Schwarzkopf v. Brunswick Corporation
Filing
28
ORDER granting in part and denying in part 11 Motion for Summary Judgment. (Written Opinion). Signed by Judge Richard H. Kyle on 06/07/11. (kll)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Melvin Schwarzkopf,
Plaintiff,
Civ. No. 10-2774 (RHK/JJK)
MEMORANDUM OPINION
AND ORDER
v.
Brunswick Corporation d/b/a Life Fitness,
Defendant.
Susan M. Coler, Joni M. Thome, Frances E. Baillon, Matthew S. Nolan, Halunen &
Associates, Minneapolis, Minnesota, for Plaintiff.
Andrew J. Voss, Sarah J. Gorajski, Littler Mendelson, P.C., Minneapolis, Minnesota, for
Defendant.
INTRODUCTION
Plaintiff Melvin Schwarzkopf previously worked for Defendant Brunswick
Corporation d/b/a Life Fitness (“Brunswick”). He commenced this action in June 2010,
alleging that Brunswick discriminated against him on account of his mental disabilities in
violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and
the Minnesota Human Rights Act (“MHRA”), Minn. Stat. § 363A.01 et seq. He also
alleges that Brunswick retaliated against him after he complained about the alleged
discrimination. Brunswick now moves for summary judgment. For the reasons set forth
below, the Court will grant its Motion in part and deny it in part.
BACKGROUND1
Suffice it to say, the parties paint a very different picture of the events culminating
in this lawsuit. Generally speaking, Brunswick denies the occurrence of much (if not
most) of the conduct Schwarzkopf cites to support his claims. At this stage of the
proceedings, the Court is obligated to view the record in the light most favorable to
Schwarzkopf, and it has done so below. See Graves v. Ark. Dep‟t of Fin. & Admin., 229
F.3d 721, 723 (8th Cir. 2000). However, while the Court has determined that part of this
case will survive to trial, it expresses no opinion on Schwarzkopf‟s likelihood of success at
trial or his ability to survive a motion for judgment as a matter of law after the presentation
of his case.
Brunswick manufactures fitness equipment. It hired Schwarzkopf in 2001 as a
fabricator in its Ramsey, Minnesota, manufacturing facility. (Gorajski Aff. Ex. B-2, at
Ex. 1.)
Schwarzkopf has struggled with depression and general anxiety disorder for most of
his life. (Schwarzkopf Dep. at 49-50.) In fact, in the early 1990s, he voluntarily
1
The Court notes that the background facts recited in Schwarzkopf‟s brief often cite lengthy
documents without indicating where in those documents the cited material can be found. For
example, Schwarzkopf repeatedly cites Exhibit 33 to the Declaration of Joni Thome, which
comprises approximately 70 pages of single-spaced, handwritten notes from a diary Schwarzkopf
maintained in 2006 and 2007. His citations, however, do not indicate the page on which the
relevant matter is located. This will not suffice. See, e.g., Gilbert v. Des Moines Area Cmty.
Coll., 495 F.3d 906, 915 (8th Cir. 2007) (“A district court is not required to speculate on which
portion of the record [a] party relies, nor is it obligated to wade through and search the entire
record for some specific fact that might support th[at] party‟s claim.”) (citation omitted); Howard
v. Columbia Pub. Sch. Dist., 363 F.3d 797, 800 (8th Cir. 2004) (“Simply providing a massive
record does not satisfy th[e] [non-moving party‟s] burden, and we will not sort through a
voluminous record in an effort to find support for the plaintiff‟s allegations.”). Nevertheless, the
Court has endeavored to locate the cited material in his lengthy submissions.
-2-
committed himself to a mental hospital for treatment. (Id. at 19.) The anxiety has caused
him sleeping problems which, in turn, make it difficult for him to focus and concentrate.
(Id. at 51.) Around the time he applied for employment with Brunswick, his symptoms
were in “remission.” (Id. at 50.) He did not inform Brunswick of his conditions at that
time. (Gorajski Aff. Ex. B-2, at Ex 1.)
In his first few years of employment, Schwarzkopf had no difficulty performing his
job duties and got along well with his co-workers. (Schwarzkopf Dep. at 60-62.) In
2002 he was promoted to “Mechanic I,” a primarily janitorial job, including changing light
bulbs, collecting garbage, and the like. (Id. at 63-64; Gorajski Aff. Ex. B-2, at Ex. 21.)
He also performed some “Mechanic II” duties, which involved preventative maintenance,
fixing and installing machines, and supervising temporary workers. (Schwarzkopf Dep.
at 69-70.) As a Mechanic I, he worked for several years with Mark Hager and Duane
Bauer, both of whom held Mechanic III positions. (Bauer Dep. at 22; Hager Dep. at
12-14.) According to Schwarzkopf, he made Hager and Bauer aware of his mental
illnesses – “anxiety disorder” and “attention deficit” disorder – in 2004 and 2005,
respectively. (Schwarzkopf Dep. at 98-99.)2
Prior to June 2005, Schwarzkopf had no problems working with either Hager or
Bauer. (Id. at 78-80.) In fact, Hager helped him get an “extra” raise in 2004, and when
Hager was promoted to supervisor in June 2005, he promoted Schwarzkopf to Mechanic II.
(Id. at 78-82; Hager Dep. at 14; Gorajski Aff. Ex. B-2, at Ex 26.) Schwarzkopf was able to
2
Schwarzkopf repeatedly claims that he has attention-deficit disorder that causes him “cognitive
problems” (see, e.g., Mem. in Opp‟n at 3), but there is little medical support for that claim in the
record.
-3-
perform the requirements of this new position (Schwarzkopf Dep. at 83), and he received a
favorable performance review later that year (Gorajski Aff. Ex. B-2, at Ex. 29).
However, in late 2005 or early 2006, Bauer began calling Schwarzkopf names like
“stupid,” “idiot,” “mental case,” “dumb,” and “incompetent” on a nearly daily basis.
(Schwarzkopf Dep. at 102-11, 119-20, 125.) He and another mechanic, Mike Luedtke,
told Schwarzkopf they worried he “might go postal.” (Id. at 108.) Luedtke also
frequently made derogatory comments, like calling Schwarzkopf a “mental case.” (Id. at
133-36, 141-42.) In another instance in February 2006, Bauer told Schwarzkopf that
people who have been on Social Security disability, as Bauer was aware Schwarzkopf once
had been, “are worthless pieces of shit.” (Id. at 161.) And on several occasions Bauer
told Schwarzkopf that “we should put a shock collar on you” because Schwarzkopf was
“so forgetful.” (Id. at 120-23.) Bauer continued to treat him in a demeaning manner for
the remainder of his employment, frequently calling him humiliating and degrading names
and yelling at him in front of other employees. (Id. at 115, 120-21, 128-29.)
Schwarzkopf complained to Hager, but he took no action. (Id. at 106; see also
Hager Dep. at 47-48.) In fact, Schwarzkopf claims that in early 2006, Bauer convinced
Hager to start harassing him in the same fashion as Bauer and Luedtke had been.
(Schwarzkopf Dep. at 126, 133, 147-48.) Hager, for example, laughed at Bauer‟s “shock
collar” comment. (Id. at 123.) He yelled at Schwarzkopf and called him an “idiot,”
“dumb,” and “stupid.” (Id. at 145-48, 151.) He got angry when Schwarzkopf asked for
additional directions to complete projects, even after Schwarzkopf told him that he had
“too much anxiety” and “thought [he] had attention deficit [disorder].” (Id. at 145-46.)
-4-
In one instance Hager felt Schwarzkopf was taking too long to complete a project and
asked, “What are you? An idiot?” When Schwarzkopf tried to explain the delay, Hager
“charged [at him] with . . . a fist,” as if Hager were going to strike him. (Id. at 147-48.)
