DiStefano v. Essentia Health

Filing 70

ORDER - The motion for summary judgment of defendant Essentia Health 45 is GRANTED. The complaint 1 is DISMISSED WITH PREJUDICE AND ON THE MERITS.LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Judge Patrick J. Schiltz on 07/08/14. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
REBECCA DISTEFANO,

Case No. 12-CV-2868 (PJS/LIB)

Plaintiff,
v.

ORDER

ESSENTIA HEALTH, f/k/a
St. Mary’s/Duluth Clinic Health System,
Defendant.

Barbara Jean Felt, Clayton D. Halunen, and Shaun M. Parks, HALUNEN &
ASSOCIATES, for plaintiff.
Eric S. Johnson and Joseph J. Mihalek, FRYBERGER, BUCHANAN, SMITH &
FREDERICK, P.A., for defendant.
Plaintiff Rebecca DiStefano arrived several hours late for work on June 24, 2011. She
had not told her employer, defendant Essentia Health (“Essentia”), that she would be arriving
late. Essentia fired DiStefano four days later. Essentia claims that it fired DiStefano because she
violated the company’s “no show–no call” policy on June 24. DiStefano claims that Essentia
fired her for a different, impermissible reason — either because she was disabled; or because she
engaged in activities protected under the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101 et seq.; or because she exercised her rights under the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et seq.; or because she filed a claim for benefits under the
Minnesota Workers’ Compensation Act (“WCA”), Minn. Stat. § 176.001 et seq. Because a
reasonable jury could not find in favor of DiStefano on any of these claims, Essentia’s motion for
summary judgment is granted, and DiStefano’s complaint is dismissed.

