Olinger v. Renville County et al
Filing
46
OPINION AND ORDER granting 29 Defendants' Motion for Summary Judgment. (Written Opinion). Signed by Judge Eric C. Tostrud on 11/12/2019. (RMM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Douglas C. Olinger,
File No. 18-cv-00472 (ECT/TNL)
Plaintiff,
v.
Renville County Hospital & Clinics; and
Nathan Blad, individually and in his
capacity as CEO of Renville County
Hospital & Clinics,
OPINION AND ORDER
Defendants.
Markus C. Yira, Yira Law Office, Ltd, Hutchinson, MN; and Julie W. Hanjani, Law Office
of Julie Wacker Hanjani, Hutchinson, MN for Plaintiff Douglas C. Olinger.
Patrick J. Larkin and Michael T. Burke, Lind Jensen Sullivan & Peterson, PA, Minneapolis,
MN for Defendants Renville County Hospital & Clinics and Nathan Blad.
Plaintiff Douglas Olinger alleges that Defendants Renville County Hospital &
Clinics and its CEO, Nathan Blad, violated the Family and Medical Leave Act (“FMLA”)
by downgrading the duties of his position after he returned from an FMLA leave and by
later terminating his employment for exercising his right to FMLA leave. Olinger also
alleges that these same adverse actions violated Minnesota’s Whistleblower Act because
they occurred in retaliation for his exercise of reporting rights protected under the Act.
Defendants have moved for summary judgment on all of Olinger’s claims, and that motion
will be granted. Olinger’s FMLA entitlement claim based on the alleged downgrading of
his position fails because, as a matter of law, the duties of his position when he returned
from FMLA leave were not sufficiently different from the duties of the position before his
leave. Even if there were a legally sufficient difference, Defendants have shown that the
changes to Olinger’s duties would have occurred regardless of his FMLA leave. Olinger’s
FMLA discrimination claim based on his termination does not survive because Olinger has
not identified evidence from which a juror reasonably could infer a causal connection
between his exercise of FMLA rights and his termination.
Olinger’s claim under
Minnesota’s Whistleblower Act fails because he did not report a violation of the law—i.e.,
he never blew the whistle—as the Act requires.
I1
Olinger began working for Renville County Hospital & Clinics (the “Hospital”) in
November 2000. Burke Decl., Ex. 1 (“Olinger Dep.”) at 19 [ECF No. 38-1]; Compl. ¶ 9
[ECF No. 1]. He was employed initially as a maintenance engineer. Olinger Dep. at 31.
From the day he started until about October 2007, Olinger reported to the Hospital’s
maintenance director, David Lofgren. Id. at 31–33. Lofgren retired at that time, and
Olinger applied unsuccessfully for the director of maintenance position. Id. at 32–33.
Olinger continued working as a maintenance engineer for several years, and in April
2014—with encouragement from the Hospital—Olinger accepted the position of
housekeeping and laundry supervisor. Id. at 33–34. As the housekeeping and laundry
supervisor, Olinger oversaw the staff of the housekeeping and laundry departments and
1
In describing the relevant facts and resolving this motion under Rule 56(a), all of
Olinger’s evidence is believed, and all justifiable inferences are drawn in his favor. See
Tolan v. Cotton, 572 U.S. 650, 651 (2014).
2
reported to the Hospital’s CFO. Burke Decl., Ex. 2 (“Position Description”) at 1. Olinger’s
duties in this position included supervising staff and performing housekeeping work. See
generally id. at 1–2. Olinger spent about fifty percent of his time on “office” or supervisory
work and about fifty percent on the “floor” personally performing housekeeping duties.
Olinger Dep. at 46–47.
Olinger requested and was granted FMLA leave on multiple occasions during his
employment with the Hospital.
In May 2014, shortly after beginning work as the
housekeeping and laundry supervisor, Olinger requested and was granted FMLA leave to
care for his son in connection with a surgery. Id. at 38. Olinger returned from this leave
the following month, in June. Id. Olinger requested and was granted a second FMLA
leave to care for his son beginning August 21, 2014. Id. at 39. He returned from this leave
in mid-September. Id. at 39–40. At some point during October through December 2014,
Olinger took a third FMLA leave to care for his son. Id. at 41–42. Olinger identifies no
complaints with any of these three FMLA leaves. He acknowledges that these leave
requests were approved with no issues and that he encountered no problems on his return
to work from any of these leaves. Id. at 38–42.
