Kuchenreuther v. Advanced Drainage Systems, Inc

Filing 23

MEMORANDUM OPINION AND ORDER granting 14 Motion for Summary Judgment on all of Kuchenreuther's claims, and judgment shall enter accordingly. See text of Order for details. Signed by Judge Mark W Bennett on 2/4/14. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
DARWIN KUCHENREUTHER,
No. C 12-3088-MWB
Plaintiff,
vs.
ADVANCED DRAINAGE SYSTEMS,
INC.,
Defendant.

MEMORANDUM OPINION AND
ORDER REGARDING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

___________________________
In this action, removed from state court, plaintiff Darwin Kuchenreuther alleges
that he was unlawfully terminated from his employment as a professional fleet driver with
defendant Advanced Drainage Systems, Inc., (ADS) after reaching 12 months of
continued disability leave. He originally contended that his termination was in retaliation
for claiming workers compensation benefits, in violation of Iowa public policy, and
because of his disability, in violation of the Americans with Disabilities Act (ADA), 42
U.S.C. § 12101 et seq. He also alleged that ADS failed to accommodate his disability,
in violation of the ADA.
This case is now before me on ADS’s November 18, 2013, Motion For Summary
Judgment (docket no. 14) on all of Kuchenreuther’s claims. In a Resistance (docket no.
19), filed December 23, 2013, Kuchenreuther concedes that his ADA claims should be
dismissed, but asserts that genuine issues of material fact preclude summary judgment on
his claim of wrongful termination in violation of public policy. In a Reply (docket no.
21), filed January 10, 2014, ADS asserts that Kuchenreuther has failed to generate
genuine issues of material fact that he was fired in retaliation for claiming workers
compensation benefits, in violation of public policy, rather than pursuant to a consistent,

neutral custom and practice of terminating every employee who is unable to return to
work after 12 months, regardless of the reason that the employee cannot return.
Determining precisely what facts are genuinely in dispute is complicated here,
because both parties failed to comply with the requirements for submission of and
resistance to a motion for summary judgment set forth in N.D. IA. L.R. 56. Specifically,
ADS did not submit a statement of material facts, filed as a separate electronic attachment
to the motion, or a consecutively numbered appendix. See N.D. IA. L.R. 56(a)(3) and
(e). The first failing is of relatively little consequence here, however, because ADS did
submit a “Statement of Material Facts” as a section of its brief in support of its Motion
For Summary Judgment that substantially complies with the applicable local rule,
although it does include various factual allegations in an extended footnote. Much more
problematic is the lack of any response by Kuchenreuther to ADS’s “Statement of
Material Facts” in which Kuchenreuther “expressly admits, denies, or qualifies each of
[ADS’s] numbered statements of fact,” as required by N.D. IA. L.R. 56(b)(2). Instead,
Kuchenreuther has simply submitted a competing, unnumbered “Statement of Material
Facts” as part of his Resistance brief, which neither complies with the requirements of
N.D. IA. L.R. 56(b)(2), concerning his resistance to ADS’s statement of facts, nor N.D.
IA. L.R. 56(b)(3), concerning his statement of additional material facts that purportedly
preclude summary judgment.

Kuchenreuther also failed to submit a consecutively

numbered appendix. Had I noticed these failings earlier, I likely would have stricken
both the Motion For Summary Judgment and the Resistance. Because I did not notice
these failings earlier, I have simply muddled through, attempting to ascertain from the
parties’ statements, arguments, and citations precisely what facts are genuinely in dispute.
A substantial part of ADS’s Reply is devoted to objecting to several of
Kuchenreuther’s factual allegations as not supported by admissible evidence. I believe
that, in some instances, ADS’s objections are well taken. ADS is correct that both a
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motion for summary judgment and a resistance to such a motion must be based on
admissible evidence. See, e.g., FED. R. CIV. P. 56(e) (affidavits in resistance to summary
judgment must be based on admissible evidence); Brooks v. Tri–Systems, Inc., 425 F.3d
1109, 1111 (8th Cir. 2005) (inadmissible evidence cannot be used to defeat summary
judgment).

