Eason v. Walgreen Co.

Filing 52

MEMORANDUM OPINION AND ORDER granting 37 Defendant's Motion for Summary Judgment (Written Opinion). Signed by Judge Ann D. Montgomery on 07/15/2015. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Aaron Eason,
Plaintiff,
MEMORANDUM OPINION
AND ORDER
Civil No. 13-3184 ADM/SER

v.
Walgreen Co.,

Defendant.
______________________________________________________________________________
Daniel G. Leland, Esq., Baillon, Thome, Jozwiak & Wanta LLP, Minneapolis, MN, on behalf of
Plaintiff.
Dominic J. Cecere, Esq., Stinson Leonard Street LLP, Minneapolis, MN, on behalf of Defendant.
______________________________________________________________________________
I. INTRODUCTION
On April 23, 2015, the undersigned United States District Judge heard oral argument on
Defendant Walgreen Co.’s (“Walgreens”) Motion for Summary Judgment [Docket No. 37].
Plaintiff Aaron Eason (“Eason”) asserts claims for violations of the Family Medical Leave Act
(“FMLA”), 29 U.S.C. §§ 2601-54, the Americans with Disabilitis Act (“ADA”), 42 U.S.C. §§
1201-1213, and the Minnesota Human Rights Act (“MHRA”), Minn. Stat. §§ 363A.01-.41. For
the reasons set forth below, Walgreens’ motion is granted.
II. BACKGROUND1
Eason began his employment with Walgreens in November 2010 as the
Inbound/Outbound Operations Manager at its Distribution Center in Rogers, Minnesota. Compl.

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In considering a motion to dismiss, the pleadings are construed in the light most
favorable to the nonmoving party, and the facts alleged in the complaint must be taken as true.
Hamm v. Groose, 15 F.3d 110, 112 (8th Cir. 1994).

[Docket No. 1-1] ¶ 8. Eason’s duties included overseeing the flow of goods to and from the
Distribution Center and supervising four employees. Conway Aff. [Docket No. 40] Ex. A
(“Eason Dep.”) 10:14–20. His hours overlapped with the Distribution Center’s first and second
shift operations so that he could supervise employees working on both shifts. Id. 13:3–10.
Eason’s position was created to provide support for his immediate supervisor, Ralph Walser
(“Walser”), the Manager of Operations at the Rogers facility. Id. 12:19–23. Walser reported to
Robert Varno (“Varno”), the Director of Operations for the distribution centers in Rogers and
Windsor, Wisconsin. Leland Decl. [Docket No. 46] Ex. 10 (“Walser Dep.”) 18:13–18.
A. Eason’s 2011 Employment
In 2011, Eason began having attendance issues, missing 20 days of work. Leland Decl.
Ex. 2. Walser understood that some of Eason’s absences were due to anxiety and stress
stemming from a marital separation and related financial concerns. Walser Dep. 56:3–15.
Walser met with Eason in February 2011 to discuss his attendance. Eason Dep. 84:23–85:1.
Walser, feeling that Eason’s issues were temporary, did not pursue any disciplinary action.
Despite the attendance issues, Eason earned high marks on his annual review which was
submitted on August 24, 2011. Leland Decl. Ex. 3; Eason Dep. 151:16–19.
B. Eason’s 2012 Employment
Eason’s attendance issues continued into 2012. In January alone, he had nine attendancerelated issues. See generally Eason Dep. Eason initiated a meeting with Walser on February 3,
2012 to discuss his attendance. Conway Aff. Ex. K. At this meeting, Eason disclosed that he
had long-term mental health issues relating to anxiety and depression. Id. Upon learning
Eason’s mental health problems were not situational, Walser encouraged Eason to apply for

