McConnell v. Anixter, Inc.

Filing 47

MEMORANDUM AND ORDER - Anixter's motion for summary judgment (filing 38 ) is granted. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID MCCONNELL,
Plaintiff,

4:17-CV-3010

vs.
MEMORANDUM AND ORDER
ANIXTER, INC.,
Defendant.
The plaintiff, David McConnell, is a veteran of the United States Armed
Forces. Filing 1 at 1. McConnell is suing Anixter, Inc., his former employer, for
failing to accommodate his service-related disabilities, retaliating against him
after he requested such accommodations, and using his service-related
disabilities as a motivating factor in its decision to terminate his employment
in violation of the Uniformed Services Employment and Reemployment Rights
Act, 38 U.S.C. § 4301, et seq. (USERRA).
The Court has already dismissed McConnell's failure to accommodate
claims––styled as Counts 1 and 2 of the complaint. See filing 19. Anixter now
moves for summary judgment on McConnell's remaining claims, styled as
Counts 3, 4, and 5, which generally allege that McConnell's service-related
disabilities were a motivating factor in Anixter's decision to terminate
McConnell, and that Anixter also retaliated against McConnell when he
sought an accommodation of those disabilities. Filing 1 at 2. For the following
reasons, the Court will grant Anixter's motion for summary judgment.
BACKGROUND
McConnell was on active duty in the United States Armed Forces from
March 14, 1999 until April 30, 2008. Filing 39 at 2; see also filing 44 at 2. Nearly

four years after McConnell left the military, he applied to the "Service Center
Manager" position at Anixter's Grand Island, Nebraska worksite. Filing 39 at
3; see filing 44 at 2. During the initial interview process, McConnell disclosed
that he suffered a back injury while deployed oversees and, as a result, is
unable to lift more than forty pounds. Filing 39 at 4; see filing 44 at 2. He also
said that he suffered from post-traumatic stress disorder ("PTSD") requiring
him, at times, to take to take five- to ten- minute breaks to manage stress.
Filing 39 at 4; see filing 44 at 2. Anixter informed McConnell that neither his
lifting restriction nor his need for breaks "would [] be a problem." Filing 40 at
11. So, McConnell began working as Anixter's Service Center Manager on
November 26, 2012. Filing 39 at 3; see filing 44 at 2.
In his position as Service Center Manager, McConnell primarily worked
to ensure that daily orders were processed in a timely fashion. Filing 40 at 10.
He also had significant responsibility in cross-training warehouse employees
(i.e., making sure that every employee was able to perform the tasks of any
position at the warehouse), and managing the scheduling and overtime hours
of employees reporting directly to him. Filing 39 at 5; see filing 44 at 2.
McConnell, however, had difficulties communicating with some of his
subordinates––specifically, Stephanie Wissing and Jackie Anderson. On one
occasion in May 2013, McConnell told Wissing to "get the fuck out of [his]
facility" and fired her.1 See filing 40 at 18. And in August 2013, McConnell
"raised [his] voice" during a disagreement with Anderson such that those
outside his office could hear the conversation. See filing 40 at 45.
Following the second incident, McConnell was given a written warning
demanding that he "clean up [his] language" and "control [his] temper." Filing
1

Wissing was rehired at some point following the incident and as such, McConnell's problems

with Wissing appeared to continue. Filing 40 at 16.

2

40 at 45. After receiving the written warning, McConnell appeared to conduct
himself in a more appropriate manner. But on December 8, 2014 he had
another "disagreement" with his HR supervisor, Deric Singleton, over staffing
issues. Filing 40 at 34. During that argument, McConnell asked for a break for
his PTSD. Filing 40 at 26. Singleton told McConnell to "just go ahead and go
home, and [he'd] let [McConnell] know when [he] can come back."2 Filing 40 at
26. McConnell was never informed he could return to Anixter, and on
December 12, his employment was terminated. Filing 40 at 29; 39.
McConnell

claims

he

was

terminated

for

seeking

reasonable

accommodation of his service-related disabilities (i.e., his PTSD, lifting
restrictions, and request for a service animal). As such, McConnell filed an
employment discrimination charge with the Nebraska Equal Opportunity
Commission and the federal Equal Employment Opportunity Commission,
which dismissed his charge. Filing 40 at 51. McConnell did not sue Anixter in
the ninety-day time limit required by the EEOC, so instead, McConnell filed
this suit asserting claims under USERRA, 38 U.S.C. § 4301 et seq.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City