I. FACTS
Essentia — then known as St. Mary’s/Duluth Clinic Health System — hired DiStefano as
a surgical nurse in 1999. See DiStefano Dep. 11 [ECF No. 55]. While employed in that
capacity, DiStefano incurred a series of work-related injuries. First, in June 2002, DiStefano
injured her right knee and took approximately four months of medical leave following that
injury. See Envall Decl. Ex. F at 1-2 [ECF No. 61-1 at 43-57]. Second, in December 2003,
DiStefano injured her neck and back and took another two months of medical leave. Id. at 1, 2;
DiStefano Dep. 79. Third, in July 2004, DiStefano again injured her neck and back. See Envall
Decl. Ex. F at 1, 2. DiStefano took approximately two years of intermittent medical leave after
that third injury. See DiStefano Dep. 79-80. Following the December 2003 and July 2004
injuries, DiStefano received worker’s-compensation benefits, “including wage loss benefits,
reasonable medical expenses, [and] 10% permanent partial disability . . . .” Envall Decl. Ex. F.
at 2.
The cumulative effect of these injuries left DiStefano unable to continue working as a
surgical nurse. See DiStefano Dep. 11. Essentia accommodated DiStefano by giving her a
position as a data analyst in June 2006. Id. at 30. Six months later, Essentia transferred
DiStefano again, this time to its neurology department, where DiStefano began work as a nurse
clinician. Id. at 30-31; Cressman Dep. 22-23 [ECF No. 49]. She continued working in this
capacity until she was fired. See DiStefano Dep. 31.
In January 2011, DiStefano underwent replacement knee surgery to repair damage caused
by the June 2002 workplace accident. See DiStefano Dep. Ex. 14 [ECF No. 56-1 at 36-40]. She
requested — and Essentia granted — medical leave for the time necessary for her to recover from
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that surgery, which her doctor estimated would take six to eight weeks. Id. at 3. Her recovery
went more slowly than anticipated, however, and DiStefano did not return to work until April 12,
2011 (approximately eleven weeks after her surgery). See DiStefano Dep. Ex. 17 [ECF No. 56-2
at 2]; DiStefano Dep. Ex. 18 [ECF No. 56-2 at 3]. DiStefano submitted a “request for
certification of dispute” to the Minnesota Department of Labor and Industry on May 13, 2011,
initiating the process for claiming worker’s-compensation benefits for the “medical expenses
stemming from her recent treatment, including surgery, to her right knee.” Envall Decl. Ex. A
at 2 [ECF No. 61-1 at 1-2]. Essentia’s counsel also received a copy of this request on or about
that same date. Id. at 1; ECF No. 59 at 19.
Shortly after her return following the knee surgery, DiStefano requested yet another
period of medical leave, this time on account of neck and left arm pain. See DiStefano Dep. 17677; DiStefano Dep. Exs. 19-22 [ECF No. 56-2 at 4-7]. Essentia granted this request, and
DiStefano took another three weeks of medical leave beginning May 18, 2011. See DiStefano
Dep. Ex. 22; DiStefano Dep. 181. DiStefano later filed a worker’s-compensation claim petition
for wages lost during this three-week absence. See DiStefano Dep. Ex. 34 [ECF No. 57 at 14].
Essentia received notice of this petition on June 16, 2011. Id.; ECF No. 59 at 20.
When DiStefano returned to work on June 7, 2011, she was told by her supervisor Gwen
Cressman that she had exhausted both her paid time off and her unpaid medical leave. See
Cressman Dep. Ex. 72 [ECF No. 49-1 at 81-87]. Cressman further explained that, should
DiStefano need to take additional leave, Essentia would have to replace her. Id. DiStefano told
Cressman that she understood that she had run out of vacation and medical-leave time. Id.;
DiStefano Dep. 73-74.
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On Thursday, June 23, 2011, Cressman asked DiStefano to come in to work the following
day at either 8:00 a.m. or 8:30 a.m. to cover for other nurses who ordinarily worked during that
time. See Cressman Dep. Ex. 74 [ECF No. 49-1 at 93]. DiStefano responded that she
appreciated “the opportunity to make up some time and money” and assured Cressman that she
would come in at 8:30 a.m. Id. But DiStefano did not make it to work by 8:30 a.m. on June 24.
She had been in pain the night before and took medication to help her fall asleep. See DiStefano
Dep. 109. She awoke at about 7:00 a.m. the morning of June 24, id. at 116, and “went
downstairs and had some coffee,” id. at 110 — but then, rather than get ready for work,
DiStefano went back to bed. DiStefano did not call Cressman or anyone else at Essentia to let
them know that she would be unable to arrive at work by 8:30 a.m.
DiStefano did not awake again until after 12:00 noon, several hours after she was
supposed to start work at 8:30 a.m. Id. at 111-12. DiStefano called Cressman at about
12:30 p.m. to explain what had happened, see Cressman Dep. 170, and she arrived at work at
2:05 p.m., see DiStefano Dep. Ex. 28 at 1 [ECF No. 56-2 at 15-16]. DiStefano apologized to
Cressman and asked whether she would be fired for the infraction. See DiStefano Dep. 112-13.
Cressman told DiStefano that she would let the human-relations department handle the situation.
Id. Again, this occurred on Friday, June 24.
The next work day — Monday, June 27 — DiStefano saw her doctor while awaiting a
decision from Essentia about whether she would be fired. See DiStefano Dep. Ex 26 [ECF
No. 56-2 at 13]. Her doctor declared that DiStefano was “unable to work at this time” and
suggested that she be reevaluated in about three weeks. Id. DiStefano delivered a copy of this
certification to Cressman that same day. See DiStefano Dep. 140. She also cleaned out her
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office, because she “could read the writing on the wall” and “knew what was coming down the
pike.” Id. at 141.
The next day — Tuesday, June 28 — Cressman forwarded the certification from
DiStefano’s doctor to Jennie Sage, who worked in Essentia’s human-resources department. See
Cressman Dep. Ex. 79 [ECF No. 49-1 at 102-03]. Sage noted that DiStefano had only 3.11 hours
of FMLA leave time remaining and that “her position is no longer protected.” Id. at 1.
DiStefano had been scheduled to work on June 28, so Essentia applied this remaining leave time
to her absence that day. Id. Later that day, Essentia mailed DiStefano a letter informing her that
it was terminating her “employment effective June 28, 2011 for failure to report or call in for
work as scheduled on June 24, 2011.” DiStefano Dep. Ex. 27 [ECF No. 56-2 at 17].
DiStefano applied for Social Security disability (“SSDI”) benefits after her termination.
See DiStefano Dep Ex. 39 [ECF No. 57-1 at 1-9]. In her application, DiStefano stated that both
physical problems (back, neck, and leg pain) and psychological problems (anxiety, depression,
and post-traumatic stress disorder) caused her to be unable to work. Id. at 3. The Social Security
Administration (“SSA”) found that she was disabled as of June 28, 2011 — the date she had
been fired by Essentia — and had become entitled to SSDI benefits in December 2011. See
DiStefano Dep Ex. 36 [ECF No. 57 at 32]. Accordingly, the SSA awarded DiStefano $18,934 in
SSDI benefits for the period from December 2011 through December 2012, as well as monthly
benefits of $1,480 beginning January 2013. Id.
Shortly before being awarded SSDI benefits, DiStefano filed this lawsuit against Essentia.
In her complaint, DiStefano alleges that Essentia (1) terminated her because she was disabled; (2)
terminated her in retaliation for presenting the June 27 letter from her doctor stating that she
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would need additional medical leave time; (3) terminated her in retaliation for exhausting her
FMLA leave; and (4) terminated her in retaliation for filing worker’s-compensation claims. See
Compl. ¶¶ 46-72 [ECF No. 1]. Essentia now moves for summary judgment on each of those
claims.
II. ANALYSIS
A. Standard of Review
Summary judgment is warranted “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A dispute over a fact is “material” only if its resolution might affect the outcome
of the lawsuit under the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute over a fact is “genuine” only if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. “The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in [her] favor.” Id. at 255.
B. Disability Discrimination
The parties agree that DiStefano’s disability-discrimination claim should be analyzed
under the three-step framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04 (1973). See Olsen v. Capital Region Med. Ctr., 713 F.3d 1149, 1152 (8th Cir. 2013)
(applying McDonnell Douglas framework to disability-discrimination claim). Under that
framework, a plaintiff must first establish a prima facie case of discrimination. Specifically, a
plaintiff must show “1) an ADA-qualifying disability; 2) qualifications to perform the essential
functions of her position with or without reasonable accommodation; and 3) an adverse
employment action due to her disability.” Id. (quotation omitted). Once the plaintiff establishes
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a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory
reason for the adverse action. Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 788 (8th Cir.
2004). If the employer meets this burden, then the burden shifts back to the plaintiff to show that
the proffered reason for the adverse employment action was a pretext for discrimination. Id.
“A plaintiff may show pretext, among other ways, by showing that an employer . . . treated
similarly-situated employees in a disparate manner . . . .” Lake v. Yellow Transp., Inc., 596
F.3d 871, 874 (8th Cir. 2010).
The parties agree, for purposes of Essentia’s summary-judgment motion, that DiStefano
is disabled. See ECF No. 47 at 2 n.2. Essentia disputes, however, that DiStefano was qualified
to perform the essential functions of her position with or without reasonable accommodation. At
first blush, this might appear a frivolous argument. After all, DiStefano had been employed by
Essentia as a nurse clinician for over four years prior to her termination, and thus she
undoubtedly had the education and experience to continue performing her job. Moreover, on the
Thursday before DiStefano was fired, Essentia asked DiStefano to work additional hours over
the coming weeks, and DiStefano gladly accepted this offer. See Cressman Dep. Ex. 74. And, of
course, DiStefano actually worked on the Friday before she was fired.
The problem for DiStefano is that she has twice asserted that as of June 28, 2011 — the
day she was fired — she was not able to work as a nurse clinician. First, just prior to her
termination, she provided Essentia with a certification from her doctor that she was unable to
work until at least July 14, 2011. See DiStefano Dep. Ex. 26. Second, and more importantly,
DiStefano later applied for SSDI benefits, and in her application she identified June 28, 2011 as
the date on which her conditions “became severe enough to keep [her] from working.” See
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DiStefano Dep. Ex. 39 at 3. The SSA agreed that DiStefano was disabled as of that date. See
DiStefano Dep. Ex. 36. “[A] plaintiff’s sworn assertion in an application for disability benefits
that she is, for example, ‘unable to work’ will appear to negate an essential element of her ADA
case — at least if she does not offer a sufficient explanation.” Cleveland v. Policy Mgmt. Sys.
Corp., 526 U.S. 795, 806 (1999).
One potential “sufficient explanation” is that “when the SSA determines whether an
individual is disabled for SSDI purposes, it does not take the possibility of ‘reasonable
accommodation’ into account, nor need an applicant refer to the possibility of reasonable
accommodation when she applies for SSDI.” Id. at 803 (emphasis omitted). Accordingly, a
claimant might be qualified to perform the essential functions of her job (as long as she receives
a reasonable accommodation from her employer), and yet be disabled for purposes of receiving
SSDI benefits (because the SSA does not take any such reasonable accommodation into account
in determining whether the claimant is disabled).
DiStefano argues just this. She contends that she could have continued working as a
nurse clinician if only she had received a reasonable accommodation from Essentia. Therefore,
DiStefano contends, the fact that she told the SSA that she was unable to work — and the fact
that the SSA found that she was unable to work — do not undermine her present claim that she
was able to perform the essential functions of her job.1
1

