Oberthien v. CRST Logistics, Inc. et al

Filing 20

ORDER denying 19 Motion to Strike and granting 13 Motion for Summary Judgment. The Clerk of Court is directed to enter judgment in favor of Defendant. The trial date is vacated. Signed by Judge Linda R Reade on 3/24/2017. (pac)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
RYAN OBERTHIEN,
Plaintiff,

No. 15-CV-128-LRR

vs.

ORDER

CRST LOGISTICS, INC.,
CRST INTERNATIONAL, INC., and
AMANDA PIERCE,
Defendants.
____________________
TABLE OF CONTENTS
I.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.

PROCEDURAL HISTORY

III.

SUBJECT MATTER JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV.

SUMMARY JUDGMENT STANDARD . . . . . . . . . . . . . . . . . . . . . . . . . 2

V.

RELEVANT FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . 3
A.
B.
C.

VI.

Employment and FMLA Leave . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Conflict with Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Conclusion of Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A.

B.
C.
VII.

................................ 2

Disability Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.
Adverse employment action . . . . . . . . . . . . . . . . . . . . . . . 10
2.
Pretext . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
a.
Productivity goals . . . . . . . . . . . . . . . . . . . . . . . . . 14
b.
Justification for misconduct . . . . . . . . . . . . . . . . . . 14
c.
Treatment of other employees . . . . . . . . . . . . . . . . . 16
FMLA Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Hostile Work Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

I. INTRODUCTION
The matters before the court are Defendants CRST Logistics, Inc., CRST
International, Inc. and Amanda Pierce’s (collectively, “CRST”) “Motion for Summary
Judgment” (“Motion”) (docket no. 13) and “Motion to Strike Supplement to Plaintiff’s
Summary Judgment Resistance” (“Motion to Strike”) (docket no. 19).
II. PROCEDURAL HISTORY
On October 13, 2015, Plaintiff Ryan Oberthien filed a Petition (docket no. 3) in the
Iowa District Court for Linn County alleging the following claims against CRST: (1)
disability discrimination in violation of the Americans with Disabilities Act (“ADA”); (2)
harassment causing a hostile work environment in violation of the ADA; and (3) retaliation
in violation of the Family and Medical Leave Act (“FMLA”). On November 16, 2015,
CRST removed the case, bringing it before the court. See Notice of Removal (docket no.
2). On November 23, 2015, CRST filed an Answer (docket no. 5). On January 13, 2017,
CRST filed the Motion. On February 3, 2017, Oberthien filed a Resistance (docket no.
14). On February 13, 2017, CRST filed a Reply (docket no. 17). On March 15, 2017,
Oberthien filed a Supplement to the Resistance (docket no. 18). On March 20, 2017,
CRST filed the Motion to Strike. Neither party requests oral argument and the court finds
that oral argument is unnecessary. The matters are fully submitted and ready for decision.
III. SUBJECT MATTER JURISDICTION
The court has original jurisdiction over the claims in the Petition because they arise
under the United States Code. See 28 U.S.C. § 1331 (“The district courts shall have
original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of
the United States.”).
IV. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if 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.”

2

Fed. R. Civ. P. 56(a). “A dispute is genuine if the evidence is such that it could cause a
reasonable jury to return a verdict for either party; a fact is material if its resolution affects
the outcome of the case.” Amini v. City of Minneapolis, 643 F.3d 1068, 1074 (8th Cir.
2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986)).
“The movant ‘bears the initial responsibility of informing the district court of the
basis for its motion,’ and must identify ‘those portions of the record which it believes
demonstrate the absence of a genuine issue of material fact.’” Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (alterations omitted) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “If the movant does so, the
nonmovant must respond by submitting evidentiary materials that set out ‘specific facts
showing that there is a genuine issue for trial.’” Id. (quoting Celotex, 477 U.S. at 324).
The court must view the record in the light most favorable to the non-moving party
and afford it all reasonable inferences. See Schmidt v. Des Moines Pub. Sch., 655 F.3d
811, 819 (8th Cir. 2011). “Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no genuine issue for trial,” and
summary judgment is appropriate. Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “A
complete failure by the non-moving party ‘to make a showing sufficient to establish the
existence of an element essential to that party’s case necessarily renders all other facts
immaterial.’” B.M. ex rel. Miller v. S. Callaway R-II Sch. Dist., 732 F.3d 882, 886 (8th
Cir. 2013) (alteration omitted) (quoting Celotex, 477 U.S. at 322-23).
V. RELEVANT FACTUAL BACKGROUND
Viewing the evidence in the light most favorable to Oberthien and affording him all
reasonable inferences, the uncontested material facts are as follows.

3

A. Employment and FMLA Leave
In June or July of 2013, Oberthien became employed with CRST as a capacity
executive. “CRST Statement of Undisputed Facts in Support of Motion” (“CRST Facts”)
(docket no. 13-2) ¶ 3; “CRST Appendix in Support of Motion” (“CRST App’x”) (docket
no. 13-3) at 8.1 When Oberthien began working at CRST, he initially reported to capacity
region manager Tom Lower. CRST App’x at 8.
Upon commencing his employment with CRST, Oberthien received a copy of
CRST’s employee handbook. CRST Facts ¶ 4; CRST App’x at 14; see also CRST App’x
at 28-49. The employee handbook identifies “[e]xcessive absenteeism or any absence
without notice” as a violation subject to disciplinary action and provides that
“[d]isciplinary actions are generally progressive.” Id. at 29-30. The employee handbook
also describes CRST’s leave of absence policy, which provides for twelve weeks
(equivalent to 480 hours) of leave time to FMLA-eligible employees. Id. at 41. The
handbook encourages employees to contact a human resources representative if they
receive unfair treatment due to their use of FMLA leave, or if they are harassed or
discriminated against due to a disability. Id. at 42, 45.
In February of 2014, Oberthien’s daughter was diagnosed with cancer. CRST Facts
¶ 5; CRST App’x at 8. Due to his daughter’s condition, CRST approved Oberthien for
480 hours of FMLA leave. CRST Facts ¶ 10; CRST App’x at 9, 186-192. Oberthien’s
FMLA leave was structured to allow him to use his leave time whenever the need arose,
rather than for an unbroken twelve-week period. See, e.g., CRST App’x at 8 (Oberthien
describing his leave arrangement as allowing him “to come . . . when I was available and
could come to work”); id. at 15 (Oberthien stating that “it was a one-day-at-a-time

