Lundy v. Park Nicollet Clinic

Filing 37

MEMORANDUM OPINION AND ORDER granting in part and denying in part defendant's 19 Motion for Summary Judgment. 1. Motion is granted with respect to Plaintiff's claims for interference/entitlement under t he FMLA (Count I), disability discrimination under the MHRA (Count III), failure to accommodate under the MHRA (Count IV), and reprisal under the MHRA (Count V). These claims are DISMISSED with prejudice. 2.Motion is deniedwith respect to Plaintiff's claim for retaliation/discrimination under the FMLA (Count II). (Written Opinion). Signed by Judge John R. Tunheim on July 21, 2014. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CYNTHIA LUNDY,

Civil No. 12-2443 (JRT/SER)
Plaintiff,
MEMORANDUM OPINION AND
ORDER GRANTING IN PART AND
DENYING IN PART
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

v.
PARK NICOLLET CLINC,
Defendant.

Christopher J. Kuhlman, KUHLMAN LAW, PLLC, 333 Washington
Avenue North, Suite 300, Minneapolis, MN 55401, for plaintiff.
Randi J. Winter and Sara Gullickson McGrane, FELHABER LARSON,
220 South Sixth Street, Suite 2200, for defendant.
This case arises out of Defendant Park Nicollet Clinic’s (“Park Nicollet”)
termination of Plaintiff Cynthia Lundy. Lundy brings this action alleging that she was
terminated for taking medical leave in violation of the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. §§ 2601 et seq. and that Park Nicollet interfered with her rights
under the FMLA by discouraging her from seeking leave.1 Park Nicollet moves for
summary judgment on both of these claims. Because a material issue of fact remains as
to whether Lundy was terminated because she took FMLA leave, the Court will deny
1

Lundy also originally brought claims under the Minnesota Human Rights Act based on
disability discrimination. In her response to the present motion, Lundy indicated that she wished
to voluntarily dismiss those claims. (Pl.’s Mem. in Opp’n to Mot. for Summ. J at 30 n.5, Dec. 5,
2013, Docket No. 25; Letter to District Judge, Dec. 6, 2013, Docket No. 28.) Accordingly the
Court will grant Park Nicollet’s motion for summary judgment with respect to those claims.

27&GS

Park Nicollet’s motion with respect to Lundy’s retaliatory termination claim. The Court
will, however, grant Park Nicollet’s motion with respect to Lundy’s interference claim, as
no reasonable jury could conclude that Park Nicollet discouraged her from seeking
FMLA leave or denied her benefits under the statute.

BACKGROUND
I.

LUNDY’S ROLE AS A NURSE CLINICIAN
Lundy is a registered nurse and was hired in September 2009 as one of eight nurse

clinicians in Park Nicollet’s Mental Health Clinic (“the Clinic”) located in St. Louis Park,
Minnesota. (Aff. of Christopher Kuhlman, Ex. 1 (Dep. of Cynthia Lundy (“Lundy
Dep.”) 9:13-10:5), Dec. 5, 2013, Docket No. 26; Kuhlman Aff., Ex. 3 (Dep. of Kathy
Wagle (“Wagle Dep.”) 16:17-18, 17:22-23).)2

Lundy’s job duties included facilitating

interactions between patients and physicians, filling and processing patient prescriptions,
answering and returning patient phone calls, scheduling patient tests, carrying out
providers’ orders, and accurately charting events in patients’ medical records. (Wagle
Dep. 28:9-11, 29:5-23, 30:1-31:16, 34:3-35:7; Lundy Dep. 12:10-24, 14:2-22; Aff. of
Randi J. Winter, Ex. A at 31-33, Nov. 14, 2013, Docket No. 21.)

During her

employment, Lundy was the primary nurse clinician for her two assigned providers:
Psychiatrist Michael Ekern, MD and Clinician Nurse Specialist Yvonne Eissinger.
(Lundy Dep. 12:25-13:13; Kuhlman Aff., Ex. 15 (Dep. of Yvonne Eissinger (“Eissinger

2

With the exception of depositions and documents filed under seal, page number
references refer to the CMECF pagination.

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Dep.”) 5:19-20, 15:9-11); Winter Aff., Ex. B (Dep. of Michael Ekern (“Ekern Dep.”)
6:14-21, 11:4-9).)
Lundy’s team of eight nurses worked together to cover any absent nurse’s
workload, absorbing the absent nurse’s providers’ entire caseload, to ensure that all
patients’ needs were addressed on any particular day. (Lundy Dep. 11:14-12:9; Kuhlman
Aff., Ex. 4 (Dep. of Melody Domanico (“Domanico Dep.”) 9:8-10:10).) Because the
nurses covered each other’s caseload, they had the opportunity to observe each other’s
work and patient charting.

(Lundy Dep. 234:22-235:23; Domanico Dep. 35:14-16;

Kuhlman Aff., Ex. 5 (Dep. of Deborah Ridgley (“Ridgley Dep.”) 15:24-16:5); Kuhlman
Aff., Ex. 2 (Dep. of Christina Gunderson (“Gunderson Dep.”) 15:8-12).)
Kathy Wagle is the nurse manager at the Clinic and was the immediate supervisor
for Lundy and the other Clinic nurses. (Lundy Dep. 19:20-22; Wagle Dep. 14:24-15:20.)
Wagle’s supervisor is the Clinic’s director Dr. John McGreevy, who has overall
responsibility for the Clinic. (Wagle Dep. 19:12-21; Lundy Dep. 19:23-25, 20:12-16.) In
consultation with McGreevy, Wagle was responsible for hiring and firing nurses and
conducting performance reviews. (Wagle Dep. 19:10-21:20.) Additionally, Wagle’s job
duties included staffing the Clinic with sufficient employees to manage the workload.
(Id. 59:10-16.)

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II.

DISCIPLINARY ISSUES AND FMLA REQUESTS
A.

First FMLA Leave

In September 2010 Lundy applied for intermittent FMLA leave as a result of
severe breathing issues. (Lundy Dep. 34:13-15, 225:22-226:9.) Her leave was approved
by Park Nicollet’s third-party administrator on October 11, 2010. (Kuhlman Aff., Ex. 9.)
According to Lundy, when Wagle learned that she had made an FMLA request Wagle
asked her, “Is that really necessary?” (Lundy Dep. 38:14-24.) Lundy explained to Wagle
that she was experiencing severe breathing difficulties. (Id. 38:20-24.)
Over the next year, Lundy took time off from work for various doctors’
appointments, for which she provided Wagle with copies of doctor’s notes. (Id. 227:5228:15.)

Lundy saw a pulmonologist, allergy specialist, general practitioner, and a

second pulmonologist before she was diagnosed with chronic bronchitis. (Id. 225:22226:20.) Lundy testified that Wagle became frustrated with all of the doctor’s notes she
was receiving from Lundy and told her “No more doctor’s notes.” (Id. 228:19-21.)

B.

Fall 2010 Issues

Prior to September 2010, there were no documented problems with Lundy’s
performance, and Wagle testified that she had no problems with Lundy’s work “the first
few months . . . because she was learning.” (Wagle Dep. 44:2-7.) Lundy claims that
after reporting her first FMLA leave to Wagle, Wagle began to paper Lundy’s personnel
file, scrutinize her attendance, and treat her differently from her other nurse colleagues.
(Lundy Dep. 255:4-256:7.) For example, on October 25, 2010, Lundy was returning
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home from a vacation when her flight was delayed. (Id. 97:24-98:17; Kuhlman Aff.,
Ex. 10.) Lundy claims that she called into work and notified a coworker, Becky Pauly,
and left a voicemail for Wagle that she would be unavailable for her shift the following
day. (Lundy Dep. 98:11-17; Kuhlman Aff., Ex. 10.) Wagle contends that she never
received the voicemail.

