Ali v. Electrolux Home Products, Inc.
Filing
77
MEMORANDUM OPINION AND ORDER. IT IS HEREBY ORDERED that:1.Plaintiff's Motion to Supplement the Record 70 is GRANTED with respect to Plaintiff Ex. AAA. The remainder of the motion is DENIED; 2.Defendant's Motion for Summary Judgment as to Counts 1, 2 and 4 48 is DENIED; and 3.Counts 3, 5, 6 and 7 are DISMISSED.(Written Opinion). Signed by Chief Judge Michael J. Davis on 6/30/14. (GRR)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Mohamed Ali,
Plaintiff,
MEMORANDUM OPINION
AND ORDER
Civil No. 12‐2826 (MJD/LIB)
v.
Electrolux Home Products, Inc.
Defendant.
_____________________________________________________________________
Stephen W. Cooper and Stacey R. Everson, The Cooper Law Firm,
Chartered, Counsel for Plaintiff.
Hal A. Shillingstad and Manish Jain, Ogletree, Deakins, Nash, Smoak &
Stewart, P.C., Counsel for Defendant.
_____________________________________________________________________
This matter is before the Court on Defendant Electrolux Home Products,
Inc.’s (“EHP”) motion for summary judgment. Also before the Court is Plaintiff’s
motion to supplement the record.
I.
Background
Plaintiff Mohamed Ali began employment with EHP as a general
production worker in April 2006. EHP is in the business of manufacturing chest
and upright freezers at its manufacturing plant in St. Cloud, Minnesota. There
1
are approximately 1,100 production employees who work in one of three shifts.
These employees are members of District Lodge No. 165 of the International
Association for Machinists and Aerospace Workers (“Union”).
There are 31 departments throughout the EHP plant, and employees are
categorized as general production workers or classified workers along four main
manufacturing lines that run throughout the plant. Classified workers are
trained, and are paid more to perform advanced tasks. Supervisors and leads are
to work together to oversee the employees working on the manufacturing lines.
While working at EHP, Plaintiff applied for and was given several higher
paying classified jobs throughout the plant, including spot welder, tube bender
machine operator and lead person. He received training for these positions and
safety training. There is no evidence that Plaintiff had ever been disciplined prior
to his termination.
As a lead person, Plaintiff’s duties included ensuring that the changeover
of the production line occurred at the right time and was done properly. One of
the tasks that is part of the changeover process is adjusting the platform via a
locking pin, so the platform can be moved forward or backward as needed to
accommodate a different freezer cabinet size. Near the platform, there is a yellow
2
guardrail that EHP asserts is intended to block off the areas where the moving
track runs under the platform. EHP further asserts there is no need to be in the
area blocked off by the guard rail to adjust the platform.
A.
Plaintiff’s Injury
On October 5, 2011, while Plaintiff was working the lead person position
during the second shift, the department he was working in conducted a
changeover from manufacturing C‐20 freezer chests to C‐13 chests. As part of the
changeover, Plaintiff adjusted the pin, and production on the line was resumed.
Two employees that were stationed on the relevant platform soon noticed that
the units did not appear to be moving properly, and Plaintiff was notified. What
happened next is disputed by the parties.
EHP asserts that without warning, Plaintiff stepped over the guard rail in
an apparent attempt to move the end of the platform that was not pinned. The
line then advanced, and a track caught Plaintiff’s foot, pulling his ankle under the
platform, causing him to scream. Plaintiff’s supervisor, Brenda Hazelton (now
Antonovich), and at least two other employees, pushed the emergency stop
buttons along the line. Hazelton then radioed the plant’s guard shack to ask that
they immediately call an ambulance. Because no one answered her radio request,
3
Hazelton called for an ambulance on her cell phone.
It is Plaintiff’s position that after he was notified that something was
wrong with the line, Hazelton told Plaintiff that she was concerned about not
meeting production targets and ordered Plaintiff to fix the line. Plaintiff asserts
that he then stopped the line and asked Hazelton to make sure no one restarted
the line until he was finished. Plaintiff asserts that he was very familiar with this
particular line and that he had performed changeovers at that location consistent
with normal practice and training. He further asserts that he had not performed
a lockout/tagout1 in this location, as there is no place to do so.
EHP disputes that is not possible to lockout/tagout the machine at issue
here. EHP asserts the area where Plaintiff was injured can be de‐energized and
properly locked out by rotating the disconnect lever to the off position and
applying a lock and tag on the main panel just five steps away from the
workstation platform. (Reply Br., Exs. MM, QQ and L.)
