Johnson v. J.B. Hunt Transport Services, Inc.
Filing
58
MEMORANDUM OF LAW & ORDER. IT IS HEREBY ORDERED: 1.Defendant's Motion for Summary Judgment 31 is DENIED. 2.Plaintiff's Motion to Strike Declaration of Wesley Griffin 42 is DENIED. (Written Opinion). Signed by Chief Judge Michael J. Davis on 12/19/13. (GRR)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
________________________________________________________________________
BRADLEY JOHNSON,
Plaintiff,
v.
MEMORANDUM OF LAW & ORDER
Civil File No. 12-2031 (MJD/TNL)
J. B. HUNT TRANSPORT, INC.,
Defendant.
Clayton D. Halunen and Jacob Frey, Halunen & Associates, and Michelle Dye
Neumann, Brian T. Rochel, and Phillip M. Kitzer, Schaefer Law Firm LLC,
Counsel for Plaintiff.
George R. Wood, Littler Mendelson, P.C., Counsel for Defendant.
I.
INTRODUCTION
This matter is before the Court on Defendant’s Motion for Summary
Judgment [Docket No. 31] and Plaintiff’s Motion to Strike Declaration of Wesley
Griffin [Docket No. 42]. The Court heard oral argument on October 4, 2013.
Because genuine issues of material fact exist, the Court denies summary
judgment. The Court also denies the motion to strike.
II.
BACKGROUND
A.
Factual Background
1
1.
The Parties
Defendant J.B. Hunt Transport, Inc. (“J.B. Hunt”) is a transportation
logistics company incorporated in the state of Georgia and headquartered in the
state of Arkansas. (Griffin Decl. ¶ 2.) The company operates a facility in
Roseville, Minnesota that provides services to Whirlpool Corporation, a
manufacturer of major home appliances. (Id. ¶ 9.)
Plaintiff Bradley Johnson worked for J.B. Hunt from August 28, 2009, until
December 16, 2010. (Kitzer Decl., Johnson Dep. 13, 33.) Johnson drove and
delivered appliances for the Whirlpool account at J.B. Hunt’s Roseville facility.
(Id. 12-14.) Johnson’s manager was Jeffrey Henning. (Id. 14, 18.)
2.
J.B. Hunt’s Workers’ Compensation Claim Protocol
J.B. Hunt’s policy is that when a driver is injured while working, the driver
must immediately report the incident to J.B. Hunt’s Corporate Claims
Department by telephone. (Kitzer Decl., Hill Dep. 18-20; Griffin Decl., Ex. 1, J.B.
Hunt 2009 Driver Manual at 71.) The Corporate Claims Department asks the
driver whether he or she requires medical treatment and whether he or she
would like to file a workers’ compensation claim. (Hill Dep. 19-20.) If the
employee decides to file a workers’ compensation claim, the claim is
administered by J.B. Hunt’s workers’ compensation coverage carrier. (Id. 14.)
2
J.B. Hunt employs three claims examiners who are liaisons between J.B. Hunt
and its insurance carrier. (Id. 14-15, 21-22.) The claims examiner responsible for
the claims arising out of J.B. Hunt’s Roseville location is Christina Hill. (Id. 99.)
3.
J.B. Hunt’s Leave Policy
According to J.B. Hunt’s written leave policy: “If an employee cannot
return to work at the end of the FMLA leave because of the employee’s
incapacity and/or because no reasonable accommodation is available, [J.B. Hunt]
may grant the employee a Personal Medical leave of up to 6 weeks.” (Parrott
Aff., Ex. 2, Johnson Dep., Ex. 2, J.B. Hunt Leave Policy at 7.) According to J.B.
Hunt’s 2009 Driver Manual, “Personal leave in excess of 6 weeks is not
available.” (Griffin Decl., Ex. 1, J.B. Hunt 2009 Driver Manual at 24.) Johnson
received a copy of J.B. Hunt’s leave policy, understood that he was entitled to a
maximum of 18 weeks of leave, and was not aware of any employees receiving
more than 18 weeks of leave. (Johnson Dep. 35-37, 139-40.) J.B. Hunt Litigation
Director, Wesley Griffin, avers that J.B. Hunt’s practice is that, if, at the end of the
personal medical leave, the employee cannot return to his position within a
reasonable period, J.B. Hunt discharges him, unless a position within his
restrictions is available. (Griffin Decl. ¶ 8.) Also, “if the employee has presented
a doctor’s certification indicating that he or she will be able to return to work
3
within a reasonable time period, additional leave time may be granted.” (Id.)
Defendant claims that, if an injured employee’s doctor cannot provide J.B. Hunt
with an estimated return to work date, J.B. Hunt requires that the employee
provide medical documentation every 30 days in order to continue their leave of
absence. (Parrott Aff., Ex. 2, Johnson Dep., Ex. 12.)
