Gregor v. Polar Semiconductor, Inc.
ORDER granting in part 9 defendant's Motion for Summary Judgment (Written Opinion). Signed by Senior Judge David S. Doty on 2/13/2013. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 11-3306(DSD/TNL)
Polar Semiconductor, Inc.,
a Minnesota corporation,
Lance R. Heisler, Esq. and Lampe Law Group, LLP, 105 East
Fifth Street, Northfield, MN 55057, counsel for
David A. Davenport, Esq., Derek R. Allen, Esq. and
Winthrop & Weinstine, PA, 225 South Sixth Street, Suite
3500, Minneapolis, MN 55401, counsel for defendant.
This matter is before the court upon the motion for summary
judgment by defendant Polar Semiconductor, Inc. (Polar).
upon a review of the file, record and proceedings herein, and for
the following reasons, the motion is granted in part.
This employment dispute arises out of the termination of
plaintiff David Gregor by Polar.
Gregor began working at Polar as
a maintenance technician in March 2003.
Gregor Dep. 25:20-26:3.
Gregor’s primary job duties included the repair and preventative
Gregor Aff. Ex. 1, at 000008.
As a maintenance technician, Gregor
used tools “that require[d] turning, twisting and manipulating.”
Gregor also performed duties outside of his official job
description, including procuring equipment, evaluating assemblies
and parts for equipment, auditing inventory and writing maintenance
Id. ¶ 4.
On December 24, 2009, Gregor suffered a non-work related
injury, resulting in the partial loss of the index and middle
fingers on his dominant right hand.
Gregor Dep. 41:11-43:5.
Id. at 43:6-22; 52:17-53:5.
Gregor on short-term disability leave.
In response, Polar placed
Roberts Dep. 55:2-5.
Polar typically provides Family and Medical Leave Act (FMLA)
leave for up to twelve weeks, but extended Gregor’s leave when he
was unable to return to work in March 2010.
Gregor Dep. 53:24-
On June 4, 2010, Gregor submitted a report of workability
indicating that he would be unable to work until at least July 1,
Gregor Aff. Ex. 3.
Thereafter, on June 30, 2010, Deborah
Roberts, a Polar human resources manager, informed Gregor that he
had been administratively terminated effective June 24, 2010.
Gregor Aff. ¶ 10.
During that conversation, Gregor requested to
return to work at Polar in a position other than maintenance
technician, and Roberts explained that “we don’t really do that, we
have long term disability.”
Id. ¶ 12.
Roberts explained that the
decision was in accordance with Polar protocol, whereby employees
are terminated after their short-term disability concludes.
On July 9, 2010, Gregor was cleared to return to work, but was
Id. Ex. 4.
Moreover, Gregor was advised not to
perform torquing, crimping or any firm grasping with his right
To date, Gregor still does not have the ability to
pinch between his thumb and index or middle fingers.
In a letter dated July 22, 2010, Gregor acknowledged that he
was “physically unable” to return to his former position, but
requested an “accommodation from Polar ... [and] to return to work
in the position of Equipment Manager, or similar position for which
[he was] qualified.”
Gregor Ex. 5.
Id. Ex. 6.
Roberts responded on July 27,
Roberts encouraged Gregor to
check a publicly-accessible website for posted positions.
Gregor never applied for an open position at Polar.
Id. ¶ 17.
On November 9, 2011, Gregor filed suit, alleging violations of
the Americans with Disabilities Act (ADA) and FMLA1 and wrongful
Polar moves for summary judgment.
At oral argument, Gregor abandoned his FMLA claim.
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.”
Fed. R. Civ.
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
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.
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.
A party asserting that a genuine dispute
exists — or cannot exist — about a material fact must cite
“particular parts of materials in the record.”
Fed. R. Civ. P.
If a plaintiff cannot support each essential element
of a claim, the court must grant summary judgment because a
necessarily renders all other facts immaterial.
Celotex, 477 U.S.
The ADA prohibits discrimination by an employer “against a
qualified individual on the basis of disability.”