DiStefano also claims that Essentia discriminated against her by failing to provide these
accommodations. As explained at the hearing on Essentia’s summary-judgment motion,
however, the accommodations sought by DiStefano have absolutely nothing to do with her
termination. In the typical failure-to-accommodate case, the plaintiff claims that she was fired
for being unable to perform her job, but that she would have been able to perform her job if her
employer had accommodated her. Here, though, Essentia asserts that it fired DiStefano not for
(continued...)
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DiStefano’s argument is meritless, however, as the “accommodations” that DiStefano
asserts Essentia should have given her are largely irrelevant to whether she could have performed
the essential functions of her job on and after June 28, 2011. For example, DiStefano argues that
Essentia should have accommodated her by allowing her to show up several hours late on
June 24 without calling in to notify anyone. But DiStefano does not explain how Essentia
granting such an “accommodation” would have had any effect on her ability to perform the
essential functions of her job on and after June 28.
Similarly, DiStefano claims that Essentia should have accommodated her by allowing her
to take additional medical leave on June 28 beyond the 3.11 hours which she had remaining
under the FMLA. But this argument — that Essentia should have “accommodated” her by
allowing her not to do her job — is an implicit admission that DiStefano was unable to perform
the essential functions of her job (with or without other reasonable accommodation) on and after
June 28. See DiStefano Dep. Ex. 26 at 1 (“This is to certify that [DiStefano] . . . is unable to
work at this time.”). Nor can DiStefano argue that Essentia’s failure to provide this additional
medical leave somehow caused or aggravated her disability, as the effect of her termination, like

