Harrell v. Handi Medical Supply, Inc.

Filing 34

MEMORANDUM OPINION AND ORDER granting 17 Handi Medical Supply's Motion for Summary Judgment(Written Opinion) Signed by Chief Judge John R. Tunheim on 09/28/2017. (JMK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 16-737 (JRT/FLN)

TRACY HARRELL,
Plaintiff,
v.
HANDI MEDICAL SUPPLY, INC.,

MEMORANDUM
OPINION AND ORDER

Defendant.
Joni M. Thome and Cassie C. Navarro, BAILLON THOME JOZWIAK
& WANTA LLP, 100 South Fifth Street, Suite 1200, Minneapolis, MN
55402, for plaintiff.
Lee A. Lastovich and Alyssa M. Toft, JACKSON LEWIS P.C., 150 South
Fifth Street, Suite 3500, Minneapolis, MN 55402, for defendant.

Plaintiff Tracy Harrell filed a complaint in Minnesota state court against her
former employer Defendant Handi Medical Supply, Inc. (“HMS”) alleging claims under
the Family Medical Leave Act (“FMLA”) and Minnesota Human Rights Act (“MHRA”).
All of the claims relate to Harrell’s termination from HMS on August 11, 2015. HMS
removed the case to federal court and, in February 2017, moved for summary judgment
on all claims. The Court will grant HMS’s motion for summary judgment, finding that
HMS has presented sufficient facts to show a legitimate non-retaliatory and nondiscriminatory reason for terminating Harrell’s employment, namely Harrell’s derogatory
comments about HMS, and Harrell has not demonstrated sufficient evidence that the
reason was in any way a pretext for discrimination.

BACKGROUND
I.

THE PARTIES
HMS is a medical equipment and supply company based in St. Paul, Minnesota.

(Notice of Removal, Ex. A (“Compl.”) ¶ 4, Mar. 22, 2016, Docket No. 1; Decl. of Alyssa
M. Toft (“Toft Decl.”), Ex. E at 30, Feb. 1, 2017, Docket No. 24.) The mission of HMS
is “To Enrich Lives,” (Toft Decl., Ex. E at 32), and this mission is central to the work of
HMS employees, (see id., Ex. A (“Harrell Dep.”) at 60:1-22, 86:17-87:3).
HMS employed Harrell from July 2012 through August 2015.

(Id., Ex. U.)

Harrell held the role of Lead Customer Service Representative (“Lead CSR”) and
managed day-to-day operations of the Customer Service Department. (Id.; see also
Harrell Dep. at 63:11-22.) At the time relevant to this case, the management structure of
Harrell’s team included: Mike Bailey – Chief Executive Officer; Scott Learned – Chief
Operating Officer; Julie Peterson – Human Resources Manager; Kerstin Deters –
Manager of Customer Service and Harrell’s immediate supervisor; Harrell and Michelle
Morgan – Lead CSRs; and ten to fifteen individual Customer Service Representatives
(“CSRs”). (Harrell Dep. at 61:16-21, 72:4-73:1, 73:9-14, 91:3-8, 133:12-16; Toft Decl.,
Ex. L.)

II.

HARRELL’S CAREER PERFORMANCE
By all accounts Harrell had a successful career performance at HMS. Harrell

received numerous “Enrichment Award Nomination[s]” for her work with co-workers
and clients. (Decl. of Joni M. Thome (“Thome Decl.”), Ex. A, Feb. 22, 2017, Docket
-2-

No. 28.)

Deters described Harrell as generally respectful in the workplace, (id.,

Attach. 2, Dep. of Kerstin Deters-Engel (“Deters Dep.”) at 105:3-106:17), and evaluated
Harrell as “exceeds expectations” at her last performance review before termination, (id.,
Ex. B at 20).
Even so, Harrell did have some incidents of unprofessional conduct during her
tenure at HMS. (See Toft Decl., Ex. F at 82; id., Exs. G-I.) And at Harrell’s final
performance review, Deters indicated that Harrell’s “biggest opportunity for growth” was
in “[r]espect.” (Thome Decl., Ex. B at 22.) This evaluation was, in part, based on coworkers indicating Harrell only sometimes showed respect in the workplace. (Id. at 26.)

III.

HARRELL’S FMLA LEAVE
Harrell became eligible for FMLA leave in July 2013.

Harrell applied for

intermittent FMLA leave “to assist [her] spouse with serious mental health illness.” (Toft
Decl., Ex. K at 31.) 1 HMS granted Harrell’s FMLA leave request, (id. at 24), and Harrell
remained approved for intermittent FMLA leave until her termination in August 2015,
(see id. at 13-15). When Harrell took FMLA leave, Harrell spoke with either Deters or
Peterson. (Harrell Dep. at 97:21-98:3.) Harrell agreed that she did not “experience any
resistance” from HMS about taking FMLA leave, (id. at 97:5-9), HMS never denied
Harrell FMLA leave, (id. at 98:22-99:6), and – other than the incident at issue in this case
– HMS never disciplined Harrell for taking FMLA leave, (id. at 99:14-20).
1

The page numbers cited for Exhibit K are to the Bates numbers indicated on the
document with the omission of all “0s” preceding the number.

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IV.

THE AUGUST 5, 2015, INCIDENT
At some point during Harrell’s employment, HMS determined it needed to make

changes to the Customer Service Department because of poor response time to customer
calls. Bailey decided to make certain temporary changes, including Deters “assum[ing]
the role of [Lead CSR]” while “retain[ing] the title of Customer Service Manager” and
Harrell and Morgan “assum[ing] the role of [CSR] while retaining the title of [Lead
CSR].” (Toft Decl., Ex. L.) The move did not result in a change in salary. (Id., Ex. D
(“Bailey Dep.”) 2 at 61:9-11.)
On August 5, 2015, Bailey met with Learned, Peterson, Deters, Morgan, and
Harrell to discuss the temporary changes. (Harrell Dep. at 133:5-11). According to
Harrell, Bailey complained that Harrell and Morgan were working too few hours and
commented that, even though “he knew something was going on in [Harrell’s] life,”
Harrell needed to invest more time in HMS. (Id. at 134:7-135:4.) The temporary
changes upset Harrell, and Harrell felt the temporary changes were unfair. (Id. at 136:1517, 137:16-17.)
After the meeting, Harrell returned to her desk, which was located in an area open
to both HMS employees and customers. (Id. at 144:3-14.) Harrell sat near Sabrina
Newson, Spencer Wallace, and LaShawnda Demry. (Id. at 145:6-8.) Harrell acted upset

2

Harrell also submitted excerpts of Bailey’s deposition testimony. (See Thome Decl.,
Attach. 2 at 19-40.) To the extent pages of Bailey’s deposition were not submitted in the Toft
Declaration, the pages are attached to the Thome Declaration.