According to Defendant’s 2009 Driver Manual, when a driver is out of
work due to an injury, that employee cannot drive again until the Corporate
Claims Department has received a release from the treating doctor that the driver
can drive, load, and unload with no restrictions. (J.B. Hunt 2009 Driver Manual
at 71.) Hill testified that claims specialists’ practice is that, if a driver has
restrictions that prevent him from performing the essential functions of a driver
job, the claims specialist contacts the driver’s supervisor and asks if the
supervisor has any modified duty work at his location that may be performed by
the driver within his restrictions. (Hill Dep. 23-28.) Hill testified that the
decision of whether or not there is light duty work available for a restricted
employee is left up entirely to the supervisor. (Id. 26.) She further testified that,
under J.B. Hunt policy, light duty assignments may not exceed six months per
injury. (Id. 33-34.)
4
Light duty activities may include filing, sweeping, cleaning, answering
phones, light warehouse work, and helping determine “what stops go on what
routes.” (Kitzer Decl., Henning Dep. 23, 114.) A light duty assignment must fit
the employee’s injury-related work restrictions. (Id.)
The supervisor does not follow any particular criteria in deciding if light
duty work is available but is directed to “use the employee’s restrictions as a
guide.” (Hill Dep. 27-28; see also Henning Dep. 15, 21 (testifying that, if someone
from the workers’ compensation department asks him if he has light duty work
available for an injured employee, he had discretion to determine whether light
duty work is available to be given to an employee, but that he is not aware of any
objective criteria to guide his determination).) Henning, testified that he had
never attempted to find light duty work for an employee when asked by the
employee, as opposed to the workers’ compensation department, nor has he ever
advocated for light duty for an employee. (Henning Dep. 16, 22, 82-83. But see
Henning Dep. 83-85; Kitzer Decl., Ex. A, Feb. 26, 2010 Email from Henning to
Hill (“Do you know anything about getting Richard Tomlinson in for light duty?
This guy really wants to stay here and recover so that he can get back to normal
5
duty. We can certainly find work for him within his restrictions. Any help you
can offer is greatly appreciated!”).)
4.
Johnson’s First Injury
Johnson was injured twice during his employment at J.B. Hunt. (Johnson
Dep. 37.) His first injury occurred on December 21, 2009, when he pulled a
muscle in his neck while delivering a refrigerator to a residential customer.
(Johnson Dep. 38-39; Kitzer Decl., Ex. L.)
Johnson reported his neck injury to Henning. (Johnson Dep. 45-46.)
Henning arranged for Johnson to receive treatment at Now Occupational
Medical Clinic in Roseville. (Id. 46-47.) After diagnosing Johnson’s neck injury,
a doctor recommended that Johnson undergo physical therapy. (Johnson Dep.
46.) The doctor also placed work restrictions on Johnson, including limitations
on pushing, pulling, lifting and carrying. (Parrott Aff., Ex. 2, Johnson Dep., Ex.
4.)
Starting January 5, 2010, J.B. Hunt assigned Johnson a light duty position
to accommodate his work restrictions. (Kitzer Decl., Ex. B.) Hill testified that it
was Henning who determined whether there was a light duty position available
for Johnson after his first injury. (Hill Dep. 85.) Henning only recalls Johnson
being placed on light duty at some point. (Henning Dep. 113.) He remembers
6
Johnson doing office or warehouse work, but could not recall any other details.
(Id. 113-14.)
Johnson was approved to work without restrictions on February 2, 2010.
(Johnson Dep. 51-52; Parrott Aff., Ex. 2, Johnson Dep., Ex. 7.) He returned to his
driver position on February 2 or 3, 2010. (Johnson Dep. 51-52.) Johnson received
all workers’ compensation benefits to which he was entitled for his first injury.
(Id. 51.)
5.
Johnson’s Second Injury
Johnson reported a second work injury on August 25, 2010. (Hill Dep. 88;
Kitzer Decl., Ex. C; Johnson Dep. 56.) Again, he was paid workers’ compensation
benefits. (Johnson Dep. 57.) Johnson did not know the exact date that the injury
occurred because it was a shoulder strain that occurred over the course of time.
(Id. 56.) Johnson reported the injury to Henning, who referred him to Roseville
Medical Center. (Id. 57.) On August 25th, 2010, the doctor diagnosed Johnson
with a shoulder strain and placed him on work restrictions. (Id. 58.)
After Johnson’s second injury, Henning said he would “get [him] into the
office for light duty work,” and until then, he was to “stay at home.” (Johnson
Dep. 59-60.) Henning recalled that Johnson suffered a second injury; however,
he could not recall doing anything to try to return Johnson to work after the
7
injury. (Henning Dep. 115-16.) Johnson claimed that Henning never called him
with any information relating to light duty work. (Johnson Dep. 60.) Johnson
was never returned to work. (Id. 59.)