Olinger twice applied for open maintenance engineer positions during 2015, but he
was not successful on either occasion. In May 2015, Olinger applied and interviewed for
the position, but another individual named Bruce Jacques was hired. Id. at 49–50; 73.
Jacques subsequently was promoted to environmental services director. Id. at 73–74. His
promotion created the second open maintenance engineer position for which Olinger
applied; Olinger was scheduled to be interviewed for the position in September 2015. Id.
3
at 74–75. Concerns with the Hospital’s hiring process for these positions prompted Olinger
to contact then-Renville County Administrator Sara Folstad prior to this interview. Id. at
77–91. Olinger asked Folstad what could be done “about the hiring process about - - if
they were going to hire - - if they didn’t hire the most qualified person.” Id. at 86. Folstad
told Olinger that he should follow the Hospital’s grievance policy. Id. Olinger asked what
he could do if he didn’t “feel comfortable or if at this time I’m not sure if that’s capable of
going through that chain,” and Folstad repeated that Olinger should follow the Hospital’s
grievance policy. Id. Olinger asked Folstad to keep their conversation confidential and
said “if [he] thought something changed or it didn’t look like it was above board, [he]
would then follow up with her.” Id. Olinger “never did have to call back and talk to her
after that.” Id. Olinger subsequently was interviewed for the open maintenance engineer
position, but another individual was hired. Id. at 74–75.
Olinger requested and was granted a fourth FMLA leave from September 29, 2015
until mid-February 2016 to undergo treatment for a neck condition. Id. at 51–54. Two
events following Olinger’s return from this leave form the basis for his FMLA claims in
this case. First, Olinger says that after he returned from this leave the duties of his position
shifted away from being supervisory and that he “just became a floor worker.” Id. at 54.
Second, Olinger’s employment was terminated on April 4, 2016. Burke Decl., Ex. 8. In a
letter, the Hospital explained that Olinger was “being laid off from [his] position as
Housekeeping Manager effective immediately.” Id., Ex. 7. The letter cited efficiencies
gained from the Hospital’s construction of and move to a “new building and anticipated
4
future cuts in reimbursements” as justifications for the layoff and described that the layoff
was “indefinite in duration and should be considered permanent.” Id.
II
Summary judgment is warranted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A dispute over a fact is “material” only if its resolution might affect
the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is “genuine” only if “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Id. “The
evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn
in his favor.” Id. at 255.
A
1
Olinger alleges that Defendants engaged in acts prohibited by the FMLA, and
29 U.S.C. § 2615(a) provides the basis for his claims. It reads:
(a) Interference with rights
(1) Exercise of rights
It shall be unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to
exercise, any right provided under this subchapter.
(2) Discrimination
It shall be unlawful for any employer to discharge or in
any other manner discriminate against any individual
for opposing any practice made unlawful by this
subchapter.
5
29 U.S.C. § 2615(a).
Our Eighth Circuit Court of Appeals “has recognized three types of claims arising
under these two subsections. The first type, arising under § 2615(a)(1), occurs where an
employer refuses to authorize leave under the FMLA or takes other action to avoid
responsibilities under the Act.” Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996,
1005 (8th Cir. 2012). “An employee proceeding on this theory need not show that an
employer acted with discriminatory intent.” Id. Though in several older cases the Eighth
Circuit has described this claim as one for “interference” with FMLA rights, e.g., Stallings
v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006), it more recently declared that
“what we formerly described as ‘interference’ claims henceforth shall be called
‘entitlement’ claims.” Bosley v. Cargill Meat Solutions Corp., 705 F.3d 777, 780 (8th Cir.
2013) (citing Pulczinski, 691 F.3d at 1005).
“retaliation.”
The second type of claim is one for
Pulczinski, 691 F.3d at 1005–06.
A retaliation claim arises under
§ 2615(a)(2) and occurs when an employee opposes any practice made unlawful under the
FMLA. Id. The third type of claim
arises when an employer takes adverse action against an
employee because the employee exercises rights to which he is
entitled under the FMLA. In this scenario, the employer does
not prevent the employee from receiving FMLA benefits.