Plaintiff asserts that after putting in the last nut and bolt to complete the
repair of the line, the conveyor belt started to move, causing him to fall. Plaintiff
1
A lockout/tagout is where a cover is locked in place over the on/off button to ensure a
line is not accidently started.
4
alleges that he saw Hazelton with her hands on the control panel where the stop
and start buttons are located. It is Plaintiff’s position that Hazelton is the one
who started the line. Plaintiff claims he yelled at her to turn off the line, but she
refused. Plaintiff further claims that not only did she not stop the line, Hazelton
instructed other employees not to help him, telling them to stay away. She
further stated that they needed maintenance to come over to free Plaintiff from
the line. Ultimately, another employee ignored Hazelton’s instructions, and
turned off the line, and extricated Plaintiff from the line. Plaintiff further claims
that Hazelton instructed that Plaintiff not be taken to the nurse’s station, but
instead, to her office, and that Plaintiff could walk there himself. It was Plaintiff
that asked that an ambulance be called, and that his coworkers put him in a
wheelchair and took him to the nurse’s office.
Plaintiff was taken to the hospital, where it was determined that he had a
broken ankle. Plaintiff was placed on worker’s compensation leave. He was not
medically cleared to return to work until January 2012.
Following Plaintiff’s injury, EHP conducted a “stand down” meeting with
employees, and conducted an investigation on the same night as the accident.
(Ex. D (Northup Dep. at 53‐69).) EHP interviewed those who witnessed the
5
accident, taking down their statements and inspecting the equipment and area at
issue. (Id.) Witnesses reported that they had never seen anyone step over the
guardrail to readjust a platform, and that there was no need to do so because the
adjusting end was on the other end of the platform, and employees Cole and
Roering were already located on that side to provide assistance. (Ex. Q (Cole
Decl.); Ex. A (Antonovich Dep. Ex. 50).)
After he was cleared to return to work, Plaintiff went to the plant to obtain
a new badge. Plaintiff was asked to a conference room, at which time Plaintiff
was informed that his employment was terminated. The decision to terminate
Plaintiff’s employment was made by EHP Human Resources Director Beverlee
Steffy2, in consultation with EHP Labor Relations Manager Kelly Fleming and the
plant’s safety manager Klay Northrup. (Ex. F (Fleming Dep. at 148); Ex. R; Ex. D
(Northrop Dep. at 98‐99).) He was told the reason for his termination was
because EHP found that he intentionally violated safety regulations that could,
and did, result in injury. At no time was Plaintiff given the opportunity to
present his version of the events immediately preceding his injury.
2
Steffy is deceased.
6
Plaintiff did not file a grievance to challenge his termination. He did,
however, write a letter to Fleming, claiming that Fleming had taken him to a dark
room and had conspired with Hazelton to intentionally injure Plaintiff because of
Plaintiff’s participation in protests concerning break times to accommodate
Ramadan. (Ex. C (Plaintiff Dep. Ex. 70).)
B.
Protests Concerning Break Times During Ramadan
In 2010, Plaintiff and others raised concerns about EHP changing its long‐
standing policy of allowing employees to eat and drink on the production floor.
Plaintiff asserts the changes in this policy interfered with Muslim employee’s
religious beliefs and practices during Ramadan.
Because employees were no longer able to eat and drink on the production
floor, employees could only eat and drink during scheduled times and in certain
locations away from the production floor. During Ramadan, Muslims must fast
from sunrise to sunset. Muslim tradition requires that the fast be broken at a
specific time. With the new policy, however, Muslim employees could not meet
the time specific requirement of breaking the fast.
In May 2010, a number of Muslim employees met with the Union and
signed a petition seeking a modification of the new policy with respect to the
7
second shift for the month of Ramadan. Even though EHP was informed of the
significance of Ramadan and the importance of following religious traditions,
Plaintiff alleges that EHP refused to make any changes to the schedule.
Plaintiff and his coworkers then went to the EEOC, and one of his
coworkers filed a charge of discrimination. Through the involvement of the
EEOC, in August 2010, EHP agreed to modify the lunch break schedule to allow
Muslim employees to fulfill their religious obligations during Ramadan.
Plaintiff alleges that even though EHP had agreed not to allow its
employees to retaliate against any Muslim employee because of their
involvement in the discrimination charge, in August 2010, EHP fired four
Muslim employees who were allegedly requesting religious accommodations.
EHP asserts these employees were dismissed because they walked off the job.
