Hedlund v. Charlie Zook Motors, Inc et al

Filing 31

ORDER: Granting in Part and Denying in Part 17 Motion for Summary Judgment: See text of Order for further information. Signed by Senior Judge Donald E O'Brien on 09/25/14. (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
BRADLEY NEIL HEDLUND,
Plaintiff,

No. 13-CV-4058-DEO

v.
CHARLIE ZOOK MOTORS, INC.;
BRUCE ZOOK; CHARLIE ZOOK;
AND ED MCLARTY

ORDER ON MOTION FOR SUMMARY
JUDGMENT

Defendants.
____________________
I.

INTRODUCTION
Currently before this Court is Defendant Charlie Zook

Motors, Inc., Defendant Bruce Zook, Defendant Charlie Zook and
Defendant Ed McLarty’s Motion for Summary Judgment.
No. 17.

Docket

In their Motion for Summary Judgment, the Defendants

raise two arguments, arguing that the Plaintiff’s claims
should be dismissed.

Because the Defendants filed a single

brief, the Court will refer to the Defendants collectively as
Charlie Zook Motors [hereinafter CZM].
The parties appeared for a hearing on June 13, 2014.
After hearing the parties’ arguments the Court took the issues
under advisement and now enters the following:

II.

FACTUAL HISTORY
The Plaintiff, Mr. Hedlund began working for Defendant

Charlie Zook Motors as a parts manager in 2006.

The parties

agree that as a parts manager, it was Mr. Hedlund’s job to
open the parts department when the business opened each day,
sell

parts,

answer

the

telephone,

phone

customers,

help

technicians when they had questions about parts, wait on
walk-in customers, order parts, ship parts, stock shelves and
close the parts department at the end of the business day.
Mr. Hedlund worked between 60 and 70 hours per week.
Mr. Hedlund has a history of diabetes.

In 2011, he began

experiencing some acute symptoms. On March 11, 2011, while at
work, Mr. Hedlund’s blood sugar plummeted. As a result of the
low blood sugar, Mr. Hedlund’s heart stopped and he slipped
into a coma, where he remained for seven days.
Mr. Hedlund was off from work for the next two months on
medical leave.

There is no dispute that this time off was

medically necessary nor any allegation that Mr. Hedlund abused
the medical leave system.

Mr. Hedlund contends that while on

medical leave, Marv Diamond, a co-worker, told him that if Mr.
Hedlund did not return to work, he would lose his job because
2

the supervisors were looking to hire a replacement for him.1
On May 31, 2011, a doctor cleared Mr. Hedlund to return to
work.2

Mr. Hedlund returned to the car dealership a few days

later.

However, Mr. Hedlund claims that the Defendants had

already hired a replacement parts manager; and, when he
returned to work, they told Mr. Hedlund to train the new
employee.
The Defendants terminated Mr. Hedlund’s employment on
June 15, 2011.
Hedlund’s

The Defendants argue that they terminated Mr.

employment

because

Mr.

Hedlund

had

persistent

problems dealing with customers. As stated in the Defendants’
Statement of Facts:
Ed McLarty [Mr. Hedlund’s supervisor]
counseled plaintiff 3-4 times about his
attitude toward customers before his
discharge.
They discussed McLarty’s
expectations before Hedlund returned from

1

Mr. Hedlund also contends that while in the hospital,
he was assured that his job would be waiting for him when
returned from work.
2

There is some dispute in the record regarding the date
the doctor’s return to work note was signed. (Possibilities
include May 3, 2011, May 30, 2011, and May 31, 2011.) As is
often the case with medical records, the doctor’s handwriting
on the note at issue is unique.
However, the Court is
persuaded that, for the purposes of this Order, the note is
dated May 31, 2011.
3

leave.
When plaintiff returned from
medical leave, McLarty was on vacation.
When McLarty returned from vacation, the
first thing he was confronted with – in his
first hour back - were reports from Diane
Newton, the Office Manager, and Dustin
Craft, that Hedlund was making people mad
again already. This was the last straw for
McLarty. Having discussed this very issue
with Hedlund just two weeks earlier, the
decision was made to discharge plaintiff.
Docket No. 20, p. 6.
After losing his job, Mr. Hedlund applied for social
security benefits.

He alleged his disability onset date was

March 11, 2011, the day his heart stopped while at work.
During the pendency of his social security case, Mr. Hedlund
made numerous statements purporting to show the extent of his
disability.3

See Docket No. 20, Att. 2, p. 4-26.