1

(...continued)
being unable to do her job, but for being late without calling in to notify anyone. No
“accommodation” from Essentia would have kept DiStefano from violating this policy. Indeed,
it is clear that DiStefano was able to abide by the policy without any “accommodation” from
Essentia. DiStefano’s partner woke her up about 90 minutes prior to her start time, and
DiStefano went downstairs and had a cup of coffee before deciding to return to bed. See
DiStefano Dep. 110, 116. Even assuming that DiStefano did not feel well enough to go to work,
DiStefano has not suggested any reason why, while she was enjoying her morning cup of coffee,
she could not have picked up the phone and called Essentia.
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the effect of giving her yet more leave, was the same: She did not work during the weeks after
she was terminated.2
In short, DiStefano does not have a “sufficient explanation” for telling the SSA that she
was unable to work beginning on June 28 and for telling this Court that she was able to perform
the essential functions of her job on and after June 28. Cleveland, 526 U.S. at 806. (According
to DiStefano’s attorney, DiStefano has continued to receive SSDI benefits while pursuing this
litigation.) And because DiStefano cannot show that she was qualified to perform the essential
functions of her job with or without accommodation, she cannot establish a prima facie case of
disability discrimination.
That disposes of DiStefano’s disability-discrimination claim. The Court notes, however,
that even if DiStefano could establish her prima facie case, Essentia would nevertheless be
entitled to summary judgment. Essentia has articulated a legitimate, nondiscriminatory reason
for terminating DiStefano — her failure to comply with Essentia’s “no show–no call” policy on
June 24, 2011 — and DiStefano cannot show that Essentia’s proffered reason is pretextual.
DiStefano argues that employees similarly situated to her have committed similar
infractions in the past but have not been terminated by Essentia. Therefore, says DiStefano, a