In July 2011, the Ramadan break schedule was revisited. EHP asserts that
with respect to the 2010 agreed upon break schedule, a large number of non‐
Muslim employees complained3. Plaintiff disputes whether a large number of
3
The main complaint from non‐Muslim employees was that the Ramadan schedule ‐
which is followed by all employees as all employees must break at the same time ‐ was that it
required them to work too long before being allowed a break to eat meals. The normal schedule
allowed for a meal break four hours after start time (7:30) while the Ramadan schedule set the
meal break five hours and fifteen minutes (8:45) after start time. (Ex. M.)
8
non‐Muslims complained, citing the deposition testimony of Union
representative Colleen Murphy‐Cooney. (Plaintiff Ex. 201 (Cooney Dep. at 326‐
27).)
The 2010 agreement provided for two ten minute breaks and a 30 minute
meal break. In consideration of the complaints from non‐Muslim employees,
EHP proposed alternative break schedules and asked the union stewards to poll
the Muslim employees in order to determine which of the proposals they felt best
met their needs. Per EHP, Option Two ‐ which provided for two fifteen minute
breaks and a 20 minute meal break ‐ was chosen by a majority of Muslim
employees4.
When EHP announced the new 2011 break schedule, 23 Muslim
employees, including Plaintiff, signed a petition that was given to the EEOC,
claiming that EHP had not honored the agreement made in 2010. (Ex. C (Plaintiff
Dep. Ex. 63).) Plaintiff also filed an EEOC complaint on September 15, 2011
claiming discrimination/retaliation arising from the protests involving the
Ramadan break schedule. (Plaintiff Ex. 218.) EHP responded to the
4
This schedule allowed a fifteen minute break at 6:00, a twenty minute break at 8:45 and
a second break at 10:30. The longer first break allowed non‐Muslim employees additional time
to eat, so they would not have to wait until 8:45. (Ex. M.)
9
petition/EEOC complaint, which was eventually dismissed by the EEOC based
on a finding of no probable cause. (Exs. M, N.) Since Ramadan 2011, lunch
breaks have returned to 30 minutes. (Ex. 201 (Cooney Dep. at 491.)
C.
Plaintiff Opposes Discrimination
Plaintiff asserts that he actively worked to assure that Muslim employees
were not prevented from fulfilling their legitimate religious obligations. He
asserts that he repeatedly spoke with union officials, fellow workers, his
supervisors and the EEOC about his concerns and did so in a constructive and
appropriate manner. Plaintiff asserts that Fleming was well aware that Plaintiff
opposed EHP’s handling of the issues surrounding Ramadan.
Plaintiff asserts that when he heard of the 2011 break schedule in late July
2011, he immediately complained about it to union officials Colleen Murphy‐
Cooney, Union Chairperson Janice Lehr and James Kiser. Plaintiff alleges that
following Ramadan in 2011, Fleming tried to get evidence that the production
employees supported the change in the break schedules, by having employees
sign a petition so stating their support. Plaintiff was asked to present the petition
to co‐workers, and none of the Muslim employees Plaintiff approached would
sign the petition. When Fleming found out that Plaintiff did not obtain any
10
signatures from Muslim employees, he told Plaintiff “today I need you, but
tomorrow you might need me.” (Ex. 200 (Plaintiff Dep. at 137, 147, 151‐55.)
Plaintiff also alleges that during Ramadan 2011, which took place from
August 1 through August 29, 2011, Plaintiff observed a sign hung directly over
his work area that stated “Somali people, go back to your country, hungry
people. America is not the place for you guys.” Plaintiff pointed this out to his
supervisors, Kerry Erickson and Brenda Hazelton, who responded that there is
freedom of speech, and the sign remained in place for two days. (Plaintiff Ex. 200
(Plaintiff Dep. at 237, 242‐43).)
Plaintiff filed this action in November 2012 and asserted seven counts. In
opposition to EHP’s motion for summary judgment, Plaintiff indicated that he
was withdrawing claims 3, 5, 6 and 7. The remaining counts are retaliation under
Title VII and the Minnesota Human Rights Act (“MHRA”), national origin and
religious discrimination under Title VII and the MHRA and Workers’
Compensation Retaliation under Minn. Stat. § 176.82.
II.
Standard for Summary Judgment
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
11
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)).
III.
