Trambly v. The Board of Regents of the University of Nebraska et al
Filing
110
MEMORANDUM AND ORDER - The defendant's motion for summary judgment (filing 70 ) is granted. The plaintiff's complaint is dismissed. A separate judgment will be entered. Ordered by Senior Judge John M. Gerrard. (MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES F. TRAMBLY,
Plaintiff,
4:20-CV-3094
vs.
MEMORANDUM AND ORDER
THE BOARD OF REGENTS OF THE
UNIVERSITY OF NEBRASKA,
Defendant.
The plaintiff, James Trambly, claims the defendant, the University of
Nebraska Board of Regents, discriminated against him on the basis of a
disability and retaliated against him for requesting accommodations in
violation of the Americans with Disabilities Act of 1990 (ADA), as amended, 42
U.S.C. § 12101 et seq., and the Nebraska Fair Employment Practices Act
(NFEPA), Neb. Rev. Stat. § 48-1101 et seq. Filing 27.
Specifically, Trambly alleges that, because of a disability, he was
demoted, terminated, and subjected to a hostile work environment. Filing 27
at 4. And he asserts that the defendant failed to accommodate his disability,
and retaliated against him for requesting accommodations by demoting him,
terminating him, and subjecting him to a hostile work environment. Filing 27
at 6-7. The defendant has moved for summary judgment (filing 70), arguing
that Trambly cannot prove any of his claims.
I. 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.1 Torgerson v. City
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 Cty., 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.
1
In conjunction with its reply brief, the defendant provided a "Supplemental Statement of
Undisputed Facts," filing 108, which is not a type of filing permitted by the local rules,
NECivR 56.1(a) and (c), and Trambly had no opportunity to dispute the facts therein. The
Court has not considered these supplemental facts.
2
II. BACKGROUND
Trambly was hired by the University of Nebraska-Kearney (UNK) in
November 2013 to work in its IT department. He started as a Help Desk
Associate, he was promoted to a Workstation Support Specialist in July 2017,
and he was terminated on February 8, 2019. Filing 71 at 10, 12, 24; filing 7332.
1. TRAMBLY'S CAREER
Trambly's job duties generally included facilitating requests at the Help
Desk in the Otto Olsen building, supporting assigned academic departments,
and utilizing student workers. See filing 71 at 13, 14. It was part of Trambly's
job to be able to work with others and communicate effectively, and he was not
to misuse UNK property. Filing 71 at 11. Beginning in 2014, Trambly was
assigned to provide support to the Bruner Hall of Science. See filing 98-1 at 5.
Throughout his career, Heidi Haussermann was Trambly's direct
supervisor, and he also reported to Deb Schroeder for matters related to
"standards and security." See filing 99 at 3; filing 73-5 at 1. Jane Petersen was
at the next level of management. E.g., filing 72-4. Trambly also interacted with
the supervisors of various UNK academic departments. See filing 99 at 3.
UNK conducts yearly employee performance evaluations for the period
of time between April 1 through March 31. See filing 71 at 12. In 2014, 2015,
2016, and 2017, Trambly's work for the previous year warranted an overall
rating of "Outstanding," the highest possible rating, by Haussermann and
Petersen. Filing 72-4; filing 72-5; filing 72-6; filing 72-7. He earned a promotion
to a "managerial/professional Workstation Support Specialist" and a pay raise
in July 2017, a few months after the 2017 performance evaluation. See filing
71 at 12; filing 73-4 at 1.
3
In his new role, Trambly's responsibilities included continuing his work
at the Help Desk and supporting assigned university departments. See filing
71 at 12. He alleges that he was already doing this work prior to his promotion,
so the new job title did not come with any additional responsibilities. Filing 99
at 3. He had to spend approximately half of his week in Otto Olsen at the Help
Desk, and the other half supporting the Bruner Hall departments to which he
was already assigned. Filing 71 at 12; filing 98-1 at 7. In April 2017, Trambly
told Haussermann he needed more time to work in Bruner Hall to complete
his assignments. See filing 98-1 at 7.