Hill could not remember if anyone discussed a potential modified or light
duty position with respect to Johnson’s second injury. (Hill Dep. 89.)
6.
Leave after the Second Injury
On August 26, 2010, J.B. Hunt placed Johnson on FMLA leave. (Johnson
Dep. 60-61; Parrott Aff., Ex. 2, Johnson Dep., Ex. 11.) While on leave, Johnson
was diagnosed with a rotator cuff and labrum tear. (Johnson Dep. 62-63.) He
underwent surgery for the tear on December 13, 2010. (Id. 63-64.) Following the
surgery, Johnson recalled being given work restrictions, limiting his right arm
and shoulder to minimal, or “table top” use. (Id. 64.)
While Johnson was on leave for his second injury, Henning told driver
Richard Tomlinson, “Brad probably got hurt when four wheeling, and now he’s
going to take it out on us.” (Tomlinson Decl. ¶ 4.) Tomlinson claims that
Henning inquired whether Johnson was in a four-wheeling accident, and
Tomlinson replied that he did not know. (Id.) Henning testified that he vaguely
recalled Tomlinson telling him that Johnson had been in a four-wheeling
8
accident, but could not recall feeling suspicious that Johnson’s injury was related
to the accident. (Henning Dep. 118-119.)
Tomlinson also avers that, following Johnson’s second injury, he
overheard Regional Safety Director Ron Schey tell Henning, “With everything
happening to Brad, he is becoming a liability for J.B. Hunt.” (Tomlinson Decl. ¶
3; Johnson Dep. 88, 98-100, 104-06.) Henning agreed with Schey’s comment.
(Tomlinson Decl. ¶ 3.)
Johnson exhausted all available FMLA leave on approximately November
3, 2010. (Johnson Dep. 68-69; Parrott Aff., Ex. 2, Johnson Dep., Ex. 12.) He
received workers’ compensation throughout his FMLA leave. (Johnson Dep. 65.)
On November 30, 2010, J.B. Hunt Benefits Service Representative Denise
Myers sent a letter to Johnson indicating that he had been approved for six
weeks of personal medical leave, effective November 4, 2010. (Johnson Dep. 6869; Parrott Aff., Ex. 2, Johnson Dep., Ex. 12.) The additional six weeks were to
expire on December 15, 2010. (Id.) The letter also indicated that if Johnson was
unable to return to work prior to December 15, 2010, his employment with J.B.
Hunt would end. (Id.)
9
Myers wrote a second, November 30, 2010, letter to Johnson concerning his
personal medical leave. (Parrott Aff., Ex. 2, Johnson Dep., Ex. 12.) Myers
explained that J.B. Hunt received the initial doctor’s certification required to
approve Johnson’s personal medical leave. (Id.) However, because Johnson’s
physician was unable to provide J.B. Hunt with an estimated return to work
date, Myers instructed Johnson to complete and return a new certification, which
was enclosed, before December 15, 2010. (Id.) Myers explained that in instances
where J.B. Hunt does not have an estimated return to work date, the injured
employee was required to send medical documentation every 30 days in order
for the employee to continue his leave of absence. (Id.) The letter instructed that
if the doctor’s certification was not completed and received by December 15,
2010, Johnson’s leave of absence would end and his employment with J.B. Hunt
would be terminated. (Id.)
Johnson claims that he telephoned Myers, and that Myers gave him an
extension to the December 15, 2010 deadline on account of it taking the doctor’s
office “so long to do [the] forms.” (Johnson Dep. 73-76.) According to Johnson,
Myers stated that J.B. Hunt would grant an extension to his leave so long as he
submitted the doctor’s certification monthly. (Id.)
10
Johnson submitted a doctor’s certification requesting additional leave on
or around December 30, 2010. (Parrott Aff., Ex. 2, Johnson Dep., Ex. 13.) The
certification noted Johnson’s December 13, 2010 surgery. (Id.) It also explained
that the probable duration of his condition was “unknown” and that Johnson’s
work restrictions and return to work date would be reviewed “four to six weeks
post-op 12/23.” (Id.) The certification did not indicate an expected return-towork date. (Id.)
7.
Termination
On January 7, 2011, Johnson received a deposit in his checking account
from J.B. Hunt. (Johnson Dep. 79.) He telephoned Hill to inquire about the
deposit. (Id.) Hill told him that he had been terminated on December 16, 2010.
(Id.) Johnson asked Hill about his conversation with Myers in which she had
stated that an extension would be granted as long as his doctor filled out the
certification each month. (Id. 79-80.) He claims that Hill told him that the
extensions were not granted. (Id.) In contrast, Hill testified that it was not until
she received notice of her deposition that she became aware of Johnson’s
termination. (Hill Dep. 91.)