And according to Schwarzkopf, Hager typically did not support him in the same way as,
and scrutinized his work more carefully than, other maintenance department employees,
frequently making him perform menial and degrading tasks like sending him to
McDonald‟s to pick up food for the department and making him clean up spills,
broadcasting to the entire department, “Mel, get the mop!” (Id. at 122, 125-27, 163-66.)
Sometime in 2006, the symptoms associated with Schwarzkopf‟s depression and
anxiety disorder returned, causing him to lose sleep, lack focus, and struggle to
concentrate. (Id. at 50-51.)3 Hager noticed a decline in his performance, observing that
he had difficulty maintaining concentration and following directions. (Hager Dep. at 15,
23, 28.)
On September 7, 2006, Schwarzkopf was injured on the job. (Schwarzkopf Dep. at
150.) The following day, he was called to a meeting with Hager and Cathy Mensing,
Brunswick‟s Human Resources Manager. (Id. at 151; Hager Dep. at 27-28.) He thought
the meeting had been called to discuss his injury and work restrictions, but rather it was to
discuss his “poor” performance. (Schwarzkopf Dep. at 152; Hager Dep. at 28.)
Schwarzkopf stated that he did not understand the complaints and if his performance had
been poor, it was due to Hager constantly shouting at him. (Schwarzkopf Dep. at 152.)
3
Earlier that year, Schwarzkopf‟s wife was involved in a car accident in which the other driver
died, but he denied that it (or the subsequent legal proceedings against his wife) caused him any
additional stress. (Schwarzkopf Dep. at 94-95.)
-5-
He explained that he could not grasp matters when others yelled at him and he told Hager
and Mensing about having been on Social Security disability in the past. (Id. at 153-54;
Gorajski Aff. Ex. B-2, at Ex. 34; Mensing Dep. at 101-02.) He asked for blueprints to
explain “big jobs,” as his prior supervisor had given him, and that Hager “not yell” at him.
(Schwarzkopf Dep. at 155-56.) He also asked to be transferred to another position. (Id.
at 155.) Mensing explained that the other positions he sought typically were given to
temporary workers, but she would get back to him on his request. (Id.) She also
suggested that he see a psychologist to help work through his anxiety problems. (Id. at
153; Hager Dep. at 33-34.)
Later that day or the following day, Schwarzkopf met with Mensing alone and
complained that Hager and Bauer were discriminating against him by yelling at him.
(Mensing Dep. at 102-03.) Mensing told him that there was no discrimination occurring,
but that Hager “didn‟t have very good management skills.” (Id. at 103.) Mensing
thought that Schwarzkopf was simply unhappy and she did not perceive the complaints to
be related to his mental disabilities. (Id. at 106-10.) However, she later spoke with
Hager and asked whether he or any other maintenance employees had been harassing
Schwarzkopf. (Hager Dep. at 35-37.) Hager denied any harassment. (Id.)
In February 2007, Schwarzkopf again complained to Hager that Bauer had called
him “nuts, crazy, mental case, paranoid, and postal.” (Schwarzkopf Dep. at 132.) Hager
told him that the reason people called him “postal is because you act so crazy.” (Id. at
133.) When Schwarzkopf asked Hager to put a stop to the comments, Hager paged all
maintenance workers to his office for a meeting and told them “if anybody has anything
-6-
they want to say about somebody, say it, have it out.” (Id. at 132-35; Hager Dep. at
40-41.) At first no one spoke, but then Schwarzkopf, shaking and on the verge of crying,
complained that being called postal “was the worst thing anybody could ever say about
another worker. It was unimaginable and so hurtful.” (Schwarzkopf Dep. at 133; see
also Hager Dep. at 41.) He told his co-workers that he had some “mental problems” and
could “take some jokes and teasing,” but not being called postal or being referred to as
“crazy.” (Schwarzkopf Dep. at 133; Hager Dep. at 42-43; Bauer Dep. at 16.) Hager then
responded, “[d]on‟t be so paranoid. They‟re not talking about you.” (Schwarzkopf Dep.
at 133.)
On February 14, 2007, Schwarzkopf e-mailed Mensing and Hager. (Gorajski Aff.
Ex. B-2, at Ex. 34.) He reminded them about their meeting the prior September at which
he had mentioned his “permanent mental disability,” and he informed them that he had
sought counseling “as we discussed.” (Id.) He also informed them that “as a result of all
the stress” from “work-related issues,” he was taking medications that might impair his
ability to drive, so he felt he should not operate certain machinery. (Id.) Finally, he told
them that it “might be better off to replace me on the safety committee with someone else,”
because his “ability to remember [] is at an all time low and I cannot promise to remember
when the meetings are.” (Id.)4 Mensing responded that he should not operate any
equipment he felt he could not handle safely and she would “do a little research about
perm[anent] disabilities to be sure we address this properly for you.” (Id.) She also
reminded him that the safety committee was “voluntary[,] so if you do not want to remain a
4
It is unclear precisely what the “safety committee” is.
-7-
member of the committee, that is up to you.” (Id.)
By e-mail the following day, Schwarzkopf expressed his desire to continue working
while receiving medical treatment, since testing showed his memory was “getting back to
normal.” (Gorajski Aff. Ex. B-2, at Ex. 33.) Mensing replied that she was “glad you feel
you can continue to work and I‟m VERY happy to hear you think you are getting better.”
(Id.) She also reminded him of the availability of leave under the Family and Medical
Leave Act (“FMLA”) for his medical appointments. A short time later, Mensing and
Hager suggested that Schwarzkopf did not have to continue working since he likely would
qualify for disability, but he rejected their suggestion. (Schwarzkopf Dep. at 195-96.)
In late February 2007, Schwarzkopf‟s physician referred him to an occupational
medicine clinic for a work ability assessment, due to back problems. (Gorajski Aff. Ex.
B-2, at Ex. 38.) In the meantime, his doctor recommended that he avoid long rides and
any “strenuous work” that might put “pressure on [his] spine.” (Id.) Schwarzkopf claims
that he was later restricted from heavy lifting, but the clinic‟s “report of workability”
indicated no lifting restrictions. (Gorajski Aff. Ex. B-2, at Ex. 39.) Nevertheless, he
asserts that he informed Hager he could not perform heavy lifting, but Hager (and Bauer)
tasked him with lifting a number of heavy computers and monitors anyway.
(Schwarzkopf Dep. at 202-03; Thome Decl. Ex. 33 at MS000017.)5
Around this time, Hager was promoted and Bauer replaced him as Schwarzkopf‟s
direct supervisor. Bauer‟s demeaning attitude and comments worsened after the
5
As discussed in more detail below (see infra at 14-16), Exhibit 33 is Schwarzkopf‟s handwritten
diary of events in 2006 and 2007. It is attached to the Declaration of his counsel, Joni M. Thome,
Esq.
-8-
promotion. (Thome Decl. Ex. 33 at MS000021.) He called Schwarzkopf a “nut,”
“dumb,” and “stupid,” and another maintenance employee reported that Bauer had called
him (Schwarzkopf) “as worthless as tits on a boar pig.” (Id. at MS000021-32.) Bauer
“ordered” Schwarzkopf to work overtime that was not required of other employees and
threatened to reprimand him if he failed to do so. (Id. at MS000032-34.)
On March 29, 2007, Hager conducted Schwarzkopf‟s annual review for 2006.
(Gorajski Aff. Ex. B-2, at Ex. 32.) The review was generally positive, although it noted
that Schwarzkopf‟s performance had slipped in 2006. (Id.) In the section for employee
comments, Schwarzkopf noted that while 2006 “may [have] seem[ed] like a bad year,” it
actually was not “considering the fact that I was a disabled person prior to being hired.”