Mr. Hedlund

was also examined by medical professionals who determined that
he suffered from a number of cognitive and mental issues,
which were likely caused by the episode of March 11, 2011.

3

On

For example, Plaintiff has difficulty remembering,
understanding and following instructions. His attention and
concentration is poor.
He would have great difficulty
interacting with supervisors, co-workers and the public,
because of his anxiety disorder.
He would be unable to
respond appropriately to changes in a work environment. He
cannot handle stress. Docket No. 20, Att. 2, p. 24.
4

November 30, 2012, Mr. Hedlund began receiving Social Security
disability benefits.
III.

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only if the record shows

“there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
R. Civ. P., Rule 56(c).

Fed.

A fact is material if it is necessary

“to establish the existence of an element essential to [a]
party’s case, and on which that party will bear the burden of
proof at trial.”
(1986).

Celotex Corp. v. Catrett, 477 U.S. 317, 322

There is a genuine issue as to a material fact if,

based on the record before the court, a “rational trier of
fact” could find for the non-moving party.

Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
When considering a motion for summary judgment, a “court
must view the evidence in the light most favorable to the
nonmoving party . . . .”

Hutson v. McDonnell Douglas Corp.,

63 F.3d 771 (8th Cir. 1995).

This requires a court to draw

any reasonable inference from the underlying facts in favor of
the nonmoving party and to refrain from weighing the evidence,
5

making credibility determinations, or attempting to discern
the truth of any factual issue in a manner which favors the
moving party unless there is no reasonable alternative.
Matsushita,

475

U.S.

at

587;

and

Morris

v.

City

See
of

Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008) (citing
Thomas v. Corwin, 483 F.3d 516, 526-27 (8th Cir. 2007)).
Procedurally, the movant bears the initial burden “of
informing the district court of the basis for its motion and
identifying those portions of the record which show a lack of
a genuine issue.” Hartnagel v. Norman, 953 F.2d 394, 395 (8th
Cir. 1992) (citing Celotex, 477 U.S. at 323). Once the movant
has carried his burden, the non-moving party is required “to
go beyond the pleadings” and through “affidavits, or by the
‘depositions, answers to interrogatories, and admissions on
file,’ designate specific facts showing that there is a
genuine issue for trial.’”

Celotex, 477 U.S. at 323 (citing

Fed. R. Civ. P. 56(e)).
In times past, courts suggested that the standard for
summary judgment in employment discrimination cases required
a higher showing than in ‘other’ summary judgment cases.
However, the 8th Circuit rejected that view, stating:
6

summary judgment is not disfavored and is
designed
for
‘every
action,’
panel
statements to the contrary are unauthorized
and should not be followed. There is no
‘discrimination case exception’ to the
application of summary judgment, which is
a useful pretrial tool to determine whether
any
case,
including
one
alleging
discrimination, merits a trial.
Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir.
2011).

However, that is not to say that discrimination cases

do not present their own unique challenges.

As Judge Bennett

of this Court recently observed:
experience
teaches
that
thoughtful
deliberation
of
summary
judgment
in
employment discrimination cases is grounded
in the consideration of each case through
a
lens
filtered
by
the
following
observations.
Employment discrimination
and retaliation, except in the rarest
cases, are difficult to prove. They are
perhaps more difficult to prove today-fifty
years after the passage of the EPA, more
than forty years after the passage of Title
VII and the ADEA, more than twenty years
after the passage of the ADA, and nearly
two decades after the passage of the FMLAthan during the earlier evolution of these
anti-discrimination and anti-retaliation
statutes.
Today's employers, even those
with only a scintilla of sophistication,
will neither admit discriminatory or
retaliatory
intent,
nor
leave
a
well-developed trail demonstrating it.
See, e.g., Riordan v. Kempiners, 831 F.2d
690, 697-98 (7th Cir. 1987). Indeed, the
Fifth Circuit Court of Appeals recognized
7