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while at her desk, (Decl. of Michelle Morgan ¶ 7, Feb. 1, 2017, Docket No. 20), and
twenty to thirty minutes later, Harrell emailed her husband stating “I really need to talk to
you, I am upset,” (Harrell Dep. at 147:15-148:1). Harrell borrowed Morgan’s cellphone
and called her husband. (Id. at 148:2-4.) During the call, Harrell’s husband became
angry and threatened to go to HMS and talk to Bailey. (Id. at 155:13-15, 158:3-7.)
Harrell felt she needed to return home to help her husband. (Id. at 162:21-23.) Harrell
told Peterson she needed to take FMLA leave, and Peterson approved the leave. (Id. at
162:12-163:12.)
After talking with Peterson, Harrell returned to her desk, “took off [her] badge . . .
swung it around [her] hand, like [she] usually [did], and threw it in her purse.” (Id. at
164:5-8; see also Toft Decl., Ex. B (“Learned Dep.”) 3 at 30:10-12 (Harrell’s co-worker
describing Harrell “throwing her items in her bag”).) Then, Newson approached Harrell
to ask a work-related question, to which Harrell responded “[y]ou are going to need to
talk to [Deters]. I am done. I got to go. I am done right now.” (Harrell Dep. at 164:913). Harrell’s co-workers contend Harrell actually used profanity in her interaction with
Newson. (See Learned Dep. at 30:11-12; Decl. of Mollie King (“King Decl.”) ¶ 3, Feb.
1, 2017, Docket No. 21; Decl. of LaShawnda Demry (“Demry Decl.”) ¶ 3, Feb. 1, 2017,
Docket No. 22; Decl. of Sabrina Newson ¶ 2, Feb. 1, 2017, Docket No. 23.)

3

Harrell also submitted excerpts of Learned’s deposition testimony. (See Thome Decl.,
Attach. 2 at 41-54.) To the extent pages of Learned’s deposition were not submitted in the Toft
Declaration, the pages are attached to the Thome Declaration.

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Some evidence in the record reflects that customers did not hear Harrell’s
exchange with Newson. (See Learned Dep. at 77:12-15.) But Harrell’s co-workers
report that customers did see and hear the exchange. (See King Decl. ¶ 3; Demry Decl.
¶ 3.) Harrell then left the office. (Harrell Dep. at 164:17-18; see King Decl. ¶ 3 (stating
Harrell “stormed out of the building”).) Harrell’s co-workers believed Harrell had quit.
(Learned Dep. at 30:2-6; see also Toft Ex. N.) Harrell asserts she never intended to
resign from HMS. (Harrell Dep. at 161:21-162:6.)
Harrell’s co-workers reported the incident to Learned, who investigated and
reported the eyewitness accounts to Peterson. (Learned Dep. at 32:9-40:10.) Ultimately,
HMS decided to give Harrell a corrective action for her unprofessional conduct on
August 5th. (See id. at 46:6-23; Toft Decl., Ex. M.)

V.

AUGUST 6, 2015
On August 6, 2015, Harrell met with Peterson regarding the changes to the

Customer Service Department and told Peterson she felt Deters was “being set up to fail.”
(Harrell Dep. at 175:10-176:17; Toft Decl., Ex. C (“Peterson Dep.”) at 161:15-23.)
Peterson asked if Harrell had voiced her concerns to Bailey; Harrell responded that she
had not and that Bailey made her uncomfortable. (Harrell Dep. at 176:14-17.) Harrell
was upset about the temporary changes. (Peterson Dep. at 163:20-24.) Harrell made no
mention of problems with her FMLA leave, discrimination, or retaliation. (See Harrell
Dep. at 176:18-19.) On the same day, Harrell requested FMLA leave for August 7, 2015,
which Peterson approved. (Toft Decl., Ex. O.)

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VI.

AUGUST 11, 2015, DISCIPLINE & TERMINATION
On August 11, 2015, Learned asked Harrell to come to Bailey’s office. (Harrell

Dep. at 179:10-13.) When Harrell arrived, Learned and Bailey presented her with a
corrective action for “using profanity [and] angry, upset, [and] unprofessional conduct”
on August 5th. (Harrell Dep. at 179:14-18; Toft Decl., Ex. M.) Learned and Bailey
explained that three CSRs thought Harrell quit, used profanity, and made a scene in the
showroom. (Harrell Dep. at 180:7-13; see also Toft Decl., Ex. M.) Bailey warned that
“[t]his type of behavior and conduct [would] not be tolerated in the future. Failure to
observe these set of rules [would] result in further disciplinary action including
termination.”

(Harrell Dep. at 181:6-13; Toft Decl., Ex. M.)

Harrell denied the

allegations in the corrective action and began to tell her side of the story. (Harrell Dep. at
183:20-185:9; Learned Dep. at 51:11-21.)
According to Learned and Bailey, Harrell was dismissive of her co-workers’
reports and attempted to shift the focus to short staffing in the Customer Service
Department. (Learned Dep. at 51:11-21; see also Bailey Dep. at 153:19-22 (indicating
Harrell said “she didn’t like [Bailey’s] decisions on how the department should be run”).)
Bailey allegedly responded to Harrell: “there seems like there’s an excuse for everything
with you.” (Learned Dep. at 52:6-12.) Harrell responded “[t]here always is an excuse.”
(Id. at 52:11-12.) Bailey allegedly responded: “[n]o, there isn’t. Sometimes you just
have to take responsibility.” (Id. at 52:13-15.) Harrell then brought up that she actually
went home to take care of her husband’s disability. (Id. at 57:15-19.) And, at some point

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in the conversation, Harrell exclaimed that HMS was trying to use her husband’s
disability against her. (Id. at 54:23-55:5.) And Harrell became tearful, upset, and said
she was uncomfortable. (Bailey Dep. at 141:13-19, 144:12-14.)
In contrast, Harrell asserts that she immediately explained that her co-workers
mistakenly interpreted her conduct on August 5th.

(Harrell Dep. at 184:11-185:9.)