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FMLA leave. Id.
Eason’s FMLA paperwork was submitted on February 28, 2012. Dr. Sarpal, Eason’s
physician, wrote that his condition would cause “episodic flare-ups periodically preventing
[Eason] from performing [his] job functions.” Second Leland Decl.[Docket No. 47] Ex. 7. On
May 9, 2012, Eason attempted to take his first FMLA absence.2 Walser Dep. 93:9–13. The
following day, Eason emailed several Walgreens employees (including those he supervised),
informing them of his FMLA leave and that he had a medical condition which necessitated
periodic absences without advanced warning. Leland Decl. Ex. 11. Eason forwarded the email
to Walser and Rebecca Santowski (“Santowski”), a Walgreens Human Resource Manager. At
this point, Eason’s supervisors determined that his future sick days would be unpaid. Id. Ex. 14.
The error with Eason’s FMLA paperwork was also corrected and he was approved for
intermittent leave from May 16 to November 16, 2012. Id. Ex. 17.
By July 23, 2012, Eason had already accumulated about 11 partial-day absences and 10
full-day absences for the calendar year. Eason had also taken FMLA approved absences on July
10, 16, 17, and 18. Id. Ex. 18.
C. Eason’s Suspension and Termination
On the morning of July 23, 2012 Eason emailed Walser and others, stating that he was
taking his dog to the vet because she was ill. Conway Aff. Ex. O. Later that morning, Eason
emailed Walser:
I just got back from the vet and they could not figure out what is wrong with her.
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It was discovered following Eason’s attempted use of a FMLA absence on May 9, 2012,
that his paperwork was not initially approved because it did not indicate the frequency of his
“flare-ups” or the period the request covered. Updated documents were submitted on May 22.
On May 30, Eason was notified of his approval.
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They suggested someone stay with her and keep an eye on her, but I do not have
anyone that can do that (my girls are in Missouri with my parents still). Would it
be possible to make this day up by working the equivalent hours over the
weekend - I can’t afford to miss another day.
Id. Ex. P. Walser responded to Eason’s email that afternoon:
Just catching up on emails. I’ve been out on the floor. Sorry to hear about
problems with the pooch. I can’t offer you the “make-up” option. We just have
too many irons in the fire that require you to have personal interaction with the
team. Please bring in documentation tomorrow to substantiate today’s absence.
Hope your pooch is feeling better. Talk to you tomorrow.
Id. Ex. Q.
Eason took a FMLA absence the following day, July 24, and returned to work on July 25,
2012. Leland Decl. Ex. 10. Eason initiated a meeting with Walser the morning of his return.
Conway Aff. Ex. R. Eason stated he was not doing well with his depression and anxiety and
expressed interest in additional unpaid time off to deal with his mental health issues. Id. Walser
understood this request as related to both FMLA leave and personal issues. Id. Walser
responded that he needed to review Eason’s current FMLA paperwork before he could address
Eason’s request for additional leave. Id.
Walser then shifted the conversation to Eason’s July 23, 2012 absence and inquired
whether Eason had documentation to substantiate his visit to the vet. Id. Eason responded that
he spoke only with the receptionist and did not see his vet out of financial concerns. Id. Eason
became defensive and claimed Walser’s request was unfair because he had not previously
submitted documentation for absences. Id. At the conclusion of the meeting, Walser placed
Eason on an indefinite suspension pending review. Id.
Immediately following the meeting with Walser, Eason stopped by the vet’s office
seeking documentation for his July 23 visit. Eason Dep. 115:8–11. Later that morning, Eason
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emailed Walser, stating that the office “will not provide anything since I did not keep the
appointment.” Conway Aff. Ex. S. Eason wrote to Walser again on July 25 regarding his
FMLA leave paperwork. Leland Decl. Ex. 25. Walser responded that day to Eason, copying
Director of Operations Varno:
Your suspension and subsequent review is not based on absences that are covered
under FMLA. The request for copies of any documents provided to you by the
unpaid leave department, which I originally made on May 16th, is simply to insure
that we are both on the same page with regard to your needs under FMLA. My
mention of it today is/was in response to your request for options to get more time
off of work. My intention is to follow up with you as soon as possible and hope
to be able to do that with you by tomorrow or Friday.
Id. Varno responded directly to Walser only with the word: “Nice.” Id. Ex. 26.
On July 30, Varno, Walser, and Santowski reviewed Eason’s situation. The following
day, Walser emailed Eason and requested an explanation for the variation in Eason’s story
relating to his July 23 absence with his dog. Conway Aff. Ex. T. Varno responded to Walser by
writing “Perfect.” Leland Decl. Ex. 28. In a detailed reply, Eason alleged there was no variation
and that he could not obtain documentation because he “did not make an appointment” as he
could not afford the visit to the vet. Id. Ex. 23.
On August 3, 2012 Eason participated in a conference call to review his situation with
Walser, Santowski, and Claire Reeve (“Reeve”), a Human Resources Generalist at the Rogers
facility. Leland Decl. Ex. 31. In the call, Eason explained he left his dog in the car and spoke
with the receptionist about his dog’s health because he was concerned about the cost of the visit.
Id. Eason elected not to see a vet and followed the receptionist’s advice to “keep an eye on
her.” Id. After speaking with Eason, Walgreens contacted the vet’s office. Walser Dep.
198:5–11. Although the office verified Eason’s brief visit on July 25 seeking documentation,