As a general matter, however, I find it unnecessary to strike any of

Kuchenreuther’s factual allegations as unsupported by admissible evidence, because I find
that I can simply disregard factual allegations that are not supported by admissible
evidence. See, e.g., Baxter v. Briar Cliff College Group Ins. Plan, 409 F. Supp. 2d
1108, 1118–19 (N.D. Iowa 2006) (declining to strike challenged portions of the record,
because the court could simply disregard inadmissible evidence in its disposition of the
summary judgment motion). More specifically, until and unless I determine that a
specific allegation of undisputed fact or allegation that the fact is, indeed, disputed
becomes critical to the determination of any issue on summary judgment, I need not and
will not indulge the parties in an assessment of the admissibility of the evidence
supporting each and every challenged factual allegation. More importantly, I find that,
even if I consider Kuchenreuther’s factual allegations that are not adequately supported
by admissible evidence, he has failed to generate any genuine issues of material fact on
his wrongful discharge claim.
I find relatively few facts to be relevant and dispositive here. Kuchenreuther was
hired to work at ADS’s Eagle Grove plant as a professional fleet driver in June 2007.
On April 7, 2009, Kuchenreuther injured his shoulder when his slipped and fell against
another trailer while climbing on the side of his semi-trailer. He did not see a physician
for that injury, however, until May 29, 2009, and he did not file a workers compensation
claim for that injury until another medical appointment in early June 2009. ADS was
self-insured for the first $200,000 of workers compensation claims, but its workers
compensation benefits were managed by Travelers Insurance. There is no dispute that
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ADS paid all of Kuchenreuther’s medical bills associated with his shoulder injury. There
is also no dispute that Kuchenreuther eventually settled in April 2011 an administrative
complaint with the Iowa Industrial Commissioner related to his workers compensation
injury, which he had filed in January 2010. Kuchenreuther was on leave for his shoulder
injury from October 20, 2009, until October 20, 2010.

There is no dispute that

Kuchenreuther was no longer able physically to perform his fleet driver job when he went
on leave, at any time during his leave, or thereafter. He returned to work at ADS for
one day in January 2010, but he notified the plant manager, Mitchell Kirkland, that the
purportedly “light-duty” work offered to him was too physically taxing, so that he would
not be returning. There were no positions available that would have fit Kuchenreuther’s
restrictions at the Eagle Grove plant during or for the year following his medical leave.
On October 20, 2010, Kuchenreuther was notified by letter from the ADS human
resources department in Ohio that he was terminated, because he had reached 12 months
of continued leave without being able to return to work. This termination was effective
October 20, 2010, and occurred approximately sixteen months after he first sought
workers compensation benefits for his injury and nine months after he filed an
administrative complaint concerning his workers compensation benefits. The decision to
terminate Kuchenreuther was not made by or in consultation with Mr. Kirkland or anyone
else at the Eagle Grove plant, but by the ADS human resources department in Ohio.
Kuchenreuther contends that Mr. Kirkland was hostile to his claim for workers
compensation benefits. Kuchenreuther alleges that, when he reported the injury on April
7, 2009, Mr. Kirkland initially rejected another office employee’s suggestion that he seek
medical treatment, and instead directed him to take a drug test, but not to seek medical
treatment for his shoulder.

Kuchenreuther also alleges that Mr. Kirkland canceled his

first surgery for his shoulder, because ADS wanted a “second opinion,” and some of
Kuchenreuther’s physical therapy sessions, because Mr. Kirkland said he needed
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Kuchenreuther to continue working.

Kuchenreuther also alleges that, at a drivers’

meeting in the fall of 2009, Mr. Kirkland asked Kuchenreuther about his impending
surgery, then told the other drivers that Kuchenreuther’s injury claim would cost the
company money and take away from their ESOP retirement program.
Summary judgment is only appropriate when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, if any, show that there
is no genuine issue of material fact and that the moving party is entitled to a judgment as
a matter of law.” FED. R. CIV. P. 56(c) (emphasis added); see Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (“Summary judgment is appropriate if viewing
the record in the light most favorable to the nonmoving party, there are no genuine issues
of material fact and the moving party is entitled to judgment as a matter of law.”); see
generally Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, “[t]he 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) (quoting Celotex, 477 U.S. at 323). In response,
“[t]he nonmovant ‘must do more than simply show that there is some metaphysical doubt
as to the material facts,’ and must come forward with ‘specific facts showing that there
is a genuine issue for trial.’” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87 (1986)).
When the parties have met their burden, the district judge’s task is as follows:
“On a motion for summary judgment, ‘facts must be viewed
in the light most favorable to the nonmoving party only if
there is a genuine dispute as to those facts.’” Ricci v.
DeStefano, –––U.S. ––––, 129 S. Ct. 2658, 2677, 174 L. Ed.
2d 490 (2009) quoting Scott v. Harris, 550 U.S. 372, 380,
127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (internal
quotations omitted). “Credibility determinations, the weigh5