Nathan Moore, another Workstation Support Specialist, worked with
Trambly, though he was assigned to different departments. See filing 71 at 13;
filing 99 at 4. Both Moore and Trambly worked with student workers, see filing
71 at 13, though Trambly alleges that Moore was assigned more student
support hours than Trambly, filing 99 at 4. According to Trambly,
Haussermann assigned more student worker support to Moore because Moore
was behind on some of his assigned tasks. Filing 98-1 at 9.
Trambly met with Petersen in August 2017 to discuss student support
hours and adjusting his work duties. See filing 73-1. Trambly also reported to
Petersen that he was having some interpersonal issues with Haussermann.
See id. The parties dispute the exact timing but, eventually, Haussermann
realigned Trambly's responsibilities so he could more effectively support the
departments in Bruner Hall. Filing 99 at 3-4; filing 71 at 13.
In February 2018, the defendant reassigned Trambly to support the
UNK Business and Finance department. Filing 71 at 15. Trambly alleges that
he often he did not have access to the buildings or devices he needed to perform
his work, and he would have to wait for others to give him access, which slowed
down his work and efficiency. Filing 99 at 5.
4
2. TRAMBLY'S DECLINING WORK PERFORMANCE
In November 2017, Haussermann asked Trambly to provide a thirdparty vendor with access to the UNK planetarium. See filing 71 at 14.
Haussermann instructed Trambly not to engage with the vendor other than
giving them access. Id. However, Trambly spoke with Schroeder about
providing support to the hardware in the planetarium while the vendor was
there. See id; filing 73-5. Schroeder told Trambly to listen to Haussermann,
and she told him how to address disagreements with his supervisors in the
future. Filing 73-5; filing 71 at 14.
For his 2018 performance evaluation, completed in April 2018 for the
period between April 1, 2017, and March 31, 2018, Trambly earned an overall
rating of "Needs Improvement," a negative performance evaluation. Filing 71
at 15; filing 72-16. Haussermann specifically noted issues with Trambly's
performance, including communication issues; that service calls "that should
be a quick fix . . . end up taking a lot longer due to explanations that don't need
to be given and facts that don't pertain to the situation;" Trambly getting
overwhelmed or frustrated; and Trambly unnecessarily interjecting in other
people's work. Filing 72-16.
Trambly commented on the evaluation that no one had spoken to him
about the issues affecting his score. Id. He also explained that he spent "extra
time on calls to try to educate [clients] . . . in an effort to decrease calls in the
future." Id. Trambly requested that he be provided with more feedback
throughout the year, rather than only at his annual evaluation. Id.
Trambly had more performance issues following the negative evaluation:
• In July 2018, Haussermann met with Trambly "to discuss
his job
performance
and his
interactions
with his
colleagues." Filing 71 at 16. Haussermann indicated that
5
Trambly needed to "just do [his] job" and stop worrying about
"what other staff members in the [Help Desk] are doing."
Filing 72-17.
• In August 2018, the mother of a high school student
complained to Haussermann about how Trambly treated the
student while the student was visiting the UNK campus.
Filing 71 at 16-17.
• At some unspecified time, Trambly was asked to repair a
time clock in UNK's early childhood development center.
Filing 71 at 17. Trambly never resolved the issue, "even after
repeated inquiries from the staff," for reasons Trambly
claims were outside of his control. Id.; filing 99 at 7-8.
• In September 2018, a UNK employee complained to
Haussermann about Trambly's work and professionalism
because Trambly was taking personal calls and disrupting a
shared office space. Filing 71 at 17; filing 72-19.
• In November 2018, Haussermann expressed to Trambly that
she was concerned about his interjections into other people's
work, his poor communication skills, and his failure to
escalate problems or work on a team appropriately. Filing 71
at 18; filing 72-21; filing 99 at 8.
• In December 2018, Trambly overheard a conversation
between
Haussermann
and
6
another
employee
about
decommissioning a software that IT used for work order
tickets. Filing 71 at 18. Trambly was concerned about this
process, and he spoke to individuals outside the chain of
command rather than taking his issue to Haussermann.
Filing 71 at 18. Haussermann sent a letter documenting her
concern with Trambly's job performance, filing 72-22, though
Trambly asserts he never received this letter, filing 99 at 9.