Rather, it is alleged that after the employee exercised his
statutory rights, the employer discriminated against him in the
terms and conditions of employment. An employee making
this type of claim must prove that the employer was motivated
by the employee’s exercise of rights under the FMLA. The
textual basis for such a claim is not well developed in [the
Eighth Circuit’s] cases, but the claim likely arises under the
rule of § 2615(a)(1) that an employer may not “interfere with,
restrain, or deny the exercise of or the attempt to exercise”
6
rights defined by the FMLA. To distinguish the “entitlement”
claim under § 2615(a)(1), and the “retaliation” claim under
§ 2615(a)(2), we think it helpful to describe this sort of
complaint as a “discrimination” claim.
Pulczinski, 691 F.3d at 1006 (citations omitted); see also Massey-Diez v. Univ. of Iowa
Cmty. Med. Servs., Inc., 826 F.3d 1149, 1157–58 n.5 (8th Cir. 2016) (noting “unresolved
difference of opinion” in the Eighth Circuit as to whether a discrimination claim arises
under § 2615(a)(1) or (a)(2)). FMLA discrimination claims are evaluated “under the
McDonnell Douglas burden-shifting framework that is applied in Title VII cases.”
Pulczinski, 691 F.3d at 1007.
2
Defendants, using the older FMLA nomenclature, argue that Olinger’s claim
challenging the post-leave downgrading of his position should be evaluated as a
“retaliation” claim and not as one for “interference.” See Mem. in Supp. at 13–22 [ECF
No. 37]. Olinger pleads that Defendants violated his FMLA restoration right, and this
aspect of Olinger’s complaint must be analyzed as an entitlement claim under the Eighth
Circuit’s more recent decisions. Olinger alleges that he “was entitled to restoration to his
position as described in the FMLA, 29 U.S.C. § 2614(1),” and that Defendants denied him
this right. Compl. ¶ 26 (emphasis added). The allegations refer explicitly to the restoration
right, cite the statute creating the right (albeit imperfectly—the correct cite is
29 U.S.C. § 2614(a)(1)), and plead facts—namely, that Olinger was denied this right
because Defendants “demoted [him] to a more labor intensive position”—that, if proven,
tend to show a violation of the right. Id. ¶¶ 22, 26. These allegations are sufficient to plead
7
a claim that Defendants violated Olinger’s restoration right. Defendants argue that this
aspect of Olinger’s FMLA claim “confuses an interference claim with a retaliation claim.”
Reply Mem. at 4 [ECF No. 44]. Adhering to the Eighth Circuit’s more recent and binding
precedent, the question is whether Olinger’s complaints regarding the downgrading of his
position must be analyzed as an “entitlement” claim or a “discrimination” claim. The
Eighth Circuit has made clear that an employee who alleges, as Olinger does here, that an
employer violated his right “to be restored to the position [he] occupied before [he] took
leave” asserts what used to be called an interference claim and what now is called an
entitlement claim. Throneberry v. McGehee Desha Cty. Hosp., 403 F.3d 972, 977 (8th Cir.
2005); see also Brown v. Diversified Distribution Sys., LLC, 801 F.3d 901, 907–08 (8th
Cir. 2015) (“Brown’s claim that Diversified denied her an equivalent position thus fits
within the Pulczinski framework as a § 2615(a)(1) entitlement claim.”). Olinger’s claim
that Defendants failed to restore him to his pre-leave housekeeping and laundry supervisor
position, or its equivalent, must be analyzed as an entitlement claim.
“Upon return from FMLA leave, an employee is entitled to be restored to the same
position held prior to the beginning of the leave, or its equivalent, in terms of benefits, pay
and other terms and conditions.” Bloom v. Metro Heart Grp. of St. Louis, Inc., 440 F.3d
1025, 1029 (8th Cir. 2006) (citing 29 U.S.C. § 2614(a)(1)). “[T]he restoration of salary,
title, and benefits does not necessarily constitute restoration to the same position within the
meaning of section 2614(a)(1)(A) when the job duties and essential functions of the newly
assigned position are materially different from those of the employee’s pre-leave position.”