Harrell allegedly explained that she “was upset and panicked and worried for [her]
husband and that [she] needed to go home to take care of him, and that the team members
were misinterpreting the situation.” (Id. at 184:11-16.) Harrell stated that she explained
“the truth [was] that [she] was leaving because [her] husband upset [her] and he” was
going to react poorly and, perhaps, come into HMS if Harrell did not leave immediately.
(Id. at 184:25-185:9.) According to Harrell, Bailey and Learned said “they didn’t believe
[her]” and Bailey said “he [didn’t] understand why [Harrell] would have told [her]
husband [about the temporary department changes] if [she] knew it would upset him.”
(Id. at 187:1-8; see also Learned Dep. at 58:19-23.) Harrell further attests that Bailey
became visibly angry when Harrell accused him of using Harrell’s husband’s disability
against her. (Harrell Dep. at 190:8-18.) The situation made Harrell uncomfortable. (Id.
at 187:11.)
At this point, Deters and Peterson were asked to join the meeting. (Id. at 187:911; Bailey Dep. at 141:9-10.) Bailey “fill[ed] in [Deters] and [Peterson],” and then
moved his chair near Harrell, shook his finger at Harrell, and stated “[y]ou are sitting
here telling me that I am using your husband’s disability. That’s grossly offensive to
me.” (Harrell Dep. at 192:18-193:10.) Harrell alleges Bailey spit on her face while he
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was talking to her. (Id. at 193:5.) Learned and Peterson then explained to Harrell that the
“behavior [Harrell] exhibited while [she] left” on August 5th was the basis for the
corrective action – not the fact that she left. (Learned Dep. at 65:3-11; see also Peterson
Dep. at 138:2-139:8, 143:12-17.) Learned, Peterson, and Bailey assert that they knew
Harrell’s accusation was false and an attempt to derail the disciplinary action. (Learned
Dep. at 69:9-12; Bailey Dep. at 76:8-17; Peterson Dep. at 151:3-7.)
The conversation finally culminated in Bailey stating that HMS and Harrell should
consider an “exit strategy.” (Bailey Dep. at 147:3-8; Harrell Dep. at 198:11-19.) There
was no agreement that an “exit strategy” would actually happen or that HMS would
ultimately terminate Harrell. (Peterson Dep. at 115:6-116:10, 155:4-5; Bailey Dep. at
146:17-147:8; Harrell Dep. at 198:11-199:12, 201:6-13.) Harrell was then dismissed
from the meeting and, on the way out, uttered the phrase “[e]nriching lives” – HMS’s
mission statement – in a disparaging way. (Harrell Dep. at 198:2-199:18; Learned Dep.
at 67:8-12.) Harrell admitted that she knew everyone at HMS took the mission of HMS
seriously. (Harrell Dep. at 199:16-25.) Learned, Peterson, and Bailey understood that
Harrell was mocking the mission of HMS, and after Harrell left the room, concurred that
this conduct required immediate termination. (Peterson Dep. at 155:20-158:5; Learned
Dep. at 67:11-18.)
Harrell walked back to her desk. (Harrell Dep. at 200:12-14.) Peterson found
Harrell, asked her to return to Bailey’s office, and Bailey terminated Harrell. (Id. at

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200:16-201:1.) HMS replaced Harrell with Demry – an employee on intermittent FMLA
leave. 4 (Demry Decl. ¶ 6.)

VII.

PROCEDURAL HISTORY
Harrell filed the Complaint in Minnesota state court in March 2016. (Notice of

Removal ¶¶ 1-2.) The Complaint alleged the following claims: (1) reprisal under the
MHRA for reporting discrimination and retaliation; (2) reprisal under the MHRA for
associating with a disabled person; (3) marital status discrimination under the MHRA;
and (4) violation of the FMLA when HMS “discharged Harrell for exercising her right to
take FMLA leave.” (Compl. ¶¶ 42-60.) HMS removed the case to federal court. In
February 2017, HMS moved for summary judgment on all claims.

DISCUSSION
I.

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

fact and the moving party can demonstrate it is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the lawsuit, and
a dispute is genuine if the evidence could lead a reasonable jury to return a verdict for
either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court
considering a summary judgment motion must view the facts in the light most favorable

4

HMS approved Demry’s FMLA request in June 2015, and promoted Demry to Lead
CSR in September 2015. (Demry Decl. ¶ 6.)

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to the non-moving party and give that party the benefit of all reasonable inferences to be
drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587-88 (1986). Summary judgment is appropriate if the nonmoving party “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.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “To defeat a motion for summary judgment, a party
may not rest upon allegations, but must produce probative evidence sufficient to
demonstrate a genuine issue [of material fact] for trial.” Davenport v. Univ. of Ark. Bd.
of Trs., 553 F.3d 1110, 1113 (8th Cir. 2009) (citing Anderson, 477 U.S. at 247-49).

II.

FMLA & MHRA
A.

FMLA

Under the FMLA, an employee is entitled to twelve weeks of leave from work
during any twelve-month period if the employee meets certain requirements. 29 U.S.C.
§ 2612(a)(1). Two subsections of the FMLA limit an employer’s ability to undermine an
employee’s leave. Section 2615(a)(1) makes it unlawful for an employer to “interfere
with, restrain, or deny the exercise of or the attempt to exercise” rights provided under
the FMLA. And section 2615(a)(2) makes it unlawful for “any employer to discharge or
in any other manner discriminate against any individual for opposing any practice made
unlawful” by the FMLA.
From these two subsections, the Eighth Circuit has recognized three unique FMLA
claims: (1) entitlement, (2) retaliation, and (3) discrimination. Pulczinski v. Trinity

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Structural Towers, Inc., 691 F.3d 996, 1005-06 (8th Cir. 2012). Here, Harrell alleged
FMLA claims under retaliation and discrimination theories. 5
In the absence of direct evidence, 6 the Court analyzes FMLA claims under the
McDonnell-Douglas burden-shifting framework. Brown v. Diversified Distribution Sys.,

5

Both parties discuss Harrell’s alleged “interference” claim. The Court interprets
Harrell’s “interference” claim as a “discrimination” claim pursuant to 29 U.S.C. § 2615(a)(1),
while recognizing that the Eighth Circuit began calling “interference” claims under section
2615(a)(1) “entitlement” claims in 2012. See Pulczinski v. Trinity Structural Towers, Inc., 691
F.3d 996, 1005-06 (8th Cir. 2012). Here, Harrell did not assert an “entitlement” claim because
Harrell admitted during her deposition that HMS never denied her an FMLA benefit, (Harrell
Dep. at 97:5-9, 98:22-99:6), and, as such, Harrell cannot succeed on an entitlement claim,
Pulczinski, 691 F.3d at 1005 (noting an entitlement claim “occurs where an employer refuses to
authorize leave under the FMLA or takes other action to avoid responsibilities under the Act”).
6

