Kersten v. Old Dominion Freight Line, Inc.
Filing
58
AMENDED ORDER re 35 MOTION for Summary Judgment filed by Anastasia Kersten, 38 MOTION for Summary Judgment filed by Old Dominion Freight Line, Inc. (Written Opinion). Signed by Senior Judge David S. Doty on 11/29/2012. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 11-1036(DSD/JSM)
Anastasia Kersten,
Plaintiff,
AMENDED ORDER
v.
Old Dominion Freight Line, Inc.,
Defendant.
Celeste E. Culberth, Esq. and Culberth & Lienemann, 444
Cedar Street, Suite 1050, St. Paul, MN 55101, counsel for
plaintiff.
Martin D. Kappenman, Esq. and Seaton, Peters & Revnew,
P.A., Suite 500, 7300 Metro Boulevard, Minneapolis, MN
55439, counsel for defendant.
This matter is before the court upon cross motions for summary
judgment by plaintiff Anastasia Kersten and defendant Old Dominion
Freight Line, Inc. (Old Dominion).
Based on a review of the file,
record and proceedings herein, and for the following reasons, the
court grants Kersten’s motion.
BACKGROUND
This employment dispute arises from the termination of Kersten
by Old Dominion.
Kersten began working at Old Dominion in the
customer-service department on March 29, 2005.
Compl. ¶ 5.
In
September 2009, Kersten requested parenting leave.1
Id. ¶ 9.
The
parties agreed that Kersten’s parenting leave would begin September
10, 2009, and conclude November 1, 2009.
Id. ¶ 10.
Kersten delivered her baby on September 10, 2009, whereupon
her doctor advised that she take eight weeks to recover from
complications related to childbirth.
Culberth Decl. Ex. 8.
On
September 18, 2009, Kersten emailed Steve Miller, an Old Dominion
terminal manager, and requested to “come back on the 9th as long as
that is ok with you.”
“Nov 9 will work.”
terminated Kersten.
Culberth Decl. Ex. 9.
Id.
Miller responded that
On November 4, 2009, Old Dominion
Compl. ¶ 13.
On April 12, 2011, Kersten filed suit in Minnesota court,
alleging a violation of the Minnesota Parental Leave Act (MPLA).
Old Dominion
timely
removed.
Both
parties
move
for
summary
judgment.
DISCUSSION
I.
Standard of Review
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
1
Fed. R. Civ.
Old Dominion does not dispute that it is an employer subject
to the Minnesota Parental Leave Act (MPLA).
See Minn. Stat.
§ 181.940, subdiv. 3.
Old Dominion also does not dispute that
Kersten was eligible for MPLA leave. See id. § 181.940, subdiv. 2.
2
P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A dispute is genuine if the evidence is such that it could
cause a reasonable jury to return a verdict for either party.
See
id. at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
See id. at 255.
The nonmoving party, however, may not rest upon
mere denials or allegations in the pleadings but must set forth
specific facts sufficient to raise a genuine issue for trial.
Celotex, 477 U.S. at 324.
See
A party asserting that a genuine dispute
exists — or cannot exist — about a material fact must cite
“particular parts of materials in the record.”
56(c)(1)(A).
Fed. R. Civ. P.
If a plaintiff cannot support each essential element
of a claim, the court must grant summary judgment because a
complete
failure
of
proof
regarding
an
necessarily renders all other facts immaterial.
essential
element
Celotex, 477 U.S.
at 322-23.
II.
Failure to Reinstate
Under the MPLA, “[a]n employer must grant an unpaid leave of
absence to an employee who is a natural or adoptive parent in
conjunction with the birth or adoption of a child.”
3
Minn. Stat.
§ 181.941, subdiv. 1.2
The employee determines the length of
leave, “but [the leave] may not exceed six weeks, unless agreed to
by the employer.”
Id.
Kersten argues that the September 18, 2009,
email extended her MPLA leave to November 9, 2009.
Old Dominion
responds that the email extended her leave, but did not extend her
right to reinstatement.
The
Minnesota
Supreme
Court
explains
that
“there
is
no
language in the MPLA to suggest that an extension of leave also
extends the right to reinstatement.”
Hansen v. Robert Half Int’l,
Inc., 813 N.W.2d 906, 917 (Minn. 2012).
In other words, “absent a
specific agreement to reinstate, an extension of leave under the
MPLA does not extend the right to reinstatement.”
Id.
In the present action, Kersten emailed Miller and requested to
“come back on the 9th as long as that is ok with you.”
Decl. Ex. 9.
Miller responded: “Nov 9 will work.”
Id.
Culberth
Neither
email specifically referenced “reinstatement,” and the court must
determine
whether
receiving
permission
to
return
to
work
on
November 9 is “a specific agreement to reinstate.”
Although this question was not explicitly answered by Hansen,
the court finds the decision instructive.