Cooper v. Olin Corp., 246 F.3d 1083, 1091 (8th Cir. 2001). “An equivalent position is one
8
that is virtually identical to the employee’s former position in terms of pay, benefits and
working conditions, including privileges, perquisites and status. It must involve the same
or substantially similar duties and responsibilities, which must entail substantially
equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a); see also
29 C.F.R. § 825.215(e) (“An equivalent position must have substantially similar duties,
conditions, responsibilities, privileges and status as the employee’s original position.”).
“The requirement that an employee be restored to the same or equivalent job with the same
or equivalent pay, benefits, and terms and conditions of employment does not extend to de
minimis, intangible, or unmeasurable aspects of the job.” 29 C.F.R. § 825.215(f). In the
District of Minnesota, plaintiffs asserting FMLA restoration-entitlement claims have
shown the existence of a genuine dispute as to a material fact to defeat a summaryjudgment motion by citing evidence showing, for example, that they were assigned
“substantially less” of the available work on return from leave than they had before taking
leave or that the post-leave work is “very low-level” compared to pre-leave duties, Johnson
v. Campbell Mithun, 401 F. Supp. 2d 964, 972 (D. Minn. 2005), or that changes “eliminated
a significant portion of [their] previous job duties” or required performance of duties they
“had not performed in many years,” Haskell v. CentraCare Health Sys., 952 F. Supp. 2d
838, 842 (D. Minn. 2013).
Olinger acknowledges that the position he occupied after returning from his
September 2015-to-February 2016 FMLA leave had the same hours, salary, and benefits
as the position he occupied before the leave. Olinger Dep. at 55–57. Regardless, he says
that “major changes to his position occurred” that made the position he occupied after
9
returning “materially different” from the position he occupied before the leave. Mem. in
Opp’n at 13–14 [ECF No. 41].2 The housekeeping and laundry supervisor position Olinger
occupied before his leave included supervisory duties (Olinger refers to these as “office”
duties) and housekeeping duties (Olinger calls these “floor” duties). Olinger Dep. at 46.
The supervisory duties included evaluating, planning, organizing, and controlling the
activities and staff for the Hospital’s housekeeping and laundry departments. Position
Description at 1–2. Housekeeping duties “range[d] from cleaning patient rooms, hallways,
exam rooms to the surgery area.” Olinger Dep. at 47. Olinger testified that he split his
time evenly between supervisory and housekeeping duties: “it was 50 percent floor, 50
percent office.” Id. at 46. Olinger testified this split changed when he returned from his
September 2015-to-February 2016 FMLA leave:
Upon return, the duties of the position was different. Wasn’t a
supervisor. I didn’t manage the staff. I didn’t put their
schedules together. I didn’t implement the . . . policies or
treatments or trainings or methods or any of that. I just became
a floor worker.
2
Olinger’s position regarding whether he had the same title after returning from his
leave is imprecise. Olinger testified in his deposition that during a meeting with Lynette
Bernardy, the Hospital’s human resources director, and Jacques “a couple weeks before”
he returned from leave he was assigned a new title, “floor manager.” Olinger Dep. at 54–
55, 59–60, 63. Though an email from Jacques to Olinger dated February 17, 2016 describes
Olinger as a “Floor manager,” it’s not clear whether that is intended to reflect a title. Yira
Decl., Ex. 5 [ECF No. 42-5]. Finally, Olinger references the “floor manager” title in his
opposition brief, Mem. in Opp’n at 4, but he does not seem to rely on a title change in
arguing against summary judgment and, in fact, seems to acknowledge that, so far as the
Hospital was concerned, he held the housekeeping supervisor title “upon his return.” Id.
at 14.
10
Id. at 54; see also id. at 59 (testifying that, following return from leave, he no longer
scheduled staff, managed timecards, implemented improvements and changes, or
budgeted). Olinger testified that he became a “75 percent or almost a hundred percent floor
person.” Id. at 55.