Harrell makes a very limited direct evidence argument with respect to her FMLA
retaliation and MHRA reprisal claims. Citing Young-Losee v. Graphic Packaging International,
Inc., 631 F.3d 909 (8th Cir. 2011), Harrell claims Bailey’s angry reaction to Harrell’s report of
discrimination is sufficient direct evidence to survive a motion to dismiss. (See Pl.’s Mem. in
Opp. to Def.’s Mot. for Summ. J. at 30-31, 35-36, Feb. 22, 2017, Docket No. 27.) But “a general
allegation of becoming upset” is not necessarily direct evidence of retaliation. Eason v.
Walgreen Co., No. 13-3184, 2015 WL 4373656, at *10 (D. Minn. July 15, 2015); see also
Becker v. Jostens, Inc., 210 F. Supp. 3d 1110, 1119 (D. Minn. 2016) (“[S]imply being upset is
not evidence upon which a reasonable fact finder could conclude that an illegitimate criterion
actually motivated Becker’s termination”).
Further, Bailey’s reaction to Harrell’s report of discrimination is distinguishable from
Young-Losee. There, Young-Losee made numerous complaints and filed a “formal complaint”
with human resources about alleged harassment. Young-Losee, 631 F.3d at 911. At a meeting
regarding the formal complaint, “Young-Losee was not allowed to speak and, eventually, [the]
supervisor] wadded up her complaint, threw it in the garbage can, told her it was ‘total bullshit,’
and said, ‘I want you out of here.’” E.E.O.C. v. Prod. Fabricators, Inc., 763 F.3d 963, 972 n.2
(8th Cir. 2014). In contrast, Harrell made her report of discrimination during a meeting
regarding her unprofessional conduct on August 5th. At this meeting, Harrell was permitted
to explain her position regarding the discipline. And, based on the circumstances, Bailey’s
conduct could be viewed as an “understandable reaction” when record evidence shows Bailey
was upset because he prides himself on acting favorably toward employees with regard to FMLA
and other kinds of leave. See Becker, 210 F. Supp. 3d at 1119; Eason, 2015 WL 4373656, at
*10; (Bailey Dep. at 78:18-79:21, 132:12-15, 135:8-10; Learned Dep. at 68:4-17; see also
Harrell Dep. at 183:22-184:8). Thus, the Court finds Bailey’s reaction is indirect evidence of
(Footnote continued on next page.)

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LLC, 801 F.3d 901, 908 (8th Cir. 2015). Under the McDonnell-Douglas framework,
Harrell must first make a prima facie case for discrimination and/or retaliation. Becker v.
Jostens, Inc., 210 F. Supp. 3d 1110, 1119 (D. Minn. 2016). If Harrell establishes a prima
facie case, the burden shifts to HMS “to articulate a legitimate, non-retaliatory [or nondiscriminatory] reason for its action.” Fercello v. Cty. of Ramsey, 612 F.3d 1069, 107778 (8th Cir. 2010). “The burden then shifts back to [Harrell] to put forth evidence of
pretext, the ultimate question being whether a ‘prohibited reason, rather than the
proffered reason, actually motivated the employer’s action.’” Id. (quoting Wallace v.
DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006)).

B.

MHRA

The MHRA prohibits both direct discriminatory practices and reprisal for
engaging in certain protected practices. See Minn. Stat. §§ 363A.08, 363A.15. Under the
MHRA:
It is an unfair discriminatory practice for any individual who participated in
the alleged discrimination as a[n] . . . employer . . . to intentionally engage
in any reprisal 7 against any person because that person:
________________________________________
(Footnote continued.)

retaliation and will analyze Harrell’s FMLA retaliation and MHRA reprisal claims using the
McDonnell-Douglas framework.
7
The statute defines “reprisal” as follows:
A reprisal includes . . . any form of intimidation, retaliation, or harassment. It is
a reprisal for an employer to do any of the following . . . : refuse to hire the
individual; depart from any customary employment practice; transfer or assign the
individual to a lesser position in terms of wages, hours, job classification, job
(Footnote continued on next page.)

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(1) opposed a practice forbidden under this chapter or has filed a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this chapter; or
(2) associated with a person or group of persons who are disabled or who
are of different race, color, creed, religion, sexual orientation, or national
origin.
Minn. Stat. § 363A.15. The MHRA further provides that
it is an unfair employment practice for an employer, because of . . . marital
status . . . to:
(1) refuse to hire or to maintain a system of employment which
unreasonably excludes a person seeking employment; or
(2) discharge an employee; or
(3) discriminate against a person with respect to hiring, tenure,
compensation, terms, upgrading, conditions, facilities, or privileges of
employment.
Minn. Stat. § 363A.08, subd. 2. Minnesota defines “marital status” broadly to include
“protection against discrimination on the basis of the identity, situation, actions, or
beliefs of a spouse or former spouse.”

Minn. Stat. § 363A.03, subd. 24 (emphasis

added).
In the absence of direct evidence, Minnesota courts have applied the McDonnellDouglas burden-shifting framework to the MHRA. Fletcher v. St. Paul Pioneer Press,
________________________________________
(Footnote continued.)

security, or other employment status; or inform another employer that the
individual has engaged in the activities listed in clause (1) or (2).
Minn. Stat. § 363A.15 (emphasis added).

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589 N.W.2d 96, 101 (Minn. 1999) (reprisal); Gunnufson v. Onan Corp., 450 N.W.2d 179,
182 (Minn. Ct. App. 1990) (marital status discrimination).

III.

MCDONNELL-DOUGLAS FRAMEWORK
A.

Prima Facie Case
1.

FMLA Retaliation

HMS first argues Harrell failed to set forth a prima facie case for FMLA
retaliation. To establish a prima facie case of FMLA retaliation, Harrell must show:
(1) she engaged in protected activity when she complained HMS was punishing her
because she exercised her FMLA rights, (2) she suffered an adverse employment action,
and (3) a causal connection between the protected activity and the adverse employment
action.

Brown, 801 F.3d at 909.

The only element in dispute is whether Harrell

presented sufficient evidence to show a causal connection between her report that she
was being discriminated against for taking FMLA leave and HMS’s decision to terminate
her employment.
In order to satisfy the causal connection element “[i]t is not enough that retaliation
was a ‘substantial’ or ‘motivating’ factor in the employer’s decision.” Liles v. C.S.
McCrossan, Inc., 851 F.3d 810, 819 (8th Cir. 2017) (alteration in original) (quoting
Blomker v. Jewell, 831 F.3d 1051, 1059 (8th Cir. 2016)). Instead, “[r]etaliation must be
the ‘but for’ cause of the adverse employment action.”
(quoting Blomker, 831 F.3d at 1059).