more than thirty-five years ago, that “[a]s
patently discriminatory practices become
outlawed, those employers bent on pursuing
a general policy declared illegal by
Congressional mandate will undoubtedly
devise more sophisticated methods to
perpetuate discrimination among employees.”
Rogers v. EEOC, 454 F.2d 234, 239 (5th
Cir. 1971) (later relied on by the Supreme
Court in Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 65-67 (1986), as one of the
principal
authorities
supporting
recognition of a cause of action for
hostile environment sexual harassment under
Title VII).
My experience suggests the
truth of that observation. Because adverse
employment actions almost always involve a
high degree of discretion, and most
plaintiffs in employment discrimination and
retaliation cases are at will, it is a
simple task for employers to concoct
plausible reasons for virtually any adverse
employment action ranging from failure to
hire to discharge.
This is especially
true, because the very best workers are
seldom
employment
discrimination
and
retaliation
plaintiffs
due
to
sheer
economics: Because the economic costs to
the
employer
for
discrimination
or
retaliation are proportional to the caliber
of
the
employee,
discrimination
or
retaliation against the best employees is
the least cost effective. See, e.g., id.
Rather, discrimination and retaliation
plaintiffs tend to be those average or
below-average workers-equally protected by
Title VII, the ADA, the ADEA, the EPA, or
the FMLA-for whom plausible rationales for
adverse employment actions are readily
fabricated by employers with even a meager
imagination. See, e.g., id. On the other
hand, it is also relatively easy for
8

disgruntled former employees to claim a
protected basis under federal and state
anti-discrimination laws as a reason for
their discharge when in fact they played no
part. This is true even when the former
employee and/or their counsel believe they
did.
This is what makes deciding these
issues on a paper record daunting.
Pick v. City of Remsen, 2014 WL 4258738, 11-12 (N.D. Iowa
2014).
IV.

ISSUES
Defendant’s Motion for Summary Judgment raises two main

issues.

Regarding

Defendants

argue

Mr.

that

Hedlund’s
Mr.

Hedlund

disability
is

not

claim,
a

the

qualified

individual with a disability because he cannot perform the
essential function of the job of parts manager. Regarding Mr.
Hedlund's Family Medical Leave Act claim, the Defendants argue
that they had a legitimate, non-discriminatory reason for
discharging Mr. Hedlund. The Court will address each issue in
turn.
V.

ANALYSIS
A.

Disability Claim

The Americans with Disabilities Act (ADA), including
changes made in the ADA Amendments Act of 2008 (ADAAA),

9

prohibits an employer from discriminating against a qualified
employee on the basis of the employee’s disability in regard
to job application procedures, the hiring, advancement, or
discharge of the employee compensation, job training, and
other terms, conditions, and privileges of employment.

20 42

U.S.C. § 12112(a); Tusing v. Des Moines Indep. Community Sch.
Dist., 639 F.3d 507, 518 (8th Cir. 2011).

Pursuant to the

ADA, to establish a discrimination claim, an employee must
show that he (1) is disabled within the meaning of the ADA,
(2) is a qualified individual under the ADA, and (3) has
suffered

an

disability.

adverse

employment

because

of

[his]

E.E.O.C. v. Prod. Fabricators, Inc., 2014 WL

3971477, 23 (8th Cir. 2014).
disability’

action

“A ‘qualified individual with a

is ‘an individual with a disability who, with or

without reasonable accommodation, can perform the essential
functions of the employment position that such individual
holds

or

desires.’

42

U.S.C.

§

12111(8).”

Young

v.

Warner-Jenkinson Co., Inc., 152 F.3d 1018, 1021 (8th Cir.
1998).
forward,

When no direct evidence of discrimination is put
a

discrimination

claim

is

analyzed

under

the

burden-shifting framework set forth in McDonnell Douglas Corp.
10

v. Green, 411 U.S. 792, 802–03 (1973) and its progeny. Young,
152 F.3d at

1021.

In his Complaint, Mr. Hedlund alleges:
Defendants' actions, including terminating
Plaintiff’s employment because of his
physical disabilities constituted illegal
discrimination
against
a
qualified
individual
with
a
disability,
and
therefore, violated Iowa Code Chapter 216
and the Americans with Disabilities Act.
Docket No. 13, p. 4.

As stated above, there are three

elements to a prima facie ADA claim.4

Defendants concede that

Mr. Hedlund can show the first element of his ADA claim, that
he has a disability.

The Defendants also concede the third

element of the claim, that Mr. Hedlund suffered an adverse
employment action-they fired him.