ing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000), quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.
Ct. 2505, 91 L. Ed. 2d 202 (1986). . . . . “‘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.’”
Ricci, 129 S. Ct. at 2677, quoting Matsushita, 475 U.S. at
587, 106 S. Ct. 1348.
Torgerson, 643 F.3d at 1042-43.
“Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ryan v. Capital Contractors, Inc., 679
F.3d 772, 776 (8th Cir. 2012). However, summary judgment is particularly appropriate
when only questions of law are involved, rather than factual issues that may or may not
be subject to genuine dispute. See, e.g., Cremona v. R.S. Bacon Veneer Co., 433 F.3d
617, 620 (8th Cir. 2006).
Here, the “governing law” against which the parties’ factual contentions must be
measured on summary judgment, see Anderson, 477 U.S. at 248, is Iowa law governing
claims of wrongful discharge in violation of public policy for seeking workers
compensation benefits. As the Iowa Supreme Court has explained,
Generally, an employer may fire an at-will employee at any
time. Abrisz v. Pulley Freight Lines, Inc., 270 N.W.2d 454,
455 (Iowa 1978). However, under certain circumstances we
recognize a common law claim for wrongful discharge from
employment when such employment is terminated for reasons
contrary to public policy. Lloyd [v. Drake Univ.], 686
N.W.2d [225,] 228 [(Iowa 2004)]. To support a claim of
wrongful discharge, the employee must show:
(1) existence of a clearly defined public policy that
protects employee activity; (2) the public policy would
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be jeopardized by the discharge from employment;
(3) the employee engaged in the protected activity, and
this conduct was the reason for the employee's
discharge; and (4) there was no overriding business
justification for the termination.
Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 761 (Iowa 2009).
The tort of wrongful discharge exists as a narrow
exception to the general at-will rule, id. at 762, and this court
is careful to ground recognition of such claims in “a wellrecognized and defined public policy of the state.” Springer
v. Weeks & Leo Co., 429 N.W.2d 558, 560 (1988) modified
by Springer v. Weeks & Leo Co., 475 N.W.2d 630, 632-33
(Iowa 1991). Jasper explained that this court has recognized
four categories of activities protected by public policy in Iowa
law: “(1) exercising a statutory right or privilege, (2) refusing
to commit an unlawful act, (3) performing a statutory
obligation, and (4) reporting a statutory violation.” Jasper,
764 N.W.2d at 762 (citations omitted).
Ballalatak v. All Iowa Agric. Ass’n, 781 N.W.2d 272, 275 (Iowa 2010).
There is no doubt that, under Iowa law, discharge for pursuing workers
compensation benefits falls within public policy protection. As the Iowa Supreme Court
also explained,
In Springer, this court held that “discharging an employee
merely for pursuing the statutory right to compensation for
work-related injuries offends against a clearly articulated
public policy of this state.” Springer, 429 N.W.2d at 559.
The court relied upon Iowa Code section 85.18 (1987), which
provides, “[n]o contract, rule, or device whatsoever shall
operate to relieve the employer, in whole or in part, from any
liability created by this chapter except as herein provided.”
Id. at 560. This court found the statute to be a clear expression
of the public policy of the state of Iowa. Id.
Ballalatak, 781 N.W.2d at 276.