2

More specifically, Anixter claims McConnell said "this is bullshit" and was "irritated" during

the conversation. See filing 40 at 26-27. McConnell, however, denies those allegation. Filing
40 at 26-27.

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of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does
so, the nonmovant must respond by submitting evidentiary materials that set
out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to show
that disputed facts are material, the party opposing summary judgment must
cite to the relevant substantive law in identifying facts that might affect the
outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751 (8th Cir.
2011). The mere existence of a scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which the
jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving party,
there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
DISCUSSION
Generally speaking, McConnell alleges that Anixter violated two
provisions of USERRA, §§ 4311(b) and (c), when it terminated McConnell's
employment.

The first provision, § 4311(b), prohibits an employer from

discriminating in employment or taking "any adverse employment action"
against any person because the person:
(1) has taken an action to enforce a protection afforded any person
under this chapter, (2) has testified or otherwise made a statement
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in or in connection with any proceeding under this chapter, (3) has
assisted or otherwise participated in an investigation under this
chapter, or (4) has exercised a right provided for in this chapter.
38 U.S.C. § 4311(b); Lisdahl v. Mayo Found., 633 F.3d 712, 720 (8th Cir. 2011).
The second provision, § 4311(c), is violated when an employee's protected
action is a motivating factor in the employer's adverse employment action,
unless the employer proves the action would have been taken in the absence of
the employee's protected conduct. 38 U.S.C. § 4311(c); Lisdahl, 633 F.3d at 720.
McConnell's allegations that Anixter violated § 4311(b)––the "antiretaliation" provision––are easily disposed of, so the Court will begin there.
Specifically, McConnell claims that Anixter retaliated against him on two
separate occasions. The first incident occurred in August 2014 when
McConnell was written up, allegedly in response to a complaint he made to
human resources concerning purportedly anti-military comments made by
Wissing.3 Filing 44 at 8. The second incident was when McConnell asked for a
break in December 2014 to accommodate his PTSD during his disagreement
with Singleton. Filing 44 at 9. The Court will discuss each allegation of
retaliation in turn below.
But before doing so, the Court must address a fundamental flaw in
McConnell's first allegation of retaliation––it wasn't pled in McConnell's
complaint. Indeed, the operative pleadings only contain allegations that
Anixter "retaliated against the plaintiff for asking for accommodation for his
service related disability." Filing 1 at 2. The complaint does not contend that
Anixter retaliated against McConnell by issuing him a written warning. So,
3

The Court notes that there is little, if anything, to suggest that McConnell's warning was

at all connected to his alleged reports of Wissing's comments. See filing 40 at 19-