Id. (alteration in original)

As a general rule, “more than a temporal

connection between the protected conduct and the adverse employment action is

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required” to show a causal connection between a protected activity and an adverse action.
Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999). But when mere days
elapse between an employee’s FMLA complaint and termination, “temporal proximity
provides strong support for an inference of retaliatory intent.” Brown, 801 F.3d at 909
(quoting Wallace, 442 F.3d at 1122).
Here, while HMS presented evidence that Harrell made a post-hoc complaint after
being informed of a disciplinary action, see Griffith v. City of Des Moines, 387 F.3d 733,
738-39 (8th Cir. 2004), the Court finds there is sufficient evidence to show a causal
connection. It is undisputed that HMS did not intend to terminate Harrell until after she
reported discrimination for taking FMLA leave. And, most importantly, the temporal
proximity between Harrell reporting her belief that she was being punished for taking
FMLA leave and her ultimate termination was a matter of minutes. Thus, if there is any
case where temporal proximity alone could show an inference of a causal connection – it
is this case. See Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002) (“The
cases that accept mere temporal proximity between an employer’s knowledge of
protected activity and an adverse employment action as sufficient evidence of causality to
establish a prima facie case uniformly hold that the temporal proximity must be very
close.” (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001))).
Therefore, the Court finds Harrell presented sufficient evidence to meet her burden
of setting forth a prima facie case for FMLA retaliation.

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2.

FMLA Discrimination

HMS next argues Harrell failed to set forth a prima facie case for FMLA
discrimination. To establish a prima facie case of FMLA discrimination, Harrell must
show: (1) she engaged in protected activity when she took FMLA leave, (2) she suffered
a materially adverse employment action, and (3) a causal connection existed between
Harrell’s FMLA leave and the adverse employment action. Pulczinski, 691 F.3d at 1007.
Again, the only element in dispute is whether Harrell presented sufficient evidence to
show a causal connection, i.e. whether Harrell’s use of FMLA leave “played a part” in
HMS’s decision to terminate Harrell’s employment.

See Marez v. Saint-Gobain

Containers, Inc., 688 F.3d 958, 963 n.3 (8th Cir. 2012) (quoting Hite v. Vermeer Mfg.
Co., 446 F.3d 858, 865 (8th Cir. 2006)); see 29 C.F.R. § 825.220(c) (adopting a “negative
factor” standard).
“An employee can establish a causal link between her protected activity and the
adverse employment action through ‘the timing of the two events.’” Hite, 446 F.3d at 866
(quoting Eliserio v. United Steelworkers of Am., 398 F.3d 1071, 1079 (8th Cir. 2005)).
“Temporal evidence should generally be corroborated by other evidence of employment
discrimination.”

Marez, 688 F.3d at 963.

Further, “[c]ases in which . . . temporal

proximity alone was sufficient to create an inference of the causal link have uniformly
held that the temporal proximity must be very close.” Id. (quoting Hite, 446 F.3d at 866);
see also Smith, 302 F.3d at 832-33 (discussing cases in which temporal proximity has or
has not been considered sufficient).

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For her FMLA discrimination claim, Harrell not only presents evidence of
temporal proximity between her use of FMLA leave and her termination (three days),
Harrell also presents other evidence of employment discrimination. In particular, the
parties agree that Bailey made a statement at the August 5th meeting that “he knew
something was going on in [Harrell’s] life” and, even so, Bailey wanted Harrell to invest
more time in HMS. Coupled with the evidence that Bailey acted aggressively when
Harrell brought up her FMLA leave, the Court finds Harrell presented sufficient evidence
to show a prima facie case for FMLA discrimination.

3.

MHRA Reprisal – Associating with Disabled Persons

HMS asserts that it is entitled to summary judgment on Harrell’s MHRA reprisal
claim with respect to her association with a disabled person – her husband. To establish a
prima facie case for a reprisal claim, Harrell must establish the following elements:
“(1) statutorily-protected conduct by the employee; (2) [an] adverse employment action
by the employer; and (3) a causal connection between the two.” Hoover v. Norwest
Private Mortg. Banking, 632 N.W.2d 534, 548 (Minn. 2001) (quoting Hubbard v. United
Press Int’l, Inc., 330 N.W.2d 428, 444 (Minn. 1983)).
HMS argues it is entitled to summary judgment on Harrell’s reprisal claim because
Harrell failed to establish that she is associated with a person who has a disability that
“materially limits one or more major life activities.”

See Minn. Stat. § 363A.03,

subd. 12. Harrell responds that she does not have authority to release her husband’s

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records and HMS already has records showing her husband has a “serious health
condition.” 8
Under the MHRA, the word “disability” is defined as:
any condition or characteristic that renders a person a disabled person. A
disabled person is any person who (1) has a physical, sensory, or mental
impairment which materially limits one or more major life activities;
(2) has a record of such an impairment; or (3) is regarded as having such an
impairment.
Minn. Stat. § 363A.03, subd. 12. “Major life activities include caring for one’s self,
performing manual tasks, walking, seeing, hearing, breathing, learning and working.”
Bolin v. Japs-Olson Co., No. 06-3574, 2008 WL 1699531, at *4 (D. Minn. Apr. 9, 2008).
“An individual is materially limited in the life activity of working if he is ‘significantly
restricted in the ability to perform either a class of jobs or a broad range of jobs in various
classes as compared to the average person having comparable training, skills and
abilities.’” Id. (quoting Kellogg v. Union Pac. R.R. Co., 233 F.3d 1083, 1087 (8th Cir.
2000)). An individual is “regarded as” disabled when others regard him or her as having
an impairment which materially limits one or more major life activities. Fischer v.
Minneapolis Pub. Sch., 16 F. Supp. 3d 1012, 1016 n.4 (D. Minn. 2014).
Harrell bears the burden of showing that her husband has a disability as defined by
the MHRA and Harrell presented no evidence as part of the motion for summary
8

To satisfy the FMLA’s definition of a “serious health condition,” Harrell was required
to show her husband had “an illness, injury, impairment, or physical or mental condition that
involves – (A) inpatient care in a hospital, hospice, or residential medical care facility; or
(B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). This standard is less
stringent than that required to show a disability under the MHRA.

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judgment that her husband meets this definition. In analogous discrimination claims, the
Court dismissed cases where the plaintiff provided more evidence of an individual’s
disability than Harrell provided here. See, e.g., Bolin, 2008 WL 1699531, at *4; Land v.
Washington Cty., No. 99-1255, 2001 WL 228441, at *3 (D. Minn. Mar. 5, 2001).
Therefore, the Court finds Harrell failed to create a genuine issue of material fact
regarding her husband’s disability, and the Court will grant HMS’s motion for summary
judgment on that ground.

4.