(Kuhlman Aff., Ex. 10.)

Wagle met with Lundy the day

following the incident, and wrote a memorandum memorializing the meeting, which
indicated that she told Lundy “I let her know I didn’t want to have this become a pattern.
(Feb 15, 2010 ill Monday, and July 19-25 vacation and ill on Monday.)” (Kuhlman Aff.,
Ex. 10.) Wagle noted, “I also asked her to leave me a voice message when these types of
circumstances come up so we are able to plan for staffing.” (Id.) Lundy testified that
Wagle instructed her if she were ever late or absent from work again, she would have to
call the department’s front desk and also leave Wagle a voicemail. (Lundy Dep. 60:1-3.)
Lundy testified the other nurses who had also been late only had to call the front desk if
they were going to be absent. (Id. 60:1-4, 73:18-74:10.) Lundy also claims that while the
start time was 8:30 a.m. for all the nurses, she was the only nurse that Wagle required to
be on time every day. (Id. 73:15-74:2, 240:18-25, 242:14-20.) Other nurses would
consistently come in twenty to thirty minutes late. (Id. 240:18-242:12.)
Another incident occurred in late October 2010 when a Park Nicollet employee
informed Wagle that Lundy refused to see a patient “who showed up in the lobby and
requested to be seen” because she was busy. (Winter Aff., Ex. A at 36.) The patient
insisted on seeing a nurse, and another nurse who was on call at the time eventually saw
the patient. (Id.) In a memorandum prepared on November 1, 2011, Wagle noted that
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the Clinic nurses had been trained that if a patient shows up the nurse assigned to that
patient’s doctor is expected to meet with the patient. (Id.) Wagle reported that Lundy
“realized after she did this that it was wrong and apologized to [the nurse who saw the
patient].

She said she understood that she was wrong.

Let her know expectation

regarding walk-ins and she indicated she understood.” (Id.) Wagle also told Lundy “that
a few support staff have found her to be difficult to approach in a situation like this. She
didn’t agree that she was short or had an attitude with the support staff.” (Winter Aff.,
Ex. A at 36.) When Lundy asked for specific examples, Wagle “suggested she focus on
being more aware of how she comes across to others and this may not be her perception,
but this is how others perceive this.” (Id.) Lundy testified that she was unaware that it
was her responsibility to see every patient that comes in, and had not realized at the time
that the patient refused to leave without seeing a nurse. (Lundy Dep. 93:12-22.)

C.

Dr. Zimmerman’s Concerns

Dr. Joshua Zimmerman brought an incident to Wagle’s attention in February 2011
because he believed that Lundy had created a patient safety issue. (Winter Aff., Ex. J
(Dep. of Joshua Zimmerman (“Zimmerman Dep.”) 27:4-18, Ex. 1).)3

Zimmerman

emailed Wagle on February 25, 2011, to inform her that while he was on vacation on
February 16, Lundy incorrectly instructed a patient to contact an urgent care physician for
information about side effects the patient was experiencing from a medication that was
3

Zimmerman’s deposition was filed under seal as Exhibit J to the Winter Affidavit.
Exhibit 1 of Zimmerman’s deposition was also filed under seal attached to the deposition
excerpts, and will be referred to here as “Zimmerman Dep., Ex. 1.”

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prescribed by Zimmerman.

(Zimmerman Dep. 28:25-29:9, Ex. 1.)

According to

Zimmerman, the standard work protocol would have been for Lundy to document the call
and forward the note to a mental health physician for review. (Id. 44:18-21, Ex. 1.)
However, Lundy never forwarded the patient’s concern to Zimmerman or any other
mental health physician but instead used her own “misguided medical assessment.” (Id.
46:21-24.) In the email to Wagle, Zimmerman explained that he had already spoken to
another doctor and Park Nicollet employee about the issue and offered to meet with
Lundy alone, but they preferred that he let Wagle know about the incident. (Id., Ex. 1.)
Wagle responded to Zimmerman’s email the next day by suggesting that she,
Zimmerman, and Lundy meet to discuss the incident.

(Id.)

Eight weeks later, on

March 24, 2011, Zimmerman emailed Wagle and another doctor, notifying them that he
“[j]ust had [Lundy] crying in my office for 20 minutes about the issue below. I thought
[Wagle] and I were going to meet with her together? She has some valid criticism that
meeting 8 weeks after the incident doesn’t give her a chance to remember what happened
or defend herself.” (Id.)
Wagle responded to Zimmerman that she had brought up the issue with Lundy
when she discussed other concerns and there were timing issues in scheduling a meeting.
(Id.)

Wagle also reported to Zimmerman “[t]he [sic] is more to this than you

understand.” (Id.) Lundy claims the fact Wagle waited eight weeks to address the
incident suggests the mistake was not severe, and testified that Zimmerman continued to
work with her without further issues. (Lundy Dep. 117:20-118:13.) In fact, Zimmerman

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later gave Lundy an “ovation” for her excellent handling of a difficult task with one of his
patients.4 (Id. 118:11-13; Kuhlman Aff., Ex. 18 at 6.)

D.

Verbal Warnings Spring 2011

On March 24, 2011, Wagle met with Lundy to issue a verbal warning which was
later typed up into a performance management feedback form that was provided to Lundy
on April 11, 2011. (Winter Aff., Ex. A at 40-41.)

Wagle checked boxes on the form

indicating there were issues with Lundy’s behavior and attendance. (Id., Ex. A at 40.)
Wagle described the issue as:
Cynthia is not meeting behavior expectations regarding attitude and
communication. There were two separate meetings where staff had
concerns about Cynthia’s behavior. Staff felt that Cynthia overreacted
about an issue, was disrespectful and demeaning. Staff feels that this
behavior is intimidating.
It has also been reported by another department that Cynthia’s behavior
was rude, uncooperative and negative when she was dissatisfied about her
space and the modifications that were made.
On 3/23/2011 Cynthia arrived at work at 10:00 and did not call in to let
anyone know she would be late. Due to not calling, staff did not know if
she was going to be at work.
(Id.) The form outlined performance, behavioral and policy expectations for Lundy of
communicating “respectively and professionally with all employees,” talking with Wagle
directly “regarding any concerns,” and calling the front desk as well as Wagle if she was
going to be late. (Id.) Wagle indicated that she would “continue to monitor [Lundy’s]

4

An ovation is an internal recognition form at Park Nicollet that coworkers can fill out,
commending a colleague for good service provided. (Kuhlman Aff., Ex. 7 at 52:22-53:4.)