5

McConnell's attempt to constructively amend the pleadings at this stage of the
proceedings is not appropriate. See Thomas v. United Steelworkers Local 1938,
743 F.3d 1134, 1140 (8th Cir. 2014). But irrespective of that, McConnell's
allegation that Anixter retaliated against him by issuing a written warning
still fails as a matter of law.
To establish a prima facie case of retaliation, McConnell must produce
evidence that: (1) that he engaged in statutorily protected activity; (2) an
adverse employment action was taken against him; and (3) a causal connection
exists between the two events. Clegg, 496 F.3d at 928. With respect to the
"adverse employment" prong of his retaliation claim, the adverse action must
be "materially adverse." See Lisdahl, 633 F.3d at 721. This includes, for
example, a tangible change in working conditions that produces a material
employment disadvantage such as termination, cuts in pay or benefits, or
changes that affect an employee's future career prospects. Id. (citing Clegg, 496
F.3d at 930.) The anti-retaliation protections of USERRA do not, however,
provide a remedy for trivial harms. See id.
Here, there is no evidence of any "materially adverse" employment
disadvantage: McConnell only received a written warning. Filing 40 at 45. And
disciplinary warnings have only a tangential effect on ultimate employment
decisions and do not constitute adverse employment actions. Weng v. Solis, 960
F. Supp. 2d 239, 247 (D.D.C. 2013); Ogden v. Potter, No. 5:08-CV-609, 2010 WL
234727, at *6 (W.D. Tex. Jan. 14, 2010), aff'd, 397 F. App'x 938 (5th Cir. 2010);
Arrieta v. Yellow Transp., Inc., No. 3:05-CV-2271, 2008 WL 5220569, at *13
(N.D. Tex. Dec. 12, 2008), aff'd sub nom. Hernandez v. Yellow Transp., Inc.,
670 F.3d 644 (5th Cir. 2012). So, the Court will grant Anixter's motion for
summary judgment on those grounds.

6

McConnell's alternative allegation, that Anixter terminated McConnell
after he asked for an accommodation related to his PTSD, fares no better.4
Filing 44 at 8. To support his claim, McConnell alleges that he was fired after
he informed Singleton that he needed a short break during a December 8, 2014
phone conversation. Filing 44 at 9. During that discussion, McConnell claims
that he and Singleton had a "disagreement" over scheduling, and McConnell
became "frustrated." See filing 40 at 27-28. Because McConnell could "feel
[himself] getting tense," he asked for a break from the conversation. See filing
40 at 27-28. Singleton allowed McConnell to take a break and further
instructed him to stay home for the remainder of the day and McConnell was
terminated a few days later. Filing 40 at 29.
But as Anixter correctly points out, McConnell cannot, as a matter of
law, establish a prima facie claim of retaliation. As noted above, McConnell
must put forth evidence demonstrating that he engaged in statutorily
protected activity. § 4311(b). But as the Court made clear in its prior
Memorandum and Order, the provisions of USERRA protecting a request for
reasonable accommodations under §§ 4312-13 only apply when a veteran seeks
reemployment following his military service. Filing 19 at 5. And there is no
evidence that McConnell, who served in the armed forces nearly four years
before he took his initial position at Anixter, sought reemployment triggering

4

In his deposition, McConnell alleges that Anixter discriminated against his service-related

disabilities by forcing him to lift over forty pounds and denying his request for a service dog.
See filing 40 at 21, 24-25. But in his briefing, McConnell focuses on the fact that McConnell
"was fired shortly after he asked for a reasonable accommodation for his PTSD." Filing 44 at
9. Accordingly, the Court too will focus on McConnell's requests for breaks to accommodate
his PTSD.

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reasonable accommodation protection. That means McConnell's request for a
break is not protected under USERRA.
And just as problematic to McConnell's retaliation claim is the lack of
evidence from which a reasonable jury could find a causal link between
McConnell's request for a break and the adverse employment action. Clegg,
496 F.3d at 928. McConnell's allegation assumes that Singleton was angered
by McConnell's request for a break during their December 8, 2014
disagreement, so he terminated McConnell. See filing 44 at 8. But aside from
McConnell's vague and conclusory accusation, there is nothing in the record to
support that conclusion.5 To the contrary, McConnell testified that when he
first mentioned his PTSD and need for breaks during his hiring interview in
2012, it was made clear that asking for breaks "would not be a problem." Filing
40 at 11. And there is no evidence in the record suggesting it ever was.
More specifically, when McConnell was asked if Singleton honored his
PTSD accommodation, McConnell admitted that he did. See filing 40 at 20-21.