“To obtain relief under the ADA, [a plaintiff] must
show that he (1) has a disability within the meaning of the ADA,
(2) is a qualified individual under the ADA, and (3) suffered an
adverse employment action as a result of the disability.”2
v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 711 (8th Cir. 2003)
(citation and internal quotation marks omitted).
When, as here, plaintiff raises a failure-to-accommodate claim
and presents no evidence of direct discrimination, the court
applies a modified burden-shifting analysis.
Id. at 712.
the modified burden-shifting approach, the employee must first make
a facial showing that he has an ADA disability and that he has
suffered [an] adverse employment action.
Then he must make a
facial showing that he is a qualified individual.” Brannon v. Luco
Mop Co., 521 F.3d 843, 848 (8th Cir. 2008) (citation and internal
quotation marks omitted) (alteration in original).
at all times retains the burden of persuading the trier of fact
that he has been the victim of illegal discrimination due to his
disability.” Benson v. Nw. Airlines, Inc., 62 F.3d 1108, 1112 (8th
Cir. 1995) (citations omitted).
The parties do not dispute that the termination of Gregor on
June 24, 2010, constitutes an adverse employment action under the
The ADA defines disability as “a physical or mental impairment
that substantially limits one or more major life activities.”
U.S.C. § 12102(1)(A).
“[M]ajor life activities include, but are
not limited to, caring for oneself, performing manual tasks,
seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working.”
argues that Gregor is not disabled.
Id. § 12102(2)(A).
In response, Gregor states
that he is disabled in the major life activities of performing
manual tasks and working.3
The ADA Amendments Act of 2008 (ADAAA) became effective on
January 1, 2009.
See Pub. L. No. 110-325, § 8, 122 Stat. 3559.4
Under the ADAAA, “[t]he definition of disability ... shall be
construed in favor of broad coverage of individuals ..., to the
maximum extent permitted by the terms of this chapter.”
§ 12102(4)(A) (citation omitted).
Without defining “substantially
limits,” the ADAAA states that the term shall be interpreted
consistently with the findings and purposes of the [Act].
Construing the facts in a light most favorable to plaintiff,
the court finds that a material fact dispute exists as to whether
Gregor is disabled in the major life activity of performing manual
tasks. As a result, the court need not determine whether Gregor is
disabled in the major life activity of working.
Gregor was terminated on July 24, 2010, and the court
applies the ADAAA.
In turn, the ADAAA specifically
reject[s] the standards enunciated by the
Supreme Court in Toyota Motor Manufacturing,
Kentucky, Inc. v. Williams, 534 U.S. 184
(2002) ..., [whereby] to be substantially
limited in performing a major life activity
under the ADA an individual must have an
impairment that prevents or severely restricts
the individual from doing activities that are
of central importance to most people’s daily
ADAAA, § 2(b)(4) (citation and internal quotation marks omitted).
In the present action, Gregor presents evidence that he is
unable to pinch between his thumb and index or middle fingers.
Gregor Dep. 57:4-9. Moreover, Gregor has diminished grip strength,
Id. at 77:7-78:10.
Construing this evidence in a light
most favorable to Gregor, the court concludes that a reasonable
juror could find that Gregor is substantially limited in the major
life activity of performing manual tasks.
Such a conclusion is buttressed by the regulations promulgated
by the Equal Employment Opportunity Commission (EEOC) in 2011.5
Gregor was terminated prior to enactment of the amended EEOC
regulations, which took effect on May 24, 2011.
See Allen v.
SouthCrest Hosp., 455 F. App’x 827, 835 (10th Cir. 2011)
(unpublished). In Allen, the Tenth Circuit concluded that “[t]he
ADAAA did not ... explicitly discuss or modify the definition of
the major life activity of working,” and applied the 2010
regulations, rather than retroactively apply the amended EEOC
regulations. Id. at 834. In the present matter, the 2010 EEOC
regulations did not provide interpretive guidance regarding the
implementing the definitions of disability in section 12102.”
U.S.C. § 12205a.
These regulations explain that “substantially
limits” is not meant to be a demanding standard.
substantially limits the ability of an individual to perform a
major life activity as compared to most people in the general
significantly or severely restrict, the individual from performing
a major life activity in order to be considered substantially
Id. § 1630.2(j)(1)(ii).