1

Oberthien had previously been employed with CRST from June of 2012 through
March of 2013. See CRST Facts ¶ 1-2. This prior employment period is not at issue in
this case.
4

situation” depending on the status of his daughter’s treatment at any given time); id. at 122
(identifying the FMLA leave type as “unscheduled”). Oberthien’s 480-hour allotment
applied to the twelve-month period from February of 2014 through February of 2015, at
which point Oberthien could be eligible for an additional 480 hours. See, e.g., CRST
Facts ¶ 10; CRST App’x at 87 (stating that Oberthien’s FMLA eligibility would reset in
February of 2015); id. at 192 (referring to “a ‘rolling’ 12-month period”). Oberthien was
expected to provide his manager with timely notice whenever he planned to use FMLA
leave. CRST Facts ¶¶ 16, 19, 37; CRST App’x at 15, 112.
By October 31, 2014, Oberthien had taken 492 hours of FMLA leave, exceeding
his initial allotment by twelve hours. CRST Facts ¶ 26; CRST App’x at 69. Due to
Oberthien’s early exhaustion of his 480-hour period, CRST approved him for 80 additional
hours. CRST Facts ¶ 26; CRST App’x at 69. By December 17, 2014, Oberthien had
approximately 30 hours remaining of the supplemental 80-hour period. CRST App’x at
70.

On that date, CRST informed Oberthien that “an administrative separation of

employment may be necessary” if he exhausted the 80-hour period before his FMLA
eligibility reset. CRST Facts ¶¶ 18, 32; CRST App’x at 70. CRST further informed
Oberthien that, if an administrative separation became necessary, it would implement a
“catastrophic policy” to provide Oberthien with a post-separation stipend to assist with his
daughter’s health care costs. CRST Facts ¶ 32; CRST App’x at 70. By December 31,
2014, Oberthien had only 15 hours remaining of the supplemental 80-hour period. CRST
Facts ¶ 35; CRST App’x at 87. CRST reminded Oberthien that an administrative
separation, with catastrophic policy, may be necessary if he exhausted his hours. CRST
Facts ¶ 35; CRST App’x at 87. Oberthien did not exhaust his remaining hours—his
FMLA eligibility reset in February of 2015 and no administrative separation occurred.
“Oberthien Appendix of Documents Supporting Resistance” (“Oberthien App’x”) (docket
no. 14-3) at 14.

5

B. Conflict with Management
In September of 2014, Oberthien was reassigned to capacity region manager
Amanda Pierce. CRST Facts ¶ 13; CRST App’x at 10, 112. Oberthien and Pierce
developed a system whereby, on any given day, Oberthien was expected to notify Pierce
by 7:00 a.m. via text message if he expected to be tardy or absent from work. CRST
Facts ¶¶ 19, 37; CRST App’x at 24, 67, 112-13. On several occasions, Oberthien failed
to timely notify Pierce about his tardiness and/or absences—some of which were not
related to his daughter’s medical treatment. CRST Facts ¶¶ 28, 33, 34, 36, 38, 40; see
also CRST App’x at 72-73, 85. Oberthien apparently had similar issues when he worked
under Lower, but he was never confronted about them. Cf. Oberthien App’x at 12.
However, Pierce regularly confronted Oberthien about his notification issues, reminded
him of her expectations and, on one occasion, initiated disciplinary action against him.
CRST Facts ¶¶ 27, 30, 34, 36; CRST App’x at 58.
Beyond the notification issues, there were additional instances of conflict between
Pierce and Oberthien occurring “[o]n a daily basis.” CRST App’x at 10. For example:
at times when Oberthien left work early, Pierce would inquire as to why he was leaving
and would remind him that there were “loads still on the board”; when Oberthien failed
to promptly answer a ringing phone, Pierce commented, “Do you not know how to answer
a phone? Then you probably shouldn’t be working here.”; during a team meeting, Pierce
confronted Oberthien about failing to meet his productivity goals and commented that “if
you were here all day every day you would have hit your goals”; and, lastly, Pierce
reassigned one of the carrier loads that Oberthien serviced to another employee because
she did not like the terms that Oberthien had negotiated. CRST Facts ¶ 14; CRST App’x
at 10-11.