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they were unable to confirm that Eason had stopped by on July 23, noting that they routinely
document the type of visit that Eason alleges occurred on the 23rd. Conway Aff. Ex. V.
On August 13, 2012, after 20 days on suspension, Eason’s employment was terminated.
Leland Decl. Ex. 34. Eason was told that his termination was based on the investigation and
conclusion that he was not truthful regarding the circumstances surrounding his July 23, 2012
absence. Id. Walser, Varno, Santowski, and Reeve participated in the conversation to terminate
Eason. Leland Decl. Ex. 9 (“Varno Dep.”) 44:20–24. The ultimate decision, however, was
Varno’s. Id. 45:1.
III. DISCUSSION
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall
be rendered if there exists no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.
The United States Supreme Court, in construing Federal Rule 56(c), stated in Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986):
In our view, the plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the burden of proof
at trial.
On a motion for summary judgment, the court views the evidence in the light most
favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
However, the nonmoving party may not “rest on mere allegations or denials, but must
demonstrate on the record the existence of specific facts which create a genuine issue for trial.”

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Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
If evidence sufficient to permit a reasonable jury to return a verdict in favor of the
nonmoving party has been presented, summary judgment is inappropriate. Id. However, “the
mere existence of some alleged factual dispute between the parties is not sufficient by itself to
deny summary judgment. . . . Instead, ‘the dispute must be outcome determinative under
prevailing law.’” Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992) (citation
omitted). Moreover, a plaintiff facing a summary judgment motion cannot “get to a jury without
any significant probative evidence tending to support the complaint.” Rath v. Selection
Research, Inc., 978 F.2d 1087, 1091 (8th Cir. 1992), (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986)). In addition, “summary judgment need not be denied merely to
satisfy a litigant's speculative hope of finding some evidence that might tend to support a
complaint.” Krenik, 47 F.3d at 959.
B. FMLA Claims
The FMLA provides an eligible employee with twelve workweeks of leave during any
twelve-month period if they have a “serious health condition” that makes the employee unable to
perform the functions of their position. 29 U.S.C. § 2612(a)(1)(D); Spangler v. Fed. Home Loan
Bank of Des Moines, 278 F.3d 847, 851 (8th Cir. 2002). The FMLA prohibits interference with
any rights protected by the Act and prohibits discrimination of any kind, including discharge,
against an employee for asserting rights protected by the Act. 29 U.S.C § 2615(a)(1)-(2); Hite v.
Vermeer Mfg. Co., 446 F.3d 858, 865 (8th Cir. 2006).
The Eighth Circuit recognizes three types of claims arising under the FMLA. Pulczinski
v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005-06 (8th Cir. 2012). The first type is an

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“entitlement” claim, “where an employer refuses to authorize leave under the FMLA or takes
other actions to avoid responsibilities under the Act.” Id. at 1005. The second type is a
“retaliation” claim, where an employer takes adverse action against an employee who opposes a
practice prohibited by the FMLA. Id. at 1005-06. The third type is a “discrimination” claim,
where “an employer takes adverse action against an employee because the employee exercises
rights to which he is entitled under the FMLA.” Id. at 1006. Here, Eason asserts an entitlement
and a discrimination claim.3
1. FMLA Entitlement
Eason asserts he was suspended because, in part, he requested FMLA leave. While
Eason’s Complaint stylizes this as an “interference” claim, it is more properly termed as an
“entitlement” claim. Johnson v. Bethesda No. 13-2575, 2014 WL 6865484, at *3 (D. Minn. Dec.
3, 2014).
Walgreens asserts that Eason’s entitlement claim fails because Eason testified Walgreens
never denied him any FMLA leave that he requested. Since a FMLA entitlement claim requires
proving an employer refused to authorize FMLA leave or took other action to avoid FMLA
responsibilities, Walgreens argues that Eason’s claim necessarily fails. Eason responds that he
requested FMLA leave during the July 25, 2012 meeting with Walser and he was suspended by
the end of the meeting. While Eason does not explain his testimony that he was never denied