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behavior on an on-going basis and provide feedback as needed. Failure to meet the
expectations will result in further discipline, including termination of employment.” (Id.,
Ex. A at 41.) After the March 24 meeting, Lundy emailed Wagle explaining that she
would “explore the items that have been discussed as you request” and informed Wagle
that she was “receptive to your feedback and concerns. I do like and appreciate my
position here at Park Nicollet and I am wanting to stay here.” (Id., Ex. A at 42.)
When Lundy met with Wagle on April 11 for a follow up discussion regarding the
verbal warning, she declined to sign the form. (Winter Aff., Ex. A at 41; Lundy Dep.
112:22-113:1.) Lundy asked Wagle “for specifics” so she “could go and clarify with
staff any issues,” and testified that Wagle “was never able to give me any specifics about
anything.” (Lundy Dep. 113:25-114:6.) Lundy refused to sign the form because she
“disagree[d] with the issues” presented by Wagle, was given no specifics, and believed
she “was always communicating respectfully and professionally.” (Id. 112:23-113:1,
114:3-6, 115:21-24.)

E.

Positive Feedback

In the interim between Lundy’s verbal warning and a final written warning
described below, several of her Park Nicollet coworkers documented positive feedback of
Lundy’s performance and behavior. (See Kuhlman Aff., Ex. 18.)
On March 25, 2011, one of Lundy’s colleagues, Emily Weinberg handwrote a
letter to Lundy that she greatly admired Lundy’s “passion, dedication, and patience as a
nurse.” (Kuhlman Aff., Ex. 18 at 4.) Weinberg wrote that she found Lundy “helpful and

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easy to approach” and that Lundy was an “amazing nurse and caregiver.”

(Id.)

Weinberg wrote that Lundy came to the department at a difficult time and faced a lot of
pressure and responsibility, but never took out her frustration on the support staff. (Id.)
On March 30, 2011, Doctor Richard Lentz wrote a letter to Lundy indicating that
he highly recommended Lundy for a position as an on-call mental health nurse on
weekends. (Id., Ex. 18 at 2.) In the letter, Lentz noted that he had worked with Lundy
many times over the past eighteen months and noted that Lundy “handle[d] phone calls,
including urgent situations, ma[d]e assessment, and use[d] judgment” and he believed her
to be “competent and effective” in all of these tasks. (Id.)
On April 4, 2011, mental health assistant Molly Goodfellow wrote a letter
indicating that she had worked with Lundy for about a year and a half and that Lundy
was approachable and easy to work with. (Id., Ex. 18 at 5.) Goodfellow wrote that she
was happy to have Lundy as a coworker and that Lundy was a “very caring individual
who treats both her patients and colleagues with respect and compassion.” (Id.)
On May 12, 2011, one of Lundy’s coworkers and a Park Nicollet patient, Julie
Simondet, wrote an email to Wagle and McGreevy indicating that Lundy was kind and
compassionate with her patients and an “amazing nurse.” (Id., Ex. 18 at 3.) She wrote
that Lundy’s “calmness and professional manner is very much appreciated.”

(Id.)

Simondet also sent Lundy an ovation for being “an excellent nurse.” (Id., Ex. 18 at 7.)

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F.

Dr. Ekern’s Concerns

On June 20, 2011, Ekern documented concerns that he had with Lundy’s work
performance. (Ekern Dep. 22:4-14; Winter Aff., Ex. B at 61.) Ekern explained:
My concerns with [Lundy] seem related to her having a lack of
understanding of/experience with, mental health issues. Phone notes sent to
me after have significantly inadequate info, or info that doesn’t address the
real topic of the patient[’]s question.
A handful of patients have voiced to me, after phone encounter[s] with
[Lundy], that it didn’t seem like she understood or processed their concern
correctly.
There have been some general mistakes in the phone notes. Occasionally I
will receive a phone note on a patient that is attached to the wrong patient.
(Winter Aff., Ex. B at 61; Ekern Dep. 13:7-21.) Ekern testified that he had discussed
these concerns informally with Wagle, McGreevy, and other Park Nicollet clinicians.
(Id. 14:15-15:10.)

G.

Written Warning

Although Wagle testified that Lundy’s attendance issues were resolved after
March 23, 2011 (Wagle Dep. 48:1-6), on June 20, 2011, Wagle sent an email to
McGreevy, John Chilson, a senior employee labor relations specialist in Park Nicollet’s
human resources department, and various other individuals, which included a log of
Lundy’s absences (Kuhlman Aff., Ex. 11; id., Ex. 17 (Dep. of John Chilson (“Chilson
Dep.”) 9:7-9)).

The email noted that Lundy “has a 8.5% rate of unplanned absences.”

(Kuhlman Aff., Ex. 11 at 1.) The log attached to the email faulted Lundy for being
absent on June 14, 15, and 16, but those were dates that Lundy had intermittent FMLA

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leave. (Id., Ex. 11 at 2; id., Ex. 12.) In the email, Wagle explained that in addition to
attendance issues “there is concern regarding her decision making and judgment,” and
specifically referenced the complaints from Ekern. (Id., Ex. 11 at 1.) Wagle noted that
“[d]ocumentation issues were discussed with her during the verbal warning.”

(Id.)

Wagle concluded that she, McGreevy, and Amelia Merz, the Clinic chairwoman “all feel
she is not a team player and not a good fit.” (Id.; Ekern Dep. 22:13.)
On June 30, 2011, Wagle issued Lundy a written warning and checked boxes
indicating concerns with Lundy’s performance, behavior, and attendance. (Winter Aff.,
Ex. A at 44-46.) Wagle indicated that Lundy was not “meeting the behavior expectations
regarding her attendance, arriving to work on time, and communication.” (Id., Ex. A at
44.) With respect to attendance, Wagle noted that Lundy
has been absent 5.6% of her hours which exceeds the department threshold
of 3%. In addition she has been tardy approximately 30 minutes on the
following dates June 22, 27, 29, and June 30, 2011. She only called to in
form [sic] staff one out of the four times. She was 2.5 hours late on
June 17, 2011 when she was contacted by a staff member. She said she
overslept.
(Id., Ex. A at 44.) Wagle’s warning stated that Lundy was tardy on five occasions in
June 2011, but that she only called to inform staff once. (Id.)
With respect to behavior, the written warning recounted Ekern’s complaints and
noted that “[t]he patient[]s perceive that she doesn’t understand what they are asking for
and she comes across short and rude.” (Id.)5 Wagle also noted that after being out on

5

As support for the contention that patients complained about Lundy, Park Nicollet cites
to what it claims is a complaint from a patient regarding Lundy. (See Def.’s Mem. in Supp. of
(Footnote continued on next page.)

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FMLA leave, Lundy “showed no initiative” to reschedule a training she had missed
during her absence and that Wagle “rescheduled her.” (Id., Ex. A at 44-45.) Wagle
indicated that she “experi[e]nced [Lundy’s] behavior as rude and short” and
“disrespectful” when there was an issue with Lundy’s computer and when a vacation day
request was denied. (Id., Ex. A at 45.) The written warning indicated that Lundy must
ensure that “unplanned absentism [sic] is kept below 3%,” notify the front desk and
Wagle if she was going to be late, “communicate professionally and respectfully to all
employee’s [sic] and patients at [Park Nicollet],” and document patient interactions
“appropriately and demonstrate interpersonl [sic] respect and clinical competency of an
Registered nurse.” (Id., Ex. A at 45.) Lundy declined to sign the written warning
because she disagreed with the accuracy of the document’s allegations. (Lundy Dep.
125:1-10; Winter Aff., Ex. A at 46.)

H.