Oberthien informally complained about Pierce to team captain Stephen

Funderburk, director of carrier sourcing (and Pierce’s immediate supervisor) Jeremy
Snyder and human resources representative Brooke Willey. See CRST App’x at 12

6

(Oberthien describing that he “pulled [Funderburk] into the office” to complain about
Pierce and that he and Willey “would just talk back and forth”); Oberthien App’x at 36-37
(Snyder describing “off-the-record . . . man-to-man kind of conversations” with Oberthien
wherein Oberthien complained about Pierce). Due to Pierce’s treatment of Oberthien,
Oberthien asked Funderburk, Snyder and another manager, Brandon Bradley, if he could
be reassigned to work under a different manager. CRST Facts ¶ 39; “Oberthien’s
Statement of Additional Facts” (“Oberthien Facts”) (docket no. 14-2) ¶ 16; CRST App’x
at 14; Oberthien App’x at 37. Oberthien was unable to secure a reassignment. CRST
Facts ¶ 39; CRST App’x at 14.
C. Conclusion of Employment
On February 6, 2015, Oberthien was tardy for non-FMLA purposes when returning
to work after his lunch break. CRST Facts ¶ 40; CRST App’x at 21. Oberthien did not
notify Pierce of his tardiness, but instead notified Funderburk and Snyder. CRST Facts
¶ 40; CRST App’x at 21, 59. Oberthien elected to notify Funderburk and Snyder instead
of Pierce because he was worried that Pierce would discipline him. See CRST App’x at
21; Oberthien App’x at 14. On February 9, 2015, Oberthien sent a message to Bradley
over CRST’s internal messaging system complaining that Pierce hated him, would not give
him anything he wanted and treated him “like shit 100% of the time.” CRST Facts ¶ 41;
CRST App’x at 21, 59.
On February 11, 2015, Oberthien was issued a “Final Written” disciplinary action
as a result of his misconduct on February 6 and 9. CRST Facts ¶ 43; CRST App’x at 5960. Oberthien was notified of the disciplinary action during a meeting with Pierce and
human resources representative Karen Carlson. See CRST App’x at 132. Oberthien
expressed displeasure at being disciplined and refused to sign the disciplinary document.
CRST Facts ¶ 43; CRST App’x at 6, 132. Following the meeting, Carlson encouraged
Oberthien to take the rest of the day off. CRST Facts ¶ 44; CRST App’x at 7, 132.

7

Oberthien retrieved photographs of his daughters from his desk and then left work early,
as Carlson had suggested. CRST Facts ¶ 45; CRST App’x at 7. Despite retrieving the
photographs, Oberthien left certain other personal items at his desk. Oberthien App’x at
15. After Oberthien left, Carlson initiated the process of canceling Oberthien’s building
access. CRST App’x at 133.
After learning that Oberthien left work early on February 11, Snyder worried that
the situation would distract other employees from their work. Oberthien Facts ¶ 22; CRST
App’x at 167. Despite not being present in Oberthien’s disciplinary meeting, Snyder
assumed that Oberthien permanently ended his employment—either because he quit or
because he was terminated. See CRST App’x at 168. In an effort to mitigate any
distraction among other employees, Snyder communicated to the employees near
Oberthien’s desk that Oberthien was “no longer with the company.” Oberthien Facts ¶ 23;
CRST App’x at 168. Shortly thereafter, Snyder learned that Oberthien had not, in fact,
quit or been terminated. See CRST App’x at 167. However, Snyder did not follow up
with the employees to correct his incorrect statement about Oberthien leaving the company.
Oberthien Facts ¶ 25; CRST App’x at 168.
On February 12, 2015, Oberthien sent Pierce a text message at 6:50 a.m. notifying
her that he would be tardy because “[t]he emotional and mental stress you have put on me
has made it tough to sleep.” CRST Facts ¶ 47; CRST App’x at 135-36. At approximately
7:30 a.m., Oberthien received a text message from a co-worker relaying Snyder’s
communication that Oberthien was no longer with the company. CRST Facts ¶ 48; CRST
App’x at 7. At 7:51 a.m., Pierce sent Oberthien a text message requesting that he contact
human resources. CRST Facts ¶ 49; CRST App’x at 107. At least once on the morning
of February 12, human resources representative Angela Stastny attempted to call Oberthien
but was unable to reach him. CRST App’x at 172-73. According to Stastny, she hoped
to further discuss Oberthien’s disciplinary action from the prior day and to address any

8

concerns he had.

CRST App’x at 174.

Oberthien believed that human resources

representatives were trying to contact him to formally terminate him. Oberthien App’x at
17-18. After leaving early on February 11, 2015, Oberthien never returned to work at
CRST. See CRST Facts ¶ 55; CRST App’x at 6 (identifying February 11, 2015 as
Oberthien’s last day working at CRST).
On February 18, 2015, CRST informed Oberthien’s health insurance provider that
Oberthien was no longer employed with CRST. CRST Facts ¶ 59; CRST App’x at 175.
Accordingly, Oberthien’s health insurance coverage was terminated retroactive to
Oberthien’s last day of employment on February 11, 2015. CRST Facts ¶ 60; CRST
App’x at 175. CRST’s employee handbook provides that “[a]n employee who fails to
report to work or call in for three consecutive workdays will be terminated for job
abandonment.” CRST Facts ¶ 56; CRST App’x at 40. On February 24, 2015, Carlson
sent a letter to Oberthien communicating that Oberthien was a no-call no-show for more
than three consecutive days and that, accordingly, CRST considered him to have
voluntarily resigned due to job abandonment. See CRST Facts ¶ 57; CRST App’x at 146.
VI. ANALYSIS
Oberthien alleges that CRST’s conduct amounts to disability discrimination,
disability harassment creating a hostile work environment and FMLA retaliation. CRST
argues that the court should grant summary judgment in its favor on all three claims.
A. Disability Discrimination
The ADA provides that “[n]o covered entity shall discriminate against a qualified
individual on the basis of disability in regard to . . . [the] discharge of employees.” 42
U.S.C. § 12112(a). Where no direct evidence of discrimination exists, claims of disability
discrimination under the ADA are subject to the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Oehmke v. Medtronic, Inc., 844 F.3d
748, 755 (8th Cir. 2016). Under this framework,