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Eason’s Complaint also alleges a FMLA retaliation claim. In a footnote in his brief
opposing summary judgment, Eason recognizes his retaliation claim is alleged “only to the
extent that some courts have continued to use that title to refer to claims wherein a plaintiff
alleges an employer discriminated against an employee for exercising FMLA rights. Pl.’s Mem.
Opp’n. Sum. J. [Docket No. 45] 25 n.10. Since Eason does not allege “that he opposed any
practice made unlawful under the FMLA,” which the Pulczinski Court titled a “retaliation”
claim, his retaliation claim, Count III of the Complaint, is dismissed.
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any FMLA leave, Eason nevertheless contends the temporal closeness between his FMLA
request and his suspension creates a triable issue of fact.
FMLA entitlement claims arise when an employee is denied a benefit to which they are
entitled under the statute. Pulczinski, 691 F.3d at 1005. Unlike a FMLA discrimination claim,
an employee asserting an entitlement claim does not need to show that the employer acted with
discriminatory intent and thus the McDonnell Douglas4 burden-shifting framework does not
apply. Ketchum v. St. Cloud Hosp., 994 F. Supp. 2d 1012, 1019 (D. Minn. 2014). Rather, the
employee’s “initial burden of proof” is to “show only that . . . she was entitled to the benefit
denied.” Ballato v. Comcast Corp., 676 F.3d 768, 772 (8th Cir. 2012). However, if the
employee meets their initial burden, the employer is not necessarily liable; the FMLA is not a
strict-liability statute. Id. Instead, “the burden shifts to the employer to prove there was a reason
unrelated to the employee’s exercise of FMLA rights for terminating the employee.” Id.
Since it is undisputed that Eason was an eligible employee, to prevail on his entitlement
claim, Eason must establish that he gave notice to Walgreens of his need for FMLA leave.
Wages v. Stuart Mgmt. Corp., 21 F. Supp. 3d 985, 989 (D. Minn. 2014). If Eason satisfies his
burden, to avoid liability, Walgreens must prove it would have suspended Eason even if he did
not make the FMLA request. Ketchum, 994 F. Supp. 2d at 1019–20.
In Ketchum, an employee was terminated 8 weeks into her 12 week FMLA leave. While
the plaintiff argued this, in and of itself, established her claim, the court disagreed, finding “there
exists an obvious explanation for her termination short of 12 weeks: the intervening events of
May 11, 2012, and the threats (including the “kill list). . . . The fact that these events and threats

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411 U.S. 792 (1973).
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were wholly disconnected from her leave scuttles her FMLA claim. Id. at 1020. In making this
determination, it was irrelevant whether the plaintiff actually engaged in the alleged conduct. Id.
The relevant inquiry was whether the employer “had a good faith belief” the plaintiff engaged in
the conduct alleged. Id. (emphasis in original).
Walgreens has sufficiently established that Eason’s suspension was unrelated to his
exercise of his FMLA rights. When Eason failed to present documentation of his visit to the vet
in their July 25, 2012 meeting, Walser continued to investigate Eason’s claim. Walser provided
Eason multiple opportunities to clarify what happened, eventually contacting the vet’s office to
see if they had any record of Eason visiting on July 23, which they did not. As in Ketchum, the
FMLA approval status of the plaintiff does not undermine the conclusion that Walgreens had a
good faith belief that Eason was being dishonest about his trip to the vet. With Walgreens’ good
faith belief that Eason was dishonest, “there was a reason unrelated to [Eason’s] exercise of
FMLA rights for [suspending]” his employment. Ballato, 676 F.3d at 772. Thus, Eason’s
FMLA entitlement claim fails.
2. FMLA Discrimination
Eason argues that his employment with Walgreens was terminated because he exercised
his statutory rights provided by the FMLA. Walgreens argues that Eason’s employment was
terminated not because he exercised his FMLA rights, but rather because he was dishonest about
missing work on July 23, 2012.
Absent direct evidence of discrimination, FMLA discrimination claims are analyzed
under the McDonnell Douglas burden-shifting framework. Pulczinski, 691 F.3d at 1007. The
burden first rests on the employee to make a prima facie case of discrimination. This is