MHRA Reprisal – Reporting Discrimination

HMS also asserts Harrell failed to set forth a prima facie case for reprisal based on
reporting discrimination. As set forth above, to allege an MHRA reprisal claim, Harrell
must establish: “(1) statutorily-protected conduct by the employee; (2) [an] adverse
employment action by the employer; and (3) a causal connection between the two.”
Hoover, 632 N.W.2d at 548 (quoting Hubbard, 330 N.W.2d at 444).
HMS argues Harrell’s MHRA reporting discrimination claim fails because Harrell
did not engage in protected conduct. To support this argument, HMS relies on Griffith
and argues Harrell failed to allege statutorily protected conduct in good faith because she
did not report discrimination based on her husband’s disability until after she received the
corrective action. 387 F.3d at 738-39. Reviewing Griffith, however, the Eighth Circuit
held a report after disciplinary action commenced goes to whether there is an “inference
of a retaliatory motive” – not whether the plaintiff engaged in protected conduct. 387
F.3d at 738-39. Further, the record shows Harrell reported that she felt the August 11th

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corrective action occurred because she asked for leave to take care of her husband on
August 5th. (See Harrell Dep. at 189:3-6.)
HMS also claims Harrell cannot satisfy the causal connection element – alleging
Harrell cannot show her report of discrimination was the but-for cause of her termination.
But, as pointed out by Harrell, “Minnesota courts have not addressed . . . whether the . . .
but-for causation standard . . . applies for reprisal claims under the MHRA.” Liles, 851
F.3d at 819 (quoting Musolf v. J.C. Penney Co., 773 F.3d 916, 919 (8th Cir. 2014)). Thus,
the Court must assess whether “evidence [exists] of circumstances that justify an
inference of retaliatory motive, such as a showing that the employer has actual or
imputed knowledge of the protected activity and the adverse employment action follows
closely in time.” Id. (quoting Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 327
(Minn. 1995)). In certain circumstances, temporal proximity is sufficient under the
MHRA to satisfy the causal connection element. Hubbard, 330 N.W.2d at 445 (“We find
that the inference arising from [the defendant’s] discharge of [the plaintiff] only 2 days
after service of the complaint in this action is sufficient to show retaliatory motive for
purposes of [the plaintiff’s] prima facie case.”).
As stated above, the temporal proximity between Harrell reporting her belief that
she was being punished for leaving work to help her disabled husband and her ultimate
termination was a matter of minutes. Thus, this is a case where temporal proximity alone
creates an inference of a causal connection. See Smith, 302 F.3d at 833. Further, while
HMS argued that Harrell made a post-hoc complaint after being informed of a
disciplinary action, see Griffith, 387 F.3d at 738-39, it is undisputed that HMS did not
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intend to terminate Harrell until after she reported discrimination for taking leave to assist
her husband.
Therefore, the Court finds Harrell set forth a prima facie MHRA reprisal claim for
reporting discrimination.

5.

MHRA Marital Status Discrimination

HMS finally argues Harrell failed to meet her burden of setting forth a prima
facie 9 case of marital status discrimination.

To set forth a prima facie case of

9

Harrell asserts her claim should survive summary judgment because she has direct
evidence HMS terminated Harrell because of her marital status. “Direct evidence [of marital
status discrimination] is evidence of conduct or statements by the employer’s decisionmakers
sufficient to permit a fact-finder to infer that the discriminatory attitude was more likely than not
a motivating factor in the employer’s adverse employment decision.” Taylor v. LSI Corp. of
Am., 781 N.W.2d 912, 917 (Minn. Ct. App. 2010). “Direct evidence in this context must be
strong enough to show ‘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 employment decision.” Schierhoff v. GlaxoSmithKline
Consumer Healthcare, L.P., 444 F.3d 961, 965 (8th Cir. 2006) (alteration in original) (quoting
Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997)).
As direct evidence, Harrell points to: (1) Bailey’s statement that he did not “understand
why [Harrell] would have told [her] husband [about the changes in the Customer Service
Department] if [she] knew it would upset him,” (Harrell Dep. at 187:5-8; see also Bailey Dep at
140:5-10; Learned Dep. at 58:19-59:5); (2) Bailey’s statement after Harrell refused to sign the
corrective action that “clearly [HMS] has made [Harrell] and [her] family unhappy, [the family
is] not happy, and so maybe [HMS and Harrell] should – can find an exit strategy . . . that would
work nicely for everybody,” (Harrell Dep. at 198:8-19); and (3) Bailey’s notes after the August
11th meeting, (Thome Decl., Ex. H). But Bailey did not make these comments in a vacuum. See
Wagner v. Gallup, Inc., 788 F.3d 877, 884 (8th Cir. 2015). And, when viewed in context, even
though stated by the decisionmaker, these comments do not establish an inference of animus
against Harrell’s husband’s beliefs or situation – or Harrell’s status as a married woman – as is
required to use the direct method. Id. at 884-85. All of Bailey’s comments about Harrell’s
husband were made in response to Harrell’s assertions (see Harrell Dep. at 184:25-185:9, 195:516); for example, Bailey’s alleged comment that Harrell should have an exit strategy because
HMS made her “family unhappy” was made in the context of Harrell’s repeated complaints
(Footnote continued on next page.)

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discrimination, Harrell must show: “(1) she is a member of a protected group; (2) she
was qualified for her position; (3) she was discharged; and (4) the discharge occurred
under circumstances giving rise to an inference of discrimination.” 10

Doucette v.

Morrison Cty., 763 F.3d 978, 982 (8th Cir. 2014). Minnesota defines “marital status” to
include “protection against discrimination on the basis of the identity, situation, actions,
or beliefs of a spouse or former spouse.” Minn. Stat. § 363A.03, subd. 24.
HMS first asserts Harrell cannot show that she was qualified for her position
because she repeatedly engaged in unprofessional conduct. To be “qualified” under the
MHRA, Harrell must show that she met the minimum “objective qualifications for the
job.” Legrand v. Trs. of Univ. of Ark. at Pine Bluff, 821 F.2d 478, 481 (8th Cir. 1987).
Here, the record shows Harrell met the objective qualifications for the Lead CSR
position. In her last evaluation, Deters rated Harrell as “exceeds expectations.” (Thome
Decl., Ex. B at 20.) After that date, Harrell received one report against her for becoming
________________________________________
(Footnote continued.)

about her husband’s perception of HMS. (Id. at 195:2-197:20.) Further weighing against a
showing of direct evidence is Harrell’s own admission that HMS never “took any action against
[her] simply because of the fact that [she was] married.” (Id. at 218:9-16.) Under these
circumstances, Harrell failed to establish an inference of animus such that Harrell presented
direct evidence of marital status discrimination. See Wagner, 788 F.3d at 884-85.
10

HMS argues Harrell’s marital status claim per se fails because she cannot identify a
single similarly-situated person who was treated better. (Def.’s Mem. in Supp. of Mot. for
Summ. J. at 25, Feb. 1, 2017, Docket No. 19 (citing Freeman v. Ace Tel. Ass’n, 404 F. Supp. 2d
1127, 1136 (D. Minn. 2005)). The Minnesota Supreme Court has held that “[t]he specific
elements of the McDonnell Douglas court’s formulation of the plaintiff’s prima facie case . . .
must be modified for varying factual patterns and employment contexts.” Sigurdson v. Isanti
Cty., 386 N.W.2d 715, 720 (Minn. 1986). The elements listed above are commonly used when
analyzing discrimination claims under the MHRA.