9

[t]he plaintiff first has the burden of establishing a prima facie
case: (1) that the plaintiff was disabled within the meaning of
the ADA; (2) that the plaintiff was qualified to perform the
essential functions of the job; and (3) a causal connection
between an adverse employment action and the disability. The
burden of production then shifts to the employer to show a
legitimate, nondiscriminatory reason for the adverse action.
Finally, the burden shifts back to the employee to show that
the proffered reason was, in reality, a pretext for
discrimination.
Id. (internal citations omitted).
CRST does not dispute that Oberthien is “disabled within the meaning of the ADA”2
or that he was qualified to perform the job. See “CRST Brief in Support of Motion for
Summary Judgment” (“CRST Brief”) (docket no. 13-1) at 4, 4 n.2. However, CRST
argues that summary judgment is appropriate on this claim because the record does not
establish a genuine dispute of material fact with respect to (1) whether Oberthien suffered
an adverse employment action, id. at 4-5, or (2) whether CRST’s justification for any
adverse employment action is pretextual, id. at 6-7.
1.

Adverse employment action

“An adverse employment action is a tangible change in working conditions that
produces a material employment disadvantage.” Sellers v. Deere & Co., 791 F.3d 938,
942 (8th Cir. 2015) (internal quotation marks omitted) (quoting Thomas v. Corwin, 483
F.3d 516, 528 (8th Cir. 2007)). An adverse employment action “requires an official act
of the enterprise, a company act.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762
(1998). Termination is the quintessential adverse employment action; however, “to be

2

The ADA protects against “excluding or otherwise denying equal jobs or benefits
to a qualified individual because of the known disability of an individual with whom the
qualified individual is known to have a relationship or association.” 42 U.S.C.
§ 12112(b)(4). Thus, Oberthien is an ADA-protected individual due to his association with
his disabled daughter.
10

‘adverse’ the action need not always involve termination or even a decrease in benefits or
pay.” Kelleher v. Wal-Mart Stores, Inc., 817 F.3d 624, 632 (alteration omitted) (quoting
Sellers, 791 F.3d at 942). Voluntary employment changes do not amount to adverse
employment actions. See Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 717 (8th
Cir. 2003) (observing that “it is true that a plaintiff cannot state an adverse employment
action if he voluntarily resigned,” provided that the resignation was truly voluntary).
CRST argues that there is no genuine dispute of material fact with respect to any
adverse employment action because Oberthien was not, in fact, terminated. CRST Brief
at 5. CRST points to evidence that Oberthien was not terminated at the February 11
disciplinary meeting, Oberthien understood that he remained employed after leaving work
on February 11, CRST management never advised Oberthien that he was terminated and
Oberthien’s employment ended only after he no-call no-showed on three consecutive days.
See id.

In CRST’s view, Oberthien voluntarily resigned from his employment by

abandoning the job. Cf. id.; see also CRST App’x at 119 (describing Oberthien’s
termination as “voluntary” in letter to EEOC).
Oberthien acknowledges that CRST management never affirmatively communicated
to him that he was terminated, CRST App’x at 6, but Oberthien emphasizes that he
likewise never communicated that he had resigned. See Resistance at 3. Oberthien further
argues that the evidence on record raises a genuine dispute as to whether he was
terminated. See id. 2-6. The court agrees. While the evidence identified by CRST would
suggest that Oberthien was not terminated, other evidence similarly suggests that Oberthien
was indeed terminated. For example, in the aftermath of Oberthien’s disciplinary meeting
on February 11, 2015: (1) CRST initiated the process of terminating his building access,
(2) it declined to correct Snyder’s incorrect communication that Oberthien was “no longer
with the company” and (3) Pierce uncharacteristically failed to acknowledge Oberthien’s
text message that he would be tardy on February 12, instead directing him to “please

11

contact human resources.” CRST App’x at 107. Viewed in the light most favorable to
Oberthien, a reasonable jury could interpret these events as official acts by CRST to
prevent Oberthien’s return to work. See Ellerth, 524 U.S. at 762. Accordingly, the court
finds that Oberthien has demonstrated a genuine dispute of material fact with respect to an
adverse employment action.
2.

Pretext

If an employee establishes a prima facie case of discrimination, the burden shifts
to the employer to proffer a legitimate nondiscriminatory rationale for the adverse
employment action. Oehmke, 844 F.3d at 755. If the employer does so, the burden shifts
back to the employee to show that the proffered rationale is merely pretext for a
discriminatory motive. Id. “There are at least two routes for demonstrating a material
question of fact as to pretext: first, a plaintiff may succeed indirectly by showing the
proffered explanation has no basis in fact; or, second, a plaintiff can directly persuade the
court that a prohibited reason more likely motivated the employer.” Gibson v. Geithner,
776 F.3d 536, 540 (8th Cir. 2015). “A plaintiff may show pretext, among other ways, by
showing that an employer (1) failed to follow its own policies, (2) treated similarly-situated
employees in a disparate manner, or (3) shifted its explanation of the employment
decision.” Gibson v. Am. Greetings Corp., 670 F.3d 844, 854 (8th Cir. 2012) (quoting
Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010)). Evidence supporting
a prima facie case of discrimination may also support a showing of pretext. See Smith v.
Allen Health Sys., Inc., 302 F.3d 827, 834 (8th Cir. 2002). However, pretext requires a
heightened showing “because unlike evidence establishing the prima facie case, evidence
of pretext . . . is viewed in light of the employer’s justification.” Id. (quoting Sprenger
v. Fed. Home Loan Bank, 253 F.3d 1106, 1111 (8th Cir. 2001)); accord Cody v. Prairie
Ethanol, LLC, 763 F.3d 992, 997 (8th Cir. 2014).
Because the court has found a genuine dispute of material fact with respect to