Henning testified that it was not his decision to terminate Johnson.
(Henning Dep. 125.) He does not remember what department instructed him to
11
terminate Johnson, but surmises that he received instruction to terminate him.
(Id. 125-26.) Sanders testified that he had nothing to do with the decision to
terminate Johnson. (Sanders Dep. 27.)
Tomlinson testified that while Johnson was on leave after his second
injury, and shortly before his leave expired, Henning stated, “I can’t wait to push
that button on Brad, it’s so close.” (Tomlinson Decl. ¶ 1.) After Johnson was
terminated, Henning bragged to Tomlinson, “Yep, I finally did it. I pushed the
button on Brad.” (Id. ¶ 2.) Henning testified that he sometimes used the phrase
“push the button” when he was told to terminate someone, but he denied having
used the term in relation to Johnson’s termination. (Henning Dep. 117-118).
Johnson has continued to suffer medical problems and, since December 13,
2010, has continuously been physically unable to perform the driver job.
(Johnson Dep. 108-09.)
8.
Tomlinson
Richard Tomlinson worked as a driver at J.B. Hunt’s Roseville facility until
March 9, 2012. (Kitzer Decl., Tomlinson Dep. 16, 20-21, 127.) He has also
brought a lawsuit against J.B. Hunt for workers’ compensation retaliation.
Tomlinson v. J.B. Hunt Transport, Inc., Civil File No. 12-2030 (MJD/TNL). He
filed two workers’ compensation claims after two work-related injuries at J.B.
12
Hunt. (Tomlinson Dep. 30-31). After Tomlinson’s first injury, Henning sought
light duty work for him. (Kitzer Decl., Ex. A; Kitzer Decl., Ex. F.) On February
26, 2010, Henning contacted Hill and wrote:
Do you know anything about getting Richard Tomlinson in
for light duty? This guy really wants to stay here and recover so
that he can get back to normal duty. We can certainly find work for
him within his restrictions.
Any help you can offer is greatly appreciated.
(Kitzer Decl., Ex. A.)
In a March 21, 2011 email from Henning to Henning’s manager, Justin
Thomas, Henning wrote:
Gary [Tomlinson] is coming up on the date that he needs to be
employed or he loses his unemployment. The date is 4/2. He has
received a couple of offers from outside the company, but really
doesn’t want to leave. Is there any chance that we get that position
through before 4/2? I’d be the first one to tell you that we don’t need
the B.S. immediately, but we will, and I don’t want to lose Gary in
the mean time. Can you think of any alternatives? Any where else
we could put him in the mean time? Would he perhaps be able to
drive for dray?
I know this is a tough spot, but Gary has taken care of this
location and J.B. Hunt as a company in the past. He’s not milking
his WC. He wants back to work in a bad way and he wants to be
productive, too. He doesn’t want to continue to leach off the
company.
(Kitzer Decl., Ex. F.)
13
After Tomlinson’s first injury, J.B. Hunt allowed him to work on light duty
for approximately ten months, beyond the stated six-month cap on light duty
work. (Henning Dep. 92; Tomlinson Dep. 93-94; Kitzer Decl., Exs. G-H.) He was
only removed from light duty once he reached maximum medical improvement,
rendering him ineligible for light duty. (Hill Dep. 50.) Hill testified that
Tomlinson’s working in excess of the six-month maximum was the result of a
clerical error. (Id. 37.)
Tomlinson testified that, after his injury, Henning complained that he had
to pay $20,000 out of his budget because of Tomlinson’s workers’ compensation
injury. (Tomlinson Dep. 112-13.) Henning made these complaints multiple
times. (Id. 113.) He made these comments about every employee who got
injured at work. (Id. 114.)
Also after Tomlinson’s first injury, Henning told Tomlinson that if he did
not get his lawyer and qualified rehabilitation consultant (“QRC”) “to back off it
would not go well for [Tomlinson].” (Tomlinson Dep. 219, 225.) When
Tomlinson asked him to explain, Henning repeated the warning: “if you don’t
get your lawyer and QRC to back off on trying to put more liability on J.B. Hunt,
it’s not going to go well for you, Justin and Gabe are getting tired of it.” (Id.)
14
After Tomlinson’s second injury, Henning did not attempt to find
Tomlinson light duty work. (Henning Dep. 82). In regard to the second injury,
Tomlinson claimed that Henning told him, “I hope this is part of the first injury
so you don’t cost me another $20,000.” (Tomlinson Dep. 220.)