2

DiStefano also suggests that her termination caused her not to be qualified to perform
the essential functions of her job by aggravating her anxiety, depression, and other aspects of her
disability. Nothing in the record supports such a conclusion. To the extent that DiStefano’s
condition worsened between when she was terminated and when she was granted SSDI benefits,
it was her physical condition that deteriorated — both because her knee and back injuries
continued worsening, and because new medication that she began taking on account of her
increasing physical pain interfered with her balance and ability to retain information. See
DiStefano Dep. Ex. 44 at 2 [ECF No. 57-1 at 36-49].
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jury could conclude that something other than her violation of the “no show–no call” policy
motivated Essentia’s decision to terminate her.
But DiStefano mostly compares apples with oranges. For example, she points out that
several Essentia employees have taken dozens of unscheduled paid time off (“PTO”) days and
absences between 2006 and 2011 without Essentia taking any adverse action against them. See
Felt Aff. Ex. 124 [ECF No. 60-6 at 20-22]. But DiStefano was not fired for taking an
unscheduled PTO day. (PTO includes excused absences for unplanned events such as sick days
or other emergencies for which the employee nevertheless notifies Essentia.) See Hosey Aff. ¶ 6
[ECF No. 66]. Nor was DiStefano fired merely for being absent. Instead, DiStefano was fired
for being several hours late and not notifying anyone that she would be late. To show pretext
based on disparate treatment, DiStefano must provide evidence that a similarly situated employee
also violated the “no show–no call” policy but was not terminated.
DiStefano does attempt to make an apples-to-apples comparison with two individuals
whom she claims have violated the “no show–no call” policy but were not terminated by
Essentia: Lisa Katzmarek and Melissa Rosin. DiStefano’s evidence is lacking, however. With
respect to Katzmarek, DiStefano’s only evidence of a violation of the “no show–no call” policy is
an alleged statement from Katzmarek to DiStefano on the day that DiStefano was terminated that
Katzmarek had once violated the “no show–no call” policy and yet was only suspended. See
DiStefano Dep. 236-37. Katzmarek denies that she ever said this to DiStefano, and she denies
that she ever violated the “no show–no call” policy. See Katzmarek Dep. 16 [ECF No. 52]. As a
result, DiStefano’s only evidence that Katzmarek violated the policy is Katzmarek’s out-of-court
statement, which is inadmissable hearsay when offered for its truth. See Fed. R. Evid. 802.
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Thus, DiStefano “cannot produce admissible evidence to support” her argument that Katzmarek
is a proper comparator. Fed. R. Civ. P. 56(c)(1)(B).
With respect to Rosin, DiStefano testified that she had witnessed Rosin come in late at
least three or four times. See DiStefano Dep. 237-38. She assumes that Rosin must have
violated the “no show–no call” policy because Cressman and other coworkers inquired into
Rosin’s whereabouts on those occasions. Id. As the non-movant, DiStefano is entitled to “all
justifiable inferences . . . in [her] favor.” Liberty Lobby, 477 U.S. at 255. But DiStefano’s
inference that Rosin violated the “no show–no call” policy is not “justifiable.” To begin,
DiStefano’s account is sketchy; she could not recall, even approximately, any date on which any
of these putative tardy arrivals occurred, for example. DiStefano Dep. 238. It is difficult to
determine whether Rosin is truly a comparator without knowing even the most basic information
about her alleged late arrivals. Moreover, DiStefano never asked Rosin or anyone else why
Rosin had been late or whether she had received permission to be late. Id. Finally, there are
myriad reasons other than a violation of the “no show–no call” policy why DiStefano’s
coworkers might have been unaware of Rosin’s whereabouts. Rosin testified, for instance, that
on some occasions when she arrived at work late, she had tried and failed to reach a supervisor,
so she “left a phone message for the supervisor as we were instructed to do.” Rosin Aff. ¶ 3
[ECF No. 68].
DiStefano’s evidence as to pretext is thus made up entirely of speculation based on scant
and dimly remembered facts. By contrast, Rosin denies under oath and in no uncertain terms that
she ever violated the “no show–no call” policy. “On every occasion when I was unable to report