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accomplished by showing the employee engaged in activity protected by the FMLA, the
employee suffered an adverse employment action, and that there is a causal connection between
the protected activity and the adverse employment action. Id. If the employee can carry this
burden, under McDonnell Douglas, to avoid liability, the employer must articulate a nondiscriminatory justification for the adverse employment action. Wierman v. Casey’s Gen.
Stores, 638 F.3d 984, 999 (8th Cir. 2011). If the employer offers such a reason, the burden shifts
back to the employee to proffer evidence to “create a genuine issue of material fact whether [the]
proffered explanation is merely pretext for unlawful” discrimination. Id. “The ultimate question
of proof—the burden of which remains on the employee throughout the inquiry—is whether the
employer’s conduct was motivated by” the employee’s request of his FMLA rights. Id.
Eason has not presented direct evidence of discrimination. Thus, the McDonnell Douglas
framework controls.
a. Walgreens has articulated a sufficient non-discriminatory reason to
justify Eason’s termination
Assuming that Eason can establish a prima facie case of discrimination, Walgreens has
articulated a non-discriminatory reason to justify Eason’s termination: Eason was dishonest
about his July 23, 2012 work absence. As Walgreens argues, its burden to demonstrate a nondiscriminatory reason is “not onerous, nor does the explanation need to be demonstrated by a
preponderance of the evidence.” Arraleh v. Cnty. of Ramsey, 461 F.3d 967, 975 (8th Cir. 2006).
Walgreens supports its non-discriminatory reason through its detailed investigation into Eason’s
July 23 absence and its Constructive Discharge Policy, which provides that “Dishonesty” falls
under the “Serious Misconduct” category of offenses, and that “certain serious misconduct may

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justify an employee’s immediate dismissal after an appropriate investigation.” Leland Decl. Ex.
35.
b. Eason has failed to carry his burden in establishing Walgreens’ proffered
non-discriminatory reason is pretextual
To sufficiently demonstrate Walgreens’ proffered non-discriminatory justification is
pretextual, Eason must demonstrate Walgreens’ conduct was motivated by retaliatory intent.
Burciaga v. Ravago Ams., LLC 56 F. Supp. 3d 987, 1002 (S.D. Iowa 2014) (citing Casey’s Gen.
Stores, 638 F.3d at 999). In reviewing an employer’s proffered reason, the Eighth Circuit has
cautioned that “[f]ederal courts do not sit as a super-personnel department that reexamines an
entity’s business decisions. . . . Rather, our inquiry is limited to whether the employer gave an
honest explanation of its behavior.” Wilking v. Cnty. of Ramsey, 153 F.3d 869, 873 (8th Cir.
1998) (quoting Harvey v. Anheuser-Busch, Inc. 38 F.3d 968, 973 (8th Cir. 1994) (quotations
omitted)).
Eason presents a number of arguments in an effort to create a triable issue suggesting
pretext.
i. Inconsistent and Contradictory Testimony
Eason first argues that Walgreens’ justification for Eason’s termination is inconsistent
and contradictory. Eason contends decision makers Walser, Varno, and Santowski gave
conflicting testimony on issues including Walgreens’ constructive discharge policy, whether
Eason’s absences were considered as part of his file review, and Varno’s knowledge of Eason’s
FMLA status. Eason argues that the inconsistencies are evidence that “the employer is
dissembling to cover up a discriminatory purpose.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 147 (2000). However, this line of reasoning requires Walgreens’ allegedly
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inconsistent and contradictory statements to be directed at a material fact. Id. The somewhat
conflicting answers provided by Walser, Varno, and Santowski do not address whether Eason’s
FMLA protected absences factored into his termination. Neither do they impeach the
consistency of Walgreens’ non-discriminatory justification. Thus, the inconsistent testimony
highlighted by Eason does not raise a triable issue as to pretext.
Santowski’s personal belief that Eason should have been suspended rather than
terminated also fails to allege a fact issue for trial. While Santowski was the human resources
employee assigned to this situation, the decision to terminate Eason was made by Varno.
Santowski’s recommendation of different discipline is irrelevant evidence of pretext.
ii. Prior Absences
Eason argues that his attendance became an issue in 2012 only after he disclosed that the
reasons behind his absences were the product of a long-term mental health diagnosis. Eason
further contends that during the two-and-a-half weeks prior to his suspension, he reported FMLA
absences for nearly half the time. Thus, Eason concludes, the requested documentation from his
vet was designed to provide an acceptable alternative reason to terminate Eason’s employment,
when the real reason was that Eason’s FMLA absences were the problem.
Eason’s argument fails to recognize that his attendance record was an issue prior to
disclosing his mental health issues were long-term rather than situational. Significantly, at the
February 3, 2012 meeting called to discuss Eason’s attendance issues, it was Walser who
suggested Eason apply for FMLA leave. Eason also fails to acknowledge that his attendance
issues persisted after the February 3 meeting, and even after he submitted his initial, later
determined to be incomplete, FMLA paperwork. Indeed, Walgreens notes seven instances where