The EEOC explains
that the major life activity of performing
manual tasks (which was at issue in Toyota)
could have many different manifestations, such
as performing tasks involving fine motor
coordination, or performing tasks involving
grasping, hand strength, or pressure. Such
tasks need not constitute activities of
central importance to most people’s daily
lives, nor must an individual show that he or
she is substantially limited in performing all
promulgated pursuant to the ADAAA, reinforce the court’s conclusion
major life activity of performing manual tasks. As a result, Allen
is distinguishable, and the court finds that the amended EEOC
regulations are persuasive indicia of Congress’s intent when
promulgating the ADAAA.
that a fact issue exists as to whether Gregor is disabled for
purposes of the ADA.
Therefore, the court examines whether Gregor
is a qualified individual under the ADA.
“To be a qualified individual under the ADA, an employee must
training for [his] position; and (2) be able to perform the
essential job functions, with or without reasonable accommodation.”
Kallail v. Alliant Energy Corporate Servs., Inc., 691 F.3d 925, 930
(8th Cir. 2012) (citation and internal quotation marks omitted).
Neither party disputes that Gregor possessed the requisite skill
and experience necessary for the maintenance technician position.
See Gregor Aff. Ex. 2.
As already explained, however, Gregor’s
limitations preclude him from performing the essential functions of
the job without an accommodation.
Gregor Dep. 77:7-78:10.
result, the court examines whether a reasonable accommodation
“In cases where the employee claims that he is able to perform
the essential functions of the job with a reasonable accommodation,
the employee must only make a facial showing that a reasonable
accommodation is possible.” Brannon v. Luco Mop Co., 521 F.3d 843,
Reasonable accommodations include “job restructuring,
part-time or modified work schedules, reassignment to a vacant
position, acquisition or modification of equipment or devices,
appropriate adjustment or modifications of examinations, training
materials or policies, the provision of qualified readers or
interpreters, and other similar accommodations for individuals with
42 U.S.C. § 12111(9)(B).
If an employee satisfies
the facial showing, the burden “shifts to the employer to show that
it is unable to accommodate the employee.” Fenney v. Dakota, Minn.
& E. R.R. Co., 327 F.3d 707, 712 (8th Cir. 2003) (citations and
accommodation exists is often a fact question to be decided by the
See EEOC v. Convergys Customer Mgmt. Grp., Inc., 491 F.3d
790, 796 (8th Cir. 2007).
An employer must “mak[e] reasonable accommodations to the
known physical or mental limitations of an otherwise qualified
individual with a disability who is an ... employee, unless [the
employer] can demonstrate that the accommodation would impose an
undue hardship on the operation of the business of [the employer].”
reasonable accommodation it may be necessary for the [employer] to
initiate an informal, interactive process with the [employee] with
a disability in need of the accommodation.6
This process should
It is unclear whether Gregor requested a formal
accommodation prior to termination.
Polar does not argue that
Gregor failed to do so, and Roberts states that she “spoke with
Gregor about ... [Polar’s] ability to accommodate [his] defined
identify the precise limitations resulting from the disability and
29 C.F.R. § 1630.2(o)(3).
“[T]he failure of an
employer to engage in an interactive process to determine whether
reasonable accommodations are possible is prima facie evidence that
the employer may be acting in bad faith.”
Fjellestad v. Pizza Hut
of Am., Inc., 188 F.3d 944, 950 (8th Cir. 1999).
Polar argues that
it satisfied its obligations by (1) extending short-term disability
leave and (2) attempting to reassign Gregor to an open position.
Polar first argues that it accommodated Gregor by extending
his short-term disability leave beyond the twelve weeks required by
“[A]llowing a medical leave of absence might, in some
circumstances, be a reasonable accommodation.”
at 849 (citation omitted).
Brannon, 521 F.3d
Here, however, Polar retroactively
terminated Gregor once his short-term disability benefits lapsed.
