they  were physically threatening . In fact, Joshghani offers no evidence 
whatsoever about how he subjectively perceived the comments. Jones v. Forest City Grocery, 564 
F. Supp. 2d 863, 868 (E.D. Ark. 2008) (“The underlying wrongful conduct must be sufficient to 
create a hostile environment, both as it would be viewed objectively by a reasonable person and 
as it was actually viewed subjectively by the victim .” (citation omitted)). As he remained at 
ServiceSource for years, it is not apparent what term or condition Joshghani now believes was 
affected while he was working there . In other words , these statements are not sufficient to be 
actionable under any of the relevant statutes. Thus, ServiceSource is entitled to summary judgment 
because Joshghani has failed to present evidence to support a prima facie case of a hostile work 
environment claim.  
c. Failure to Promote  
Next, ServiceSource seeks summary judgment on Joshghani’s ADA and MHRA failure-
to-promote claims. ServiceSource argues that Joshghani must put forward evidence that he sought 
but was denied a position to support these claims. Doc. 43 at 11. The company argues that  
Joshghani instead demonstrate s “that he was trained for the [B]uyer position without applying” 
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while never seeking the position. Id. Joshghani briefly responds by alleging that ServiceSource 
“mischaracterizes” the claim. Doc. 50 at 11. Rather than being denied a position , Joshghani 
suggests his claim is premised on the theory that he was assigned “Buyer duties without the 
corresponding promotion and pay raise  that similarly situated employees received for that role 
transition.” Id. He contends that a non-disabled employee was given a promotion  to that role, 
allowing a jury to find that “disability  was a motivating factor in the failure to promote  him.” Id. 
ServiceSource, in turn, insists  that the other employee’s promotion  fails to demonstrate that 
Joshghani “applied for, was eligible for, and was denied the same position.” Doc. 53 at 4. 
To establish a prima facie case for a failure-to-promote claim,10 the plaintiff must prove 
that “(1) [he] is a member of a protected group; (2) [he] was qualified and applied for a promotion 
to an available position; (3) [he] was rejected; and (4) similarly situated employees, not part of the 
protected group, were promoted instead.” Allen v. Tobacco Superstore , 475 F.3d 931, 937 (8th 
Cir. 2007) (citation omitted). “Failure to formally apply for a [] position does not bar a plaintiff 
from establishing a prima facie claim, as long as the plaintiff ‘made every reasonable attempt to 
convey [his] interest in the job to the employer.’” Id. (citation omitted). Claims under the MHRA 
apply these elements as well. See Eivins v. Mo. Dep’t Corr. , 636 S.W.3d 155, 166 –67 (Mo. Ct. 
App. 2021).  
Joshghani’s arguments are unpersuasive. At bottom, he believes that a failure-to-promote 
claim is actionable —without evidence that he sought or desired the position —simply because 
another person was promoted at a different time. Joshghani offers no legal support for this novel 
 
10 While there appears to be limited, if any,  Eighth Circuit authority finding a failure-to-promote claim is actionable 
under the ADA , the Eighth Circuit’s Model Jury Instructions 9.41 suggests that such a  claim exists. Indeed, other 
courts have found that the claim is actionable and tracks the elements required to prove a Title VII failure-to-promote 
claim. See, e.g., Lusby v. Savannah River Nuclear Solutions, LLC , 2022 WL 1057169, at *3 (D.S.C. Jan. 5, 2022) . 
This Court likewise will apply the familiar Title VII failure-to-promote framework.  
 
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theory. Significantly, Joshghani “[did not] believe [ServiceSource] gave [him] extra 
responsibilities because of [his] disabilities,” but rather because the company “ want[ed] to take 
advantage of people.” Doc. 43-1 at 167 ¶¶ 21–24. But he failed to establish not only that he wanted 
the position11 but also that it went to someone else for an impermissible reason. In sum, Joshghani 
has failed to put forward evidence that he sought the position of Buyer and, as such, ServiceSource 
is entitled to summary judgment on these claims.  
d. Retaliation  
Similarly, ServiceSource is entitled to summary judgment on the retaliation claims. The 
company argues that Joshghani cannot establish retaliation under the ADA or MHRA because he 
has not shown that he  engaged in protected activity. Doc. 43 at 11. Specifically, ServiceSource 
notes that Joshghani has failed to indicate when he lodged a complaint for discrimination with his 
supervisor and that he made his EEOC complaint  after his termination, meaning that it could not 
be a protected activity. Id. at 12 –13. Joshghani, however, indicates that his protected activity 
happened when he “opposed being forced to perform additional job duties” because “[h]e believed 
these additional duties were assigned to him because he was []disabled.” Doc. 50 at 12. In doing 
so, Joshghani claims he “reasonably believed that he was opposing practices that may violate the 
MHRA and/or ADA.” Id. at 13. ServiceSource highlights this evolution in Joshghani’s argument 
by noting that “vague workplace comments or internal disagreement about duties do not suffice 
unless they communicate opposition to unlawful discrimination.” Doc. 54 at 6 (citations omitted). 
Thus, Joshghani’s claim still fails because he never established that he commu nicated his 
perceived belief of unlawful employment practices to ServiceSource. Id.  
 