However, the Defendants

argue that Mr. Hedlund cannot prove the second element,
stating:

4

The Court notes Mr. Hedlund brought his disability
claim under both the Federal statute, the ADA, and Iowa’s
version of the statute, ICRA. However, numerous courts have
recognized that the analysis for both the federal and state
statutes is the same. See, for example, Tjernagel v. Gates
Corp., 533 F.3d 666, 671 (8th Cir. 2008). Accordingly, the
Courts’ analysis encompasses both statutes.
11

plaintiff cannot prevail, because he cannot
demonstrate that he was qualified to
perform the essential functions of his job
at Zook Motors, with or without reasonable
accommodation, at any time after March 11,
2011, the day on which he had his heart
attack.
Docket No. 20, Att. 1, p. 4.
Essential functions are “‘the fundamental job duties of
the employment position the individual with a disability
holds.’

29 C.F.R. § 1630.2(n)(1).

this determination may include:
as

to

which

descriptions

functions
prepared

are

Evidence to consider in

(1) the employer's judgment
essential;

before

(2)

advertising

or

written

job

interviewing

applicants for the job; (3) the amount of time spent on the
job performing the function; (4) the consequences of not
requiring the incumbent to perform the function; and (5) the
current

work

experience

of

incumbents

in

similar

jobs.”

Knutson v. Schwan's Home Serv., Inc., 711 F.3d 911, 914 (8th
Cir. 2013) citing Kammueller v. Loomis, Fargo & Co., 383 F.3d
779,

786

(8th

1630.2(n)(3).

Cir.

2004);

see

generally

29

C.F.R.

§

The employer's judgment about an essential job

function is considered highly probative.
at 914.
12

Knutson, 711 F.3d.

The Defendants’ argument-in a nut shell-is that because
of Mr. Hedlund’s disability, as evidenced by his application
for and receipt of Social Security disability benefits, he was
no longer qualified to perform the essential functions of his
job after the incident of March 11, 2011.

The Plaintiff

responds to that argument by pointing out that “claims for
Social Security Disability Insurance benefits and claims for
ADA damages do not inherently conflict.”
4,

p.

3.

The

Plaintiff

correctly

Docket No. 25, Att.

points

out

(and

the

Defendants agree) that the United States Supreme Court has
allowed social security claimants to pursue both disability
claims and ADA claims at the same time, as a finding of
disability by the Social Security Administration does not
automatically mean that someone like Mr. Hedlund could not
perform the essential functions of his job at Charlie Zook
Motors.

Cleveland v. Policy Management Systems, Corp., 526

U.S. 795, 119 S. Ct. 1597 (1999).

However, the same Court

stated:
[a]n ADA plaintiff bears the burden of
proving that she is a “qualified individual
with a disability”—that is, a person “who,
with or without reasonable accommodation,
can perform the essential functions” of her
job.
42 U.S.C. § 12111(8).
And a
13

plaintiff’s
sworn
assertion
in
an
application for disability benefits that
she is, for example, “unable to work” will
appear to negate an essential element of
her ADA case—at least if she does not offer
a sufficient explanation. For that reason,
we hold that an ADA plaintiff cannot simply
ignore the apparent contradiction that
arises out of the earlier SSDI total
disability claim. Rather, she must proffer
a sufficient explanation.
Cleveland, 526 U.S. at 806.
The Defendants argue that after the episode on March 11,
2011, Mr. Hedlund could not do his job.

As agreed by the

parties, his duties included opening his department each day,
selling parts, answering the telephone, phoning customers,
helping technicians when they had questions about parts,
waiting on walk-in customers, ordering parts, shipping parts,
stocking shelves, and closing the parts department at the end
of the business day.

The Defendants point to facts from the

Social Security file that show that Mr. Hedlund could no
longer perform his job. Specifically, Dr. Marandola concluded
that

Mr.

Hedlund

understanding
instructions,

would

have

instructions,
would

have

problems

could

not

problems

remembering

carry

with

out

and

complex

attention

and

concentration, and, most importantly, would have a “great deal
14

of difficulty” interacting with his supervisors and members of
the public.

Docket No. 20, Att. 2, p. 15-16.

Based on the

statements and medical records from the social security file,
it seems unlikely, if not impossible, that Mr. Hedlund could
return to his old job.
and

required

customers.

him

to

His job requirements were technical
interact

both

with

co-workers

and

Neither are things that Mr. Hedlund could do if

his Social Security file is to be believed.
As stated above, it is the Plaintiff’s obligation to both
show that he can do the job in question, and, in a case such
as

this,

explain

away

the

discrepancies

between

his

application for Social Security disability and his ADA claim.
In this case, the Plaintiff has done neither.