See Heisler Decl. Ex. B, at 2 (explaining Polar policy that results
in “termination of employment” when employee is unable to return to
work after short-term disability lapses).
termination predates discussions with Polar regarding accommodation
See Gregor Aff. ¶¶ 10-11; Id. Ex. 3 (report of
physical limitations” on or near June 30, 2010.
B, at 1.
Heisler Decl. Ex
This is particularly troubling considering that on June 24,
2010, Polar allegedly “received a work ability form from [Gregor’s]
As a result, a reasonable jury could conclude that
Polar failed to engage in the interactive process and did not offer
Gregor a reasonable accommodation.
Polar next argues that it engaged in the interactive process
“[R]eassignment to a vacant position” is a possible accommodation
under the ADA.
42 U.S.C. § 12111(9)(B).
Polar, however, did not
engage in any discussion regarding reassignment until after it
See Heisler Decl. Ex. B; Gregor Aff. Exs. 5-6.
As a result, the court cannot conclude that Polar engaged in the
interactive process by attempting to reassign Gregor to a vacant
Of course, “an employer will not be held liable under the ADA
for failing to engage in an interactive process if no reasonable
accommodation was possible.”
See Fjellestad, 188 F.3d at 952.
Here, Polar argues that “[h]ad there been an opening that [Gregor]
had an interest in and he was qualified for, we would have pursued
an interactive discussion with him.
We would have automatically
doctor stating that he could return to work but that he could not
do any pinching with his right hand for 6-8 weeks.” See Heisler
Decl. Ex. B, at 3. The court notes, however, that the June 24,
2010, doctor’s report is not in the record.
This is especially true considering that upon termination,
Gregor lost access to Polar’s intranet, where the company posts
positions that are available exclusively to current Polar
employees. Gregor Aff. ¶ 17.
given it to him.” Roberts Dep. 95:23-96:2. Gregor notes, however,
that when he was terminated, two positions – Process Engineering
Manager and Chemical Sustaining Operator - were open.
Dep. 86:4-23; see also Heisler Decl. Ex B, at 2 (email outlining
three available positions: Chemical Sustaining Operations, Process
Engineering Manager, Split Shift C/D).
It is unclear whether
Gregor was qualified for the position as a Process Engineering
See Gregor Aff. Ex. 6 (explaining that position requires
experience working for Japanese auto firms”).
however, that he was qualified and could perform the essential
functions of the chemical sustaining position with “little or no
to the contrary.9
Id. ¶ 24.
Polar, meanwhile, presents no evidence
See Cravens v. Blue Cross & Blue Shield of Kan.
City, 214 F.3d 1011, 1020 (8th Cir. 2000) (“[S]worn statements that
she met position requirements, her submission of relevant job
postings, as well as her apparently competent performance ...
create[d] a fact question as to whether she was qualified for any
of the identified positions ... and whether reassigning her to one
of these positions would be a reasonable accommodation.” (citations
Instead, Polar argues that Gregor was uninterested in the
position. Roberts Dep. 47:9. Gregor, however, need only show that
an accommodation was possible.
Brannon, 521 F.3d at 848.
Moreover, Polar did not learn of Gregor’s alleged disinterest until
after the effective date of his termination.
See Roberts Dep.
46:15-20 (noting conversation with Gregor occurred on approximately
June 25, 2010).
As a result, viewing the evidence in a light most
favorable to Gregor, the court cannot conclude that reassignment
Therefore, a material fact dispute exists as to
whether Gregor is a qualified individual under the ADA, and summary
judgment is not warranted.
Gregor bases his wrongful termination claim on a violation of
the Minnesota Human Rights Act (MHRA).
See Compl. ¶¶ 6-7.
from one difference, which is not relevant here, an MHRA claim
proceeds the same way as does a claim under the ADA.”
Fresenius Med. Care N. Am., 509 F.3d 466, 469 (8th Cir. 2007)
Therefore, summary judgment as to the MHRA
claim is not warranted.
Accordingly, based on the above, IT IS HEREBY ORDERED that
defendant’s motion for summary judgment [ECF No. 9] is granted in
part, consistent with this order:
violation of the ADA and wrongful termination; and
violation of the FMLA.
February 13, 2013
s/David S. Doty
David S. Doty, Judge
United States District Court
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