Delgado-O'Neil v. Minneapolis, City of
Filing
107
MEMORANDUM OPINION AND ORDER. IT IS HEREBY ORDERED that the City's Motion for Summary Judgment 100 is GRANTED. This matter is dismissed with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Chief Judge Michael J. Davis on 10/31/12. (GRR) Modified date filed and closed per chambers on 11/1/2012 (LJG).
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Julie Delgado‐O’Neil,
Plaintiff,
v.
MEMORANDUM OPINION
AND ORDER
Civil No. 10‐4021 (MJD/JJK)
City of Minneapolis,
Defendant.
_______________________________________________________________________
Jill Clark, Jill Clark P.A., Attorney at Law, Counsel for Plaintiff.
Susan E. Ellingstad and Julie A. Strother, Lockridge Grindal Nauen
P.L.L.P., Counsel for Defendant.
_______________________________________________________________________
This matter is before the Court on the motion of Defendant City of
Minneapolis (“City”) for Summary Judgment. Plaintiff did not file a pleading
responsive to this motion.
I.
Procedural Background
Plaintiff is an attorney employed with the Minneapolis City Attorney’s
Office. She previously brought a lawsuit against the City in 2008 (Civil No. 08‐
4924), alleging claims of employment discrimination based on race and
retaliation pursuant to Title VII, the Minneapolis Civil Rights Ordinance and 42
1
U.S.C. § 1981. Plaintiff brought another action in June 2009 (Civil No. 09‐1598), in
which she asserted claims under 42 U.S.C. §§ 1981 and 1983, and Title VII.
Plaintiff amended the complaint in 09‐1598 on September 9, 2009 [Doc. No. 8].
That action was then consolidated with the first filed action on September 17,
2009. [Doc. No. 12].
By Order dated August 4, 2010 [Civ. No. 08‐4924, Doc. No. 161], this Court
granted the City’s motion for summary judgment and dismissed Plaintiff’s claims
with prejudice. The Court’s decision was thereafter affirmed on appeal.
Delgado‐O’Neil v. City of Minneapolis, No. 10‐3344, 2011 WL 3759479 (8th Cir.
Aug. 25, 2011).
Plaintiff filed this action on September 23, 2010, again asserting claims of
employment discrimination and retaliation under Title VII and the Minnesota
Human Rights Act (“MHRA”), disability discrimination under the Americans
with Disabilities Act (“ADA”), workers compensation and a First Amendment
retaliation claim. Plaintiff has since amended the complaint on three occasions.
The City moved for judgment on the pleadings, asking the Court to
dismiss those claims in the Third Amended Complaint that arose from the same
operative facts underlying the claims actually litigated and resolved in her prior
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lawsuit or which could have been litigated in that action. The motion was
granted, and Counts I, II and III of the Third Amended Complaint were
dismissed to the extent Plaintiff based such Counts on factual allegations that
arose before September 9, 2009, and Count II was dismissed to the extent such
Count was based on a hearing impairment. (Memorandum Opinion and Order
dated October 31, 2011 [Doc. No. 79].)
The claims remaining in this case are retaliation based on a one‐month
suspension Plaintiff received in November 2010 and a coaching session in 2011,
retaliation for filing a worker’s compensation claim in July 2010, and that the City
failed to accommodate Plaintiff’s shoulder injury.
II.
Standard For Summary Judgment
Under Rule 56(b) of the Federal Rules of Civil Procedure, “a party against
whom relief is sought may move at any time, with or without supporting
affidavits, for summary judgment on all or part of the claim.” Fed. R. Civ. P.
56(b)(2008). Furthermore, “[t]he judgment sought should be rendered if the
pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). See also Celotex
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Corp. v. Catrett, 477 U.S. 317, 322‐23 (1986).
The party seeking summary judgment bears the burden of showing that
there is no disputed issue of material fact. Id. at 323. If the opposing party fails to
make a showing that supports the existence of an element essential to the case on
which they have the burden of proof at trial, summary judgment must be
granted. Id. at 332‐33.
When a motion for summary judgment is properly made and
supported, an opposing party may not rely merely on allegations or
denials in its own pleadings; rather, its response must–by affidavits
or as otherwise provided in this rule–set out specific facts showing a
genuine issue for trial. If the opposing party does not so respond,
summary judgment should, if appropriate, be entered against that
party.
Fed. R. Civ. P. 56(e)(2).