J.B. Hunt never allowed Tomlinson to return to work after his second
injury and terminated him on March 9, 2012. (Tomlinson Dep. 119.) On
approximately March 25, 2012, Tomlinson returned to J.B. Hunt’s Roseville
facility to clean out his truck. (Tomlinson Dep. 227.) He told Henning, “I guess
since I didn’t get my lawyer and QRC to back off it didn’t go well for me.” (Id.
219-20.) Henning responded, “[Y]ep, I guess.” (Id. 220.)
B.
Procedural Background
On July 31, 2012, Johnson commenced an action against J.B. Hunt in
Minnesota State Court, Ramsey County. On August 20, 2010, J.B. Hunt removed
the matter to this Court based on diversity jurisdiction.
On September 12, 2012, Johnson filed an Amended Complaint alleging
Count 1: Workers’ Compensation Retaliation in violation of Minnesota Statute §
176.82. [Docket No. 6]
J.B. Hunt now moves for summary judgment on the claim against it.
Johnson moves to strike the Declaration of Wesley Griffin.
15
III.
DISCUSSION
A.
Motion to Strike Declaration of Wesley Griffin
Johnson moves to strike the declaration of Wesley Griffin, submitted by
Defendant in support of its Motion for Summary Judgment.
1.
Facts Related to the Griffin Declaration
On May 31, 2013, J.B. Hunt filed a declaration by Wesley Griffin, its
Litigation Director. [Docket No. 33] The Griffin Declaration contains
background information regarding J.B. Hunt’s policies and procedures. Griffin
also avers that Schey “had no role in the decision to terminate Mr. Johnson’s
employment, nor into any decision whether to provide him with a light duty
work assignment.” (Griffin Decl. ¶ 11.) Griffin attaches portions of the J.B. Hunt
2009 Driver Manual, the J.B. Hunt Drivers & Installers Manual for Whirlpool,
and the Injury Investigation Report regarding Johnson’s December 2009 injury as
exhibits to his declaration.
Johnson asserts that Griffin was never identified as a person with any
knowledge about the case in Defendant’s Rule 26(a) Disclosures, in response to
written discovery asking Defendant to identify all persons with information
relating to the allegations in the lawsuit, in any depositions, or at any point
before the Motion for Summary Judgment was filed. (Rochel Decl., Exs. 1-3.)
16
Plaintiff also asserts that Griffin’s declaration includes documents as
exhibits that were never produced in discovery. Plaintiff asserts that he has been
denied the opportunity to use those documents during his depositions of other
witnesses.
Defendant admits that it did not include Griffin in its Rule 26(a) disclosure
of “Names of Individuals Likely to Have Discoverable Information.” (Rochel
Decl., Ex. 1.) However, Griffin verified J.B. Hunt’s responses to Johnson’s
interrogatories on January 31, 2013. (Rochel Decl., Ex. 2.) And, in response to
Interrogatory No. 1, asking J.B. Hunt to identify each person who provided
information, was consulted, or participated in the preparation of the answers to
the Interrogatories, J.B. Hunt “refers to the verification page” signed by Griffin
and identifying him as “Director of Claims Administration for J.B. Hunt.” (Id.)
Defendant concludes that Johnson was on notice that Griffin had relevant
information about the topics in the interrogatory responses, including J.B. Hunt’s
operations, policies, and practices – the same topics addressed in the Griffin
Declaration. However, Johnson did not attempt to depose Griffin. (Parrott Decl.
¶ 3.)
2.
Legal Standard
17
Federal Rule of Civil Procedure 26(a)(1)(A)(i) requires a party to provide to
the other parties: “the name and, if known, the address and telephone number of
each individual likely to have discoverable information – along with the subjects
of that information – that the disclosing party may use to support its claims or
defenses, unless the use would be solely for impeachment.” Parties also have a
continuing duty to supplement or correct all Rule 26(a) disclosures, interrogatory
responses and requests for production if their responses are either incomplete or
incorrect, “if the additional or corrective information has not otherwise been
made known to the other parties during the discovery process or in writing.”
Fed. R. Civ. P. 26(e)(1).
Rule 37 states that a party who fails to provide information or identify
witnesses as required under Rule 26(a) or fails to supplement as required under
Rule 26(e)(1) “is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at trial, unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “Rule 37 does not provide for
mandatory sanctions, and the district court may find that a party’s failure to
include a witness in the initial Rule 26(a)(1) disclosures was substantially
justified or harmless.” Davis v. U.S. Bancorp, 383 F.3d 761, 765 (8th Cir. 2004).
18
When a party fails to provide information or identify a witness in
compliance with Rule 26(a) or (e), the district court has wide
discretion to fashion a remedy or sanction as appropriate for the
particular circumstances of the case. The district court may exclude
the information or testimony as a self-executing sanction unless the
party’s failure to comply is substantially justified or harmless. When
fashioning a remedy, the district court should consider, inter alia,
the reason for noncompliance, the surprise and prejudice to the
opposing party, the extent to which allowing the information or
testimony would disrupt the order and efficiency of the trial, and the
importance of the information or testimony.
Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008) (citations omitted).
3.
Analysis of the Alleged Failure to Disclose Griffin as a
Witness
Johnson had notice of Griffin’s knowledge of Defendant’s policies,
procedures, and documents and of Defendant’s institutional knowledge of which
employees participated in the decision to terminate Johnson based on the
January 31, 2013 interrogatory response and verification. See Brown v. Chertoff,
No. 406CV002, 2009 WL 50163, at *5-6 (S.D. Ga. Jan. 7, 2009) (holding declarants
were sufficiently revealed when, in response to interrogatories, party wrote that
the two declarants “provided the information necessary to answer this
interrogatory”), aff’d 380 Fed. App’x 832 (11th Cir. 2010). There is no
requirement to supplement if the information was otherwise made known to the
opposing party during the discovery process. Fed. R. Civ. P. 26(e)(1). Thus,
19
Plaintiff’s motion to strike Griffin’s declaration based on the failure to disclose is
denied.
4.
Analysis of Alleged Failure to Disclose the Exhibits to the
Griffin Declaration
Defendant admits that, as a result of a clerical error, it did not produce the
2009 J.B. Hunt Driver Manual or the J.B. Hunt Drivers & Installers Manual for
Whirlpool in this case, but points out that it did produce both documents in the
companion case to this matter, Tomlinson v. J.B. Hunt Transport, Inc., Civil File
No. 12-2030 (MJD/TNL), and Johnson also produced the 2009 J.B. Hunt Driver
Manual in this case. (Parrott Decl. ¶¶ 4-7). Thus, the exhibits were known to
Plaintiff because one was produced by Plaintiff himself and the other was
produced in the Tomlinson case. There is no evidence of prejudice here. See,
e.g., King v. Reed, LLC, Civ. No. 07–1908 (DWF/RLE), 2008 WL 7514360, at *3 (D.
Minn. Oct. 6, 2008) (denying motion to exclude expert report because its
“untimely production” was “effectively mollified by the fact that, independently,
the same report was produced by another party”). The motion to strike certain
exhibits to Griffin’s declaration is denied.
5.
Foundation
20
Johnson also asserts that the declaration should be stricken because it lacks
foundation. In Griffin’s declaration, Griffin explains that, as Litigation Director
for J.B. Hunt, he has personal knowledge of its operations, corporate structure,
and related issues. (Griffin Decl. ¶ 1.) Plaintiff has presented no evidence to
show that Griffin lacks foundation to provide the opinions that he did. Griffin
avers that he has personal knowledge of J.B. Hunt’s policies based on his position
within the company, so foundation has been established. Plaintiff’s motion to
strike Griffin’s declaration based on lack of foundation is denied.
B.
Summary Judgment Standard
Summary judgment is appropriate if, viewing all facts in the light most
favorable to the non-moving party, there is no genuine dispute 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 party seeking
summary judgment bears the burden of showing that there is no disputed issue
of material fact. Celotex, 477 U.S. at 323. “A dispute is genuine if the evidence is
such that it could cause a reasonable jury to return a verdict for either party; a
fact is material if its resolution affects the outcome of the case.” Amini v. City of
Minneapolis, 643 F.3d 1068, 1074 (8th Cir. 2011) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 252 (1986)).
21
C.
Workers’ Compensation Retaliation
1.
Standard for Workers’ Compensation Retaliation
Minnesota Statute § 176.82, subdivision 1, provides:
Any person discharging or threatening to discharge an employee for
seeking workers’ 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 . . . .
2.
Direct Evidence and McDonnell Douglas Standards
The parties debate whether the Court should apply the direct evidence
standard of analysis or the McDonnell Douglas standard of analysis to Plaintiff’s
workers’ compensation claim. The Court need not resolve the question because,
under either method of analysis, Plaintiff’s claim survives summary judgment.
a.
Direct Evidence Standard
“Direct evidence is evidence showing a specific link between the alleged
discriminatory animus and the challenged decision, sufficient to support a
finding by a reasonable fact finder that an illegitimate criterion actually
motivated the adverse employment action.” King v. United States, 553 F.3d 1156,
1160 (8th Cir. 2009) (citation omitted). Direct evidences includes “evidence of
actions or remarks of the employer that reflect a discriminatory attitude,
comments which demonstrate a discriminatory animus in the decisional process,
22
or comments uttered by individuals closely involved in employment decisions.”
Id. at 1161 (citation omitted). “[S]tray remarks in the workplace, statements by
nondecisionmakers, and statements by decisionmakers unrelated to the
decisional process do not constitute direct evidence.” Id. at 1160 (citations
omitted).
b.