2
The Hansen court was
A plaintiff may bring an MPLA claim for retaliation or
failure to reinstate.
See Minn. Stat. § 181.941, subdiv. 3
(retaliation); id. § 181.942, subdiv. 1 (reinstatement). To the
extent the complaint is ambiguous, Kersten clarifies that she is
only pursuing a failure-to-reinstate claim. See Pl.’s Mem. Opp’n
5.
4
tasked with, among other issues, determining whether an employee
“was required to specifically invoke the MPLA [by name] when
requesting leave.”
Hansen, 813 N.W.2d at 915.
There the court
noted that the “plain language of the MPLA does not require an
employee to specifically refer to the Act [by name] when requesting
a leave.”
Id.
Further, to the extent that the MPLA is potentially
ambiguous - “due to silence as to the mechanism by which an
employee is entitled to the protections of the statute” - the court
explained that
an employee should be entitled to the
protections of the Act when she informs her
employer of a qualifying reason for the needed
leave and is otherwise eligible for such
leave.
A narrow reading of the MPLA would
deny an employee the protections of the
statute based on the technicality of failing
to expressly invoke the statute.
Id. at 916.
Moreover, the Hansen court analogized to the Family
Medical Leave Act (FMLA), explaining that employees need not
specifically refer to the FMLA to invoke the protections of the
Act.
Id. (citations omitted); see also Kobus v. Coll. of St.
Scholastica, Inc., 608 F.3d 1034, 1036-37 (8th Cir. 2010).
Using Hansen as a guide, the court determines that no specific
language is required to extend leave; rather, a specific agreement
to reinstate is reached when an employee requests a date to return
to work, and an employer consents. A contrary interpretation would
contravene the goal of the MPLA - to provide pregnancy leave for a
term mutually agreed upon by the employer and employee.
5
Here,
Kersten asked to return on November 9, 2009, and Miller agreed.
Therefore, the court determines that Kersten and Old Dominion
reached a specific agreement to extend her reinstatement date to
November 9, 2009.
III.
Bona Fide Layoff and Recall System
Under the MPLA, an exception to reinstatement exists when,
during an employee’s leave, “the employer experiences a layoff and
the employee would have lost a position had the employee not been
on leave, pursuant to the good faith operation of a bona fide
layoff and recall system, including a system under a collective
bargaining agreement.”
Minn Stat. § 181.942, subdiv. 1.
Old
Dominion argues that even if Kersten was otherwise entitled to
reinstatement, it terminated her pursuant to a bona fide layoff and
recall system.
A.
Burden Shifting
Old Dominion argues that the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to
the court’s analysis of whether Kersten was terminated pursuant to
a bona fide layoff and recall system.
In support, Old Dominion
relies on Hillins v. Marketing Architects, Inc., 808 F. Supp. 2d
1145 (D. Minn. 2011).
This decision is unpersuasive, however,
because Hillins involved a retaliation claim and not a claim for
6
failure to reinstate.3
Id. at 1156 (explaining inquiry as whether
an employee was “chosen for termination based on her exercise of
her right to parental leave”).
Retaliation and failure-to-reinstate are distinct actions
under the MPLA.
See Hansen, 813 N.W.2d at 918.
In the former, the
court engages in a burden-shifting framework to determine whether
the employee was terminated in retaliation for taking MPLA leave,
whereas in the latter, the court examines whether termination
occurred while an employee was on MPLA-protected leave.
See
Gangnon v. Park Nicollet Methodist Hosp., 771 F. Supp. 2d 1049,
1053-54 (D. Minn. 2011) (engaging in burden shifting only for
retaliation claim).4
As a result, the court determines that the
McDonnell Douglas burden-shifting framework does not apply to
Kersten’s
failure-to-reinstate
claim
under
the
MPLA.
Accord
Hansen, 813 N.W.2d at 916-17 (analyzing failure-to-reinstate claim
without examining retaliatory motive). Therefore, the burden is on
3
Old Dominion argues that the complaint in the underlying
action is identical to the complaint in Hillins. To the extent
this is true, Kersten waived any claim for retaliation. Pl.’s Mem.
Opp’n 5.
4
To the extent that the FMLA is instructive, the Eighth
Circuit has declined to engage in burden shifting “[w]hen analyzing
an interference claim under the FMLA.”
Stallings v. Hussmann
Corp., 447 F.3d 1041, 1050 n.3 (8th Cir. 2006); see also Colburn v.
Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 331 (1st Cir.
2005) (“No showing as to employer intent is required.”); King v.
Preferred Technical Grp., 166 F.3d 887, 891 (7th Cir. 1999) (same).
But see Sabourin v. Univ. of Utah, 676 F.3d 950, 958 (10th Cir.
2012) (applying burden shifting to FMLA interference claim).
7
Old Dominion to demonstrate that it terminated Kersten pursuant to
a bona fide layoff and recall system.
B.