11 Indeed, his decision to decline the additional responsibilities as opposed to request a corresponding promotion 
undermines any argument that he wanted the position at all.  
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 To establish a prima facie case for a retaliation claim, a plaintiff must prove “(1) that he or 
she engaged in statutorily protected activity; (2) an adverse employment action was taken against 
him or her; and (3) a causal connection exists between the two events.”  Lors v. Dean, 746 F.3d 
857, 868 (8th Cir. 2014). Protected activity includes “oppos[ing] an action based on a reasonable 
belief that [his] employer has engaged in discriminatory conduct,” even if the employer ultimately 
did not engage in such conduct. Bevill v. Home Depot U.S.A., 753 F. Supp. 2d 816, 829–830 (S.D. 
Iowa 2009) (citing Foster v. Time Warner Ent. Co., 250 F.3d 1189, 1194 (8th Cir. 2001)).  
The Court assumes that Joshghani opposed what he subjectively believed to be unlawful 
employment practices when ServiceSource attempted to give him more responsibility without an 
increase in  pay. Doc. 51 ¶  31. But while Joshghani believes that he opposed unlawful 
discrimination, he has not offered evidence suggesting that anyone at ServiceSource understood 
that was the basis for his actions . To show retaliation under the ADA, c ourts have found that a 
plaintiff must demonstrate that the employer was  apprised of the  plaintiff’s opposition to the 
practice was based on perceived discrimination. See Bevill, 753 F. Supp. 2d at 832. Because there 
must be a causal connection between the protected activity ( Joshghani’s opposition) and the 
adverse employment action (ServiceSource’s decision to terminate him), Joshghani must cite some 
evidence to suggest that he made ServiceSource aware of the reason for his opposition. But there 
is no such evidence. See Doc. 49 ¶ 20 (responding to Defendants contention that Joshghani “did 
not report any complaints of discrimination” with “Plaintiff opposed discriminatory treatment by 
Defendant due to his veteran status”). Nor does Joshghani argue that he made ServiceSource aware 
that his refusal to take on additional responsibilities was because he believed it to be a 
discriminatory practice. As such, ServiceSource is entitled to summary judgment on Joshghani’s 
retaliation claims because there is no genuine dispute of material fact. 
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e. USERRA Discrimination  
Finally, ServiceSource moves for summary judgment on Joshghani’s veteran -
discrimination claim under USERRA. ServiceSource contends that Joshghani “cannot produce 
evidence that his veteran status was a substantial factor in his termination” and, even if it were, he 
still would have been terminated based on his “misconduct toward the female employee, not his 
military service.” Doc. 43 at 15. Joshghani, however, claims “ the record demonstrates that [his] 
veteran status was a motivating factor in the adverse employment actions of [ServiceSource].” 
Doc. 50 at 14. As before, Joshghani underscores the comments made by Stonestreet, other 
managers, and coworkers. Id. at 14–15. He believes that these comments, coupled with his “refusal 
of discriminatory treatment” and his firing , “creates a genuine dispute” as to veteran 
discrimination. Id. at 15.  
A USERRA claim requires a plaintiff to “make the initial showing that military status was 
a motivating factor in the adverse employment action.” Rademacher v. HBE Corp., 645 F.3d 1005, 
1010 (8th Cir. 2011). Once the plaintiff meets that initial burden, then “the employer must prove, 
by a preponderance of the evidence, that the action would have been taken despite the protected 
status.” Id. In evaluating whether an employee’s military status is a motivating factor, a court 
“consider[s] a variety of factors, including the employer’s expressed hostility  towards members 
protected by the statute together with knowledge of the employee’s military activity, the proximity 
in time between the employee ’s military activity and the adverse employment action, and any 
inconsistencies between the proffered reason and other actions of the employer .” Id. at 1010–11 
(citing Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001)).  
Joshghani has not met his initial burden. ServiceSource knew Joshghani was a veteran, see 
Doc. 15 ¶  23, but the statements by his fellow employees do not show hostility on the part of 
ServiceSource. First, the comments by non -decisionmakers are generally discounted in 
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employment discrimination cases  as “ inactionable stray comment [s].” See Schoonover v. 
Schneider Nat’l. Carriers, 492 F. Supp. 2 d 1103, 1129 n.24 (S.D. Iowa 2007) (collecting cases). 
Nor has Joshghani overcome this presumption by explaining why these comments were known by 
or should have been known by his employer. Further, USERRA caselaw suggests that, for 
discriminatory sentiment to lead to an actionable claim, the person harboring anti-military animus 
must have intended to influence the adverse employment action. See Straub v. Proctor Hosp., 562 
U.S. 411, 423 (2011). Stonestreet had influence on the decision to terminate Joshghani, Doc. 53 
¶ 27, meaning his animus would be relevant. But it is not clear how hearing Stonestreet tell another 
veteran to “calm down because he was not being shot at” is sufficient to show hostility to military 
members, even in the light most favorable to Joshghani. See McConnell v. Anixter, Inc., 944 F.3d 
985, 990 (8th Cir. 2019) (affirming summary judgment where alleged hostile-to-military-members 
statement was too ambiguous to support a USERRA claim). As such, Joshghani has not put 
forward sufficient evidence to support a USERRA claim.  
CONCLUSION 
Accordingly, the Court GRANTS Plaintiff Darius Joshghani’s [39] Motion for Partial 
Summary Judgment as to his disability status and his reasonable mitigation of losses. Further, the 
Court, GRANTS IN PART and DENIES IN PART Defendant ServiceSource, Inc.’s [42] Motion 
for Summary Judgment, with Counts III (MHRA Discrimination) and VIII (ADA Discrimination) 
the only claims remaining for trial. 
 So ordered this 25th day of May 2026. 
 
 
   
 ZACHARY M. BLUESTONE 
 UNITED STATES DISTRICT JUDGE 
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