Defendants argue that they did not violate Olinger’s restoration rights because the
position Olinger occupied on return from leave was not “outside of the core competencies”
of the housekeeping and laundry supervisor position. Reply Mem. at 8. Defendants do not
seem to dispute that Olinger’s duties shifted at least somewhat and that he spent
comparatively more of his time performing housekeeping work and less time on
supervisory work after he returned from leave. However, the Hospital’s human resources
director, Lynette Bernardy, testified that Olinger retained responsibility to manage the
housekeeping and laundry departments, and that this responsibility included conducting
performance evaluations, ensuring compliance with Hospital policies, disciplining
employees, and managing timecards. Burke Decl., Ex. 5 (“Bernardy Decl.”) ¶¶ 5–6.3
3
The housekeeping and laundry supervisor position description says: “This job
description is not intended to be all-inclusive. The employee will also perform other
reasonable related duties as assigned by the supervisor or management. Management
reserves the right to change job responsibilities, duties, and hours as needs prevail.”
Position Description at 4. Relying on these provisions, Defendants argue that Olinger’s
duties were not materially different after he returned from FMLA leave (and perhaps could
not have been regardless of circumstances) because the Hospital “reserve[d] the right” to
change Olinger’s duties as it deemed necessary, and Olinger knew this. Mem. in Supp. at
17–18. This is not correct. An employer cannot bypass its employees’ FMLA restoration
rights by reserving in job descriptions the right to change employees’ duties “as needs
prevail.” If that kind of reservation were sufficient, the Hospital, under its logic, could
have reassigned Olinger to any number of very different positions—parking lot attendant,
greeter, etc.—without consequence. That’s not the law.
11
As a matter of law, Olinger has not shown that the duties of his housekeeping and
laundry supervisor position were materially different during the not quite two months he
worked after his September 2015-to-February 2016 FMLA leave from before he took this
leave. As noted above, Olinger’s title, hours, salary, and benefits all stayed the same. He
was not required to perform new tasks. Housekeeping or “floor” duties were a significant
part of Olinger’s responsibilities before his leave. This is clear from the housekeeping and
laundry supervisor position description. For example, it identifies the performance of
“cleaning procedures” as a core competency, among others related to housekeeping duties.
Position Description at 1.
It lists several housekeeping tasks as “[g]eneral
[r]esponsibilities.” Id. These include, for example, maintaining the “cleanliness” of the
Hospital and “[f]ollow[ing] established safety precautions when performing tasks and
when using equipment and supplies.” Id. The physical demands described for the position
seem primarily to concern housekeeping duties. Id. at 2–4. As presented, the increase in
housekeeping duties Olinger describes is de minimis as a matter of law under
29 C.F.R. § 825.215(f) because it is not the product of a useful measurement and is
indefinite.
Neither the position description nor any other document in the record
establishes an expectation that Olinger’s housekeeping (or supervisory) duties would be
capped at fifty percent of his hours. Nothing reflects that Olinger recorded the actual time
he spent performing each of these sets of tasks. Olinger does not say whether the even split
he describes was a yearly average or a daily occurrence, so we do not know whether or
how much the even split Olinger describes fluctuated during the year. Against this
backdrop, Olinger’s description of the position before his leave as involving an even split
12
between supervisory and housekeeping duties must be understood as an estimate, not a
precise measure, of how he spent his time. If that is correct, then Olinger’s description of
the position after returning from his leave—that he performed housekeeping duties “75100% of the time,” Reply Mem. at 13, 14—is quite indefinite. In a 40-hour work week,
Olinger’s “75-100%” estimate represents a 10-hour swing one way or the other. And the
fact that Olinger’s post-leave estimate has a low end of “75%” is significant not only for
its indefiniteness. Consistent with Bernardy’s testimony, the 75 percent floor time in
Olinger’s estimate acknowledges, at least implicitly, that Olinger retained supervisory
duties occupying up to roughly 25 percent of his time at points during the not quite two
months he worked in the position following his return from leave. Especially given that
Olinger’s percentages should be understood as estimates, this reflects a roughly measured,
insubstantial uptick in the amount of time Olinger spent on housekeeping duties. Finally,
Olinger has not identified negative consequences that might follow from this change. He
does not argue, for example, that it affected opportunities for career advancement or held
any other tangible, adverse consequence.