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Eason was absent or late to work between February 29, 2012 and May 1, 2012 that were
unrelated to any mental health issues, such as being blocked in by a snowstorm, taking his
daughters to school to make sure a project arrived safely, and bringing his daughter to the doctor
because she fell rollerblading. Finally, Eason’s argument improperly assigns his termination to
taking FMLA protected leave. The record, however, strongly supports that Walgreens’ nondiscriminatory justification for terminating Eason was because of his perceived dishonesty, not
his FMLA leave. While Eason suggests that Walser’s request for documentation was contrived
as a method for lawfully terminating him, it is undisputed that Eason was unable to satisfy
Walser’s request and Walser believed Eason was being dishonest. Walser’s request for Eason to
substantiate his trip to the vet, regardless of its close temporal proximity that it occurred close in
time to the FMLA protected absences, is not evidence of pretext.
iii. File Review
Eason next argues that Walser and Varno’s discussions about his attendance during his
file review necessarily implicated the FMLA because the stated reason for termination—
dishonesty—was unrelated to any attendance concerns. However, discussing Eason’s attendance
record during his file review does not, in and of itself, demonstrate pretext. Notably absent from
the record is any evidence that Eason’s FMLA absences were a concern to Walgreens. Also
telling is that there is no inconsistency on Walgreens’ position that Eason’s employment was
terminated because it believed Eason was being dishonest about a request for non-FMLA leave.
That Walgreens reviewed his full attendance history after learning that he had fabricated an
excuse for a non-FMLA leave day demonstrates a thorough review of Eason’s employment

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history, not that Walgreens was engaging in discriminatory conduct. Dickinson v. St. Cloud
Hosp., No. 7-3346, 2008 WL 4659562, at *8 (D. Minn. Oct. 20, 2008).
iv. Sham Investigation
Eason next attacks the motive of Walgreens’ purported investigation into his absence on
July 23, 2012, arguing that it was merely a sham to create a paper record against his FMLA
claim.5
Eason concludes that the investigation was a sham because Walser was requesting
documentation that he knew did not exist. Eason’s account of the record is incorrect. At 7:59
a.m. on July 23, 2012, Eason emailed Walser, Reeve, and another Walgreens employee that he
was taking his dog into the vet. Conway Aff. Ex. N. A few hours later that morning, at 11:29
a.m., Eason sent the following email to Walser:
I just got back from the vet and they could not figure out what is wrong with her.
[T]hey suggested someone stay with her and keep an eye on her, but I do not have
anyone that can do that (my girls are in Missouri with my parents still). [W]ould it
be possible to make this day up working the equivalent hours over the weekend I can’t afford to miss another day[?]
Id. Ex. P. Walser responds at 1:38 p.m.:
Just catching up on emails. I’ve been out on the floor. Sorry to hear about
problems with the pooch. I can’t offer you the “make-up” option. We just have
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Eason also claims that Walgreens’ failure to provide Eason with FMLA eligibility
notice within five business days after making his July 25, 2012 FMLA request further supports
his conclusion that the termination had already been decided and the investigation was a cover
up. Eason cites Fjellestad v. Pizza Hut of Am., Inc., in support. 188 F.3d 944, 952 (8th Cir.
1999). In Fjellestad, the plaintiff submitted three requests for reasonable accommodation that
were never addressed by the employer. Id. at 947–48. The Eighth Circuit held “the failure of an
employer to engage in an interactive process to determine whether reasonable accommodations
are possible is prima facie evidence that the employer may be acting in bad faith.” Id. at 952.
Here, unlike in Fjellestad, it was Walgreens that had previously engaged Eason in an interactive
FMLA process. Moreover, Walgreens originally suggested that Eason should consider applying
for FMLA leave. Thus, Fjellestad is distinguishable.
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too many irons in the fire that require you to have personal interaction with the
team.
Please bring in documentation tomorrow to substantiate today’s absence. Hope
your pooch is feeling better. Talk to you tomorrow.
Id. Ex. Q. As the email chain shows, Walser requested Eason provide documentation the same
day Eason had claimed to be at the vet’s office. While Eason later told Walser he was unable to
satisfy the request because he did not actually visit the vet, this was unknown to Walser on July
23. Eason first communicated that he did not actually see the vet in their July 25, 2012 meeting.
Walgreens continued to ask Eason about the events on July 23, and continued to receive
suspicious answers. Finally, rather than resting on their belief that Eason’s story was false,
Walser, Santowski, and Reeve phoned the vet’s office, who reported their notes showed Eason
stopped in on July 25, 2012 seeking documentation for a visit. The vet’s office, however, did not
have a record of Eason visiting on July 23, 2012. When asked if they routinely document the
type of visit Eason described, the vet’s office responded “any time a customer talks with them
about their pet they typically put a note in the file for that pet.” Id. Ex. V. The inescapable
conclusion is that Walgreens’ investigation into Eason’s July 23, 2012 absence was not
motivated as a cover-up for FMLA leave discrimination.
As evidence of discriminatory animus, Eason cites the two single word replies of
“perfect” and “nice” Varno wrote to Walser in response to his forwarding of emails to Eason.
While Eason characterizes Varno’s explanation that he wrote the single word responses because
they were “specific,” “short,” “caring,” and “didn’t ramble and w[ere] short and to the point” as
incredulous and unbelievable, this is simply not a sufficient dispute to defeat summary judgment.
See Matthews v. Trilogy Commc’ns, Inc., 143 F.3d 1160, 1165 (8th Cir. 1998) (noting that the
plaintiff “must do more than simply create a factual dispute as to the issue of pretext; he must
16