(Id.) He vowed to do better “if people talk in a normal tone of voice vs. loud, and [stop]
scolding” him. (Id.)
Although the exact date is unclear, sometime in March 2007 Schwarzkopf requested
intermittent FMLA leave due to depression, carpal-tunnel syndrome, and a back injury.
(Schwarzkopf Dep. at 201-02; Gorajski Aff. Ex. B-2, at Exs. 36-37.) In early April, he
submitted to Brunswick three FMLA certification forms filled out by his doctors.
(Gorajski Aff. Ex. B-2, at Exs. 40-42.) The forms noted that he suffered from depression,
closed-head trauma due to a car accident, dizziness, and a cervical sprain. (Id.) His
request was approved, and he ultimately took a leave of absence commencing on April 11,
2007. (Id. Ex. 43; Thome Decl. Ex. 9.) It was expected that the leave would last “for
about 12 weeks.” (Thome Decl. Ex. 9; Schwarzkopf Dep. at 212.) Schwarzkopf‟s role
on the safety committee was reassigned to Jesse Barke, another maintenance department
-9-
employee, during his absence. (Schwarzkopf Dep. at 225-27; Hager Dep. at 75-76.)
On May 17, 2007, while on leave, Schwarzkopf filed a charge of discrimination
with the Equal Employment Opportunity Commission (“EEOC”), asserting that Bauer and
Hager had harassed him on account of his mental disabilities and retaliated against him due
to his complaints. (Gorajski Aff Ex. B-2, at Ex. 13.) Mensing received and reviewed the
charge and was “very surprised” that Schwarzkopf was alleging disability discrimination.
(Mensing Dep. at 134-35.) She spoke to Hager and others to “put the pieces together”
about Schwarzkopf‟s complaints, because she had not previously understood him to be
alleging harassment or discrimination based on mental illness. (Id. at 136-37, 143-45.)
Ultimately, she was unable to substantiate his complaints. (Id. at 176.)
Schwarzkopf returned from leave on July 2, 2007, at which time Hager informed
him that Bauer had voluntarily resigned from his supervisor position. (Schwarzkopf Dep.
at 218-20; Mensing Dep. at 152; Bauer Dep. at 56.) Hager also informed him that Barke
would continue performing the safety-committee duties and another maintenance worker
would handle his former responsibilities with regard to hazardous waste. (Schwarzkopf
Dep. at 44, 220-23, 266.) Schwarzkopf was unhappy with these changes and e-mailed
Hager and others to complain. (Gorajski Aff. Ex. B-2, at Exs. 47, 51; Thome Decl. Ex.
14; Schwarzkopf Dep. at 226-30.) Several maintenance workers then complained to
Hager that Schwarzkopf‟s repeated protestations were disruptive and distracting them from
their work. (Hager Dep. at 77-79; Mensing Dep. at 168-74.) Hager yelled at
Schwarzkopf about the complaints and on July 12, 2007, told him that his job duties had
been taken away because of his poor performance. (Thome Decl. Ex. 33 at
- 10 -
MS000057-58.) The following day, Mensing left a message at Schwarzkopf‟s home
telling him that he was suspended with pay for “badmouthing Hager” and that he could
return to work after mediation of the EEOC charge on July 19, 2007. (Schwarzkopf Dep.
at 234, 248; Mensing Dep. at 167-68, 178-79, 182-83; Thome Decl. Ex. 33 at MS000060.)
That mediation failed.
Upon returning to work on July 24, 2007, Schwarzkopf complained to Mensing that
he had found two “jokes” about persons with disabilities in his work area two weeks earlier
(before his suspension), one in his desk drawer and another on Bauer‟s desk.
(Schwarzkopf Dep. at 236-43; Gorajski Aff. Ex. B-2, at Ex. 48; Thome Decl. Ex. 19.) He
also met with Mensing and a human-resources assistant, Blair Horner, and complained that
Hager was retaliating against him. Mensing was unable to substantiate these complaints.
(Mensing Dep. at 189-90.) Nevertheless, she conducted diversity training with the
maintenance department that week, including having employees watch a video entitled,
“From Sex to Religion.” (Id. at 190-91.) Disability discrimination was not “discussed at
length” as part of this training, and Schwarzkopf was required to watch the video
separately from the rest of the maintenance department. (Id. at 191; Thome Decl. Ex. 20.)
On August 2, 2007, Schwarzkopf filed a complaint with the Occupational Safety
and Health Administration regarding certain safety issues he perceived at Brunswick.
(Schwarzkopf Dep. at 312; Gorajski Aff. Ex. B-2, at Ex. 55.) He left for vacation a few
days later. (Schwarzkopf Dep. at 310.) When he returned, Hager chided him and told
him to direct all future safety complaints to him. (Gorajski Aff. Ex. B-2, at Ex. 57.)
On August 15, 2007, Schwarzkopf submitted a doctor‟s note to Mensing and Hager,
- 11 -
which stated that he had “a mental disability in the form of anxiety and depression” and
that, because he had difficulty with instructions, “[i]t would be to [his] advantage to have
instructions given slowly or written out.” (Thome Aff. Ex. 18.) When Hager read the
notes, he crumpled them up and threw them aside, informing Schwarzkopf that he would
not give him an accommodation until told to do so by Mensing. (Schwarzkopf Dep. at
326-27.)
On Friday, August 17, 2007, Schwarzkopf was completing the installation of an
emergency eyewash station when Hager approached and asked him when he would
complete a previously assigned job moving lockers. (Id. at 337-41; Thome Decl. Ex. 33 at
MS000069.) An argument ensued, with Hager calling Schwarzkopf “stupid,” “dummy,”
and “incompetent.” (Schwarzkopf Dep. at 337-43.) Hager told Schwarzkopf that he was
yelling and being insubordinate. (Id.) Schwarzkopf threatened to quit if Hager told
Mensing that he was yelling, as he claims he was not. (Id, at 344.)
Ultimately, Hager and Schwarzkopf made their way to Horner‟s office, since
Mensing was out of town. Along the way, Hager made a “neck slash” gesture to
Schwarzkopf. (Id. at 346-47.) In Horner‟s office, Schwarzkopf complained that Hager
repeatedly harassed and discriminated against him, and Hager responded by calling him
“dumb” and yelling that he (Schwarzkopf) had tried to make him look bad. Ultimately,
Hager told Schwarzkopf to go home for the day. (Id. at 350-55.) Schwarzkopf put his
keys and credit card on Horner‟s desk and said, “it‟s just like I‟m getting fired.” (Id. at
357-58.) Hager smiled and nodded. (Id.) He told another Brunswick manager, “Mel‟s
quitting!” (Id. at 361; Thome Decl. Ex. 33 at MS000070.)
- 12 -
Schwarzkopf called and left messages for Mensing later that day and over the
weekend. (Schwarzkopf Dep. at 363-65.) He was very upset and stated that he had not
quit. (Id. at 362, 371; Thome Decl. Ex. 33 at MS000070.) Mensing returned to work on
Monday, August 21, 2007; she called Schwarzkopf on Tuesday and Wednesday of that
week but she did not reach him. (Mensing Dep. at 200, 204-05.)6
Brunswick considered Schwarzkopf suspended with pay for the week of August 20,
2007. (Id. at 205-08 & Ex. 6.) Schwarzkopf claims that he believed his employment had
been terminated, although his own diary indicates that both Hager and Horner told him he
was merely suspended. (Schwarzkopf Dep. at 362; Thome Decl. Ex. 33 at MS000070.)
Ultimately, he did not return to work at Brunswick, and on August 29, 2007, the company
deemed him to have voluntarily resigned his job for failing to report to work on Monday,
August 27, and Tuesday, August 28. He then amended his EEOC charge to add a claim
for constructive discharge. (Gorajski Aff. Ex. B-2, at Ex. 14.)