As noted above, Plaintiff did not respond to the City’s motion. Thus, if the
City has met its burden and demonstrated that it is entitled to judgment as a
matter of law, the motion will be granted.
III.
Analysis
A.
Retaliation
As noted above, Plaintiff has asserted that she suffered retaliation for
engaging in protected activity under Title VII, the MHRA and the First
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Amendment. To establish a prima facie case of retaliation, Plaintiff must show:
she engaged in statutorily protected conduct; a reasonable person would have
perceived the alleged retaliatory action to be materially adverse; and a causal
connection exists between participation in the protected activity and the adverse
employment action. Sutherland v. Mo. Dep’t of Corr., 580 F.3d 748, 752 (8th Cir.
2009)1. If Plaintiff establishes a prima facie case of retaliation, the burden then
shifts to the City to produce a legitimate, non‐retaliatory reason for its
employment actions. If the City meets its burden, then Plaintiff must prove that
the City’s stated reasons are a pretext for discrimination. Clegg v. Arkansas
Dep’t of Corr., 496 F.3d 922, 928 (8th Cir. 2007) (noting that the McDonnell
Douglas framework was to be used to analyze the plaintiff’s retaliation claim).
To prove pretext, Plaintiff must both discredit the City’s asserted reasons for its
employment actions and show the circumstances permit drawing a reasonable
inference that the real reason for the City’s employment decisions was retaliation.
Gilbert v. Des Moines Area Comm. Coll., 495 F.3d 906, 918 (8th Cir. 2007). The
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“Title VII retaliation claims and MHRA reprisal claims are governed by the same
standards.” Guimaraes v. SuperValu, Inc., 674 F.3d 962, 977 (8th Cir. 2012). Similarly, a First
Amendment retaliation claim requires proof that First Amendment activity was a substantial or
motiving factor in the decision to impose an adverse employment action. See Mt. Healthy City
Sch. Dist. V. Doyle, 429 U.S. 274, 287 (1977).
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Court has reviewed the record, and finds that the City has demonstrated that it is
entitled to judgment as a matter of law as to Plaintiff’s claims for retaliation
under Title VII, the ADA, MHRA and the First Amendment.
Not only is there no evidence in the record which supports a causal
connection between any adverse employment action and protected activity, she
has failed to present evidence to discredit the City’s asserted reasons for her
suspension in November 2010, and a coaching memorandum issued to Plaintiff
in October 2011.
B.
Worker’s Compensation Retaliation
Plaintiff alleges that the City violated Minn. Stat. § 176.82 by threatening
her discharge or retaliating against her for seeking worker’s compensation
benefits.
Minn. Stat. § 176.82 provides:
Any person discharging or threatening to discharge an employee for
seeking workersʹ compensation benefits or in any manner intentionally
obstructing an employee seeking workers’ compensation benefits is liable
in a civil action for damages incurred by the employee including any
diminution in workers’ compensation benefits caused by a violation of this
section including costs and reasonable attorney fees, and for punitive
damages not to exceed three times the amount of any compensation benefit
to which the employee is entitled.
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The City asserts there is no evidence the Plaintiff was discharged or
threatened discharge if she filed a worker’s compensation claim. Again, the
Court has reviewed the record and finds that there is no evidence to support a
claim of retaliation under Minn. Stat. § 176.82.
In her deposition, Plaintiff testified that her worker’s compensation claim
is based on an email she received from Judd Gushwa that describes a meeting
between Plaintiff’s supervisors and union representatives. (Affidavit of Susan
Ellingstad, Ex. 1 (Plaintiff Dep. at 133‐35); Ex. 17.) This meeting was held
approximately one month after Plaintiff suffered the injury to her shoulder that
prompted her to file for worker’s compensation benefits. (Id.) In the email,
Gushwa informed Plaintiff of hypothetical settlement terms proposed by the
City, and counter‐offers proposed by the union. (Id., Ex. 17.) “In a nutshell, all
conversations from both sides today were couched as hypotheticals and the
discussion was one of trying to find a compromise between what it is clear they
are headed for, namely termination, and what we want, which is to avoid
termination.” (Id.) Gushwa further described a proposal to allow Plaintiff to
remain an employee until she turned 65 years of age, which was nine months
from the date of the meeting, and that the City would pay her for half that time if
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she agreed to retire. (Id.) Gushwa summarized by stating: “I get the impression
that the writing is on the wall and either they will terminate you or you will need
to come to some sort of agreement like what is spelled out above.” (Id.)