5

McConnell attempts cure this deficiency by relying on the temporal proximity between his

request for a break on December 8, 2014 and his termination on December 12, 2014. But
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. See Lors v.
Dean, 746 F.3d 857, 865 (8th Cir. 2014); see also Pastran v. K–Mart Corp., 210 F.3d 1201,
1206 (10th Cir. 2000). And although McConnell's request for a break is close in time to his
termination that, without more, is not sufficient to demonstrate that a genuine factual issue
exists. See Sisk v. Picture People, Inc., 669 F.3d 896, 901 (8th Cir. 2012) (concluding that
although the protected activity and adverse employment action were "extremely close in
time" the plaintiff failed to provide any other evidence linking her termination to her leave
request and thus, a reasonable jury would not have a legally sufficient basis to find for the
plaintiff on that issue).

8

Q. When Mr. Singleton came in, did you say to him I need to take
a five- or ten-minute break here because of PTSD symptoms?
A. Yes.
Q. Did he say that was okay?
A. Yes.
Filing 40 at 21. So, far from retaliation, the evidence suggests that Anixter
honored McConnell's requests for breaks and accommodated his servicerelated PTSD.
That leaves McConnell's allegations under § 4311(c). Filing 1 at 2. An
employer violates this provision of USERRA when veteran status is a
motivating factor in the employer's adverse action, unless the employer proves
that the action would have been taken in the absence of membership in the
armed services. Maxfield v. Cintas Corp., 563 F.3d 691, 694 (8th Cir. 2009).
The employee must initially show that military status was a motivating factor
in an adverse employment decision, but an employer can then defeat the claim
by proving "by a preponderance of evidence, that the action would have been
taken despite the protected status." Id. In determining whether veteran status
motivates the employer's conduct, the Court should consider a variety of
factors, including (1) employer's expressed hostility towards members
protected by the statute together with knowledge of the employee's military
activity; (2) the proximity in time between the employee's military activity and
the adverse employment action; and (3) any inconsistencies between the

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proffered reason and other actions of the employer. Rademacher v. HBE Corp.,
645 F.3d 1005, 1010-11 (8th Cir. 2011).
But as Anixter correctly points out, the record fails to support any of the
above factors. There are two comments made by Anixter employees referencing
McConnell's military service which, McConnell claims, support his allegation
that his military service was a motivating factor in his termination. The first
comment, made in the spring of 2013 by Rich Mansfield––a human resource
director from Anixter's Chicago office––involved a reference to McConnell
being a "hero." Filing 40 at 21-22. According to McConnell, Mansfield walked
into McConnell's office and said "oh, we got a hero here." Filing 40 at 21-22.
Based on Mansfield's purportedly condescending tone, McConnell interpreted
the statement to be negative. See filing 40 at 21. The second comment, made
near the end of 2013 or beginning of 2014 by an unidentified human resource
director, involved a statement that McConnell could not treat his job as a
"military operation" because McConnell is "not in the military anymore." Filing
40 at 20.
Those statements, McConnell claims, expressed Anixter's hostility
towards members of the military. But neither of those statements rise to the
level of derogation necessary to support an inference of discrimination on the
basis of McConnell's military status. Compare Rademacher, 645 F.3d at 1011
(finding that statements such as "G** D***** it. I don't like it. . . This better
not inconvenience me[]" in reference to the plaintiff's military service did not
amount to hostility), with Staub v. Proctor Hosp., 562 U.S. 411, 413 (2011)
(referring to military obligations as "a bunch of smoking and joking and a waste
of taxpayers' money" and scheduling the plaintiff additional shifts so he could
"pay back the department for everyone else having to bend over backwards to
cover his schedule for the Reserves" did evince hostility) (cleaned up). And even
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if those statements could be construed as expressing some level of hostility
towards members of the military, a "few stray remarks" cannot support a
finding that an employee's military service was a motivating factor in the
adverse employment action. Rademacher v. HBE Corp., No. 4:08-CV-1193,
2010 WL 1329741, at *7 (E.D. Mo. Apr. 5, 2010), aff'd, 645 F.3d 1005. So, this
factor weighs against McConnell's allegations that his military status
motivated the Anixter's conduct.
The timing of McConnell's military activity and his termination does not
help his claim either.6 McConnell last served in the military nearly four years
before his termination. Filing 40 at 7; see also filing 40 at 39. And the passage
of time between his return from duty and his discharge weakens any inference
that his military service was a motivating factor in Anixter's decision to
terminate him. See Rademacher, 645 F.3d at 1011 (finding that two months
between the plaintiff's return from service and his discharge did not support
the plaintiff's claim that his military service was a motivating factor in his
termination).
McConnell's next contention, that there are inconsistencies with
Anixter's proffered reason for his termination, is also not persuasive.
McConnell claims that when he was terminated, he was informed that the
reason for his termination was his use of "foul language" during the December