12

Oberthien’s termination after the February 11, 2015 disciplinary meeting, the court must
consider whether CRST’s proffered justification for Oberthien’s discipline and subsequent
termination is pretextual. Assuming that Oberthien can establish a prima facie case of
discrimination, CRST claims that it terminated3 Oberthien due to his failure to notify
Pierce that he expected to be tardy when returning from his lunch break, and due to the
message that Oberthien sent to another manager, stating that Pierce treated him “like shit.”
See CRST Brief at 7. Oberthien does not argue that CRST’s proffered reasons lack any
basis in fact but, instead, argues that discrimination was the true reason for his
termination. See Resistance at 6-14 (arguing that CRST’s actions were motivated by
disability discrimination and linking his termination to Pierce’s “disability-based bullying
behavior”). Oberthien appears to put forth three theories in support of his pretext
argument: (1) he was terminated “for not making his productivity goals because of his
absences from work . . . to be with his cancer-stricken daughter”; (2) his misconduct was
a justified response to Pierce’s purported disability harassment, and his termination was
punishment for resisting such harassment; and (3) Pierce has a history of treating
employees unfairly, such that he was more likely terminated for unfair reasons than for
legitimate ones. See Resistance at 7-14; Supplement to the Resistance.4

3

As addressed above, CRST disputes that it terminated Oberthien. However,
because Oberthien has demonstrated a genuine dispute on the issue, and for the sake of
convenience, the court shall assume for purposes of its analysis that CRST terminated
Oberthien.
4

Oberthien points to various evidence in the record without explicitly identifying
whether such evidence relates to his prima facie case or to pretext. See Resistance at 7-14
(generally describing purported mistreatment by Pierce). Because CRST challenges
Oberthien’s ability to raise a genuine issue of pretext, see CRST Brief at 6 (“Here,
Plaintiff cannot show CRST’s action was pretextual.”), the court interprets Oberthien’s
briefing to argue pretext based on evidence underlying his prima facie case. See Smith,
302 F.3d at 834.
13

a.

Productivity goals

Oberthien argues that Pierce discriminated against him because he regularly missed
work to care for his daughter. Resistance at 8-9. In support of this theory, Oberthien
points to the occasion where Pierce attributed his failure to meet productivity goals to his
inability to work “all day every day.” Id. at 8. Such evidence does not establish a genuine
dispute as to pretext. Even assuming that such comment would be probative to Oberthien’s
prima facie case, viewed in light of CRST’s proffered reason for terminating Oberthien,
the comment does not indicate pretext. Smith, 302 F.3d at 834. There is no evidence in
the record as to when Pierce made this comment, preventing any insinuation of pretext
based on temporal proximity to Oberthien’s termination. Further, the record is entirely
lacking as to any formal or informal documentation of CRST’s concerns with Oberthien’s
productivity—warranting a conclusion that Pierce’s comment was an isolated occurrence
that had no practical bearing on Oberthien’s ultimate termination.

The lack of

documentation regarding Oberthien’s productivity is pitted against the voluminous
documentation supporting CRST’s proffered explanation that Oberthien was terminated for
his recurring failure to timely notify Pierce when he would be tardy or absent. See CRST
App’x at 58, 72-73, 75-77, 80-81, 85-86, 88, 90-91, 94-107. In short, Pierce’s comments
do not establish a genuine dispute regarding pretext.
b.

Justification for misconduct

Oberthien argues that he only engaged in the misconduct precipitating his
termination “because . . . Pierce had been abusing . . . Oberthien in the workplace because
of his employer-approved use of FMLA time to be with his cancer-stricken daughter.”
Resistance at 7.

Oberthien implies that CRST terminated him, not because of his

misconduct itself, but because his misconduct was a “cry for help” motivated by Pierce’s
harassment. See id. at 10; cf. Oberthien App’x at 14-15. Oberthien points to evidence that
he was regularly mistreated by Pierce, other employees knew of the mistreatment and his

14

complaints and attempts to be reassigned were unsuccessful. Resistance at 7-10. Against
this backdrop, Oberthien argues that his misconduct was a mere expression of frustration
and he was unfairly punished for it. Id. at 10. The evidence put forth by Oberthien, and
his characterization of such evidence, does not demonstrate a genuine issue of material fact
as to pretext.
First, the employee handbook instructs employees to raise any harassment concerns
with “the appropriate Manager or the Human Resources Department.” CRST App’x at
45. However, despite characterizing his actions as a “cry for help” motivated by Pierce’s
harassment, Oberthien did not send his message about Pierce to a human resources
representative or to Snyder, Pierce’s supervisor. Instead, Oberthien sent the message to
Bradley, who was one of Pierce’s manager peers with no apparent supervisory authority
over her. See CRST App’x at 14 (referring to Bradley as the Northeast region manager);
id. at 112 (identifying Pierce as the Midwest region manager). By failing to raise his
concerns to anyone capable of acting on them, Oberthien’s stated intent to communicate
a “cry for help” rings hollow. See also Dose v. Buena Vista Univ., 229 F. Supp. 2d 910,
926 (N.D. Iowa 2002) (declining to consider the intent behind an employee’s actions
because the pretext inquiry solely “concerns itself with whether the employer’s stated
reasons for termination were in fact the actual reasons for the action taken”).
Second, it is undisputed that Oberthien was expected to notify Pierce when he would
be absent or tardy. Indeed, the record shows that Oberthien had a history of formal and
informal discipline for failing to notify Pierce pursuant to this expectation. See, e.g.,
CRST App’x at 58, 72-73, 76-77, 80-81, 85-86 (documentation of written warning, text
messages and emails addressing Oberthien’s non-compliance with the notification
expectations). Oberthien does not characterize these previous failures to notify Pierce as
expressions of his feelings of frustration. See Resistance at 10 (stating that Oberthien
“expressed his feelings about . . . Pierce’s continuing supervision of him on February 6