On February 19, 2010, the EEOC issued a Determination finding “reasonable
cause” to believe that Brunswick had retaliated against Schwarzkopf “in that he was
subjected to disciplinary action in violation of the ADA,” although it offered no
explanation what that retaliation was. (Thome Decl. Ex. 12.) Nor did it make any
findings with respect to Schwarzkopf‟s claims of harassment. On June 30, 2010,
Schwarzkopf commenced the instant action, asserting discrimination and retaliation claims
against Brunswick under the ADA and the MHRA. With discovery complete, Brunswick
6
Schwarzkopf asserts that he received no messages from Mensing, but he has proffered no
evidence contradicting her assertion that she called him twice during the week of August 21, 2007.
- 13 -
now moves for summary judgment.
STANDARD OF DECISION
Summary judgment is proper if, drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). The moving party bears the burden of showing that the
material facts in the case are undisputed. Id. at 322; Whisenhunt v. Sw. Bell Tel., 573
F.3d 565, 568 (8th Cir. 2009). The Court must view the evidence, and the inferences that
may be reasonably drawn from it, in the light most favorable to the nonmoving party.
Weitz Co., LLC v. Lloyd‟s of London, 574 F.3d 885, 892 (8th Cir. 2009); Carraher v.
Target Corp., 503 F.3d 714, 716 (8th Cir. 2007). The nonmoving party may not rest on
mere allegations or denials, but must show through the presentation of admissible evidence
that specific facts exist creating a genuine issue of material fact for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Wingate v. Gage Cnty. Sch. Dist., No. 34,
528 F.3d 1074, 1078-79 (8th Cir. 2008).7
ANALYSIS
I.
The evidentiary objection
Before addressing the merits of Brunswick‟s Motion, the Court must consider an
evidentiary objection. Specifically, Brunswick objects to the Court‟s consideration of
7
As the Eighth Circuit noted just last week, summary judgment is equally appropriate in a
discrimination case as in any other case in which there exists no genuine issue of material fact.
Torgerson v. City of Rochester, __ F.3d __, 2011 WL 2135636, at *8 (8th Cir. 2011) (en banc)
(“There is no „discrimination case exception‟ to the application of summary judgment.”).
- 14 -
Exhibit 33 to the Declaration of Schwarzkopf‟s counsel, Joni M. Thome, Esq. Its
objection lacks merit.8
Exhibit 33 is a handwritten diary Schwarzkopf maintained in 2006 and 2007.
Brunswick argues that the diary is hearsay (Reply Mem. at 2-3), and it is generally true that
the Court may not consider hearsay evidence at summary judgment. E.g., Mays v.
Rhodes, 255 F.3d 644, 648 (8th Cir. 2001). But Brunswick has waived this objection by
itself submitting the very same diary in connection with its Motion – it is attached to the
Affidavit of Sarah J. Gorajski, Esq., one of Brunswick‟s lawyers. (See Gorajski Aff. Ex.
B-2, at Ex. 49.) It has also cited the diary in its Motion papers. (See Reply at 9.) As
succinctly stated by the Fifth Circuit, “[i]t is settled law that one waives his right to object
to the admission of evidence if he later introduces . . . that very evidence himself.” United
States v. Truitt, 440 F.2d 1070, 1071 (5th Cir. 1971) (per curiam); accord, e.g., Mercer v.
Theriot, 377 U.S. 152, 154 (1964) (per curiam) (finding no error in admitting hearsay
evidence when party elicited same evidence in his examination of the witness); United
States v. Perez, 960 F.2d 1569, 1573 (11th Cir. 1992) (per curiam).
When the Court pointed out this fact to Brunswick at oral argument, its counsel
responded that some parts of the diary are admissible because they constitute admissions
by Schwarzkopf, while other parts are hearsay. But Brunswick did not submit only those
8
Brunswick generically claims that all of the Exhibits attached to the Thome Declaration are
inadmissible because she lacks sufficient personal knowledge to authenticate them. (Reply Mem.
at 2.) However, there cannot be any serious dispute as to the authenticity of most of the Exhibits,
many of which Brunswick itself relies upon in support of its Motion, such as e-mails,
Schwarzkopf‟s EEOC charge, and the like. Regardless, Brunswick specifically seeks the
exclusion only of Exhibit 33. (It had initially sought the exclusion of two Exhibits – 11 and 33 –
but Schwarzkopf agreed to withdraw Exhibit 11 shortly before oral argument, thereby rendering
that objection moot. (See Doc. No. 25.))
- 15 -
portions of the diary allegedly constituting admissions – it submitted the entire diary.
Under these circumstances, the Court finds any objection to Exhibit 33 has been waived.9
II.
The merits
A review of the Complaint and Schwarzkopf‟s brief has left the Court somewhat
unclear as to the precise nature of certain of his claims. It addresses each claim in turn
below, noting its concerns where a particular claim is amorphous or otherwise lacks
clarity.10
A.
Hostile work environment
Schwarzkopf first argues that Brunswick subjected him to a hostile work
environment by directing “consistent, repeated hostile, humiliating and harassing
comments and conduct” at him “from late 2006 to his termination.” (Mem. in Opp‟n at
28.) To establish a hostile work environment in violation of the ADA, a plaintiff must
show that “he is a member of the class of people protected by the statute, that he was
subject to unwelcome harassment, that the harassment resulted from his membership in the
protected class, and that the harassment was severe enough to affect the terms, conditions,
or privileges of his employment.” Shaver v. Indep. Stave Co., 350 F.3d 716, 720 (8th Cir.
2003). Here, Brunswick argues that Schwarzkopf‟s claim falters on the final prong,
contending that he has failed to proffer evidence of “harassment sufficiently severe or
9
Moreover, the diary was produced in discovery and Brunswick‟s counsel had the opportunity to
ask – and did ask – Schwarzkopf questions about it in his deposition. Hence, Brunswick was well
aware that Schwarzkopf intended to rely on the diary to support his claims. Yet, it did not object
to the Court‟s consideration thereof in its Motion; it first raised this argument in its Reply. See D.
Minn. LR 7.2(b)(3) (new arguments not permitted in reply briefs).
10
The Court reviews Schwarzkopf‟s MHRA claims in the same fashion as his ADA claims. See,
e.g., Loye v. Cnty. of Dakota, 625 F.3d 494, 496 n.2 (8th Cir. 2010).
- 16 -
pervasive to affect a term or condition of employment.” (Def. Mem. at 32.)
The difficulty in analyzing this argument stems from the hazy line between “illegal
harassment and merely unpleasant conduct.” Hathaway v. Runyon, 132 F.3d 1214, 1221
(8th Cir. 1997). Discussing the distinction between the two in a sexual-harassment case,
Seventh Circuit Judge Richard A. Posner has stated:
[Discrimination laws are] not designed to purge the workplace of
vulgarity[, and hence] [d]rawing the line is not always easy. On one side lie
sexual assaults; other physical contact, whether amorous or hostile, for
which there is no consent express or implied; uninvited sexual solicitations;
intimidating words or acts; obscene language or gestures; pornographic
pictures. On the other side lies the occasional vulgar banter, tinged with
sexual innuendo, of coarse or boorish workers. We [previously] spoke . . .
of “the line that separates the merely vulgar and mildly offensive from the
deeply offensive and sexually harassing.” It is not a bright line, obviously,
this line between a merely unpleasant working environment on the one hand
and a hostile or deeply repugnant one on the other.