Second and Third FMLA Leave

In July 2011, Lundy developed cellulitis in her left breast. (Lundy Dep. 229:1725.) After consulting with doctors and undergoing various tests, Lundy was scheduled
for surgery on October 6, 2011. (Id. 229:23-232:9; Kuhlman Aff., Ex. 25 at 000523-24.)

____________________________________
(Footnote continued.)

Mot. for Summ. J. at 9, Nov. 14, 2013, Docket No. 20.) That document appears to be a small
piece of paper with a few lines of handwritten text on it, but the text is completely illegible
because the entire slip is too dark. Because the complaint produced by Park Nicollet is
completely illegible (see Winter Aff., Ex. A at 43), the Court has not relied upon it in deciding
the present motion.

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Several days before her scheduled surgery, Lundy submitted an FMLA request,
which was granted. (Lundy Dep. 35:4-8; 49:13-17.)6 When she presented the FMLA
paperwork to Wagle, Lundy testified that Wagle became noticeably frustrated, grabbed
the FMLA paperwork from Lundy’s hands, said “I can’t believe this,” rolled her eyes,
and then said “I do not have enough employees.” (Id. 34:22-35:23.)

III.

TERMINATION
On October 3, 2011, Chilson met with McGreevy and Wagle to discuss ongoing

performance concerns with Lundy. (Winter Aff., Ex. E at 24.) They agreed to meet with
Lundy when she returned from her leave. (Id.) In notes of this meeting, Chilson stated
that it was “possible that [Lundy] could be terminated as a result of the performance
issues, more information is being gathered by Wagle.” (Id.)
In a memorandum dated October 4, 2011, Wagle wrote to McGreevy regarding
her concerns about Lundy’s performance related to: “errors, her lack of attention to
detail, not following standard work and lack of follow through.” (Winter Aff., Ex. D at
15.) Wagle testified that many of the issues addressed in the October 4 memorandum
about Lundy’s performance that eventually led to the decision to terminate Lundy
“surfac[ed]” during Lundy’s FMLA leave because during this period of time other nurses
were covering Lundy’s case load and discovering the alleged errors. (Wagle Dep. 73:1374:2, 77:17-78:5.) Wagle testified that other nurses “unsolicited were bringing things to
6

In September 2011 Lundy made a second request for intermittent FMLA leave due to
her breathing issues, which was granted. (Lundy Dep. 34:5-17.)

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me” related to Lundy’s errors and she did not “believe they all knew that they were
bringing things.” (Id. 73:21-23.) Wagle testified, however, that the only nurse she could
remember bringing her attention to an error of Lundy’s was Gunderson. (Id. 74:3-12.)
The October 4 memorandum discussed a concern raised by Ekern on
September 15 “regarding a telephone encounter related to a lost or stolen prescription” in
which Ekern did not believe that Lundy was “triaging calls appropriately” or
“understanding the detail that was needed.” (Id.) When Ekern approached Lundy with
his concerns, he believed she “didn’t follow direction.” (Id.; Ekern Dep. 43:4-10.) The
memorandum also indicated that Lundy failed to use standard markings on phone
messages to allow other nurses to understand the status of the message – whether it had
been addressed or not, failed to adequately document her calls, on one occasion failed to
route a message regarding patient medication to the provider, and on one occasion faxed
a patient chart that was missing information. (Winter Aff., Ex. D at 16.) Wagle’s overall
assessment of these incidents was that they demonstrated Lundy’s “lack of attention to
detail” and failure to “follow[] standard work.” (Id.) Wagle’s memorandum addressed
concerns with Lundy’s performance that had allegedly been discovered during Lundy’s
absence including incorrect citalopram documentation and “fuschia forms” mistakes,
which are detailed below. (Id.)

A.

Citalopram Charting

Park Nicollet created an internal “dot phrase,” which, if typed into a patient
record, would populate a list of questions a nurse should ask a patient with a prescription

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for citalopram and relay to the patient’s provider regarding, among other things, the
drug’s side effects. (Kuhlman Aff., Ex. 7 (Dep. of Sandra Harter (“Harter Dep.”) 32:917, 33:19-34:15).)

Wagle’s October 4 memorandum indicated that one of Lundy’s

performance issues was her failure to use this dot phrase. (Winter Aff., Ex. D at 15.) But
another nurse at the Clinic testified that the dot phase was not mandatory, and nurses
were allowed to use their own notations regarding citalopram, provided the appropriate
questions were still asked. (Kuhlman Aff., Ex. 5 (Dep. of Deborah Ridgley (“Ridgely
Dep.”) 23:4-13).)

Another citalopram related error identified in Wagle’s October 4

memorandum was an incident in which a patient called regarding citalopram and Lundy
allegedly failed to ask her the questions prompted by the dot phase. (Winter Aff., Ex. D
at 15.) The patient’s chart shows that Lundy did not ask the citalopram questions because
she could not reach the patient via telephone. (Kuhlman Aff., Ex. 19.)

B.

Fuchsia Forms

In her October 4 memorandum, Wagle also identified an issue with Lundy’s
failure to use fuchsia forms. (Winter Aff., Ex. D at 16; Wagle Dep. 77:21-24.) Fuchsia
forms were designed to track whether patients had their appropriate labs and tests done.
(See Lundy Dep. 246:10-17.) Another nurse at the Clinic testified that fuchsia forms had
been abandoned by Park Nicollet at the time Lundy allegedly failed to complete them.
(Gunderson Dep. 34:5-8.) Eissinger also testified that she often routinely failed to follow
through with processing fuchsia forms for her patients. (Eissinger Dep. 36:1-14.)

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C.

Termination Meeting

On October 19, 2011, while Lundy was still out on FMLA leave, Wagle and
Chilson spoke on the phone.

(Winter Aff., Ex. E at 24.)

Chilson’s notes of the

conversation indicated that Wagle “has been discovering additional performance
concerns related to Cindy Lundy, she will document the concerns and send them to me.”
(Id.) On November 3 Wagle and Chilson met, and Chilson noted that “[f]rom [Wagle’s]
information it[’]s clear that performance issues are still prevalent in Cindy’s work.” (Id.)
Chilson also noted that if Lundy returned to work that Monday “we intend to address the
performance issues with her, hear her side and if appropriate terminate her employment
due to the seriousness of her on-going performance issues.” (Id.)
On November 7, 2011, Lundy’s first day back from her FMLA leave, she was
called into a meeting with Wagle and Chilson and told that this was her “last day at Park
Nicollet.” (Lundy Dep. 78:1-24.) Lundy was given the option and resigned in lieu of
termination in order to receive an additional two-weeks’ pay. (Id. 77:14-25.) Lundy
testified that during the short meeting she was not told why she was being terminated.
(Id. 78:17-19, 79:9-12.) She testified that she was told to go to her office, gather her
things, and not talk to anybody on the way out. (Id. 78:22-24, 79:23-25.)
Wagle testified that Lundy was terminated:
Because of the concerns regarding her lack of attention to detail, the
unsolicited things that got brought to my attention, regarding the things that
were left incomplete, regarding her work before she left, and I felt that for
our patients that was in their best interest that she not be there.
....

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It was the lack of documentation related to the citalopram, not following
through with standard work. It was related to not following through and
learning from her coaching about the dispositions and the rework, and the
things being left undone.
(Wagle Dep. 119:21-120:13.)

IV.