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The critical questions here relate to causation and motivation, which are generally
questions for the trier of fact. Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275, 282
(Iowa 2000). Nevertheless, as the Iowa Supreme Court has explained,
In tortious discharge cases, the causation standard is higher
than in discrimination cases. [Teachout v. Forest City Cmty.
Sch. Dist., 584 N.W.2d 296,] 301 [(Iowa 1998)]. “The
employee's engagement in protected conduct must be the
determinative factor in the employer's decision to take
adverse action against the employee.” Id. (emphasis added).
Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 13 (Iowa 2009). Merely demonstrating
that a termination occurred after the employee engaged in protected activity is not enough.
See Dorshkind v. Oak Part Place of Dubuque II, L.L.C., 835 N.W.2d 293, 302 (Iowa
2013) (citing Teachout, 584 N.W.2d at 302). Neither is a showing that the employer
merely knew of the employee’s protected activity before the termination. See Teachout,
584 N.W.2d at 302. The existence of other legal reasons for the termination are also
relevant to the determination of causation. Fitzgerald, 613 N.W.2d at 289. Similarly,
“[h]arassment of an employee after the filing of a workers’ compensation claim can be
considered circumstantial evidence of an employer’s retaliatory motive.” Weinzetl v.
Ruan Single Source Transp. Co., 587 N.W.2d 809, 811 (Iowa Ct. App. 1998); Clarey
v. K–Products, Inc., 514 N.W.2d 900, 902 (Iowa 1994) (finding evidence of late payment
of workers compensation benefits, disparaging comments concerning workers
compensation claims, and harassment following filing of workers' compensation
sufficient to create submissible issue).
Here, the time between Kuchenreuther’s request for workers compensation
benefits and his termination was approximately sixteen months and even the time between
his administrative complaint about workers compensation benefits and his termination
was over nine months, so that temporal proximity provides no inference of retaliatory
intent. See Dorshkind, 835 N.W.2d at 302. Kuchenreuther has pointed to evidence
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suggesting that Mr. Kirkland was hostile to his workers compensation claim and harassed
him about it—interfering with his attempts to get medical attention for his shoulder injury,
canceling his surgery and physical therapy, and complaining in front of other drivers that
Kuchenreuther’s workers compensation claim would cost the company money and have
a negative effect on the drivers’ ESOP retirement plan. Iowa law does not recognize a
cause of action for harassment of an employee for seeking workers compensation
benefits, but only recognizes that such harassment may be evidence of a retaliatory motive
on a wrongful discharge claim. See Weinzetl¸587 N.W.2d at 811; Clarey, 514 N.W.2d
at 902.
The bigger problem here is that Kuchenreuther has failed to generate any genuine
issues of material fact that Mr. Kirkland’s hostility had any causal relationship to the
decision to terminate him, made by ADS’s human resources division in Ohio, not by
Mr. Kirkland, pursuant to a neutral custom or practice of the company. Cf. Fitzgerald,
613 N.W.2d at 289 (other reasons for the termination are relevant to the determination
of causation). While Kuchenreuther contends that a Travelers’ employee indicated that
the policy at ADS was to terminate employees after 24 months of leave, even assuming
that evidence is admissible, it is not enough to generate a genuine issue of material fact
on the reason for Kuchenreuther’s termination, where the statement was not made by an
ADS manager and there is undisputed evidence that ADS had discharged over three dozen
people for exceeding 12 months of leave without being able to return to their jobs during
the relevant time period.
Where Kuchenreuther has failed to show that Mr. Kirkland was directly involved
in the decision to terminate him for exceeding 12 months of leave, he might be able to
proceed, if he had generated a genuine issue of material fact that the ADS human
resources department, an innocent decisionmaker, was merely Mr. Kirkland’s “cat’s
paw.” See, e.g., Coe v. Northern Pipe Prods., Inc., 589 F. Supp. 2d 1055, 1087-94
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(N.D. Iowa 2008). Here, however, Kuchenreuther has pointed to absolutely no evidence
that Mr. Kirkland had any impact or influence on or made any recommendation about
whether or not Kuchenreuther should be fired when his absence exceeded 12 months.
See id.
Kuchenreuther has failed to generate any genuine issues of material fact that he
was not fired for exceeding 12 months of leave or otherwise to generate genuine issues
of material fact that he was fired for seeking workers compensation benefits.
THEREFORE, ADS’s November 18, 2013, Motion For Summary Judgment
(docket no. 14) is granted on all of Kuchenreuther’s claims, and judgment shall enter
accordingly.
IT IS SO ORDERED.
DATED this 4th day of February, 2014.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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