McDonnell Douglas Standard
A workers’ compensation retaliation claim is generally analyzed under the
McDonnell Douglas burden-shifting test. See Randall v. N. Milk Prods., Inc., 519
N.W.2d 456, 459 (Minn. Ct. App. 1994). “A prima facie case of retaliatory
discharge under Minnesota law consists of: (1) statutorily-protected conduct by
the employee; (2) adverse employment action by the employer; and (3) a causal
connection between the two.” Kunferman v. Ford Motor Co., 112 F.3d 962, 965
(8th Cir. 1997) (citation omitted). For the purposes of this motion, the parties
agree that Johnson engaged in protected conduct by seeking workers’
compensation benefits and suffered an adverse employment action when he was
terminated. Only the causation prong remains at issue.
If the plaintiff establishes the prima facie case,
the burden of production then shifts to the employer to articulate a
legitimate reason for the discharge; and [] if the employer articulates
a legitimate reason, the burden of production shifts back to the
23
plaintiff to show pretext and the factfinder must determine whether
the illegitimate reason (i.e., seeking workers’ compensation benefits)
was more likely than not the reason for discharge.
Benson v. Northwest Airlines, Inc., 561 N.W.2d 530, 539 (Minn. Ct. App. 1997)
(citation omitted).
3.
Analysis
Viewing the evidence in the light most favorable to Plaintiff, there is
sufficient evidence of discriminatory animus, whether the claim is viewed under
the direct evidence standard or through the lens of causation and pretext under
the McDonnell Douglas standard. Henning was Johnson’s supervisor, and
Tomlinson testified that, while Johnson was on leave, Henning stated that he
could not wait to “push the button” on Johnson, and, after Johnson was
terminated, Henning bragged that he had “pushed the button” on him.
Although Henning denies making the termination decision, Defendant offers no
evidence of who did make that decision. Based on this record, a reasonable jury
could conclude that Henning was involved in the decision to terminate Johnson.
There is evidence that, after Johnson’s second workers’ compensation
claim, Henning agreed with Schey’s comment that Johnson was becoming a
liability for J.B. Hunt. These comments are admissible statements by a party
opponent – Schey’s and Henning’s statements were made during their
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employment and related to their jobs as supervisors. Also, the statements are
relevant because there is evidence that Henning made the decision to fire
Johnson, and Henning agreed with Schey’s statement.
There is also evidence that Henning asserted that Johnson’s workers’
compensation claim was actually based on an out-of-work four-wheeling
accident and that Johnson was trying to “take it out on [Defendant].” Also, as
noted above, while Johnson was on leave after his second injury, Henning stated
that he could not wait to fire him and, after Johnson was terminated, Henning
bragged that he had finally fired him. This evidence is sufficient to support a
finding that Henning based the decision to terminate Johnson on discriminatory
animus.
Moreover, Johnson points to evidence that Tomlinson was also fired after
making his second workers’ compensation claim. See Estes v. Dick Smith Ford,
Inc., 856 F.2d 1097, 1103 (8th Cir. 1988) (noting that “unflattering testimony about
the employer’s history and work practices” “may be critical for the jury’s
assessment of whether a given employer was more likely than not to have acted
from an unlawful motive”), overruled in part on other grounds by Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989). Here, Henning was the supervisor
25
for both Johnson and Tomlinson, so evidence of Henning’s comments about
Tomlinson are “probative of [Defendant’s] intent to discriminate.” Goldsmith v.
Bagby Elevator Co., Inc., 513 F.3d 1261, 1286 (11th Cir. 2008). Thus, Johnson’s
claim is further supported by evidence that, for example, Henning made
comments such as complaining about the $20,000 coming out of his budget
because of Tomlinson’s workers’ compensation injury; he told Tomlinson to have
his workers’ compensation lawyer and QRC “back off” and threatened that it
would not go well for Tomlinson if he disobeyed; and after Tomlinson was fired,
Henning agreed that it did not go well for Tomlinson because Tomlinson failed
to get his lawyer and QRC to “back off.”
4.
Pretext
Although Defendant has set forth a legitimate reason for Johnson’s
termination – that it terminated Johnson because he had exhausted all available
leave allowed under Defendant’s leave policies and had no expected return-towork date – Johnson has presented sufficient evidence to show pretext.
An employee may prove pretext by demonstrating that the
employer’s proffered reason has no basis in fact, that the employee
received a favorable review shortly before he was terminated, that
similarly situated employees who did not engage in the protected
activity were treated more leniently, that the employer changed its
explanation for why it fired the employee, or that the employer
deviated from its policies.
26
Stallings v. Hussmann Corp., 447 F.3d 1041, 1052 (8th Cir. 2006) (citations
omitted).