15

and 9, 2015”). Therefore, the discipline he received on prior occasions cannot be
considered unfair punishment for expressing such feelings. Oberthien’s consistent failure
to properly notify Pierce, as well as CRST’s general policy of progressive discipline for
“any absence without notice,” CRST App’x at 29-30, place CRST’s decision to terminate
Oberthien in full compliance with company policy. In short, Oberthien repeatedly failed
to comply with the notification policy instituted by Pierce, and CRST terminated him in
accordance with its stated disciplinary policies. Oberthien’s protected status under the
ADA does not insulate him from termination for repeated failures to adhere to company
policies. Cf. Geithner, 776 F.3d at 542 (recognizing, in the retaliation context, that
longstanding concerns about an employee’s adherence to company standards lend support
to the legitimacy of an employer’s proffered reason for the employee’s termination).
In short, Oberthien’s justification of his misconduct does not establish a genuine
dispute regarding pretext.
c.

Treatment of other employees

Oberthien argues that Pierce’s purported harassment and unfair treatment of other
CRST employees reveals that CRST’s reason for terminating Oberthien was pretextual.
See Resistance at 10-14; Supplement to Resistance.5 Particularly, Oberthien compares his
5

In the Motion to Strike, CRST argues that the court should strike the Supplement
to Resistance because it is barred by the Federal Rules of Civil Procedure and the Local
Rules. See Brief in Support of Motion to Strike (docket no. 19-1) at 2-4. Particularly,
CRST argues that Federal Rule 56 and Local Rule 56 do not contemplate the filing of a
supplement to summary judgment materials. Id. at 2. CRST further argues that Federal
Rule 37 prohibits a party from relying on a witness that was undisclosed under Federal
Rule 26. Id. at 2-4. Because Oberthien failed to disclose Whitney Gauley in his initial
disclosures and supplements to his initial disclosures, see CRST Ex. A to Motion to Strike
(docket no. 19-2), Oberthien “is not allowed to use that . . . witness to supply evidence
on a motion . . . unless the failure was substantially justified or is harmless.” Fed. R. Civ.
P. 37(c)(1). Oberthien argues that Gauley’s situation amounted to “new evidence” that he
“could not have had access [to] at the time of the filing of his Resistance.” Supplement
(continued...)
16

situation to the situations of Amy Close and Whitney Gauley.
According to an affidavit provided by Close, Pierce behaved as if she “hated”
Close. Oberthien App’x at 24. Specifically, Pierce obstructed Close’s ability to perform
her work, yelled at Close, “put her hand right in [Close’s] face” and swore at Close. Id.
Additionally, on one occasion, Pierce attempted to prevent Close from leaving work due
to a hand injury that Close sustained outside of work. Id. at 24-25. When Close decided
to leave work anyway, Pierce yelled at her in front of her colleagues. Id. Close ultimately
quit working at CRST. Id. at 23.
According to an affidavit provided by Gauley, Gauley qualified for eighteen weeks
of maternity leave—six weeks of short-term disability and twelve weeks of FMLA leave.
Gauley Affidavit (docket no. 18-1) ¶ 7. When Gauley returned to work early—after eight
weeks—CRST discontinued her FMLA leave, rather than allowing intermittent use of the
remaining leave balance. Id. ¶¶ 7-8. When Gauley sought to take periodic time off after
her return, Pierce required her to provide documentation, such as a doctor’s note,
justifying her absences. Cf. id. ¶ 11 (“She made it impossible for me to leave. . . . She
would tell me that she needs this or that, like a doctor’s note, etc.”). During a period of
six months following Gauley’s return from maternity leave, Pierce denied several of
Gauley’s requests to leave work. Id. ¶¶ 8-10. Eventually, Gauley left work without
receiving Pierce’s permission, and Pierce “appeared to be very angry” when Gauley did
not heed Pierce’s text-messaged request to return to work. Id. ¶ 12. On February 8,
2017, CRST terminated Gauley for “misconduct and violation of the handbook.” Id. ¶ 5.
Unlike a quintessential pretext showing, wherein an ADA-protected employee puts

5

(...continued)
to Resistance at 1. The court finds Oberthien’s failure to timely disclose Gauley’s
evidence to be harmless. As the court describes herein, even considering such evidence,
Oberthien fails to establish a genuine dispute of material fact sufficient to defeat summary
judgment on his claims. Accordingly, the court shall deny the Motion to Strike.
17

forth evidence that the employer treated him more harshly than similarly situated nonprotected employees, see, e.g., Ryan v. Cap. Contractors, Inc., 679 F.3d 772, 777 (8th
Cir. 2012), Oberthien argues that Pierce treated him just as harshly as she treated Close
and Gauley. Cf. Resistance at 10-14; Supplement to Resistance ¶ 4. Whatever the merits
of this argument, it does not create a genuine dispute regarding pretext. Because there is
no showing that Close or Gauley were disabled within the meaning of the ADA at the time
Pierce treated them poorly, the examples of their poor treatment have no bearing on the
pretext inquiry. Oberthien cannot establish a genuine issue of pretext merely by showing
that Pierce was “a very mean person” or a bully, Resistance at 11, but must instead
“rais[e] a reasonable inference that the real reason for his discharge” was his ADAprotected status. Kosmicki v. Burlington N. & Santa Fe Ry. Co., 545 F.3d 649, 651 (8th
Cir. 2008). From the evidence regarding Close and Gauley, it is apparent that Pierce’s
treatment of Oberthien was consistent with her treatment of other non-ADA-protected
employees. Therefore, it is not probative of pretext. In short, Pierce’s treatment of Close
and Gauley does not establish a genuine dispute regarding pretext.
Although Oberthien has established a genuine dispute of material fact with respect
to an adverse employment action, he has failed to establish a genuine dispute of material
fact with respect to pretext. The record, taken as a whole and viewed in the light most
favorable to Oberthien, could not lead a reasonable jury to find in Oberthien’s favor on his
disability discrimination claim. Accordingly, summary judgment is appropriate on this
claim.
B. FMLA Discrimination
FMLA-eligible individuals are “entitled to a total of 12 workweeks of leave during
any 12-month period” for use in certain enumerated circumstances.