Even if Olinger had shown the existence of a genuine issue of material fact regarding
whether the duties of the housekeeping and laundry supervisor position were “materially
different from those of the employee’s pre-leave position,” Cooper, 246 F.3d at 1091, the
FMLA “does not impose strict liability on employers for interference [now entitlement]
claims,” Ballato v. Comcast Corp., 676 F.3d 768, 772 (8th Cir. 2012). If the employer can
show that the employee’s restoration rights would have been affected in the same way if
the employee had not taken FMLA leave, then the employer cannot be liable under an
13
entitlement claim. See id. “An employee has no greater right to reinstatement or to other
benefits and conditions of employment than if the employee had been continuously
employed during the FMLA leave period.” 29 C.F.R. § 825.216(a).
Here, Defendants have shown that the changes Olinger describes to his
housekeeping and laundry supervisor services position would have happened even if
Olinger had not taken his September 2015-to-February 2016 FMLA leave. Scheduling is
one of the primary supervisory or administrative duties Olinger says was not restored to
him following his return from this leave. Olinger Dep. at 54. During Olinger’s leave (or
at least around the same time his leave began), the Hospital moved to a new building.
Bernardy Decl. ¶ 2. As part of the move, the Hospital developed a new “block scheduling
system” that remains in use today. Id. ¶ 3. The system “was implemented beginning on
November 13, 2015,” during Olinger’s leave. Id. With the new scheduling system in place,
“there was no longer a need for Mr. Olinger to work on a four-week rotation to schedule
the housekeeping and laundry departments.” Id. Budgeting is another of the principal
administrative duties Olinger says was not restored following his leave. Olinger Dep. at
59. But Bernardy testified that the Hospital budget was last updated on December 18,
2015, which was the version approved by the board on December 23, 2015. Bernardy
Decl. ¶ 7. Though Olinger does not seem to identify it specifically, managing the
Hospital’s telephone system was another of his pre-leave duties affected by the move. Id.
¶ 2. In its new facility, the Hospital installed a “Cisco phone system” that “was a much
more sophisticated phone system that even [the Hospital’s] IT department struggled with,”
prompting the Hospital to contract with an outside vendor to work with the IT department
14
to manage the system. Id. Olinger does not respond to this evidence. He does not, for
instance, explain why he would have retained scheduling authority despite the Hospital’s
implementation of the new block-scheduling system. He does not suggest how he would
have retained budgeting responsibilities following his return from leave in February 2016
when the Hospital approved the budget in December 2015. It is true that Olinger identifies
changes in his post-leave responsibilities, Mem. in Opp’n at 13, but even accepting the
truth of those assertions and assuming they worked a material change to the duties of his
position does not address Defendants’ point that the duties of Olinger’s position would
have changed regardless of his FMLA leave. For this reason, the law requires that
summary judgment be entered against Olinger’s FMLA entitlement claim.
3
Olinger alleges an FMLA discrimination claim based on Defendants’ termination
of his employment. To establish a prima facie FMLA discrimination claim, Olinger must
show that Defendants terminated his employment because Olinger exercised FMLA rights.
See Brown v. City of Jacksonville, 711 F.3d 883, 891 (8th Cir. 2013). In the absence of
direct evidence of discriminatory intent, an FMLA discrimination claim is analyzed under
the burden-shifting framework described in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).4
See, e.g., City of Jacksonville, 711 F.3d at 891; Diversified
Distribution Sys., 801 F.3d at 908. Under that framework, Olinger “must show: (1) that he
engaged in activity protected under the Act, (2) that he suffered a materially adverse
Olinger does not claim to have direct evidence of discrimination. See generally
Mem. in Opp’n at 15–20.
4
15
employment action, and (3) that a causal connection existed between [his] action and the
adverse employment action.” Diversified Distribution Sys., 801 F.3d at 908 (quotation
omitted); see also Pulczinski, 691 F.3d at 1007. The burden of showing a prima facie case
is “minimal.” Logan v. Liberty Healthcare Corp., 416 F.3d 877, 881 (8th Cir. 2005)
(quotation omitted). If Olinger satisfies that minimal hurdle, the burden then shifts to
Defendants “to articulate some legitimate, nondiscriminatory reason” for their actions.