OTHER NURSES
In opposition to the present motion, Lundy also presents evidence that other nurses

at the Clinic made mistakes in charting, but were not subject to discipline. In July 2011,
Park Nicollet transitioned to using a different program for electronic medical records
known as EPIC. (Harter Dep. 56:6-8.) Harter testified the there was “a learning curve to
learn EPIC and how to maneuver through EPIC.” (Id. 58:8-9.) Other nurses testified that
it was a “huge transition” and they made errors or mistakes as they were getting used to
the EPIC system. (Domanico Dep. 24:21-25:8; Ridgley Dep. 14:15-25 (testifying that
she had difficulties with EPIC and agreeing that her co-workers “were having difficulties
or making mistakes when EPIC went live”).)
Lundy also presents testimony from other nurses who observed no problems with
her work. Harter testified that she had reviewed Lundy’s patient charts during her
employment and that she had never personally seen any errors or mistakes in her
charting. (Harter Dep. 27:16-23.) Ridgley similarly testified that she routinely covered
for other nurses and could not recall ever seeing any problems with Lundy’s work nor
had she ever brought any concerns about Lundy’s work to anyone at Park Nicollet.
(Ridgley Dep. 15:24-16:14.) Domanico also had the opportunity to review patient files
that Lundy had worked on and could not recall coming across any problems with Lundy’s
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charting. (Domanico Dep. 35:10-25.) Gunderson, the only nurse who Wagle recalled as
bringing concerns with Lundy’s work to Wagle, testified she could not recall problems
with Lundy’s work or charting during her entire time working with Lundy, nor could she
recall whether she raised any issues about Lundy’s charting. (Gunderson Dep. 15:8-25.)
Other nurses also testified that they had made typographical mistakes in their
charts before – such as putting the wrong phone or fax number on prescriptions.
(Gunderson Dep. 25:5-19; Domanico Dep. 21:16-20.) Ridgley testified that she makes
mistakes entering information into a prescription approximately once a week, and that
typically these mistakes come to her attention through patient calls or from Park
Nicollet’s workroom. (Ridgley Dep. 19:3-25.)

V.

COMPLAINT
Lundy filed a complaint against Park Nicollet alleging, of relevance to the present

motion, interference with her FMLA rights and retaliation in violation of the FMLA.
(Compl., Sept. 24, 2012, Docket No. 1.) With respect to interference, Lundy alleges that
“[d]efendant failed to provide Ms. Lundy with appropriate notice of her FMLA rights and
responsibilities after she requested leave covered by the FMLA” and “denied Ms. Lundy
leave she was entitled to take under the FMLA.” (Id. ¶¶ 46-47.) With respect to
retaliation, Lundy alleges that “[d]efendant terminated Ms. Lundy’s employment after
she exercised leave covered under the FMLA” and “used Ms. Lundy’s exercise of leave
covered under the FMLA as a negative factor in its decision to terminate her
employment.” (Id. ¶¶ 53-54.)

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ANALYSIS
I.

STANDARD OF REVIEW
Summary judgment is appropriate where there are no genuine issues of material

fact and the moving party can demonstrate that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the suit,
and a dispute is genuine if the evidence is such that it could lead a reasonable jury to
return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A court considering a motion for summary judgment must view the facts in the
light most favorable to the non-moving party and give that party the benefit of all
reasonable inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).

Summary judgment is appropriate if the

nonmoving party “fails to make a showing sufficient to establish the existence of [each]
element essential to that party’s case, and on which that party will bear the burden of
proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge.” Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (internal quotation marks omitted).

II.

FMLA CLAIMS
The FMLA provides eligible employees up to twelve work-weeks of unpaid leave

in any twelve-month period and prohibits employers from discriminating against
employees for exercising their rights under the Act. 29 U.S.C. §§ 2612, 2615(a)(2); see
- 20 -

also Darby v. Bratch, 287 F.3d 673, 679 (8th Cir. 2002). The Eighth Circuit has recently
clarified that three main types of claims are cognizable under the FMLA: entitlement,
retaliation, and discrimination. Entitlement claims “occur[] where an employer refuses to
authorize leave under the FMLA or takes other action to avoid responsibilities under the
Act.” Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005 (8th Cir. 2012).7
This category of claims includes circumstances where “[a]n employer’s action . . . deters
an employee from participating in protected activities.” Stallings v. Hussmann Corp.,
447 F.3d 1041, 1050 (8th Cir. 2006).

Retaliation claims protect an employee who

“opposes any practice made unlawful under the FMLA – for example . . . complain[ing]
about an employer’s refusal to comply with the statutory mandate to permit FMLA
leave” by providing a cause of action against an employer who “for that reason take[s]
adverse action against the employee who is engaged in the opposition.” Pulczinski, 691
F.3d at 1005-06. Finally, discrimination claims arise
when an employer takes adverse action against an employee because the
employee exercises rights to which he is entitled under the FMLA. In this
scenario, the employer does not prevent the employee from receiving
FMLA benefits. Rather, it is alleged that after the employee exercised his
statutory rights, the employer discriminated against him in the terms and
conditions of employment. An employee making this type of claim must
prove that the employer was motivated by the employee’s exercise of rights
under the FMLA.

7

“Entitlement” claims are often referred to in earlier case law as “interference” claims.
See, e.g., Wisbey v. City of Lincoln, Neb., 612 F.3d 667, 675 (8th Cir. 2010), abrogated on other
grounds by Torgerson, 643 F.3d 1031.

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Id. at 1006.8
In light of Pulczinski, the two claims advanced by Lundy, although titled
“interference” and “retaliation” claims in her complaint are best understood as
entitlement and discrimination claims.

Specifically, Lundy claims that Wagle’s

comments interfered with or deterred her from seeking FMLA benefits – an entitlement
claim – and that she was terminated because she took FMLA leave – a discrimination
claim under the framework of Pulczinski.

A.

FMLA Entitlement

Under the FMLA, “an employer is prohibited from interfering with, restraining, or
denying an employee’s exercise of or attempted exercise[] of any FMLA right.” Wisbey
v. City of Lincoln, Neb., 612 F.3d 667, 675 (8th Cir. 2010) (citing 29 U.S.C. § 2615(a)(1)),
abrogated on other grounds by Torgerson, 643 F.3d 1031. Interfering with an
employee’s entitlement to FMLA rights includes, for example, “not only refusing to
authorize FMLA leave, but discouraging an employee from using such leave.” 29 C.F.R.
§ 825.220(b); see also Quinn v. St. Louis Cnty., 653 F.3d 745, 753 (8th Cir. 2011). But in
order to maintain an entitlement claim a plaintiff must also show “that the employer
denied the employee entitlements under the FMLA.” Quinn, 653 F.3d at 753.
Lundy argues that Park Nicollet interfered with her right to use FMLA leave
because Wagle’s comments stating “is that really necessary,” “no more doctor’s notes,”

8

Confusing matters, these “discrimination” claims are sometimes referred to in previous
case law as “retaliation” claims. See, e.g., Stallings, 447 F.2d at 1051-52.