18

29 U.S.C.

§ 2612(a)(1). In an FMLA discrimination claim,6 the employee must show “that the
employer discriminated against [him] for exercising [his] FMLA rights.” Sisk v. Picture
People, Inc., 669 F.3d 896, 899 (8th Cir. 2012) (quoting Wierman v. Casey’s Gen. Stores,
638 F.3d 984, 999 (8th Cir. 2011)). Like claims of disability discrimination, FMLA
discrimination claims are subject to the McDonnell Douglas burden-shifting framework:
the employee must make a prima facie showing of discrimination, at which point the
burden falls on the employer to provide a legitimate non-discriminatory reason for the
adverse employment action, at which point the employee must show that the proffered
explanation is mere pretext for discrimination. Id. “To establish a prima facie case, [the
employee] must show that: 1) []he engaged in protected conduct; 2) []he suffered a
materially adverse employment action; and 3) the materially adverse action was causally
linked to the protected conduct.” Wierman, 638 F.3d at 999.
CRST argues that summary judgment is appropriate on this claim because the
record does not establish a genuine dispute of material fact with respect to whether
Oberthien suffered an adverse employment action or whether any such adverse
employment action was causally linked to Oberthien’s exercise of FMLA rights. CRST
Brief at 8. Consistent with the discussion above, the court finds that Oberthien has
established a genuine dispute of material fact regarding an adverse employment action.
Therefore, the court shall proceed to determine whether he has established a genuine
dispute regarding a causal link between such action and his exercise of FMLA rights.
CRST contends that its termination of Oberthien “had nothing to do with his
6

Although Oberthien fashions his FMLA claim as “retaliation,” he specifiaclly
alleges that CRST terminated him because he exercised his FMLA rights. See Petition
¶¶ 34-41. The Eighth Circuit has advised that such claims are more appropriately
considered “FMLA discrimination” claims, as distinct from express “entitlement” and
“retaliation” claims enumerated within the FMLA. Pulczinski v. Trinity Structural
Towers, Inc., 691 F.3d 996, 1005-06 (8th Cir. 2012). Therefore, the court shall treat
Oberthien’s claim as alleging FMLA discrimination.
19

exercise of FMLA rights,” but instead was the result of Oberthien’s failure to properly
notify Pierce of when he would be tardy or absent. See id. CRST points to the fact that
it affirmatively extended Oberthien’s FMLA period by eighty hours as evidence that its
termination of Oberthien was not causally linked to his exercise of FMLA leave. Id.
Oberthien argues that Pierce’s “aggression toward him was based on his usage of
employer-approved FMLA time,” such that his termination was causally linked to his
exercise of FMLA leave. Resistance at 14. Pierce’s “aggression” includes her comments
about Oberthien’s failure to meet productivity goals because he was incapable of being at
work “all day every day.” Id. However, to establish a genuine dispute of causation,
Oberthien must do more than connect his exercise of FMLA leave to Pierce’s
“aggression”—he must connect it to CRST’s decision to terminate him. The evidence in
the record supports no such connection.
First, Oberthien qualified for and exercised his FMLA rights for approximately one
year prior to his termination. The significant length of Oberthien’s unimpeded exercise
of rights prior to his ultimate termination “dilute[s] any inference of causation.” See
Brown v. City of Jacksonville, 711 F.3d 883, 891 (8th Cir. 2013) (quoting McBurney v.
Stew Hansen’s Dodge City, Inc., 398 F.3d 998, 1003 (8th Cir. 2005)). Second, even
when Oberthien exceeded his 480-hour FMLA allotment in October of 2014—four months
before his FMLA eligibility reset—CRST opted not to terminate him. Instead, it provided
him eighty additional hours of leave time to which Oberthien was not otherwise entitled
under the FMLA. See CRST App’x at 69. Such evidence indicates that CRST had no
discriminatory animus with respect to Oberthien’s FMLA usage and, indeed, supported
him in his usage of leave time. Third, the record establishes that CRST took no formal
action against Oberthien regarding his usage of leave time—or any productivity issues
relating to his usage of leave time—until he consistently failed to provide notice of his
tardiness and absences. And, even then, Oberthien received no discipline until he had

20

compiled thirteen incidences of tardiness without the requisite notification. Compare
CRST App’x at 85 (email sent December 18, 2015 describing thirteen instances where
Oberthien was tardy without notifying Pierce), with CRST App’x at 58 (Oberthien’s first
written disciplinary action for being tardy without providing notice, issued on January 2,
2015). Fourth, Oberthien’s termination occurred mere days after two undisputed instances
of misconduct, wherein he again failed to notify Pierce of his tardiness and proceeded to
disparage her to another CRST employee. The relative promptness of CRST’s decision
to terminate Oberthien after his misconduct is consistent with a conclusion that such
misconduct was the sole motivation for his termination.
Whatever Oberthien’s perception of Pierce’s “aggression,” the evidence in the
record is insufficient for a reasonable jury to find that Oberthien’s termination—the actual
adverse employment action of which he complains—was causally linked to his exercise of
FMLA rights. As such, Oberthien has failed to establish a genuine dispute regarding the
causation prong of his prima facie case of FMLA discrimination.7 The record, taken as
a whole and viewed in the light most favorable to Oberthien, could not lead a reasonable
jury to find in Oberthien’s favor on his FMLA discrimination claim. Accordingly,
summary judgment is appropriate on this claim.
C. Hostile Work Environment
“In order to establish a claim of harassment or hostile work environment, a plaintiff
must show: ‘(1) the plaintiff belongs to a protected group; (2) the plaintiff was subject to
unwelcome harassment; (3) a causal nexus exists between the harassment and the plaintiff’s
7