As stated in

the Defendants’ brief, Mr. Hedlund’s only argument is that if
the Defendants had made accommodations, he may have been able
to

return

allegation,

to
is

his
not

old

job.

enough

to

However,
create

a

material fact regarding this ADA claim.
Defendants’ reply brief:

15

that

unsupported

genuine

issue

of

As stated in the

plaintiff
represented
to
the
Social
Security Administration that he was unable
to work, and that the date his disability
began was March 11, 2011, the day his heart
stopped at work. (Social Security File, p.
382 – Defendants’ App. p. 17). Rather than
proffer a sufficient explanation, as
plaintiff is entitled to do under the
holding in Cleveland, plaintiff has chosen
to ignore this opportunity, and focus
solely on the allegation that had he been
accommodated by Defendants, he could have
continued working.
This is not an
explanation for his inconsistent claims, it
is an argument.
Docket No. 27, p. 1.
Because Mr. Hedlund has failed to show that he could
perform the essential functions of a parts manager (especially
considering he failed to explain how he could be a parts
manager in spite of his Social Security disability), Mr.
Hedlund has failed to create a genuine issue of fact regarding
the second element of a prima facie ADA claim.

Accordingly,

his ADA claim fails as a matter of law and the Defendants’
Motion

for

Summary

Judgment

must

be

granted.

See

also

Magnussen v. Casey's Mktg. Co., 787 F. Supp. 2d 929, 950 (N.D.
Iowa 2011), where Judge Bennett reaches a similar conclusion
where an ADA claimant filed for Social Security disability.

16

B.

Family Medical Leave Act

The Court now turns to Mr. Hedlund’s claim under the
Family Medical Leave Act (FMLA).
provides:

“[i]t

shall

be

29 U.S.C. § 2615(a)(1)

unlawful

for

any

employer

to

interfere with, restrain, or deny the exercise of or the
attempt

to

subchapter.”
has

been

exercise,

right

provided

under

this

This provision of the Family Medical Leave Act

interpreted

exercised

any

one’s

to

rights

prohibit
under

the

retaliation

for

Act.

Lovland

See

having
v.

Employers Mut. Cas. Co., 674 F.3d 806, 810 (8th Cir. 2012)
cert. denied, 133 S. Ct. 345, 184 L. Ed. 2d 158 (U.S. 2012).
In this case, Mr. Hedlund took FMLA leave after the
episode of March 11, 2011.

He was fired shortly after

returning to work in June of 2011.

Mr. Hedlund alleges that

the Defendants fired him in retaliation for taking FMLA leave.
Mr.

Hedlund

retaliation.
“Absent

framework.

there

is

no

direct

evidence

of

Accordingly, this is a ‘burden shifting’ case.

direct

evaluated

admits

under

evidence...
the

FMLA

McDonnell

retaliation
Douglas

claims

are

burden-shifting

Wierman v. Casey's General Stores, 638 F.3d 984,

999 (8th Cir. 2011)...

To establish a prima facie case [the
17

plaintiff] 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...

If [the plaintiff] establishes a prima

facie case, the burden shifts to [the employer] to “promulgate
a

non-

discriminatory,

legitimate

justification

for

its

conduct,” and then back to [the employee] to “either introduce
evidence to rebut the employer's justification as a pretext
for discrimination, or introduce additional evidence proving
actual discrimination.”

Johnson v. Dollar Gen., 880 F. Supp.

2d 967, 990 (N.D. Iowa 2012) aff'd, 508 F. App'x 587 (8th Cir.
2013) (some internal citations omitted).
Many of the facts and allegations regarding this claim
are admitted.

There is no dispute Mr. Hedlund engaged in

protected conduct.
leave.

He took nearly two months of medical

There is no dispute that he suffered an adverse

consequence.

He was fired.

But, the Defendants contend that

Plaintiff cannot prove the third element, that the adverse
action was causally linked to the protected conduct. However,
based on the fact that Mr. Hedlund was fired a few days after
engaging in the protected activity, and there is an allegation
18

that the Defendants set about replacing him even before he
returned to work, Mr. Hedlund has sufficiently alleged a
causal connection to shift the burden to the Defendants.
The