offer sufficient evidence for a reasonable trier of fact to infer discrimination.”). No reasonable
juror could conclude that Varno’s one word responses is evidence of pretext for engaging in
discrimination.
v. Inconsistent Application of Corporate Procedures
Eason finally argues that Walgreens’ treatment of a different employee underscores
Eason’s claim that his termination was the result of his FMLA absences and not dishonesty.
Evidence that a similarly situated employee was treated differently may evince pretext. Norman
v. Union Pac. R.R. Co., 606 F.3d 455, 461 (8th Cir. 2010). The employees “used for comparison
must have dealt with the same supervisor, have been subject to the same standards, and engaged
in the same conduct without any mitigating or distinguishing circumstances.” Casey’s Gen.
Stores, 638 F.3d at 994 (quoting Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 479 (8th Cir.
2004)). “Although the standard for determining whether employees are similarly situated is
rigorous at the pretext stage, we do not require the plaintiff to produce evidence of a clone.”
Burton v. Ark. Sec’y of State, 737 F.3d 1219, 1230–31 (8th Cir. 2013) (citation and quotation
marks omitted).
Eason submits that a function manager was not terminated despite egregious and
dishonest conduct. This individual twice denied engaging in certain conduct, only to have his
denial exposed by other employees. Eason alleges that Walgreens formally recognized this
person’s dishonesty by issuing written discipline. The individual, however, was not terminated.
Eason additionally alleges the individual was not terminated despite ramming another employee
with a lift truck after an angry confrontation.

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The individual identified in Eason’s briefing is not similarly situation to Eason and thus
does not provide evidence of pretext. Eason and the individual held different jobs with different
supervisors. Eason, as a supervisory employee, had a higher position than the individual. Since
it is reasonable to expect that employees with more authority and responsibility will be held to a
higher standard of conduct, the individual is not similarly situated to Eason. See Martinez v.
Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 917 (6th Cir. 2013) (“Moreover, Ms.
Martinez’s role as a manager at Cracker Barrel could reasonably justify holding her to a more
stringent standard of conduct than that applied to Ms. Guidry, who holds the position of assistant
manager.”). Moreover, Eason’s dishonest conduct is markedly different than the dishonest
conduct the other individual allegedly committed. The identified individual claimed he never
raised his middle finger at a subordinate, where Eason claimed he needed a day off from work to
take his dog to the vet when he did not actually see the vet.6 Thus, the other Walgreens
employee identified by Eason does not buttress his pretext argument.
Because Eason cannot muster sufficient evidence to raise a material question of fact as to
pretext, his FMLA discrimination claim fails.
C. Remaining Claims
1. MHRA Reprisal
Eason also contends Walgreens’ conduct violated the MHRA’s prohibition against
reprisal. “It is an unfair discriminatory practice to engage in reprisal against any person because
that person opposed a practice prohibited by the MHRA.” Ewald v. Royal Norwegian Embassy,