Baskerville v. Culligan Int‟l Co., 50 F.3d 428, 430-31 (7th Cir. 1995) (emphases added)
(citations omitted). In attempting to determine whether challenged conduct crosses the
line separating unpleasantness from harassment, courts must consider the “totality of the
circumstances,” including the frequency of the conduct, its “severity,” whether it is
“physically threatening or humiliating, or a mere offensive utterance,” and whether it
reasonably interferes with the employee‟s performance. Harris v. Forklift Sys., Inc., 510
U.S. 17, 23 (1993). But these categories, too, leave much to be desired. For example,
while some comments facially may be so tinged with discriminatory animus to easily
appear “severe,” determining whether others fall into that category is mere guesswork, left
largely to the whim – and experience, temperament, and sensitivity – of the presiding
judge. See id. at 24 (Scalia, J., concurring) (lamenting that the standard “does not seem to
- 17 -
me a very clear” one).
It is perhaps not surprising, then, that guidance from our own court of appeals is not
a model of clarity as to whether a lengthy train of demeaning and derogatory comments by
co-workers suffices to establish a hostile work environment. For example, the plaintiff in
Shaver suffered from nocturnal epilepsy and had a portion of his brain replaced with a
metal plate in an attempt to alleviate seizures. He proffered evidence that his co-workers,
including some supervisors, “routinely” referred to him as “platehead” over a period of two
years. Others suggested that the plaintiff was stupid, and on one occasion a co-worker
said the plaintiff “pissed in his pants when the microwave was on.” The Eighth Circuit
held that these comments, “[t]aken as a whole,” were insufficiently severe or pervasive to
establish a hostile work environment. 350 F.3d at 721-22. Similarly, in Arraleh v.
County of Ramsey, 461 F.3d 967 (8th Cir. 2006), the Muslim plaintiff claimed he was
“subjected to intense negative scrutiny and derogatory comments from his coworkers
about his race, appearance, and national origin” from the beginning of his employment.
Id. at 978 n.4. Included were repeated negative comments about “you people,” the
suggestion that all Muslims should be killed, a comment that giving the plaintiff a job was
“like raising little terrorist kids,” and calling the plaintiff “Mr. Cocoa.” The Eighth
Circuit affirmed the dismissal of the plaintiff‟s hostile-work-environment claim,
concluding that the evidence did “not meet the rigorous standards reflected in circuit
precedent to support” it. Id. at 979; see also Canady v. Wal-Mart Stores, Inc., 440 F.3d
1031, 1034-36 (8th Cir. 2006) (repeated references by supervisor to plaintiff as “nigga”
and “lawn jockey,” and suggestions that his “skin color seemed to wipe off onto towels,”
- 18 -
insufficient to establish hostile work environment).
By contrast, the plaintiff in Ross v. Douglas County, Nebraska, 234 F.3d 391 (8th
Cir. 2000), proffered evidence that his supervisor “constantly” referred to him as either
“nigger” or “black boy.” Relying on Delph v. Dr. Pepper Bottling Co. of Paragould, Inc.,
130 F.3d 349 (8th Cir. 1997), Ross concluded that the “stream of racial slurs” directed
toward the plaintiff sufficed to show that he was subjected to a racially hostile workplace.
234 F.3d at 396-97. Likewise, in Smith v. St. Louis University, the Eighth Circuit found
the plaintiff‟s evidence that her supervisor “frequently and regularly made derogatory
comments toward” her and another female was sufficient to create a jury question on the
severe or pervasive issue. 109 F.3d 1261, 1264-65 (8th Cir. 1997); see also Green v.
Franklin Nat‟l Bank of Minneapolis, 459 F.3d 903, 911-12 (8th Cir. 2006) (eight instances
of co-worker calling African-American plaintiff “monkey,” “black monkey,” and
“chimpanzee,” and telling her to wear dreadlocks and that he wanted to “eat [her] liver,”
sufficient to support hostile-work-environment claim).11
Deciding which side of the line upon which the evidence falls here presents a
difficult question. The Court recognizes that “[h]arassment standards are demanding”
and that “[s]imple teasing” and “offhand comments” do not “amount to discriminatory
11
At oral argument, Brunswick‟s counsel suggested that the Eighth Circuit has distinguished
between non-actionable and actionable conduct by focusing on whether it is physically assaultive
– that is, only once conduct threatens an assault or actually results in one does it cross the line
dividing the “merely unpleasant” from harassment. The Eighth Circuit has not drawn such a
bright line, however. See, e.g., Green, 459 F.3d at 911 (“Unquestionably, a working environment
dominated by racial slurs constitutes a violation of Title VII.”) (citation omitted); Smith, 109 F.3d
at 1264-65 (evidence that plaintiff‟s supervisor “frequently and regularly made derogatory
comments toward” her and another female was sufficient, despite no physically threatening
conduct).
- 19 -
changes in the terms and conditions of employment.” Arraleh, 461 F.3d at 979. Rather,
“[a]ctionable conduct must . . . be extreme,” and “discriminatory intimidation, ridicule, and
insult [must] permeate[] the workplace.” Wilkie v. Dep‟t of Health & Human Servs., 638
F.3d 944, 953 (8th Cir. 2011) (emphasis added) (citation omitted). After considering the
totality of the circumstances, however, the Court concludes that Schwarzkopf has
proffered sufficient evidence to create a genuine issue whether he was subjected to a
hostile work environment.
Taken in the light most favorable to him, the record discloses that his co-workers
repeatedly made derogatory comments about his mental illnesses over a period of more
than a year. While some of the comments might tend toward “simple teasing” (“dumb,”
“dummy,” “stupid”) and do not facially relate to depression or anxiety problems, others
(“go postal,” “paranoid,” “crazy,” “mental case”) are more significant. Many (if not
most) of the comments were made by Hager and Bauer, Schwarzkopf‟s supervisors for at
least some of his employment. See Delph, 130 F.3d at 356 (offensive comments by
supervisors are “all the more egregious”); Smith, 109 F.3d at 1264 (same). They were
often made in the presence of others. Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir.
1999) (noting that one relevant consideration is “the presence or absence of other people”
when challenged comments were made). Schwarzkopf‟s performance suffered in 2006
after symptoms of his mental illness reappeared, arguably in response to the derogatory
comments, and he sought medical treatment for his depression, lack of focus, and
concentration difficulties. See Smith, 109 F.3d at 1264 (considering fact that plaintiff was
hospitalized and suffered depression during the time discriminatory comments were made,
- 20 -
even though defendant disputed whether depression resulted from the comments). And,
at least some of the challenged conduct arguably was physically threatening, including the
“shock collar” comment and Hager raising a fist to him. See Green, 459 F.3d at 912
(comment by co-worker that he wanted to “eat [the plaintiff‟s] liver” sufficiently
physically threatening, even if not “obviously racially motivated”).
While a jury might not be persuaded that Schwarzkopf was subjected to a hostile
work environment, the Court concludes that he has proffered sufficient evidence to at least
have it decide that question. See Carter, 173 F.3d at 702 (finding that plaintiff made
submissible case on hostile-work-environment claim where she produced evidence that,
over a period of two years, she “regularly suffered verbal abuse interlaced with sexual and
racial epithets” which “occurred in the presence of her co-workers” and which “caused
[her] humiliation and intimidation”).12
B.
Disability discrimination
Besides a hostile work environment, Schwarzkopf alleges that Brunswick
discriminated against him in three tangible ways: (1) suspending him in July 2007;
(2) suspending and/or terminating him in August 2007; and (3) constructively discharging
12
Brunswick argues that Schwarzkopf‟s claim founders because, while he asserts he was harassed
“hundreds of times,” in his deposition he could only identify a “very few specific examples of the
alleged harassment.” (Def. Mem. at 32; Reply Mem. at 6.) As the Eighth Circuit noted in Ross,
however, that Schwarzkopf “has not specifically alleged each individual incident does not defeat
his [hostile-work-environment] claim.” 234 F.3d at 397; see also Ways v. City of Lincoln, 871
F.2d 750, 755 (8th Cir. 1989) (upholding finding of racially hostile work environment, despite
plaintiff offering only a few specific incidents of racial slurs, because the incidents were “simply
examples of [what plaintiff] has encountered during his career”; it was not necessary for plaintiff
“to compile an exhaustive litany of every offensive . . . slur or incident that he had been subject to
or witnessed”).