- 22 -

and “I can’t believe this. I don’t have enough employees” when being presented with
Lundy’s FMLA paperwork “would have discouraged a reasonable employee from
seeking leave and thus constitutes a restraint of Lundy’s exercise of rights.” (Pl.’s Mem.
in Opp’n to Mot. for Summ. J. at 43, Dec. 5, 2013, Docket No. 25.) But a plaintiff’s
claim for entitlement cannot be based upon the possibility that an employer’s behavior
would have discouraged a reasonable employee from seeking FMLA leave without
evidence that the employee herself was deterred. See Whitney v. Franklin Gen. Hosp.,
Civ. No. 13-3048, 2014 WL 360106, at *13 (N.D. Iowa Feb. 3, 2014) (“[A]n
‘interference/entitlement’ claim cannot be based on conduct that would discourage an
employee of ordinary firmness from taking FMLA leave, even if the plaintiff was not
herself deterred, but must be based on allegations (and eventual proof) ‘that the employer
denied her entitlements under the FMLA.’” (alteration omitted) (quoting Pulczinski, 691
F.3d at 1007)). Here, Lundy has presented no evidence that Park Nicollet prevented her
from taking FMLA leave or that Wagle’s comments did, in fact, deter her from seeking
benefits. For example, Lundy has presented no evidence that there were periods of time
when Park Nicollet denied her benefits or when she would or could have, but did not,
seek FMLA leave as a result of Wagle’s comments. See Brown v. City of Jacksonville,
711 F.3d 883, 891 (8th Cir. 2013) (“Brown does not argue the City prevented her from
taking FMLA leave. Thus, she has no ‘entitlement’ claim.”); Quinn, 653 F.3d at 753
(granting summary judgment on an entitlement claim where “Quinn does not contest the
district court’s finding that she received the full twelve weeks of FMLA leave to which
she was entitled each year she requested it”). Accordingly, the Court concludes that no
- 23 -

reasonable jury could find that Park Nicollet denied Lundy entitlements under the FMLA
and will grant Park Nicollet’s motion for summary judgment with respect to this claim.

B.

FMLA Discrimination

Absent direct evidence, an FMLA discrimination claim is evaluated under the
burden-shifting framework of McDonnell Douglas. Chappell v. Bilco Co., 675 F.3d
1110, 1116-17 (8th Cir. 2012). An employee must first establish a prima facie case by
showing that she (1) engaged in activity protected under the Act, (2) suffered an adverse
employment action by the employer, and (3) a causal connection existed between the
employee’s action and the adverse employment action. Wisbey, 612 F.3d at 676. The
burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for
its challenged actions. Stallings, 447 F.3d at 1051. “Once the employer comes forward
with evidence of a reason other than retaliation for the employee’s discharge, the
employee is left with the opportunity to demonstrate that the proffered reason is not the
true reason for the employment decision.” Id. at 1052 (internal quotation marks omitted);
see also Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002).

1.

Prima Facie Case

In its brief in support of the motion for summary judgment, Park Nicollet appears
to ask the Court to assume, for purposes of this motion, that Lundy has established a
prima facie case. Specifically, Park Nicollet states “[a]lthough Park Nicollet does not
agree Lundy can make out a prima facie case to support her claim, for purposes of this
motion, it focuses its analysis to Lundy’s lack of evidence of pretext.” (Def.’s Mem. in
- 24 -

Supp. of Mot. for Summ. J. at 19, Nov. 14, 2013, Docket No. 20 (footnote omitted).)
Despite this apparent concession, Park Nicollet does raise a substantive challenge to
Lundy’s prima facie case in a footnote, arguing that “any alleged causal connection
between Lundy’s taking of a FMLA leave in October 2011 and her termination on
November 7, 2011, is severed by Park Nicollet’s discovery of new performance issues
during Lundy’s leave of absence.” (Id. at 19 n.8.) Although it is unclear whether Park
Nicollet intends to challenge Lundy’s ability to demonstrate a causal connection between
her taking of FMLA and her termination for purposes of this motion, in the interest of
thoroughness, the Court will address the issue.
To establish a causal link between the employee’s exercise of FMLA rights and
her termination, the employee must prove “that an employer’s retaliatory motive played a
part in the adverse employment action.” Kipp v. Mo. Highway & Transp. Comm’n, 280
F.3d 893, 897 (8th Cir. 2002) (internal quotation marks omitted). “Evidence giving rise to
an inference of retaliatory motive on the part of the employer is sufficient to establish the
requisite causal link.”

Thomas v. Corwin, 483 F.3d 516, 531 (8th Cir. 2007).

Additionally “[a]n employee can establish a causal link between her protected activity
and the adverse employment action through the timing of the two events,” although
“[t]emporal evidence should generally be corroborated by other evidence of employment
discrimination.” Marez v. Saint-Gobain Containers, Inc., 688 F.3d 958, 963 (8th Cir.
2012) (internal quotation marks omitted).
The Court concludes that Lundy has presented sufficient evidence giving rise to an
inference of retaliatory motive as well as evidence of temporal proximity between her
- 25 -

protected conduct and the adverse employment actions she suffered to satisfy her burden
of establishing the causation element of a prima facie case. As an initial matter, the Court
notes that in examining the causal element of the prima facie case, it considers the
relationship between Lundy’s protected conduct and all of the adverse employment
actions taken by Park Nicollet that precipitated Lundy’s termination. Although Lundy’s
termination is undoubtedly an adverse employment action, Kim v. Nash Finch Co., 123
F.3d 1046, 1060 (8th Cir. 1997), other actions “that disadvantage or interfere with an
employee’s ability to do his or her job, as well as ‘papering’ an employee’s file with
negative reports or reprimands, are sufficiently adverse to meet the Title VII standard for
retaliation claims,” Tademe v. Saint Cloud State Univ., 328 F.3d 982, 992 (8th Cir. 2003).
See also Lee v. N.M. State Univ. Bd. of Regents, 102 F. Supp. 2d 1265, 1274 (D.N.M.
2000) (“Compiling negative reports of a plaintiff’s work performance or similar
heightened scrutiny can also be an adverse employment action, if such reports and
scrutiny adversely affects the employee’s job position.”). Here, Lundy has presented
evidence that she was subjected to increased scrutiny, negative performance reviews, and
a targeted investigation to discover errors on her part that ultimately formed the basis for
her termination.

If the negative performance reviews, increased scrutiny, and

investigation that led to her termination were retaliatory in nature, their relationship to her
protected conduct is also relevant to the Court’s causation analysis. See Marez, 658 F.3d
at 964 (finding evidence of causation supporting a retaliation claim where, in addition to
a close temporal proximity between plaintiff’s notification to her employer that she
would require FMLA leave and her termination, plaintiff also “claimed that [her
- 26 -

employer] was looking for errors because [plaintiff] had told her that she would need
FMLA leave”); Bader v. Special Metals Corp., Civ. No. 11-0882, 2013 WL 6264660, at
*21 (N.D.N.Y. Dec. 4, 2013) (explaining that for purposes of causation even long gaps
between protected conduct and an adverse employment action “may be bridged by an
intervening pattern of retaliatory treatment”).
In other words, in addition to temporal proximity “[a]dditional evidence of
retaliatory conduct that may suffice [to prove the causation element of a prima facie case]
includes but is not limited to evidence that the plaintiff faced higher disciplinary scrutiny
than similarly situated employees, or that the plaintiff faced higher scrutiny than she
faced before engaging in the protected activity.” Fledderman v. Daiichi Sankyo, Inc.,
930 F. Supp. 2d 899, 914 (S.D. Ohio 2013). In Fledderman, for example, the court found
sufficient evidence of a causal connection to support a prima face case of retaliation
where there was evidence which “if believed, would support an inference that the actions
of [the employer] taken subsequent to Plaintiff’s report of harassment were retaliatory
and designed to build a case against Plaintiff to support her eventual termination.” Id. at
915. The evidence included, among other facts, that the employer initiated disciplinary
actions close in time to the Plaintiff’s report of harassment and the Plaintiff had not been
subjected to disciplinary action prior to her protected conduct.