This email does not discuss the fact that Plaintiff was injured or had filed
for worker’s compensation benefits. Instead, the record demonstrates that the
meeting discussed in the Gushwa email was scheduled in response to the City’s
investigation and finding that Plaintiff had fraudulently altered case appearance
sheets. (Id. Exs. 15, 16.) As Plaintiff has not put forth evidence demonstrating a
genuine issue of material fact that there is a causal connection between her filing
a worker’s compensation claim and an adverse employment action or a threat of
such an adverse action, the City has demonstrated that it is entitled to summary
judgment as to this claim. See Kunferman v. Ford Motor Co., 112 F.3d 962, 965
(8th Cir. 1997) (finding that under Minnesota law, plaintiff must establish a
causal connection between statutorily protected claim and adverse employment
action).
C.
Failure to Accommodate2
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In the Third Amended Complaint, Plaintiff alleged that the City failed to accommodate
her hearing impairment. In a prior Order of this Court, however, the Court dismissed the
failure to accommodate claim to the extent such claim was based on her hearing impairment.
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Plaintiff alleges that the City failed to accommodate her shoulder injury in
violation of the Americans with Disabilities Act (“ADA”). To prove a failure to
accommodate claim under the ADA, Plaintiff must prove that she was disabled
as defined under the ADA and that she was a qualified individual. Fenney v.
Dakota, MN & Eastern R. Co., 327 F.3d 707, 712 (8th Cir. 2003). A qualified
individual is one who “possess[es] the requisite skill, education, experience, and
training for her position, and (2) [is] able to perform the essential job functions,
with or without reasonable accommodation.” Heaser v. Toro Co., 247 F.3d 826,
831 (8th Cir. 2001) abrogated on other grounds by Torgerson v. City of Rochester,
643 F.3d 1031 (8th Cir. 2011). If a plaintiff cannot perform the essential functions
of the job without accommodation, she must show that an accommodation is
possible. Fenney, 327 F.3d at 712. Once this showing is made, the burden shifts
to the employer to show that it was unable to accommodate the employee. Id.
An employer is not required to provide an accommodation that it can
demonstrate would impose an undue hardship on its operation. 42 U.S.C. §
See Memorandum Opinion and Order dated October 30, 2011 [Doc. No. 79]. Even if it were to
address such claim, the Court would find it to be completely without merit as the City fully
complied with Plaintiff’s requested accommodation of providing memoranda to the Hennepin
County bench and the City Attorney’s Office concerning her hearing impairment. (Ellingstad
Aff., Exs. 11, 30 and 36.)
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12112(b)(5)(A).
The law also provides that where an employee requests an
accommodation, the employer must in a good faith, engage in an interactive
process to determine whether a reasonable accommodation is possible. Cravens
v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1021 (8th Cir. 2000).
The City argues that it is entitled to summary judgment as to Plaintiff’s
failure to accommodate claim because, assuming for purposes of this motion that
Plaintiff is disabled as defined under the ADA, the City fully accommodated
Plaintiff’s shoulder injury, and acted in good faith.
The Court finds that the record supports the City’s position, and that no
genuine issues of material fact would prevent judgment in favor of the City as to
Plaintiff’s claim of failure to accommodate under the ADA. After Plaintiff
injured her shoulder in June 2010, she was allowed to take approximately nine
months of medical leave during a fifteen month time period, and was allowed to
return to work on a reduced schedule when she received the medical clearance to
do so. (Id., Ex. 1 (Plaintiff Dep. at 26‐28, 30‐31); Ex. 2 (Plaintiff Dep. at 192).) She
met with Ronald Bjork on January 27, 2011, to discuss ergonomic issues Plaintiff
had with regard to her work‐surface height, keyboard and monitor height and
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her chair. (Id. Ex. 37.)
It was Plaintiff’s burden to show that genuine issues of fact exist that other
reasonable accommodations existed and that the City acted in bad faith during
the interactive process required to address her requests for accommodation.
Plaintiff did not meet this burden. The City is thus entitled to summary
judgment on this claim.
Accordingly,
IT IS HEREBY ORDERED that the City’s Motion for Summary Judgment
[Doc. No. 100] is GRANTED. This matter is dismissed with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Date: October 31, 2012
s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court
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