- 21 -
him. (Mem. in Opp‟n at 44.) The Court concludes that none of these allegedly
discriminatory acts suffices to support a disability-discrimination claim.
1.
General discrimination principles
The ADA prohibits an employer from discriminating “against a qualified individual
on the basis of disability in regard to job application procedures, the hiring, advancement,
or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a). To establish a prima
facie case of discrimination under the ADA, a plaintiff must show that he (1) has a
disability within the meaning of the statute, (2) is qualified to perform the essential
functions of the job, with or without reasonable accommodation, and (3) suffered an
adverse employment action due to a disability. E.g., Chalfant v. Titan Distribution, Inc.,
475 F.3d 982, 988 (8th Cir. 2007) (internal quotations and citation omitted); Wenzel v.
Mo.-Am. Water Co., 404 F.3d 1038, 1040 (8th Cir. 2005). With these principles in mind,
the Court considers each of the actions challenged by Schwarzkopf.13
13
A different analysis applies when a plaintiff proffers “direct evidence” of discrimination. E.g.,
Norman v. Union Pac. R.R. Co., 606 F.3d 455, 459 (8th Cir. 2010). Schwarzkopf claims that he
has adduced such evidence here, pointing to Hager‟s repeated derogatory comments. (Mem. in
Opp‟n at 42.) But direct evidence is “evidence showing a specific link between the alleged
discriminatory animus and the challenged [action], sufficient to support a finding by a reasonable
fact finder that an illegitimate criterion actually motivated the” employer‟s conduct. Griffith v.
City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004). “Not all comments that may reflect a
discriminatory attitude are sufficiently related to the adverse employment action in question to
support such an inference.” Walton v. McDonnell Douglas Corp., 167 F.3d 423, 426 (8th Cir.
1999). In particular, “statements by decisionmakers unrelated to the decisional process itself will
not suffice.” Id. The plaintiff must instead proffer evidence “that clearly points to the presence
of an illegal motive” behind the employer‟s conduct. King v. Hardesty, 517 F.3d 1049, 1057 (8th
Cir. 2008) (emphasis added). Here, Schwarzkopf has not shown – or even attempted to show –
that Hager‟s comments were part of the decisional process vis-à-vis any of Brunswick‟s
challenged conduct. It is simply not enough to point out that he made discriminatory comments
- 22 -
2.
The July 2007 suspension
Schwarzkopf first argues that Brunswick engaged in disability discrimination by
suspending him immediately prior to the EEOC mediation in July 2007. (Mem. in Opp‟n
at 44-45.) As noted above, he must show that this suspension was an “adverse
employment action” in order to succeed on this claim. He cannot do so.
An adverse employment action is a “material employment disadvantage, such as a
change in salary, benefits, or responsibilities.” Singletary v. Mo. Dep‟t of Corr., 423 F.3d
886, 891 (8th Cir. 2005); accord, e.g., Higgins v. Gonzalez, 481 F.3d 578, 584 (8th Cir.
2007). Suspensions without pay generally do not satisfy this standard unless they involve
additional collateral consequences. See, e.g., Singletary, 423 F.3d at 891-92; Moisant v.
Air Midwest, Inc., 291 F.3d 1028, 1032-33 (8th Cir. 2002). Here, there is no suggestion
that Schwarzkopf‟s pay, benefits, or responsibilities changed in any way as a result of his
suspension in July 2007; indeed, he was returned to precisely the same job he previously
held when the suspension ended. Under these facts, it cannot have been an adverse
employment action. See Dickerson v. SecTek, Inc., 238 F. Supp. 2d 66, 80 (D.D.C. 2002)
(“The Court can . . . find no compelling reason to conclude that short suspensions that leave
no lasting effect on either the employee‟s present or future position or her pocketbook are
adverse employment actions.”).
in the past. Walton, 167 F.3d at 426; Hossaini v. W. Mo. Med. Ctr., 97 F.3d 1085, 1088 (8th Cir.
1996) (analyzing national-origin-discrimination claims under McDonnell Douglas despite
evidence that plaintiff‟s manager yelled at her “why [is] everything so different with you damn
foreigners” and criticized her for “not taking vacation time like American employees”).
- 23 -
3.
The August 2007 suspension
Schwarzkopf next argues that Brunswick discriminated against him by “suspending
and/or terminating [him] in August 2007,” referring to the events of August 17, 2007, when
he argued with Hager and was sent home. (Def. Mem. at 44.) Yet again, the Court
concludes that this suspension did not amount to an adverse employment action.
At the outset, it is clear that Brunswick did not terminate Schwarzkopf‟s
employment on August 17, 2007. Schwarzkopf testified that Hager told him to go home
for the day. Brunswick‟s records show that the company considered him suspended with
pay for the following week, not terminated, and indeed Schwarzkopf‟s own diary indicates
that both Hager and Horner expressly told him so. And most notably, Schwarzkopf has
repeatedly alleged – both in this action and before the EEOC – that he was constructively
discharged. (See Mem. in Opp‟n at 37 (“The evidence is Schwarzkopf had to leave his
employment in order to escape intolerable working conditions.”); Gorajski Aff. Ex. B-2, at
Ex. 14 (amended EEOC charge: “On August 17, 2007, I was constructively discharged.”).)
Constructive discharge is necessarily inconsistent with termination, because it requires the
employee to resign his position. E.g., Tidwell v. Meyer‟s Bakeries, Inc., 93 F.3d 490, 494
(8th Cir. 1996).
In light of the foregoing, the only allegedly adverse action Schwarzkopf can point to
regarding the events of August 17, 2007, is his suspension the following week. Yet, there
does not appear to be any dispute that Schwarzkopf was paid for that week of work.
Hence, for the reasons set forth above with respect to the July 2007 suspension, the August
2007 suspension does not constitute an adverse employment action.
- 24 -
4.
Constructive discharge
Finally, Schwarzkopf asserts that Brunswick discriminated by constructively
discharging him. (Mem. in Opp‟n at 44.) Constructive discharge is an adverse
employment action. E.g., Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507,
521 (8th Cir. 2011) (citation omitted). Nevertheless, the Court concludes that
Schwarzkopf‟s constructive-discharge claim must fail.
A plaintiff claiming constructive discharge “must show both that he found the
environment to be abusive and that an objective person in his position would have felt that
he had to [resign] because of his discriminatory work conditions.” Id. Schwarzkopf‟s
conduct here undermines the conclusion that he found the environment at Brunswick so
hostile and abusive that his only alternative was to quit his job. Most notably, after Hager
sent him home on August 17, 2007, Schwarzkopf called Mensing on multiple occasions,
telling her that he had not quit and asking how she would remedy the situation. This
evidence, demonstrating that Schwarzkopf wanted to keep his job even after all of the
harassment he had allegedly suffered at Brunswick, is antithetical to his assertion that he
found the conditions at Brunswick “intolerable.” Tidwell, 93 F.3d at 494; accord Fenney
v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 717 (8th Cir. 2003) (“[T]he plaintiff must
subjectively perceive the environment to be abusive.”).