Motion to Supplement the Record
After briefing on this motion was completed, Plaintiff filed a motion to
supplement the record, based on late disclosures by EHP of evidence relevant to
the issue of whether Plaintiff was treated differently than similarly situated
persons and a photograph that appears to have been taken in 2014, submitted
with EHP’s reply brief. Plaintiff also seeks to provide deposition testimony of
Kerry Erickson, which deposition was taken with regard to related, but separate
cases against EHP after briefing for summary judgment was completed in this
case. Finally, Plaintiff asserts that certain discovery requested in this matter was
not turned over by EHP, but was produced in the related and separate cases filed
12
in Said and Issack, et al., and seeks to supplement this record with such evidence.
EHP objects to this motion. EHP first asserts that Plaintiff did not file the
required meet and confer statement, and that a meet and confer did not occur
with respect to this motion. EHP further argues that Plaintiff’s memorandum of
law in support of the motion to supplement constitutes an unsolicited
memorandum of law that is prohibited under L.R. 7.1(I), as it was filed without
first obtaining Court approval. Finally, EHP does not take issue with allowing
Plaintiff to supplement the record to include the late disclosure of comparator
evidence. EHP does oppose supplementing the record with evidence produced
in separate matters. Further, Plaintiff submitted confidential documents that
were produced under a protective order in the separate cases, which precludes its
use in this case. EHP asks the Court to deny Plaintiff’s motion, and strike docket
numbers 70‐72.
The Court will grant the motion in part. EHP does not object to
supplementing the record with the additional comparator evidence attached to
the Everson Declaration as Exhibit AAA. Accordingly, the Court will allow
Plaintiff to supplement the record with such evidence.
13
The remainder of the motion is denied. Not only was Plaintiff required to
meet and confer with EHP prior to filing this motion, Plaintiff was also required
to obtain prior court approval. Plaintiff did not meet either of these
requirements. In addition, the Court finds the Erickson deposition testimony and
the email attached as Exhibit DDD are not relevant or probative of any issue in
this case. Plaintiff claims that in his deposition in the Said and Issack matters,
Erickson testified that he could not remember whether Plaintiff Ali told him that
he had been threatened by Kelly Fleming. The cited deposition testimony, and
the portion submitted with the motion, however, concerns testimony that
Erickson cannot recall if there was a lockout/tagout at the location of Ali’s injury.
See Ex. CCC (Erickson Dep. 62‐65.) As to Plaintiff’s Ex. DDD ‐ it is an email
discussing protected activity by Ahmed Said. It does not mention Plaintiff Ali,
and is therefore not relevant in this matter.
IV.
Motion for Summary Judgment
A.
Count I ‐ Reprisal under MHRA and Title VII
Plaintiff alleges that EHP and employees and/or agents of EHP engaged in
a course of retaliation and reprisal against Plaintiff because of Plaintiff’s refusal to
go along with discriminatory and harassing behavior and because of Plaintiff’s
14
complaints of discrimination and harassment. As a result, Plaintiff claims he was
terminated.
The elements of a prima facie retaliation claim are: 1) Plaintiff engaged in
statutorily protected activity; 2) he was subjected to an adverse employment
action; and 3) a causal connection existed between the two. Bahr v. Capella
Univ., 788 N.W.2d 76, 81 (Minn. 2010); Evans v. Kansas City, Mo. Sch. Dist., 65
F.3d 98, 100 (8th Cir. 1998). An adverse employment action is one that “a
reasonable employee would have found . . materially adverse, which in this
context means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington N. & Santa Fe Railway v.
White, 548 U.S. 53, 68 (2006).
If Plaintiff establishes a prima facie case of retaliation, the burden then
shifts to EHP to produce a legitimate, non‐retaliatory reason for its employment
actions. If EHP meets its burden, then Plaintiff must prove that EHP’s reasons
are a pretext for discrimination. Clegg v. Arkansas Dep’t of Corr., 496 F.3d 922,
928 (8th Cir. 2007) (noting that the McDonnell Douglas framework was to be
used to analyze the plaintiff’s retaliation claim). To prove pretext, Plaintiff must
both discredit EHP’s asserted reasons for its employment actions and show the
15
circumstances permit drawing a reasonable inference that the real reason for the
employment decisions was retaliation. Gilbert v. Des Moines Area Comm. Coll.,
495 F.3d 906, 918 (8th Cir. 2007).
EHP does not dispute that Plaintiff engaged in statutorily protected
conduct in July 2011, when he signed the petition protesting the changes to break
time during Ramadan, and that he suffered an adverse employment action. EHP
does argue, however, there is no evidence of a causal connection between the
two. To prove a causal connection under Title VII, Plaintiff must prove “that the
unlawful retaliation would not have occurred in the absence of the alleged
wrongful action or actions of the employer.” Univ. of Texas S.W. Med. Ctr. v.