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to work prior to my start time,” attests Rosin, “I called before my start time and notified my
supervisor that I would be late or absent for the day.” Id.
The Court concludes that a reasonable jury could not find, based on the evidence in the
record, that Essentia treated a similarly situated employee different from DiStefano. Because
DiStefano’s only argument as to pretext is that similarly situated employees were treated
different, a reasonable jury could not find that Essentia’s proffered reason for terminating her was
pretextual.
For these reasons, Essentia is entitled to summary judgment on DiStefano’s disabilitydiscrimination claim.
C. Retaliation
DiStefano also claims that Essentia fired her in retaliation for her engaging in protected
conduct. DiStefano is not certain what protected conduct, however. She offers several
possibilities: First, she asserts that Essentia fired her for requesting the “accommodation” of
indefinite additional medical leave on June 27, 2011, and thereby retaliated against her in
violation of the ADA. Second, she asserts that Essentia fired her for exhausting her FMLA leave
on June 28, 2011, and thereby retaliated against her in violation of the FMLA. Third, she asserts
that Essentia fired her for seeking worker’s-compensation benefits in early June 2011, and
thereby retaliated against her in violation of the WCA.
As with her discrimination claim, DiStefano’s retaliation claims are analyzed under the
McDonnell Douglas burden-shifting framework. To establish a prima facie case of retaliation, “a
plaintiff must show that (1) she engaged in a statutorily protected activity, (2) the employer took
an adverse action against her, and (3) there was a causal connection between the adverse action
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and the protected activity.” Hill v. Walker, 737 F.3d 1209, 1218 (8th Cir. 2013) (applying
McDonnell Douglas framework to ADA retaliation claim); accord McBurney v. Stew Hansen’s
Dodge City, Inc., 398 F.3d 998, 1002 (8th Cir. 2005) (applying McDonnell Douglas framework
to FMLA retaliation claim); Kaufenberg v. Schwan’s Home Serv., Inc., No. A08-0214, 2009
WL 234014, at *2 (Minn. Ct. App. Feb. 3, 2009) (applying McDonnell Douglas framework to
WCA retaliation claim). If DiStefano establishes a prima facie case, then the burden shifts to
Essentia to proffer a non-retaliatory reason for the adverse action. See Muor v. U.S. Bank Nat’l
Ass’n, 716 F.3d 1072, 1076 (8th Cir. 2013). The burden then shifts back to DiStefano to produce
evidence sufficient to show that Essentia’s proffered reason for the adverse action is pretext for
retaliation. Id.
1. ADA Retaliation
The first of DiStefano’s three theories about why Essentia fired her is that Essentia
retaliated against her for requesting additional medical leave on June 27, 2011. DiStefano’s only
evidence of retaliation is the temporal proximity between her request and her termination. She
points out that she was fired one day after presenting Cressman with the certification from her
doctor notifying Essentia that she was unable to work and thus needed additional time off.
“Generally, more than a temporal connection between the protected conduct and the
adverse employment action is required to present a genuine issue of fact on retaliation.” Sisk v.
Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012) (quotation omitted). “[O]nly in cases
where the [temporal] proximity is very close” may a plaintiff rest on temporal proximity alone.
Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 986 (8th Cir. 2011). The Eighth Circuit has
never explained exactly when temporal proximity is “very close,” id., but the Eighth Circuit has
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said that a two-week gap between protected activity and an adverse action “is sufficient, but
barely so, to establish causation,” Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir.
2002).
Critically for this case, however, the Eighth Circuit has cautioned that a plaintiff’s claim
of retaliation, when “built on temporal proximity, is undermined where the allegedly retaliatory
motive coincides temporally with the non-retaliatory motive.” Wierman v. Casey’s Gen. Stores,
638 F.3d 984, 1001 (8th Cir. 2011). “Moreover, evidence that the employer had been concerned
about a problem before the employee engaged in the protected activity undercuts the significance
of the temporal proximity.” Id.
Both of those factors are present here. DiStefano’s termination was temporally proximate
not only to her request for additional medical leave, but also to her violation of the
“no show–no call” policy. DiStefano requested additional leave just one work day after violating
the “no show–no call” policy; indeed, she requested additional leave while she was waiting to
hear if she would be fired for violating the “no show–no call” policy. See Hill, 737 F.3d at 1219
(“Especially where the employer’s proffered reason for action is virtually contemporaneous with
the protected activity, we are disinclined to declare a genuine issue of fact for trial based on
temporal proximity alone.”). Further, DiStefano was well aware at the time that she made her
request for additional medical leave that she might be fired for violating the “no show–no call”
policy. DiStefano understood that she had committed a serious offense, and she had asked
Cressman on June 24 (after arriving at work several hours late) whether she would be fired for
that offense. See DiStefano Dep. 114. DiStefano even cleaned out her office the day before she

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was terminated because she “could read the writing on the wall.”3 Id. at 141. Given that
DiStefano knew prior to making her request for additional medical leave that she might be fired
for violating the “no show–no call” policy, a reasonable jury could not conclude that Essentia’s
proffered reason for terminating DiStefano was merely pretext for retaliating against her for
requesting medical leave.
2. FMLA Retaliation
The second of DiStefano’s three theories about why Essentia fired her is that Essentia
retaliated against her for exhausting her FMLA leave.4 Again, the only evidence cited by
DiStefano in support of her claim is temporal proximity — i.e., the fact that Essentia terminated
her on the day that she exhausted her FMLA leave. See Cressman Dep. Ex. 79. This extremely
close temporal proximity between the exhaustion of her FMLA leave and her termination, says