Defendants,

of

course,

argue

that

they

legitimate non-discriminatory reason for discharge.
out in their brief:
Plaintiff
was
fired
for
continued
mistreatment
of
customers.
McLarty
informed him of his decision in person.
Hedlund was rude to personnel in the other
departments at Zook.
He was rude to
wholesalers who bought parts at Zook; he
was rude to independent repair shop
personnel and he was rude to customers in
general.
Dustin Craft, the Body Shop
Foreman at Zook, learned while attending a
local meeting of the Siouxland Auto Repair
Association, that this problem was serious
enough that most people preferred not to do
business with Zook.
Bort Auto Body and
Brouillette Body Shop both expressed
similar
concerns,
directly
to
Zook.
(Affidavits of Bradley Curtin, Barry
Kounkel, Susan Rudnick, Dustin Craft and
Scott Brouillette – App. pp. 30-37). Ed
McLarty counseled plaintiff 3-4 times about
his attitude toward customers before his
discharge.
They discussed McLarty’s
expectations before Hedlund returned from
leave.
When plaintiff returned from
medical leave, McLarty was on vacation.
When McLarty returned from vacation, the
first thing he was confronted with – in his
first hour back - were reports from Diane
Newton, the Office Manager, and Dustin
Craft, that Hedlund was making people mad
19

had

a

As set

again already. This was the last straw for
McLarty. Having discussed this very issue
with Hedlund just two weeks earlier, the
decision was made to discharge plaintiff.
(Affidavit of Ed McLarty – App. pp. 38-40).
A supervisor’s belief that an employee
behaved
rudely
is
a
legitimate,
non-discriminatory reason for disciplinary
action.
Docket No. 20, Att. 1, p. 13. The Defendants’ allegation that
they terminated Mr. Hedlund because he was rude is supported
by evidence in their appendix.

See the affidavits referenced

above, Docket No. 20, Att. 2, p. 30-44.
Based on that, the burden shifts back to Mr. Hedlund to
rebut the Defendants’ allegedly non-discriminatory reason for
discharge.

Mr. Hedlund argues:

based on the disputed facts, a reasonable
fact
a
finder
could
conclude
that
Defendants’ proffered reason is untrue. As
noted above, at the summary judgment stage,
the Court must consider Hedlund’s version
of events to be true.
As set forth in
Plaintiff’s Statement of Additional Facts,
Hedlund has testified that he was never
disciplined prior to termination, Ed
Mc[L]arty never warned him about his
behavior, and the testimony of the others
about his alleged rude behavior is untrue.
Moreover,
while
Hedlund
was
in
the
hospital, Bruce Zook told Randy Meyer and
others that Hedlund still had a job at Zook
Motors. That statement by Zook is clearly
inconsistent with terminating him right
after his return. Moreover, it should be
20

noted that Hedlund testified that McClarty
told him that it was Bruce Zook’s idea to
terminate him, whereas Defendants’ evidence
makes it appear that McClarty made the
decision – this is another discrepancy in
the facts that prevents summary judgment.
When a plaintiff introduces evidence that
discredits
the
employer’s
proffered
nondiscriminatory reason for the adverse
employment action, a genuine issue of
material fact is created with regard to the
issue of pretext...
Docket No. 25, Att. 4, p. 6-7.
The Court is persuaded that Mr. Hedlund has alleged
sufficient

facts

such

that

the

question

of

whether

his

discharge was pretextual should be presented to the jury.
First, there is the close temporal proximity between the
firing and using the FMLA leave.

As both parties agree,

timing alone is not enough to sustain a retaliation claim.
However, in this case, the close timing is not alone.

There

is also the allegation that the Defendants hired and were
training

a

replacement

employee

even

before

Mr.

Hedlund

returned to work or committed the allegedly non-pretextual
conduct

that

got

him

fired.

Also,

there

are

the

inconsistencies, cited above, about who made the decision to
fire Mr. Hedlund.

There is also the allegation that he had

never been warned about his ‘rude’ demeanor.
21

Finally, Mr.

Hedlund contends that Mr. McLarty was also rude to customers
and was never fired or reprimanded.

This is another factual

disparity that is better addressed to a jury than to a judge.
Accordingly,

the

Plaintiff

has

alleged

a

genuine

issue

regarding his FMLA retaliation claim; and the Defendants’
Motion for Summary Judgment regarding that claim must be
denied.
VI.

CONCLUSION
For the reasons set out above, the Defendant’s Motion for

Summary Judgment, Docket No. 17, is granted in part denied in
part.

The motion is granted regarding Mr. Hedlund’s ADA

claim, but it is denied regarding his FMLA claim.
IT IS SO ORDERED this 25th day of September, 2014.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

22