Nassar, 133 S.Ct. 2517, 2533 (2013).5
The Court finds that there are genuine issues of material fact on the issue of
causation. Plaintiff has established that he signed a petition in July 2011 and filed
an EEOC complaint on September 15, 2011 challenging the change to the 2011
Ramadan break schedule. He was then injured on October 5, 2011. The record
5
No Minnesota state court has yet applied the “but‐for” standard to retaliation claims
under the Minnesota Human Rights Act. Prior to Nassar, Minnesota courts applied the
motivating factor test to retaliation claims. See e.g., McGrath v. TCF Bank Sav., FSB, 509
N.W.2d 365, 366 (Minn. 1993). Until such time as the Minnesota Supreme Court rules consistent
with Nasser, this Court will continue to apply the “motivating factor” standard to all claims
asserted under the MHRA.
16
also demonstrates that EHP had already made the decision to terminate his
employment prior to the January 2012 meeting. There is thus evidence of a
temporal proximity between Plaintiff’s protected conduct and his termination.
As to whether a retaliatory bias existed, Plaintiff testified at his deposition
that after the 2010 agreement about the Ramadan break schedule, supervisors
had warned him that EHP was not happy with Plaintiff and the others for filing a
complaint with the EEOC. (Plaintiff Ex. 200 (Plaintiff Dep. at 116).) When
Plaintiff protested the change in the break schedule the following year, and failed
to obtain signatures of Muslim employees approving the change, Plaintiff claims
he was threatened by Fleming.
The Court further finds there are genuine issues of fact as to whether the
reason given for his termination ‐ serious safety violation, failing to
lockout/tagout ‐ is false based on evidence that the machine at issue may not
have had the capacity on the control panel to lockout/tagout. There are also fact
questions as to whether Plaintiff stepped over the guard rail, and whether
Plaintiff accessed the machine at an appropriate place.
In addition, there are fact questions as to whether Plaintiff turned the
machine off prior to adjusting the pin, and questions as to how the machine was
17
turned back on ‐ if it was indeed turned off. These facts questions, together with
facts that Plaintiff has an otherwise exemplary work history at EHP and was
terminated without being given the opportunity to present his position, could
allow a reasonable jury to find that Plaintiff did not violate a safety rule and that
the real reason Plaintiff was terminated was retaliation for protesting the 2011
Ramadan break schedule.
Even if Plaintiff did violate a safety rule, Plaintiff has presented evidence
that other employees who violated the lockout/tagout rule were not immediately
terminated, further calling into question the veracity of EHP’s reason for
terminating Plaintiff. (Plaintiff Ex. 212, AAA.) Plaintiff has also presented
evidence that other employees were not terminated for jumping or crossing over
guard rails. (Plaintiff Ex. 213.) Plaintiff has also presented evidence that EHP did
not terminate employees for more serious rules violations, such as crashing a
forklift, engaging in horseplay and throwing parts. (Plaintiff Ex. 214.)
Finally, Plaintiff has presented evidence that EHP employees may have
backdated four statements concerning the 2011 complaints about the change to
the Ramadan break schedule. Plaintiff claims that these statements were
prepared and signed in December 2011, but made to appear as if they were
18
signed on August 5, 2011. (Plaintiff Ex. 201H.)
B.
Count II ‐ Discrimination Based on Religion and National Origin
Discrimination claims under both Title VII and the MHRA can be proven
through direct evidence or indirect evidence. If Plaintiff can provide “direct
evidence of conduct or statements by persons involved in the decision‐making
process, which indicate a discriminatory attitude was more likely than not a
motivating factor in the employerʹs decision” it is the employer’s burden to show
that it more likely than not would have made the same decision without
consideration of an illegitimate factor. Kratzer v. Rockwell Collins, Inc., 398 F.3d
1040, 1045‐46 (8th Cir. 2005).
“To prove intentional discrimination through direct proof, a plaintiff must
establish ‘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 employerʹs decision.’”
Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012).