3

DiStefano’s attorney casts her testimony in a different light. She claims that DiStefano
cleaned out her office because she knew that her position would not be protected while she was
on medical leave and therefore that she would be moved to a different position when she returned
from that leave. See ECF No. 59 at 15-16. But this badly misconstrues DiStefano’s testimony.
When asked why she cleaned out her office, DiStefano said nothing about anticipating being
given medical leave and then a different job after returning from leave. Instead, DiStefano
answered that she cleaned out her desk because Cressman “said she was letting HR handle it”
and that “we would talk about it later . . . .” DiStefano Dep. 141. Read in context, these
statements clearly refer to her violation of the “no show–no call” policy, not to her request for
medical leave.
4

Technically, the term “retaliation” with respect to the FMLA is reserved by the Eighth
Circuit for situations in which an employee suffers an adverse employment action after opposing
“any practice made unlawful under the FMLA — for example, if an employee complains about
an employer’s refusal to comply with the statutory mandate to permit FMLA leave . . . .”
Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1006 (8th Cir. 2012). The claim
brought by DiStefano is one of FMLA discrimination, not retaliation. See id. Because both
parties refer to DiStefano’s claim as an FMLA retaliation claim, however, the Court follows suit.
The analysis is substantially the same whether DiStefano’s claim is characterized as one for
retaliation or as one for discrimination.
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DiStefano, shows that Essentia’s proffered reason for her termination (her violation of Essentia’s
“no show–no call” policy) was merely pretext.
Once again, the Court finds that, because of the surrounding circumstances, a reasonable
jury could not find pretext based solely on the temporal proximity between DiStefano’s
exhaustion of FMLA leave and her termination. DiStefano had taken medical leave on numerous
occasions — often for several months at a time — without a hint of retaliation from Essentia.
See DiStefano Dep. 79-80 (identifying eleven leaves of absence between July 16, 2002 and
June 7, 2011). Moreover, DiStefano had essentially exhausted her medical leave by June 7,
2011, at which point she had only about three hours of medical leave remaining. And yet, again,
there was no retaliation from Essentia.5 See id.; Cressman Dep. Ex. 72. It simply beggars belief
that Essentia would permit DiStefano to take numerous medical leaves (totaling many months
away from work) during her decade of employment — including two leaves of absence totaling
approximately fourteen weeks between January and early June 2011, see DiStefano Dep.
Exs. 14-22 — and then fire her for exhausting the remaining three hours of medical leave
available to her on June 28, 2011, see Cressman Dep. Ex. 79.
DiStefano’s FMLA retaliation claim is also undercut by the more immediate
circumstances of her termination. Again, DiStefano herself understood four days before she
exhausted her medical leave that she might be terminated for violating Essentia’s “no show–no
call” policy, and she went so far as to clean out her office on the day before she exhausted that
leave in anticipation of being terminated.

5

DiStefano does not argue that Essentia retaliated against her because of any of her prior
leaves of absence.
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In short, when viewed in light of all of the evidence in the record, the fact that DiStefano
was fired on the day that she exhausted her remaining three hours of FMLA leave is insufficient
to permit a reasonable jury to find that Essentia’s proffered reason for terminating DiStefano is
pretextual.6 Essentia is therefore entitled to summary judgment on DiStefano’s FMLA retaliation
claim.
3. WCA Retaliation
The third of DiStefano’s three theories about why Essentia fired her is that Essentia
retaliated against her for seeking worker’s-compensation benefits.7 Minnesota law forbids
employers from “discharging or threatening to discharge an employee for seeking workers’

6

DiStefano also points to Sage’s email to Cressman explaining that DiStefano’s position
would no longer be protected after DiStefano exhausted her remaining 3.11 hours of FMLA
leave. See Cressman Dep. Ex. 79. But it is difficult to see how this email supports DiStefano.
This email shows that Essentia correctly understood that DiStefano’s position was protected
while she was on FMLA leave, and that her position would no longer be protected after she
exhausted her FMLA leave. Sage’s email proves merely that Essentia was being careful to
comply with its obligations under the FMLA.
7