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“defensive with [a] [customer],” but there is no indication HMS considered termination.
(Toft Decl., Ex. I at 290.) 11 Further, even after the August 5th incident, HMS only
planned to give Harrell a corrective action – not terminate her employment. Therefore,
the record shows Harrell was qualified for her position.
HMS also argues Harrell failed to show circumstances giving rise to an inference
of discrimination. To satisfy this element, Harrell must show a “connection between
[Harrell’s] protected status and her termination. Such an inference arises when it is more
likely than not that the employer’s actions were based on unlawful discrimination.”
Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 993-94 (8th Cir. 2011).
Here, Harrell points to three pieces of evidence regarding Bailey’s conduct to
support an inference of discrimination. Specifically: (1) Bailey’s statement that he didn’t
“understand why [Harrell] would have told [her] husband [about the changes in the
Customer Service Department] if [she] knew it would upset him,” (Harrell Dep. at 187:58; see also Bailey Dep. at 140:5-10; Learned Dep. at 58:19-59:5); (2) Bailey’s statement
after Harrell refused to sign the corrective action that “clearly [HMS] has made [Harrell]
and [her] family unhappy, [the family is] not happy, and so maybe [HMS and Harrell]
should – can find an exit strategy . . . that would work nicely for everybody,” (Harrell
Dep. at 198:8-19); and (3) Bailey’s notes after the August 11th meeting, (Thome Decl.,
Ex. H).

11

The page numbers cited for Exhibit I are to the Bates numbers indicated on the
document with the omission of all “0s” preceding the number.

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Looking at the facts in the light most favorable to Harrell, Bailey’s alleged
statement that HMS and Harrell should consider an exit strategy because “clearly [HMS]
has made [Harrell] and [her] family unhappy,” (Harrell Dep. at 198:8-19), is some
evidence leaning toward an inference of discrimination. Specifically, it could show that
just prior to terminating Harrell, Bailey expressed that if an individual’s spouse is not
happy with HMS then HMS does not want the individual employed at HMS.
Further, the temporal proximity between Harrell’s termination and Bailey’s
comments support an inference of discrimination. As stated above, temporal proximity is
generally not enough by itself to create an inference of discrimination, it can be one
important factor. And here the comments regarding Harrell’s husband were made just
minutes before her termination. See Smith, 302 F.3d at 833. Thus, the Court finds
Harrell set forth a prima facie case for marital status discrimination.

B.

Legitimate Non-Discriminatory or Non-Retaliatory Reason

Because the Court finds Harrell established a prima facie case on the FMLA
claims and two MHRA claims, the Court must next decide whether HMS set forth a
legitimate, non-retaliatory or non-discriminatory reason for terminating Harrell. Harrell
argues the Court should deny HMS’s motion for summary judgment because HMS failed
to meet its burden of presenting a reason for putting Harrell on an “exit strategy.”
The Court does not find Harrell’s argument compelling that the discussion of an
“exit strategy” during the August 11th meeting amounts to an adverse employment action.
The record plainly shows that, prior to Harrell’s “enriching lives” statement, there was no

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agreement that an “exit strategy” would actually happen or that Harrell would ultimately
be terminated. (Peterson Dep. at 115:6-116:10, 155:4-5; Bailey Dep. at 146:17-147:8;
Harrell Dep. at 198:11-199:12, 201:6-13.)

Therefore, the Court finds the adverse

employment action occurred when Harrell was actually terminated – not when the parties
discussed the potential for an “exit strategy.” Black v. Indep. Sch. Dist. No. 316, 476 F.
Supp. 2d 1115, 1123 (D. Minn. 2007) (“To establish an adverse employment action, a
plaintiff must do more than allege that actions taken by her employer created the potential
for harm; rather, she must show some tangible harm flowing from the employer’s
actions.”); see also Burchett v. Target Corp., 340 F.3d 510, 518 (8th Cir. 2003) (negative
performance review alone not adverse employment action).
Reviewing the record, HMS presents sufficient evidence to support its assertion
that Harrell was terminated because she “mocked [HMS’s] mission despite repeated prior
warnings for unprofessional conduct and a corrective action only minutes beforehand.”
(Def.’s Mem. in Supp. of Mot. for Summ. J. at 22, Feb. 1, 2017, Docket No. 19; see also
Learned Dep. at 67:8-23; Peterson Dep. at 155:13-158:5.)

Harrell’s co-workers all

testified to Harrell’s unprofessional conduct on August 5th, Harrell agreed the corrective
action was taken for that reason, Harrell admits to making the “enriching lives”
statement, and Harrell concedes she knew the statement would be offensive to the
leadership team.
Therefore, the Court finds HMS presented sufficient facts to show a legitimate
non-retaliatory and non-discriminatory reason for terminating Harrell’s employment after
the “enriching lives” comment.
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C.

Pretext

Because the Court finds HMS met its burden of showing a legitimate, nonretaliatory and non-discriminatory reason for terminating Harrell’s employment, the
Court must decide whether Harrell met her burden of showing pretext.

A pretext

“‘inquiry is limited to whether the employer gave an honest explanation of its behavior,’
not whether its action was wise, fair, or correct.” McKay v. U.S. Dep’t of Transp., 340 F
.3d 695, 700 (8th Cir. 2003) (quoting Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 973
(8th Cir. 1994)). “A plaintiff may demonstrate a material question of fact regarding
pretext in at least two ways, either by showing ‘that the employer’s explanation is
unworthy of credence because it has no basis in fact’ or ‘by persuading the court that a
prohibited reason more likely motivated the employer.’” Doering v. Wal-Mart Stores,
Inc., No. 12-2629, 2014 WL 3395745, at *12 (D. Minn. July 11, 2014) (quoting
Torgerson v. City of Rochester, 643 F.3d 1031, 1047 (8th Cir. 2011)). A plaintiff may
meet this standard “by showing that an employer (1) failed to follow its own policies,
(2) treated similarly-situated employees in a disparate manner, or (3) shifted its
explanation of the employment decision.” Lake v. Yellow Transp., Inc., 596 F.3d 871,
874 (8th Cir. 2010).
Here, HMS’s asserted legitimate, non-discriminatory and non-retaliatory reason
for terminating Harrell is that Harrell “mocked [HMS’s] mission despite repeated prior
warnings for unprofessional conduct and a corrective action only minutes beforehand.”