6

The critical inquiry here is not whether Eason actually did not go to the vet’s office, but
whether Walgreens in good faith believed that Eason was lying about having done so. See
Pulczinski, 691 F.3d at 1002 (discussing the “honest belief rule”).
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902 F. Supp. 2d 1208 (D. Minn. 2012) (citing Minn. Stat. § 363A.15). Under the statute, a
reprisal is defined as “any form of intimidation, retaliation, or harassment.” Minn. Stat. §
363A.15. To establish a prima facie case, Eason must establish that he engaged in statutorily
protected conduct, suffered an adverse employment action, and that a causal connection exists
between the two. Hoover v. Nw. Private Mortg. Banking, 632 N.W.2d 534, 549 (Minn. 2001).
Here, even if Eason did state a prima facie case for reprisal, these claims are analyzed
under the McDonnell Douglas burden shifting test. Fletcher v. St. Paul Pioneer Press, 589
N.W.2d 96, 101 (Minn. 1999). As previously concluded, Eason failed to provide sufficient
evidence that Walgreens’ stated non-discriminatory justification was pretextual. Accordingly,
Walgrees is entitled to summary judgment on this claim.
2. ADA Retaliation
Eason next avers Walgreens violated the ADA when it retaliated against him for
requesting additional FMLA leave in his July 25, 2012 meeting with Walser. The ADA
prohibits employers from discriminating against any individual because that individual “has
opposed any act or practice made unlawful by this chapter or because such individual made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing.” 42 U.S.C. § 12203(a). Requesting an accommodation is a protected activity.
Kirkenberg v. Canadian Pac. R.R., 619 F.3d 898, 907–08 (8th Cir. 2010). Successful claims
require a showing of direct evidence of retaliation or an inference of retaliation must be created
in accordance with the McDonnell Douglas burden-shifting framework. E.E.O.C. v. Prod.
Fabricators, Inc., 763 F.3d 963, 972 (8th Cir. 2014).

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“Direct evidence of retaliation is evidence that demonstrates a specific link between a
materially adverse action and the protected conduct, sufficient to support a finding by a
reasonable fact finder that the harmful adverse action was in retaliation for the protected
conduct.” Young-Losee v. Graphic Packaging Intern., Inc., 631 F.3d 909, 912 (8th Cir. 2011)
(citing Burlington N. & Santa Fe R.R. Co. v. White, 548 U.S. 53, 57, 68 (2006)). “‘Direct’
refers to the causal strength of the proof, not whether it is ‘circumstantial’ evidence.” Griffith v.
City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004).
Eason has failed to present sufficient direct evidence of retaliation to create a triable
question of fact. That Walser never communicated the possibility of suspension to Eason or his
fellow supervisors, is circumstantial, rather than direct, evidence. Griffith, 387 F.3d at 736.
Eason’s sole basis of direct evidence of retaliation is the temporal proximity between the
protected activity and the adverse employment action. Standing alone, temporal proximity is
generally insufficient to satisfy a showing of direct evidence. Kiel v. Select Artificials, Inc., 169
F.3d 1131, 1136 (8th Cir. 1999). For example, in Young-Losee, temporal proximity served as
direct evidence of retaliation where the complaintant’s supervisor, after receiving a formal
complaint of harassment, “wadded up her complaint, called it ‘total bullshit,’ threw it in the
garbage can, told her to leave, and said he never wanted to see her again.” 631 F.3d at 912. The
facts here are markedly different. The actions of the supervisor in Young-Losse clearly
communicated discriminatory animus because they were egregious and were directly related to
receiving the complaint of harassment. Here, Eason alleges Walser had a change in emotions
during the meeting. A general allegation of becoming upset is a very different reaction than the
supervisor’s response in Young-Losee. Additionally, a reasonable juror could also conclude that

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Walser became upset because Eason was not addressing the issue, whether Eason could provide
documentation for his visit to the vet.
3. ADA and MHRA Discrimination
Finally, in addition to asserting a FMLA discrimination claim, Eason also avers
discrimination claims arising under the ADA and MHRA. Both claims are analyzed under the
McDonnell Douglas burden-shifting framework, the same rigor that was applied to Eason’s
FMLA discrimination claim. See Wilking, 153 F.3d at 872 (“The MHRA parallels the ADA,
and MHRA claims are also analyzed using the McDonnell Douglas burden-shifting scheme.”).
For the reasons articulated above, Eason cannot show Walgreens’ proffered non-discriminatory
reasons were pretextual, and thus the ADA and MHRA discrimination claims fail.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS
HEREBY ORDERED that:
1.

Defendant’s Motion for Summary Judgment [Docket No. 37] is GRANTED; and

2.

All claims in the Complaint [Docket No. 1-1] are DISMISSED.

LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: July 15, 2015.

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