Id. at 915-16.

Additionally, the evidence showed that the employer chose to engage in an investigation
“for the purpose of showing consistent negative performance by Plaintiff, which suggests
that insufficient evidence existed prior to Plaintiff’s report of harassment.” Id. at 915.

- 27 -

Here, Lundy has presented evidence demonstrating that from September 2009,
when she began her employment at Park Nicollet, until September 2010 when she
submitted her first request for intermittent FMLA leave, there were no documented
problems with her performance, and Wagle testified that she had no problems with
Lundy’s work during this first year. On October 11, 2010, Lundy’s first request for
FMLA leave was approved, and Wagle asked her if that leave was “really necessary.”
(Lundy Dep. 38:14-24.) Two weeks later, Wagle began to document problems with
Lundy’s attendance when she drafted a memorandum memorializing a meeting with
Lundy regarding the fact that Lundy was delayed in returning to work following a
vacation on October 26, 2010.

The temporal proximity between Lundy’s protected

conduct and Wagle’s increased scrutiny is sufficient to demonstrate a causal connection.
See Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 1000-01 (8th Cir. 2011) (finding one
week between protected activity and termination was sufficient to establish prima facie
element of causation); Smith, 302 F.3d at 833 (finding two weeks between protected
activity and adverse employment action “sufficient” to establish causation). Viewing the
facts in the light most favorable to Lundy, a jury could conclude that following this initial
request for FMLA leave Wagle subjected Lundy’s attendance to increased scrutiny –
requiring Lundy to follow a more onerous procedure than other nurses if she was going to
be late to or absent from work and requiring Lundy, but not the other nurses in the Clinic,
to report to work on time to avoid discipline.
Although concerns about Lundy had been brought to Wagle’s attention by
Dr. Zimmerman in February 2011, it was not until the end of March 2011 – when Wagle
- 28 -

had collected more evidence regarding Lundy’s alleged attendance issues – that she
issued a verbal warning related to Lundy’s attendance and her attitude towards other
staff. On June 20, 2011 Wagle sent an email that would ultimately result in the written
warning issued to Lundy on June 30, 2011. In the email Wagle explained that Lundy had
a high rate of unplanned absences, and included in her log of those absences dates that
Lundy had taken intermittent FMLA leave. In the written warning Wagle also discussed
other issues, including that when Lundy missed a training while out on FMLA leave that
she “showed no initiative” to reschedule the training. (Winter Aff., Ex. A at 44-45.) The
close similarity between Lundy’s protected conduct (taking FMLA leave) and some of
Wagle’s stated reasons for discipline (that Lundy was absent and did not take initiative to
reschedule missed trainings) could allow a reasonable jury to conclude that there is a
causal connection between the two events. See Schaefer v. BioLife Plasma L.L.C., Civ.
No. 11-3468, 2013 WL 5275818, at *6 (D. Minn. Sept. 18, 2013) (“The allegedly false
conduct underlying Schaefer’s incident report . . . was the same alleged conduct
underlying the request for workers’ compensation. The close link between the report of
the injury, the request for compensation, and Schaefer’s termination satisfies the causal
connection.”).
Additionally, after Lundy made her final request for FMLA leave Wagle became
noticeably frustrated, grabbed the paperwork from Lundy, said “I can’t believe this,”
rolled her eyes, and then said “I do not have enough employees.” (Lundy Dep. 34:3335:23.) Almost immediately after Lundy began that FMLA leave in early October 2011,
on October 3 Wagle met with Chilson and McGreevy, and Wagle agreed to gather more
- 29 -

information about Lundy’s performance issues. In a memorandum dated one day later,
Wagle laid out numerous concerns with Lundy’s performance that were allegedly
discovered while Lundy was out on leave.9 This memorandum and the investigation to
unearth problems with Lundy’s performance ultimately led to Lundy’s termination,
which occurred on Lundy’s first day back from FMLA leave on November 7, 2011.
A reasonable jury could conclude that the circumstances surrounding Lundy’s
termination give rise to an inference of retaliatory motive on the part of Park Nicollet.
Specifically, a jury could conclude that the close temporal proximity between Lundy’s
initial request for FMLA leave and the first disciplinary action taken against her, as well
as the increased scrutiny of her attendance (an issue closely related to Lundy’s use of
intermittent FMLA leave) and performance by Wagle support an inference that Lundy’s
9

Park Nicollet contends that any causal connection between Lundy’s taking FMLA leave
and her termination the day she returned to work was severed by Park Nicollet’s discovery of
new performance issues during Lundy’s leave of absence. See Lenzen v. Workers Compensation
Reinsurance Ass’n, 705 F.3d 816, 822 (8th Cir. 2013) (“Lenzen’s intervening unprotected
conduct – poor work performance and insubordination in November and December 2008 –
precludes any inference of a causal connection between the September 11 letter and her
termination.”). As explained above, the causal connection between Lundy’s final FMLA leave
and her termination is not the only relevant connection in assessing whether retaliation motivated
Lundy’s discharge. Furthermore, the fact that Wagle specifically undertook an investigation of
Lundy – an action she did not take with respect to any other nurses in the Clinic – after telling
Lundy she could not believe that Lundy was requesting more FMLA leave could itself support
an inference of retaliatory motive. At most, whether Wagle actually discovered new
performance issues while Lundy was absent raises a genuine issue of material fact and summary
judgment is therefore inappropriate. The memorandum relied upon for Lundy’s termination
written by Wagle was dated October 4, 2011 – the day that Lundy began her FMLA leave.
Therefore a reasonable jury could conclude that the complaints contained in it – such as the
problems with the fuschia slips and the citalopram charting – that Wagle contends were brought
to her attention during Lundy’s leave when other nurses took over her stations, may have been
known to Wagle at the time of Lundy’s leave, and therefore would not be an “intervening”
discovery sufficient to sever a causal connection between Lundy’s leave and her termination.

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request for FMLA leave motivated the disciplinary action and scrutiny. Additionally, a
reasonable jury could conclude that these initial disciplinary actions precipitated even
more scrutiny of her performance, and when she took her final FMLA leave, Wagle
almost immediately set out to investigate her performance and gather sufficient evidence
to support Lundy’s termination. Based on these facts, the Court concludes that Lundy
has satisfied her prima facie burden of demonstrating a causal connection between her
protected activity and her termination. See Upshaw v. Ford Motor Co., 576 F.3d 576,
588-89 (6th Cir. 2009) (“Given the close temporal proximity between Upshaw’s August
2003 EEOC charge and [the company]’s request for information from other employees
documenting Upshaw’s complaint activity, and [Upshaw’s supervisor]’s request for
discipline, a reasonable juror could find that Upshaw has established a prima facie case of
retaliation.”); Hamilton v. Gen. Elec. Co., 556 F.3d 428, 435-36 (6th Cir. 2009) (“The
combination of this increased scrutiny with the temporal proximity of his termination
occurring less than three months after his EEOC filing is sufficient to establish the causal
nexus needed to establish a prima facie case.”); Jute v. Hamilton Sundstrand Corp., 420
F.3d 166, 176-77 (2d Cir. 2005) (explaining that instances of adverse employment action
occurring outside the statute of limitations period “show[ed] a chain of events that arose
immediately after [the protected conduct]” and might support “a causal link between the
protected activity and the actionable adverse acts”).