Moreover, constructive discharge requires a plaintiff to show that the employer‟s
conduct was undertaken “deliberately,” with the “intention of forcing the employee to
quit.” Tidwell, 93 F.3d at 494. Because direct evidence of intent is rare, a plaintiff can
show that his employer intended to force him to quit “by showing [his] resignation was a
- 25 -
reasonably foreseeable consequence of [his] employer[‟s] discriminatory actions.”
Hukkanen v. Int‟l Union of Operating Eng‟rs, Hoisting & Portable Local No. 101, 3 F.3d
281, 285 (8th Cir. 1993). Schwarzkopf makes such an argument here, claiming that
Brunswick‟s “inaction” to his complaints left him “no basis to believe there was any
chance for fair treatment” and, consequently, led to his resignation. (Def. Mem. at 38.)
But the record belies the assertion that Brunswick took no action in response to
Schwarzkopf‟s complaints. Indeed, it is undisputed that Mensing repeatedly spoke with
Hager after Schwarzkopf complained of discrimination and harassment. She provided
additional diversity training to Brunswick employees. She looked into his allegations
regarding the e-mailed jokes found in his work area and, in fact, one employee was
disciplined as a result. (Mensing Dep. at 189.) She offered him FMLA leave when he
needed to attend doctors‟ appointments to treat his mental conditions. And she called him
at least twice after he was suspended on August 17, 2007, in an attempt to discern what had
transpired and what to do about the situation. These facts refute the contention that
Brunswick turned a blind eye to Schwarzkopf‟s complaints with the intention of forcing
him to quit. See, e.g., Trierweiler v. Wells Fargo Bank, 639 F.3d 456, 460 (8th Cir. 2011)
(evidence showing “an intent to maintain an employment relationship with” the plaintiff
undermines constructive-discharge claim); Devin v. Schwan‟s Home Serv., Inc., 491 F.3d
778, 790 (8th Cir. 2007) (same).
Moreover, the record reflects that notwithstanding the drop-off in Schwarzkopf‟s
performance in 2006, Brunswick valued his contributions as an employee and rated his
work satisfactorily. It steadily increased his pay, promoted him, provided him with
- 26 -
positive performance reviews, and gave him at least one discretionary bonus. These facts,
too, undermine the assertion that Brunswick intended to force him to quit. E.g., Tatom v.
Ga.-Pac. Corp., 228 F.3d 926, 932 (8th Cir. 2000).
Viewed in the light most favorable to him, the Court concludes that Schwarzkopf
has not satisfied his “substantial burden” of showing that he was constructively discharged.
Trierweiler, 639 F.3d at 460.14
C.
Failure to accommodate
Discrimination under the ADA includes “not making reasonable accommodations
to the known physical or mental limitations of an otherwise qualified individual with a
disability.” 42 U.S.C. § 12112(b)(5)(A). A plaintiff alleging a failure to accommodate
“bears the initial burden of demonstrating that he requested reasonable accommodations.”
Mershon v. St. Louis Univ., 442 F.3d 1069, 1077 (8th Cir. 2006) (citing U.S. Airways, Inc.
v. Barnett, 535 U.S. 391, 401-02 (2002)). He must also demonstrate that the requested
accommodations “would render him otherwise qualified,” that is, would enable him to
perform the essential functions of his position. Id.; see 42 U.S.C. § 12111(8). Here,
Schwarzkopf claims that Brunswick failed to accommodate his mental illnesses in three
ways, but none of his contentions has merit.
Schwarzkopf argues that he requested a reasonable accommodation by asking that
14
It is not inconsistent to conclude that Schwarzkopf has made a submissible case on his
hostile-work-environment claim while also concluding that he has failed to create a genuine issue
on his constructive-discharge claim. See, e.g., Wilkie, 638 F.3d at 954 (“Hostile work
environment and constructive discharge . . . have different elements, and, while a hostile work
environment can form the basis for a constructive discharge allegation, hostile work environment
discrimination can exist absent a tangible employment action.”) (citation omitted).
- 27 -
his supervisors (and others) not yell at him. (Mem. in Opp‟n at 47.) The Court, however,
concludes that such a request is not reasonable. Indeed, courts have found that there exists
“no authority for the proposition that cessation of harassment is a required reasonable
accommodation.” Rodriguez v. John Muir Med. Ctr., No. 09-731, 2010 WL 3448567,
at *12 (N.D. Cal. Aug. 31, 2010); accord, e.g., Cox v. Peak, No. 3:08cv422, 2010 WL
3860499, at *10 (S.D. Ohio Apr. 16, 2010) (Report & Recommendation of Ovington, M.J.)
(plaintiff failed to propose reasonable accommodation by asking her “supervisors [to]
leave me alone, you know, and my coworkers [to] stop bothering me and harassing me,
intimidating me, making me feel like I‟m this high (indicating)”), adopted, 2010 WL
3769105 (S.D. Ohio Sept. 24, 2010). As the Eighth Circuit has noted, “[w]e do not
believe . . . that the obligation to make reasonable accommodation extends to providing an
aggravation-free environment.” Cannice v. Norwest Bank Iowa, N.A., 189 F.3d 723, 728
(8th Cir. 1999); accord, e.g., Newby v. Whitman, 340 F. Supp. 2d 637, 657 (M.D.N.C.
2004).
Schwarzkopf next argues that he requested a reasonable accommodation by asking
to be transferred. (Mem. in Opp‟n at 47.) But asking for a transfer to avoid certain
co-workers is not a request for a reasonable accommodation. “[A]n employer is not
required to . . . reassign an employee away from any supervisor or coworker who may
cause stress or conflict.” Newby, 340 F. Supp. 2d at 657; accord, e.g., Gaul v. Lucent
Techs., Inc., 134 F.3d 576, 581 (3rd Cir. 1998) (holding that it is “wholly impractical” to
require an employer to transfer an employee to another department “whenever he becomes
„stressed out‟ by a coworker or supervisor”); Prichard v. Dominguez, No. 3:05cv40, 2006
- 28 -
WL 1836017, at *13 (N.D. Fla. June 29, 2006) (noting that there is an “overwhelming
unanimity of opinion in courts throughout the country” that “employees may not use the
[ADA] . . . as the means to obtain a transfer from an undesirable boss”).
Finally, Schwarzkopf claims that he requested reasonable accommodation by
asking for blueprints for “big jobs.” (Mem. in Opp‟n at 47-48.) Putting aside the
ambiguous nature of this request – what is a “big” job? Is a job “big” to Schwarzkopf also
“big” to Hager? – there is no evidence that Schwarzkopf needed written instructions to
complete his work. Indeed, his performance reviews indicate that he was satisfactorily
performing his job duties. And he has repeatedly asserted that he was capable of
performing his job; he testified in his deposition that “[t]o this day, I do not believe my
performance was poor.” (Schwarzkopf Dep. at 152; see also id. at 172-84.) “[B]ecause
[Schwarzkopf] argues that he was capable of performing the essential functions of the
[job], he cannot argue that he was entitled to any accommodation.” Lowery v. Hazelwood
Sch. Dist., 244 F.3d 654, 660 (8th Cir. 2001).15
15
Schwarzkopf claims that Brunswick failed to engage in the “interactive process” through which
employers and employees attempt to find reasonable accommodations. (Mem. in Opp‟n at
49-50.) Yet, “[t]he mere failure of an employer to engage in the interactive process does not give
rise to per se liability.” Ballard v. Rubin, 284 F.3d 957, 960 (8th Cir. 2002). Here, the Court
concludes that Brunswick‟s (alleged) failure to engage in the interactive process is immaterial,
because Schwarzkopf has repeatedly asserted he did not require accommodation to perform his
job. See Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 954 (8th Cir. 1999) (notwithstanding
that employer is “require[ed] . . . to engage in an interactive process,” the employee still must show
“that a particular accommodation rejected by the employer would have made the employee
qualified to perform the essential functions of the job”) (emphasis added).