To prove a discrimination claim through indirect evidence, a plaintiff must
prove a prima facie case. “To establish a prima facie case for [] discrimination, a
plaintiff “must show (1) he is a member of a protected class, (2) he met his
19
employerʹs legitimate expectations, (3) he suffered an adverse employment
action, and (4) the circumstances give rise to an inference of discrimination (for
example, similarly situated employees outside the protected class were treated
differently).” Gibson, 670 F.3d at 854 (quoting Lake v. Yellow Transp. Inc., 596
F.3d 871, 874 (8th Cir. 2010)). Once this showing is made, the burden shifts to the
employer to provide a legitimate, non‐discriminatory reason for the adverse
employment action. Id. Once the employer makes this showing, the burden
shifts back to Plaintiff to show the employer’s proffered reason is pretextual. “A
plaintiff may show pretext, among other ways, 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.” Id.
(citations omitted).
1.
Failure to Accommodate Religious Beliefs
For the reasons set forth above with respect to Plaintiff’s retaliation claim,
the Court finds that summary judgment is not appropriate with respect to
Plaintiff’s claim of discrimination based on failure to accommodate religious
beliefs. There are fact questions as to whether EHP followed its disciplinary
process when it terminated Plaintiff without providing him an opportunity to
20
respond to the claim that he violated safety rules. There are also fact questions
that would allow a jury to reasonably infer discrimination on the basis of
religion, such as Plaintiff’s testimony that his supervisors had warned him that
EHP was not happy with his involvement in the protests concerning break
schedules, and that Plaintiff was threatened when he failed to provide signatures
of Muslim employees approving a change in the break schedule. Further, there is
evidence that other non‐Muslim employees may have similarly violated safety
rules, and were not terminated as a result.
2.
Discrimination Based on National Origin
Plaintiff claims that he was also discriminated against on the basis of
national origin. There is no dispute that Plaintiff has demonstrated the first three
elements of a prima facie case of disparate treatment based on national origin: he
is Somali, he was qualified for his position; and he was terminated. The parties
dispute whether Plaintiff has put forth sufficient evidence which supports an
inference that he was terminated because of his national origin.
In support of this claim, Plaintiff has presented evidence that a sign was
hung in the area where Plaintiff worked stating, inter alia, that Somali people
should go home. Plaintiff asked his supervisors, Brenda Hazelton and Kerry
21
Erickson to remove the sign, but they initially refused to do so, claiming that it
represented freedom of speech.
This evidence, together with the fact questions as to the veracity of the
reason given for Plaintiff’s termination, is sufficient to withstand summary
judgment on the discrimination claim based on national origin. It is for a jury to
decide whether such a sign could hang in a workplace for two days and that
management would not be aware of the sign, and to decide the true reason why
such a sign would not be immediately taken down and whether such reason
played a part in the decision to terminate Plaintiff’s employment.
C.
Count IV ‐ Worker’s Compensation Retaliation
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). If the plaintiff establishes the prima facie case,
22
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 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. Nw. Airlines, Inc., 561 N.W.2d 530, 539 (Minn. Ct. App.1997) (citation
omitted).
It is undisputed that Plaintiff sought, and received, worker’s compensation
benefits and was later terminated for committing a serious safety violation. EHP
argues that this claim fails because Plaintiff cannot show that his worker’s
compensation status was a motivating factor in EHP’s decision to terminate
Plaintiff. EHP again argues that the safety rules are clearly defined as offenses
subject to immediate termination, and EHP routinely terminates employees for
such violations. EHP also asserts that Plaintiff has received $18,888.63 in
worker’s compensation payments and $26,201.76 in paid medical expenses.
Plaintiff claims that he was terminated immediately after returning from
worker’s compensation leave. Plaintiff claims that the reasons for his termination
are pretextual, because he did not violate any safety rules and because EHP has
not uniformly terminated employees for safety violations.
23
The Court finds that summary judgment is not appropriate with respect to
this claim as Plaintiff has demonstrated that factual disputes exist as to whether
the real reason he was terminated was because of his worker’s compensation
claim. As set forth above, there are sufficient fact questions as to whether the real
reason he was terminated was because he violated the company safety rules.
That evidence, together with the fact that he was terminated immediately upon
his return to work, raises sufficient fact questions as to whether the real reason he
was terminated was, more likely than not, because of his worker’s compensation
claim.
Accordingly,
IT IS HEREBY ORDERED that:
1.
Plaintiff’s Motion to Supplement the Record [Doc. No. 70] is
GRANTED with respect to Plaintiff Ex. AAA. The remainder of the
motion is DENIED;
2.
Defendant’s Motion for Summary Judgment as to Counts 1, 2 and 4
[Doc. No. 48] is DENIED; and
24
3.
Counts 3, 5, 6 and 7 are DISMISSED.
Date: June 30, 2014
s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court
Civil No. 12‐2826 (MJD/LIB)
25
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