Reduction-in-Force
Old Dominion next argues that it terminated Kersten as part of
a valid reduction-in-force (RIF), which it claims falls under the
bona fide layoff and recall exception to reinstatement.5
In
support, Old Dominion analogizes to the FMLA.
The FMLA generally requires that an employee “be restored by
the employer to the position of employment held by the employee
when the leave commenced.” 29 U.S.C. § 2614(a)(1)(A); see Phillips
v. Mathews, 547 F.3d 905, 914 (8th Cir. 2008).
a qualified privilege.
This, however, is
The FMLA explains that an employee is not
entitled to “any right, benefit, or position of employment ... to
which the employee would [not] have been entitled had the employee
not taken the leave.”
29 U.S.C. § 2614(a)(3)(B).
When an employer
shows that “an employee would have been laid off during the FMLA
leave period,” independent of the employee’s leave, the employee
will not be entitled to restoration.
29 C.F.R. § 825.216(a)(1).
In other words, a valid RIF can be a defense to termination under
the FMLA.
See Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d
972, 977 (8th Cir. 2005).
5
The court notes that RIF inquiries are often deferential to
employer decisionmaking. See Rahlf v. Mo-Tech Corp., 642 F.3d 633
(8th Cir. 2011) (explaining that company need not even “provide
evidence of financial distress to make it a legitimate RIF”)
(citation and internal quotation marks omitted).
8
And although the FMLA can be instructive when analyzing the
MPLA, in such cases the operative language between the statutes
must
be
similar.
similarity
See
between
Hansen,
definition
813
of
“eligible employee” under FMLA).6
specifically
exempts
layoffs
N.W.2d
at
“employee”
915-16
under
(noting
MPLA
and
The MPLA, however, neither
pursuant
to
a
RIF,
nor
is
the
exception written so broadly as to implicitly encompass a RIF.
Moreover, had the legislature intended to exempt a RIF, it would
have specifically stated such an intention.
See, e.g., N.J. Stat.
Ann. § 34:11B-7 (“If during a leave provided by this act, the
employer experiences
a
reduction
in
force
or
layoff
and
the
employee would have lost his position had the employee not been on
leave, as a result of the reduction in force or pursuant to the
good faith operation of a bona fide layoff and recall system ...
the
employee
shall
(emphasis added).
not
be
entitled
to
reinstatement
....”)
As a result, pursuant to the plain language of
the MPLA, the court determines that a RIF is not covered by the
bona fide layoff and recall exception.
Old Dominion nevertheless argues that Kersten was terminated
pursuant to a bona fide layoff and recall system.
6
In support, Old
Compare Minn. Stat. § 181.941, subdiv. 1 (defining an
employee as “a person who performs services for hire for an
employer from whom a leave is requested under [the MPLA]) (emphasis
added), with 29 U.S.C. § 2611(2)(A)(i) (defining eligible employee
as one “who has been employed ... for at least 12 months by the
employer with respect to whom leave is requested under [the FMLA]”)
(emphasis added).
9
Dominion explains that while Kersten was on leave, financial
conditions changed such that a layoff became necessary.
Brian
Stoddard, vice-president of safety and personnel at Old Dominion,
testified that it was “standard operating procedure” to use “fulltime seniority dates in making decisions of job eliminations and
economic cutbacks.”
Stoddard Dep. 10:3-7, 12:8-20.
Kersten had
the least full-time employment, and as a result, she was selected
for termination.
See Miller Dep. 31:14-15; Kappenman Aff. Ex. D,
at 18-19.
Terminating the employee with the least full-time experience,
however, was not a written policy.
Rather, as Stoddard explains,
it was “just a fair standard operating procedure.”
12:21-13:8.
Stoddard Dep.
And even if this “verbal” policy was sufficient to
establish a bona fide layoff system, Old Dominion presented no
evidence of a recall system.
In fact, Miller stated that “[i]f a
job cut had to be done, we terminate.
We don’t lay off.
leave
may
that
terminated.”
possibility
that
they
Miller Dep. 30:17-21.
come
back.
We don’t
They’re
As a result, Old Dominion has
presented no evidence that it terminated Kersten pursuant to a bona
fide layoff and recall system.
Therefore, summary judgement in
favor of Kersten is warranted.
10
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.
Plaintiff’s motion for summary judgment [ECF No. 35] is
granted;
2.
Defendant’s motion for summary judgment [ECF No. 38] is
denied;
3.
The court will retain jurisdiction over this matter to
determine the amount of damages and attorneys’ fees and costs;
4.
Defendant’s Notice of Appeal [ECF No. 56] is withdrawn
and will not affect defendant’s ability to appeal upon the entry of
judgment; and
5.
The clerk of court is directed to refund defendant’s
$455.00 filing fee for its appeal to the Eighth Circuit.
Dated:
November 29, 2012
s/David S. Doty
David S. Doty, Judge
United States District Court
11
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