- 29 -
D.
Retaliation
In his final claim, Schwarzkopf alleges that Brunswick retaliated against him for
complaining of discrimination. To establish a prima facie case of retaliation, he must
show that (1) he engaged in protected conduct, (2) he suffered a materially adverse
employment action, which is “action that would deter a reasonable employee from making
a charge of employment discrimination or harassment,” and (3) the materially adverse
action was causally linked to the protected conduct. Fercello v. Cnty. of Ramsey, 612
F.3d 1069, 1077-78 (8th Cir. 2010).16
The exact parameters of Schwarzkopf‟s retaliation claim are unclear; indeed, he
seems to label all of Brunswick‟s conduct following his complaints as retaliatory. The
Court concludes, however, that none of the challenged conduct suffices to create a jury
question on retaliation.
For instance, Schwarzkopf claims that Mensing conducted a flawed investigation
and failed to follow internal procedures when addressing his complaints. Yet,
“shortcomings in an investigation do not by themselves support an inference” of
retaliation. Wierman v. Casey‟s Gen. Stores, 638 F.3d 984, 997 (8th Cir. 2011) (citation
omitted). This is particularly true where, as here, the investigation was conducted by an
16
Schwarzkopf argues that the MHRA labels a broader range of conduct as retaliatory than does
the ADA. (Mem. in Opp‟n at 35-36.) But the cases are legion holding that such claims “are
governed by the same standards.” Fercello, 612 F.3d at 1074 n.2; accord, e.g., Henderson v. Ford
Motor Co., 403 F.3d 1026, 1036 (8th Cir. 2005); Tori v. Univ. of Minn., No. A06-205, 2006 WL
3772316, at *9 (Minn. Ct. App. Dec. 26, 2006) (analyzing retaliation claims under ADA and
MHRA together); Ross v. City of New Brighton, No. C3-98-1095, 1998 WL 764414, at *2 (Minn.
Ct. App. Nov. 3, 1998) (same). Brunswick argues, in turn, that Schwarzkopf waived the ADA
retaliation claim by citing only MHRA cases in his responsive brief. (See Reply at 9-10.)
Because the same standards apply, however, the Court will address each claim on the merits.
- 30 -
individual (Mensing) who is not alleged to have engaged in any of the derogatory or
harassing comments. Id.
Schwarzkopf also alleges that Hager “hounded” him, subjected him to more
onerous standards than his co-workers, assigned him menial tasks, and took away certain
job duties, like working on the safety committee. (Mem. in Opp‟n at 36, 38-39.) But
these are not “materially adverse actions” sufficient to support a retaliation claim. See,
e.g., Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006) (“normally
petty slights, minor annoyances, and simple lack of good manners” insufficient); Clegg v.
Ark. Dep‟t of Corr., 496 F.3d 922, 929 (8th Cir. 2007) (concluding that employer‟s “failure
to provide [plaintiff] training and orientation, denying her access to needed employment
tools, failure to reinstate her to her prior position, interfering with her authority, unfairly
adding negative reports and reprimands to her personnel file, treating her differently than
her coworkers, excluding her from meetings, giving her a negative evaluation, denying her
training, and adding days to a training assignment at a different unit” did not suffice to
show retaliation). Simply put, “[m]inor changes in duties or working conditions, even
unpalatable or unwelcome ones, which cause no materially significant disadvantage do
not” suffice. Higgins, 481 F.3d at 584.
Schwarzkopf also asserts that Brunswick “continued to harass [him] and made him
work in a hostile work environment” after he reported the allegedly discriminatory
conduct. (Mem. in Opp‟n at 36.) But the Court fails to see how the continuation of
conduct that preceded Schwarzkopf‟s complaints could somehow be “retaliatory.” Stated
differently, it does not appear that the (alleged) harassment occurring after his complaints
- 31 -
is “causally linked” to his reports of harassment – the same conduct was transpiring before
the complaints ever took place. And there is no assertion that the harassment worsened or
changed in character as a result of Schwarzkopf‟s complaints to Mensing or Hager. Cf.
Hervey v. Cnty. of Koochiching, 527 F.3d 711, 723 (8th Cir. 2008) (noting that inference
of retaliation does not arise where employer had been concerned about employee‟s
performance before she engaged in protected activity).
Schwarzkopf also points to his “constructive discharge” to support his retaliation
claims. Yet, as discussed above, he has failed to show that Brunswick constructively
discharged him. This allegation, therefore, does not suffice.
Finally, Schwarzkopf points to his two suspensions as evidence of retaliation. The
Court concludes, however, that neither can be “causally linked” to “protected conduct.”
To show such a link, he argues that the suspensions occurred “immediately” after he
complained of harassment and discrimination (Mem. in Opp‟n at 40), but the Eighth
Circuit has repeatedly held that something more than temporal proximity is necessary to
create a jury question on causation. See, e.g., Hervey, 527 F.3d at 726; Green, 459 F.3d at
916; Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002) (“We have
discounted . . . the possibility that mere temporal proximity between protected act and
adverse employment action can establish the necessary causal connection.”); Kiel v. Select
Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en banc) (“Generally, more than a
temporal connection between the protected conduct and the adverse employment action is
required to present a genuine factual issue on retaliation.”).
Regardless, even if temporal proximity sufficed to show causation under certain
- 32 -
circumstances, it cannot carry the day here. The first suspension occurred in July 2007,
shortly after Schwarzkopf returned from FMLA leave. Yet, the record is devoid of
evidence that he complained about harassing conduct in the small window between his
return from leave and his suspension – the nearest “protected activity” was his EEOC
charge in May 2007, approximately two months earlier. This gap is simply too wide.
See, e.g., Lewis v. St. Cloud State Univ., 467 F.3d 1133, 1138 (8th Cir. 2006) (“[A]n
interval as brief as two months d[oes] not show causation for purposes of establishing a
retaliation claim.”) (internal citations omitted). And while Schwarzkopf was complaining
in July 2007 about the reassignment of his safety-committee duties, that cannot be
construed as “protected conduct” when just a few months earlier he had told Mensing and
Hager that they “might be better off to replace [him] on the safety committee with someone
else.” (Gorajski Aff. Ex. B-2, at Ex. 34.)
As for the second suspension in August 2007, there is some evidence in the record
that Schwarzkopf was complaining about Hager‟s “discriminatory” conduct shortly before
this suspension occurred. But there is no dispute that Hager and Schwarzkopf got into a
verbal altercation immediately prior to the suspension. This intervening event “eroded
any causal connection suggested by the temporal proximity of [Schwarzkopf‟s] protected
conduct and” the suspension. Cheshewalla v. Rand & Son Constr. Co., 415 F.3d 847, 852
(8th Cir. 2005); accord Wierman, 638 F.3d at 998.17
17
The Court notes that it is not bound by the EEOC‟s finding of “reasonable cause” that retaliation
occurred. See, e.g., Kremer v. Chem. Constr. Corp., 456 U.S. 461, 477 (1982) (holding that a
“civil action in federal court following an EEOC decision [is] intended to be a trial de novo”);
Minn. Sch. Bd. Ass‟n Ins. Trust v. EEOC, 184 F. Supp. 2d 899, 908-09 (D. Minn. 2001) (Kyle, J.).
- 33 -
CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Brunswick‟s Motion for Summary Judgment (Doc. No. 11) is
GRANTED IN PART and DENIED IN PART. The Motion is GRANTED as to all
claims in the Complaint except those asserting a hostile-work environment, and as to those
claims, the Motion is DENIED.18
Dated: June 7, 2011
s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge
18
The Court reminds the parties that this case is on the October 2011 trial calendar. The parties
should be fully prepared to try this matter by October 1, 2011.
- 34 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?