6

McConnell attempts to bridge this time gap by arguing that he was fired after asking if he

could have a service animal for his PTSD. See filing 44 at 7; see also filing 40 at 49. But the
appropriate time frame to consider is McConnell's actual military service, not his request for
an accommodation for a service related disability. And even if that was the appropriate time
period to consider, McConnell's request for a service animal occurred in September 2013,
filing 40 at 29, over a year before he was ultimately fired. And that, too, is far too attenuated
to support a claim of discrimination. Rademacher, 645 F.3d at 1011.

11

8, 2014 disagreement with Singleton.7 Filing 40 at 20. And later, Anixter stated
that its reason for terminating McConnell was based on a "fundamental
disagreement" between McConnell and Singleton which occurred on December
8. See filing 40 at 29; filing 39 at 9.
But at most, the evidence adduced by McConnell suggests that his
language during the phone call played a part in Anixter's decision to terminate
him. See filing 40 at 29; filing 39 at 9. That is wholly consistent with Anixter's
proffered reason for terminating McConnell. See filing 40 at 29. And without
any evidence that something other than the December 8, 2014 disagreement
was the catalyst for McConnell's termination, no reasonable jury could find
that this factor weighs in favor of McConnell. Accordingly, the Court finds that
all three Rademacher factors cut against McConnell's allegations that his
service-related disabilities were a motivating favor in its decision to end
McConnell's employment. So, the Court will grant McConnell's motion for
summary judgment on those grounds.
As a final matter, McConnell claims that discriminatory intent based on
his military status can be inferred from the "disparate treatment of similarly
situated employees." Filing 44 at 6. To support that contention, McConnell
points to evidence that Wissing, too, acted "unprofessionally" and cussed at
work but was not terminated for her conduct. Filing 44-3 at 1. But as Anixter
correctly points out, the test for determining whether employees are similarly
situated to a plaintiff is a rigorous one. Bone v. G4S Youth Servs., LLC, 686
F.3d 948, 956 (8th Cir. 2012). McConnell must show that he and non-military
employees were "similarly situated in all relevant respects." Id. That means,
the individuals used for comparison (i.e., Wissing) must have dealt with the
7

According to McConnell, he did not––at anytime––use foul language during the December

8, 2014 conversation. Filing 40 at 29.

12

same supervisor, have been subject to the same standards, and engaged in the
same conduct without any mitigating or distinguishing circumstances. Id.
But Wissing reported to McConnell and it appears that McConnell
reported to Singleton and David Flores. Filing 40 at 11; filing 40 at 36; filing
39 at 8. That means Wissing and McConnell did not share the same supervisor,
nor were they subject to the same standards. So, the Court finds McConnell's
disparate treatment argument to be without merit. And the Court will grant
Anixter's motion for summary judgment on those grounds.
CONCLUSION
In sum, and for the reasons set forth above, the Court will grant Anixter's
motion for summary judgment in its entirety. McConnell's remaining claims,
styled as Counts 3, 4, and 5, will be dismissed.
IT IS ORDERED:
1.

Anixter's motion for summary judgment (filing 38) is
granted.

2.

A separate judgment will be entered.

Dated this 17th day of September, 2018.
BY THE COURT:

John M. Gerrard
United States District Judge

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