McDonnell Douglas, 411 U.S. at 802. If Defendants meet this burden, then Olinger will
have to demonstrate that Defendants’ purportedly legitimate, nondiscriminatory reason
was pretextual or discriminatory in its application. Id. at 807. Here, there is no dispute
that Olinger engaged in protected activity when he took FMLA leave from September 2015
to February 2016. There also is no dispute that he suffered an adverse employment action
when his employment was terminated.
The issue is whether Olinger has shown causality, and the record establishes that he
has not. The Eighth Circuit “has said that an employee must prove that his exercise of
FMLA rights ‘played a part’ in the employer’s decision.” Pulczinski, 691 F.3d at 1007
(citing Marez v. Saint-Gobain Containers, Inc., 688 F.3d 958, 963 n.3 (8th Cir. 2012) and
29 C.F.R. § 825.220(c)). Olinger’s argument on this essential element of his claim is not
clear. He argues that “Defendants [sic] conduct was motivated by retaliatory intent,” Mem.
in Opp’n at 19, but he does not cite particular evidence supporting this assertion. In a
paragraph of his brief that seems intended to address a different issue—whether he suffered
an adverse employment action—Olinger describes the testimony of two former coworkers,
Fred Sorensen and LeeRoy Baumgartner, who say they heard Defendant Blad say that he
16
intended to “get rid of” Olinger. Id. at 17. Assuming it properly may be considered in
opposition to Defendants’ summary-judgment motion, this evidence does not show
causality. Neither Sorensen nor Baumgartner’s testimony permits an inference that Blad’s
statement was tied to Olinger’s FMLA leave. The statement they describe is not tied
explicitly to Olinger’s exercise of FMLA rights; it does not mention the FMLA. In the
abstract, there are many lawful reasons why an employer might want to “get rid of” an
employee: poor performance, reorganization, budget cuts, adverse budget projections, etc.
The issue is why Blad allegedly wanted to “get rid of” Olinger. In their depositions,
Sorensen and Baumgartner attributed motives to Blad that clearly are not connected to
Olinger’s exercise of FMLA rights. Sorensen testified that he believed Blad’s motive
behind the statement was that “Mr. Olinger was good friends with a female employee” and
“[t]hat was viewed by [Blad] as a problem.” Yira Decl., Ex. 1 at 36–37 (“Sorensen Dep.”)
[ECF No. 42-1]. Baumgartner testified that he did not know why Blad wanted to “get rid
of” Olinger, Yira Decl., Ex. 2 at 35 (“Baumgartner Dep.”) [ECF No. 42-2], but that he
understood from the first day he began working at the Hospital in October 2007 that Blad
wanted to get rid of Olinger, Id. at 13, 43. Baumgartner acknowledged that Olinger
continued to work for several years after Baumgartner began working at the Hospital but
asserted that the Hospital “had no reason to fire him” during that time. Id. at 44. The
timing of Blad’s statement does not allow an inference that Blad’s motivation in
terminating Olinger’s employment was his exercise of FMLA rights. To the extent
Baumgartner testified that he understood from the time he was hired in 2007, Blad had
wanted to get rid of Olinger, that desire predated Olinger’s first FMLA leave by several
17
years, and his subsequent FMLA leaves by even longer. And insofar as Sorensen and
Baumgartner testified that they heard Blad make this statement in a meeting “on or about
July 17, 2015,” two months before Olinger commenced his September 2015-to-February
2016 FMLA leave, Sorensen Dep. at 27–28; see also Baumgartner Dep. at 41, Olinger cites
no evidence showing that Blad knew in July that Olinger would be taking FMLA leave
beginning in September. Finally, the timing of Olinger’s termination does not permit an
inference of causality. “Generally, more than a temporal connection between the protected
conduct and the adverse employment action is required to present a genuine factual issue
on retaliation.” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en
banc) (citation omitted). Temporal proximity alone may suffice only if it is “very close.”
Hite v. Vermeer Mfg. Co., 446 F.3d 858, 866 (8th Cir. 2006) (citation omitted). In
determining the temporal relationship between the two events, the Eighth Circuit “looks to
the date an employer knew of an employee’s use (or planned use) of FMLA leave, not the
date it ended.” Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012) (citation
omitted). Without “something more,” a gap of more than two months between the date the
employer knew of the employee’s planned use of FMLA leave and the adverse action “is
too long” to show a causal connection between the two. Id. at 901 (citations omitted).