The evidence Johnson presented in support of the causation prong and in
support of the direct analysis also supports a finding of pretext. Moreover, the
fact that J.B. Hunt fails to identify the person responsible for terminating Johnson
is strong evidence of pretext. Henning testified that it was not his decision to
terminate Johnson, but he does not remember who did instruct him to terminate
Johnson. Sanders testified that he had nothing to do with the decision to
terminate Johnson. Although Johnson testified that Hill informed him of his
termination, Hill testified that she was not even aware of his termination until
she received notice of her deposition in this lawsuit. In response to discovery
from Plaintiff, J.B. Hunt has failed to identify any person responsible for the
decision to terminate him. “A jury could reasonably determine that [plaintiff’s]
supervisors’ game of ‘hot potato’ was an attempt to dissemble for
discrimination.” Zacharias v. Guardsmark, LLC, Civ. No. 12–174 (RHK/FLN),
2013 WL 136240, at *6 (D. Minn. Jan. 10, 2013).
Additionally, viewing the evidence in the light most favorable to Johnson,
J.B. Hunt applied its leave policy inconsistently to similarly situated individuals,
27
which could be interpreted as evidence of pretext. Defendant allowed Johnson
to do light duty work after his first workers’ compensation claim, but offered
him no light duty work after his second claim, despite Henning’s statement that
he would get light duty work for him. Although Henning testified that he had
never attempted to find light duty work at an employee’s request, the February
26, 2010, and March 21, 2011, emails from Henning demonstrates that Henning
did, in the past, advocate for finding light duty work for an injured employee.
There is a fact question regarding whether Defendant granted Johnson an
extension to the deadline for submitting paperwork for additional leave and
promised that, so long as he submitted a certification each month, his leave
would be extended. Henning and Hill also admitted that Tomlinson was
previously allowed to stay on light duty beyond the six-month limitation after
his first injury, which demonstrates that the termination policy was not strictly
enforced. Overall, the record reflects a genuine issue of fact regarding whether
J.B. Hunt terminated Johnson in retaliation for his filing of his second workers’
compensation claim.
D.
Workers’ Compensation Continued Employment Claim
1.
Standard for Workers’ Compensation Continued
Employment Claim
28
Minnesota Statute § 176.82, subdivision 2, provides:
An employer who, without reasonable cause, refuses to offer
continued employment to its employee when employment is
available within the employee’s physical limitations shall be liable in
a civil action for one year’s wages. . . . In determining the
availability of employment, the continuance in business of the
employer shall be considered and written rules promulgated by the
employer with respect to seniority or the provisions o[f] any
collective bargaining agreement shall govern.
2.
Analysis
Plaintiff argues that J.B. Hunt violated subdivision 2 because it failed to
provide him light work after his second injury. He asserts that the jury can find
that J.B. Hunt could have provided him with a light duty work position after his
second injury as it had after his first injury and as it had for Tomlinson after his
first injury. Johnson does not argue that there were any particular light duty
positions within J.B. Hunt for which he should have been hired. Rather, he
argues that J.B. Hunt is liable because it made no effort to find light duty work
for him in general.
Defendant argues that it is Plaintiff’s burden to prove that a light duty
position existed in December 2010 that was available to him within his physical
limitations. See Johnson v. Otter Tail Cnty., No. Civ. A. 98-2237(RLE), 2000 WL
1229854, at *18 (D. Minn. July 24, 2000), aff’d 2001 WL 664217 (8th Cir. June 14,
29
2001). Defendant concludes that, because Johnson has not identified a particular
available position for which he was qualified, his claim fails.
The Court denies summary judgment on the continued employment
aspect of Plaintiff’s workers’ compensation claim. This case is unusual in that
Defendant admittedly created short-term light duty positions for injured
employees and had done so for Tomlinson and Johnson in the past. These are
not pre-existing job openings. Rather, viewing the evidence in the light most
favorable to Johnson, Henning invented positions out of whole cloth if he wished
to keep a particular driver employed. Additionally, Defendant admits that there
is no clear policy regarding who will be given light duty, when light duty work
is available, or the responsibilities of any light duty job. And, here, none of
Defendant’s employees will admit to remembering any discussion or decision
regarding denying light duty work to Johnson after his second injury, let alone
explain their reasoning. Under these circumstances, combined with the
previously discussed evidence supporting Plaintiff’s subdivision 1 claim, there is
sufficient evidence to permit this claim to continue to trial.
Accordingly, based upon the files, records, and proceedings herein, IT IS
HEREBY ORDERED:
30
1. Defendant’s Motion for Summary Judgment [Docket No. 31] is
DENIED.
2. Plaintiff’s Motion to Strike Declaration of Wesley Griffin [Docket
No. 42] is DENIED.
Dated: December 19, 2013
s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court
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