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(Def.’s Mem. in Supp. of Mot. for Summ. J. at 22.) The Court must review Harrell’s
assertions of pretext in light of this justification. Smith, 302 F.3d at 834.
Significant evidence weighs against the Court finding pretext with regard any of
Harrell’s claims. First, HMS replaced Harrell with another employee on intermittent
FMLA leave, (see Demry Decl. ¶ 6), providing strong evidence HMS’s asserted reason
for terminating Harrell is not pretextual, see Lake, 596 F.3d at 874 (explaining evidence
that similarly-situated employees are treated in a disparate manner is evidence of pretext);
Stewart v. Rise, Inc., 791 F.3d 849, 859 (8th Cir. 2015) (in a hostile work environment
case, finding insufficient evidence of a discriminatory termination where “the terminated
employee herself was a supervisor over the alleged offenders, and members of the same
protected class preceded and followed her in the exact same supervisory position”).
Second, HMS permitted Harrell to take FMLA leave on numerous occasions, and, as a
general rule, this is strong evidence that HMS was not hostile to the protected activity.
See Burciaga v. Ravago Ams. LLC, 791 F.3d 930, 937 (8th Cir. 2015); see also Chappell
v. Bilco Co., 675 F.3d 1110, 1120 (8th Cir. 2012) (“[Chappell’s] numerous uses of FMLA
leave without negative consequences support Bilco’s non-discriminatory and nonretaliatory justification for Chappell’s termination.”).
As to all claims, Harrell relies on three pieces of evidence to assert that fact issues
remain over whether the proffered reason for her termination was pretextual: (1) Bailey’s
angry response at the August 11th meeting; (2) HMS’s failure to follow the HMS policy
for investigating harassment complaints; and (3) HMS’s response to Harrell’s August 5th

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conduct changed after the August 11th meeting.

Reviewing the evidence, each is

insufficient to create a fact issue.
First, “simply being upset is not evidence upon which a reasonable fact finder
could conclude that an illegitimate criterion actually motivated” an employee’s
termination and an employer’s angry reaction can, in some instances, be “an
understandable reaction.” Becker v. Jostens, Inc., 210 F. Supp. 3d 1110, 1119 (D. Minn.
2016). Here, the record shows that Bailey was visibly upset when Harrell accused Bailey
of punishing Harrell for leaving to assist her husband. (Harrell Dep. at 190:8-16; Deters
Dep. at 28:19-29:15; Learned Dep. at 62:21-63:3.) But the evidence also shows Bailey
was upset because HMS provides services to disabled people and, as such, Bailey prides
himself on acting favorably toward employees with regard to FMLA and other kinds of
leave. (See Bailey Dep. at 78:18-79:21, 132:12-15, 135:8-10; Learned Dep. at 68:4-17;
see also Harrell Dep. at 183:22-184:8.) Thus, Bailey’s anger is not enough, by itself, to
show pretext.
Second, Harrell correctly points out that an employer’s failure to follow its own
policies can be evidence of pretext. Lake, 596 F.3d at 874. But “the mere allegation that
[HMS] failed to follow its own policies, even if true, is insufficient as a matter of law to
prove pretext.” Naguib v. Trimark Hotel Corp., No. 15-3966, 2017 WL 598760, at *9
(D. Minn. Feb. 14, 2017). Further, “[t]he appropriate scope of investigation is a business
judgment, and shortcomings in an investigation do not by themselves support an
inference of discrimination.” Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782,

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795 (8th Cir. 2011) (quoting McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855,
863 (8th Cir. 2009)).
Here, the record plainly shows that HMS neither asked Harrell to put her
complaint in writing nor investigated the complaint made on August 11th – as indicated
by HMS’s “Team Member Handbook” and “Code of Ethics.” (Peterson Dep. at 145:18147:21, 150:24-151:21; Bailey Dep. at 76:5-78:16, 83:18-85:8.) But Peterson testified
that a written complaint was not necessary because Harrell’s statement “didn’t come off
. . . as . . . an official complaint.” (Peterson Dep. at 151:13-15.) Bailey agreed, stating
“[t]here was nothing to investigate.” (Bailey Dep. at 76:6-7.) In addition, reading the
plain language of the policy, no investigation was actually required. (See Thome Decl.,
Ex. L at 83 (explaining that the investigation will depend upon “the circumstances of the
matter”).) Thus, while the lack of investigation may provide some limited circumstantial
evidence of pretext, by itself it is not enough to persuade the Court that any of Harrell’s
asserted protected activity caused her termination; as opposed to her unprofessional
conduct on August 11th.
Third, the Court is not convinced by Harrell’s argument that, because the purpose
of the August 11th meeting was to give a corrective action, Harrell’s termination is
evidence of pretext. See Lake, 596 F.3d at 874. HMS’s stated reason for terminating
Harrell was that “mocked [HMS’s] mission [during the August 11th meeting] despite
repeated prior warnings for unprofessional conduct and a corrective action only minutes
beforehand.” (Def.’s Mem. in Supp. of Mot. for Summ. J. at 22.) Harrell admitted that
she made the “enriching lives” statement and that she knew her comment was offensive.
- 30 -

(Harrell Dep. at 198:2-5, 199:13-25.)

Numerous cases hold that an admission to

offending conduct weighs against finding pretext. See, e.g., Burciaga, 791 F.3d at 937
(noting appellant “admitted she made the shipping errors at issue”); Davenport v.
Riverview Gardens Sch. Dist., 30 F.3d 940, 945 (8th Cir. 1994) (noting that “plaintiff
generally admitted that the four incidents occurred”). Further, because Harrell admits to
the offending conduct, Harrell cannot rely on the original corrective action prior to
making the offending “enriching lives” remark.
For these reasons, the Court finds Harrell failed to create a genuine issue of
material fact on the pretext element on both her FMLA and MHRA claims, and the Court
will grant HMS’s motion for summary judgment.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Handi Medical Supply, Inc.’s Motion for Summary
Judgment [Docket No. 17] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: September 28, 2017
at Minneapolis, Minnesota.

___________s/John R. Tunheim__________
JOHN R. TUNHEIM
Chief Judge
United States District Court

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