Here, that gap is more than six months.
B
Minnesota’s Whistleblower Act prohibits an employer from terminating an
employee in retaliation for reporting a violation of the law. Minn. Stat. § 181.932,
subd. 1(1). Absent any direct evidence of retaliation, courts apply the McDonnell Douglas
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burden-shifting framework to analyze retaliation claims under the Whistleblower Act. Hilt
v. St. Jude Med. S.C., Inc., 687 F.3d 375, 378 (8th Cir. 2012) (citing Cokley v. City of
Otsego, 623 N.W.2d 625, 630 (Minn. Ct. App. 2001)). Thus, to make out a prima facie
case for retaliation, Olinger must demonstrate first that he engaged in conduct protected by
the Whistleblower Act, that is, he reported in good faith a violation or suspected violation
of law. See id.; Pedersen v. Bio-Med. Applications of Minn., 992 F. Supp. 2d 934, 939
(D. Minn. 2014), aff’d, 775 F.3d 1049 (8th Cir. 2015).
Olinger did not engage in conduct protected by the Minnesota Whistleblower Act
because he did not “report[] a violation, suspected violation, or planned violation of any
federal or state law or common law or rule adopted pursuant to law.” Minn. Stat. § 181.932,
subd. 1(1). The “report” on which Olinger grounds this claim occurred during his
September 2015 telephone call with Renville County Administrator Folstad. To recap,
during this call, Olinger asked Folstad what could be done “about the hiring process about
- - if they were going to hire - - if they didn’t hire the most qualified person.” Olinger Dep.
at 86. Folstad told Olinger that he should follow the Hospital’s grievance policy. Id.
Olinger asked what he could do if he didn’t “feel comfortable or if at this time I’m not sure
if that’s capable of going through that chain,” and Folstad repeated that Olinger should
follow the Hospital’s grievance policy. Id. Olinger admits he reported no violation or
suspected violation of state or federal law during the call. Id. at 88. Olinger reported only
his concern that the Hospital might not be hiring the most qualified person and that the
Hospital might not hire him “for some other reason,” though he admitted not knowing what
that “other reason” might be. Id. at 86, 113–14. Olinger argues that his Whistleblower Act
19
claim warrants a trial because he reported a violation of the Hospital’s hiring policies that,
if true, would amount to a “common law breach-of-contract and/or breach-of-fiduciary
duty,” Mem. in Opp’n at 22. This argument lacks factual support. Olinger admitted in his
deposition that he did not report to Folstad “that the [H]ospital was not following the stated
employment procedure for their hiring process.” Id. at 114. Even if Olinger said something
like that to Folstad, this argument would lack legal support. Reporting the violation of an
employer’s internal policy generally is not sufficient to state a Whistleblower Act claim;
to implicate a violation of law as required by the Whistleblower Act, the internal policy
must have been adopted pursuant to law. See Pedersen, 992 F. Supp. 2d at 941; Weigman
v. Everest Inst., 957 F. Supp. 2d 1102, 1106 (D. Minn. 2013) (“Nor is it enough that such
actions violated [the defendant’s] internal policies.” (citing Kratzer v. Welsh Cos.,
771 N.W.2d 14, 22 (Minn. 2009))); Salgy-Knapp v. Cirrus Design Corp., No. A03-654,
2004 WL 193140, at *3 (Minn. Ct. App. Feb. 3, 2004) (“[Plaintiff’s] report did not
implicate a violation of law, but rather merely implicated a violation of [the defendant’s]
internal policy . . . . Therefore, [plaintiff] has failed to establish an essential element of her
whistleblower claim.”) Here, Olinger does not explain how the Hospital’s asserted failure
to follow its hiring policies in a way that leads to the hiring of someone who is not “most
qualified” breaches a contract or fiduciary duty.
Olinger identifies no contract; he
identifies no source of a fiduciary duty. And he identifies no law pursuant to which this
aspect of the Hospital’s hiring policies and practices were adopted.
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ORDER
Based on the foregoing, and all of the files, records, and proceedings herein, IT IS
ORDERED THAT:
1.
Defendants’ motion for summary judgment [ECF No. 29] is GRANTED;
2.
This action is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: November 12, 2019
s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court
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