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2.

Legitimate, Nondiscriminatory Reason

At this stage of the McDonnell-Douglas test, the employer must merely
“articulate[] lawful reasons for the action; that is, . . . produce admissible evidence which
would allow the trier of fact rationally to conclude that the employment decision had not
been motivated by discriminatory animus.” Tex. Dep’t of Cmty. Affairs Burdine, 450
U.S. 248, 256-57 (1981) (holding that “the employer’s burden is satisfied if he simply
explains what he has done or produces evidence of legitimate nondiscriminatory reasons”
(alteration and internal quotation marks omitted)). The employer’s burden is not one of
proof or persuasion, and can be met with “[a] minimal evidentiary showing.” Davis v.
KARK-TV, Inc., 421 F.3d 699, 704 (8th Cir. 2005). In its brief, Park Nicollet contends
that it “terminated Lundy because of her on-going performance issues and because of its
genuine concern for patient care and safety. Even after Park Nicollet issued the Final
Written Warning, Lundy’s inadequate charting and lack of follow through on patient care
issues persisted.” (Def.’s Mem. in Supp. of Mot. for Summ. J. at 19 (internal citations
omitted).) This explanation of Lundy’s termination is sufficient to satisfy Park Nicollet’s
burden of proffering a legitimate, nonretaliatory reason for Lundy’s termination.

3.

Pretext

In light of Park Nicollet’s enunciation of a legitimate, nonretaliatory reason for
Lundy’s termination, the burden shifts back to Lundy to demonstrate that this reason was
pretext for unlawful retaliation. Torgerson, 643 F.3d at 1046. “To prove pretext, the
employee must do more than show that the employment action was ill-advised or unwise,

- 32 -

but rather must show that the employer has offered a phony excuse.”

McNary v.

Schreiber Foods, Inc., 535 F.3d 765, 769 (8th Cir. 2008) (internal quotation marks
omitted). A plaintiff may demonstrate a material question of fact regarding pretext in at
least two ways, either by showing “that the employer’s explanation is unworthy of
credence because it has no basis in fact” or “by persuading the court that a prohibited
reason more likely motivated the employer.” Torgerson, 643 F.3d at 1047 (alterations
and internal quotation marks omitted); see also Anderson v. Durham D&M, L.L.C., 606
F.3d 513, 521 (8th Cir. 2010). A plaintiff may present evidence upon which a reasonable
jury could conclude that an employer’s explanation is unworthy of credence in a number
of ways, including “by showing that an employer (1) failed to follow its own policies,
(2) treated similarly-situated employees in a disparate manner, or (3) shifted its
explanation of the employment decision.” Lake v. Yellow Transp. Inc., 596 F.3d 871,
874 (8th Cir. 2010). “Another common method of proving pretext is to show that it was
not the employer’s policy or practice to respond to such problems in the way it responded
in the plaintiff’s case.” Erickson v. Farmland Indus., Inc., 271 F.3d 718, 727 (8th Cir.
2001). In such circumstances, “even without pointing to other cases that were handled
differently, a plaintiff can establish pretext by showing that it was unlikely an employer
would have acted on the basis of the proffered reason.” Id.
Here, the Court finds that Lundy has presented sufficient evidence of pretext to
survive a motion to dismiss because a reasonable jury could conclude that the chain of
events that precipitated her termination – which began with her request for FMLA leave
and escalated when she took her final FMLA leave – demonstrate that Lundy’s taking of
- 33 -

FMLA leave, rather than her performance, actually motivated Park Nicollet’s decision.
See Ross v. Campbell Soup Co., 237 F.3d 701, 708 (6th Cir. 2001) (finding that chain of
events leading to termination, including sudden drop in performance evaluation and
dramatic increase in sales quotas, created inference of pretext). As explained above in
the context of the prima facie causation showing, a reasonable jury could determine from
Wagle’s comments expressing her displeasure with Lundy’s taking of FMLA leave that
her increased scrutiny of Lundy’s attendance initially and later her performance was
retaliatory in nature.

A jury could also reasonably conclude that other nurses who

displayed similar attendance issues were not subjected to such increased scrutiny, and
were not disciplined for arriving late or missing work. A jury could also conclude that it
was the combined effect of retaliatory increased scrutiny, disciplinary actions, and
investigations that led to Lundy’s termination. See Bader, 2013 WL 6264660 at *14 (“A
reasonable factfinder could determine from Sefcheck’s sexual and gender-animusevincing language that he had discriminatorily scrutinized Plaintiff’s work so as to cause
her termination. . . . And where a disciplinary decision is based on conduct that has been
discovered as a result of scrutiny discriminatorily ordered by the decisionmaker, the
discriminatory animus motivating the scrutiny may be imputed to the disciplinary
decision itself.”).
Here, in a meeting held the first day of Lundy’s final FMLA leave – after Wagle
had just told Lundy she could not believe that she was requesting more FMLA leave –
Chilson noted that although it was “possible that [Lundy] could be terminated as a result
of her performance” Wagle undertook an investigation to gather more information about
- 34 -

Lundy to support this result. (Winter Aff., Ex. E at 24.) A reasonable jury could
conclude that Wagle’s instigation of the investigation was retaliatory in nature, and
therefore the termination decision itself – whether based on true information of Lundy’s
performance defects or not – was retaliatory.10 A reasonable jury could also conclude
that other nurses who made errors in charting or received complaints from providers were
not subjected to investigations for the purpose of compiling sufficient evidence to support
their termination. This evidence, combined with Lundy’s strong prima facie case of
causation, “suffice[s] to create a triable question of fact.” Torgerson, 643 F.3d at 1046.
For these reasons, the Court concludes that Lundy has presented sufficient evidence of
pretext to survive a motion for summary judgment with respect to her discrimination
claim under the FMLA, and will deny Park Nicollet’s motion on that claim.
This case will be placed on the Court’s next available trial calendar.

10

Lundy has also presented evidence attacking the factual basis of the various alleged
performance deficiencies identified in Wagle’s October 4 memorandum and discussed at the
termination meeting. Although this evidence may well be probative of pretext at trial, the Court
need not rely upon it here because the evidence of retaliatory scrutiny and investigation is
sufficient to defeat summary judgment here. Additionally, Park Nicollet presented evidence that
other nurses who had taken FMLA were not disciplined or terminated. This evidence may be
persuasive to a jury, and a jury could believe that because of it, Lundy was not retaliated against.
But weighing this evidence against the evidence of pretext presented by Lundy is a job for the
jury, not a task for the Court on summary judgment.

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ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendant’s Motion for Summary Judgment [Docket No.
19] is GRANTED in part and DENIED in part as follows:
1.

Defendant’s motion is GRANTED with respect to Plaintiff’s claims for

interference/entitlement under the FMLA (Count I), disability discrimination under the
MHRA (Count III), failure to accommodate under the MHRA (Count IV), and reprisal
under the MHRA (Count V). These claims are DISMISSED with prejudice.
2.

Defendant’s motion is DENIED with respect to Plaintiff’s claim for

retaliation/discrimination under the FMLA (Count II).
DATED: July 21, 2014
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
United States District Judge

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