DiStefano settled her 2011 worker’s-compensation claims with Essentia in
November 2012. See Envall Decl. Ex. F. The parties agreed that, in return for $50,000,
DiStefano would “fully, finally, and completely settle . . . any and all claims . . . under the
Minnesota workers’ compensation statute, with the sole exception of future reasonable, necessary
and causally related medical expenses relative to” her injuries suffered in June 2002,
December 2003, and July 2004. Id. at 8 (emphases omitted). DiStefano, citing Karnes v. Quality
Pork Processors, notes that the Minnesota Supreme Court has held that “[a] section 176.82
retaliatory discharge action is . . . a common law cause of action outside the purview of the
Workers’ Compensation Act . . . .” 532 N.W.2d 560, 563 (Minn. 1995). Because her claim is
“outside the purview” of the WCA, says DiStefano, she did not waive that claim when she
agreed to settle “any and all claims” under the WCA. Envall Decl. Ex. F. at 8.
Karnes is a mystifying case. It is difficult to understand how a claim brought under a
specific section of the WCA can be deemed to be a “common law” claim outside of the WCA.
But because DiStefano’s WCA retaliation claim fails on the merits, the Court does not reach the
issue of whether she waived that claim in her settlement with Essentia.
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compensation benefits . . . .” Minn. Stat. § 176.82, subd. 1. In arguing that she was fired for
seeking worker’s-compensation benefits, DiStefano once again cites only temporal evidence —
here, the temporal proximity between the date when Essentia learned that DiStefano had filed her
final claim for worker’s-compensation benefits and the date when Essentia terminated DiStefano.
See DiStefano Dep. 102.
The temporal evidence that DiStefano cites in support of her WCA retaliation claim is
weaker than the temporal evidence that she cites in support of her other retaliation claims.
Essentia received notice of the first of the worker’s-compensation claims cited by DiStefano on
or about May 13, 2011, about six weeks prior to DiStefano’s termination. Essentia received
notice of the second of the worker’s-compensation claims cited by DiStefano — which related to
lost wages for three weeks of work — on or about June 16, 2011. See DiStefano Dep. Ex. 34;
ECF No. 59 at 20. Whereas only one day passed between DiStefano’s request for medical leave
and her termination, and only a few hours passed between DiStefano’s exhaustion of FMLA
leave and her termination, almost two weeks passed between Essentia’s receipt of notice of
DiStefano’s final worker’s-compensation claim and her termination.
Smith is instructive. In that case, the Eighth Circuit8 explained that, when viewed in
isolation, a two-week gap between the date an employee took leave and the date the employee
was fired was “sufficient, but barely so,” to establish the employee’s prima facie case of
8

DiStefano’s WCA retaliation claim is governed by Minnesota law, but Minnesota courts
apply the McDonnell Douglas framework in evaluating such claims. See Schmitz v. U.S. Steel
Corp., 831 N.W.2d 656, 664 (Minn. Ct. App. 2013). Moreover, Minnesota courts have freely
cited federal cases in interpreting the scope of § 176.82. See id. at 670; Brenden v. Westonka
Pub. Sch., Ind. Sch. Dist. 227, No. EM03-017571, 2005 WL 1936195, at *9 (Minn. Dist. Ct.
June 10, 2005). DiStefano likewise cites federal case law in support of her WCA retaliation
claim. See ECF No. 59 at 39.
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retaliation. See Smith, 302 F.3d at 833. But the Eighth Circuit further held that when the twoweek gap was viewed not in isolation but instead in conjunction with the other circumstances
surrounding the termination, the two-week gap was not sufficient to establish pretext. Id. at 834.
This case is similar. Viewed in isolation, the two-week gap between Essentia’s receipt of
notice of DiStefano’s final worker’s-compensation claim and DiStefano’s termination would be
(barely) sufficient for DiStefano to establish pretext. But that two-week gap is not sufficient to
establish pretext when viewed in conjunction with the other evidence in the record. Just as
DiStefano had taken numerous lengthy medical leaves without a hint of retaliation from Essentia,
so, too, had DiStefano filed several worker’s-compensation claims without a hint of retaliation
from Essentia. See Envall Decl. Ex. F at 2 (“[T]he Employee was paid various workers’
compensation benefits including wage loss benefits, reasonable medical expenses, [and] 10%
permanent partial disability . . . .”). Over a period of about a decade, DiStefano was frequently
gone on medical leave, and she frequently sought worker’s-compensation benefits. Again, it
simply beggars belief that Essentia would pay several large worker’s-compensation claims by
DiStefano without a word of complaint, but then fire her because she filed a small worker’scompensation claim requesting three weeks of wages totaling approximately $3,000. See Envall
Decl. Ex. C. [ECF No. 61-1 at 4-13]. DiStefano’s theory makes no sense, and a reasonable jury
would not accept it. Essentia’s motion for summary judgment on DiStefano’s WCA retaliation
claim is therefore granted.

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ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1.

The motion for summary judgment of defendant Essentia Health [ECF No. 45] is
GRANTED.

2.

The complaint [ECF No. 1] is DISMISSED WITH PREJUDICE AND ON THE
MERITS.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: July 8 , 2014

s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge

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