Although CRST premises its FMLA discrimination argument on the causation
prong, CRST Brief at 8, the court additionally finds that Oberthien fails to establish a
genuine issue with respect to pretext. See Chappell v. Bilco Co., 675 F.3d 1110, 1117-18
(8th Cir. 2012) (observing that an FMLA-eligible employee creates no genuine issue with
respect to pretext where an employer terminated the employee for “violat[ing] the
attendance policy” and where the employee counters the employer’s proffered reason with
weak evidence supporting prima facie case).
21

protected group status; and (4) the harassment affected a term, condition, or privilege of
employment.’” Kelleher, 817 F.3d at 634 (quoting Gordon v. Shafer Contracting Co., 469
F.3d 1191, 1194-95 (8th Cir. 2006)). To determine whether harassment affects “a term,
condition, or privilege of employment” under the fourth element, the court “consider[s]
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.” Sellers, 791 F.3d at 945 (quoting Ryan, 679
F.3d at 778-79).
CRST argues that a reasonable jury could not find that any harassment experienced
by Oberthien rose to a level affecting a term, condition or privilege of his employment.
CRST Brief at 9. Oberthien contends that evidence of Pierce’s “daily intimidation,
ridicule and insult” is sufficient to raise a genuine dispute of material fact regarding his
claim of hostile work environment. Resistance at 16.
Oberthien points to evidence of four particular instances of harassment that he
claims are representative of the harassment he endured while employed by CRST: (1)
Pierce confronted Oberthien when he left work early and reminded him that there were
“loads still on the board”; (2) when Oberthien failed to promptly answer a ringing
telephone, Pierce commented, “Do you not know how to answer a phone? Then you
probably shouldn’t be working here.”; (3) during a team meeting with other co-workers,
Pierce addressed Oberthien’s failure to meet productivity goals by stating, “if you were
here all day every day you would have hit your goals”; and (4) Pierce reassigned one of
Oberthien’s carrier loads to another employee because she disliked the terms that Oberthien
had negotiated. CRST Facts ¶ 14; CRST App’x at 10-11. Even assuming that there are
additional instances of this kind of treatment, as Oberthien claims, such treatment does not
establish a genuine dispute of material fact regarding his claim of a hostile work
environment.

22

First, a reasonable jury could not find Pierce’s comment about the telephone and
her reassignment of Oberthien’s carrier load to be causally connected to Oberthien’s ADAprotected status. Oberthien himself recognizes that Pierce made the telephone comment
because he failed to answer a ringing telephone while he was present at work and that she
reassigned his carrier load because she did not like the rate that Oberthien negotiated.
See CRST App’x at 10-11. Whether Pierce’s actions were rude, insulting or unreasonable
is irrelevant if they are unconnected to Oberthien’s ADA-protected status because the
“anti-discrimination laws do not create a general civility code.” Shaver v. Indep. Stave
Co., 350 F.3d 716, 721 (8th Cir. 2003). As such, even if this conduct is representative
of additional conduct not specifically identified, and even if it affected a term, condition
or privilege of Oberthien’s employment, evidence of such conduct does not establish a
genuine dispute regarding the causation prong of a hostile work environment claim.
Second, a reasonable jury could not find Pierce’s other conduct to be sufficiently
severe to affect a term, condition or privilege of Oberthien’s employment. Pierce’s
comments about Oberthien leaving early and his failure to meet production goals, even if
rude or insensitive, are neither physically threatening nor humiliating, and there is no
evidence that the comments interfered with Oberthien’s ability to do his job. See Sellers,
791 F.3d at 945. While Oberthien might have subjectively found Pierce’s comments
hurtful or embarrassing, see Oberthien App’x at 6, “[a] hostile work environment must be
both subjectively and objectively offensive, as well as ‘extreme in nature and not merely
rude or unpleasant.’” Ryan, 679 F.3d at 779 (quoting Sutherland v. Mo. Dep’t of Corr.,
580 F.3d 748, 751 (8th Cir. 2009)). A reasonable jury could not find that Pierce’s
comments were objectively offensive or extreme in nature. As such, even if Pierce’s
comments are representative of additional conduct not specifically identified, evidence of
such comments does not establish a genuine dispute regarding the “term, condition, or
privilege” prong of a hostile work environment claim.

23

Oberthien has failed to establish a genuine dispute regarding the causation prong and
the “term, condition, or privilege” prong of his hostile work environment claim. The
record, taken as a whole and viewed in the light most favorable to Oberthien, could not
lead a reasonable jury to find in Oberthien’s favor on his hostile work environment claim.
Accordingly, summary judgment is appropriate on this claim.
VIII. CONCLUSION
In light of the foregoing, CRST’s Motion to Strike (docket no. 19) is DENIED and
CRST’s Motion for Summary Judgment (docket no. 13) is GRANTED. The Clerk of
Court is DIRECTED to enter judgment in favor of Defendant.
VACATED.
IT IS SO ORDERED.
DATED this 24th day of March, 2017.

24

The trial date is