Trambly also alleges that there was nothing wrong with him
speaking to the UNK supervisors that were outside of his
chain of command. Filing 98-1 at 18-19.
In November 2018, Trambly accused one of his coworkers of interfering
with his work and personal email accounts. Filing 71 at 20. Trambly believed
that UNK employees were trying to cover up wrongdoing, and were deleting
message histories and altering emails. Id. The accusation was investigated,
though the parties dispute the outcome of the investigation. See filing 99 at 12.
Trambly believed the hard drive from his university desktop computer
contained evidence related to his interference allegation. Filing 71 at 23. On
January 30, 2019, Trambly sent an email to several UNK employees stating
that he had "the hard drive that [he] pulled from this desktop." Filing 73-11 at
1. The defendant asserts that removing the hard drive was unauthorized and
contrary to UNK's policy that "[a]ttempting to modify or remove computer
equipment . . . without proper authorization" constitutes "misuse" of
university computers and network systems. See filing 71 at 27; filing 71-6.
Trambly asserts that he did not believe he needed prior authorization to make
a copy of the hard drive. Filing 98-1 at 14.
The defendant terminated Trambly's employment on February 8, 2019,
effective 90 days later. Filing 71 at 23-24. The termination provided no
7
explanation for the termination, other than the defendant was exercising "the
Employment at Will rights" in Trambly's employment contract. Filing 73-32.
3. TRAMBLY'S DISABILITY AND ACCOMMODATION REQUESTS
Trambly's claims are premised on various alleged disabilities: ADHD,
Crohn's disease, immune suppression, and asthma. Trambly first told his
employer about certain accommodations he needed for his Crohn's disease and
immune suppression in his pre-employment interview. See filing 98-1 at 2. He
informed Petersen and Haussermann that he wanted to work weekends so that
he would have time during the week to attend doctors' appointments and take
his medication. Filing 98-1 at 2-3. He said he would need time off to
accommodate periodic illnesses, and he would need specific time off every few
weeks due to one of his medications with unpleasant side effects. Filing 98-1
at 3. Trambly was able to take the necessary time off, and was allowed to work
his preferred schedule. But in early 2014, according to Trambly, Haussermann
would roll her eyes and "cause problems" with his work environment when he
took time off. Id.
Trambly told Haussermann he had ADHD in January 2014. Filing 98-1
at 4. In 2014, Trambly also requested that Haussermann "ensure that [he] not
be interrupted by other employees while performing tasks." Filing 98-1 at 4.
And, he requested that he not be put "in situations that would be negatively
affected by [his] ADHD," such as speaking in front of a group of people. Id.
After learning Trambly had ADHD, Haussermann and Petersen
allegedly made negative and disparaging comments about him between
January and June of 2014. Filing 98-1 at 4. Trambly asked that they stop
making those comments. See filing 98-1 at 4. Sometimes, Trambly "would
become confusing when speaking," and he asked that Haussermann and
Petersen stop "complaining" when that would happen. Id. Some of these 2014
8
comments were made in front of coworkers, and Trambly alleges Haussermann
and Petersen would badmouth him to his coworkers. Id. Sometime in 2014,
Trambly tried to request an accommodation from Petersen, but she told him to
"never bring this up to her again." Filing 98-1 at 5.
In April 2017, Trambly asserts that Haussermann knew that Trambly
"worked more slowly on some tasks" because of his ADHD, but Haussermann
assigned work to Trambly that was initially assigned to Moore and another
coworker. See filing 98-1 at 7. Trambly asked for more support from student
workers to help accommodate him. Id. Haussermann continued to give
Trambly other coworkers' work until August 2017. Id. Sometime in 2017,
Trambly had sinus surgery, and in December 2017, Petersen and
Haussermann "made negative comments" and complained about how much
time Trambly had taken off work. Filing 98-1 at 16.
Trambly visited with the UNK Ombudsperson and Compliance
Manager, Deborah Huryta, on March 21, 2018. They discussed possible
disability accommodations and unspecified interpersonal issues that Trambly
was having with Petersen and Haussermann. See filing 71 at 24. Trambly's
suggested accommodations included "a quiet place to work; directions to other
co-workers that he not be interrupted; that his supervisors be understanding
and not make hostile or critical comments about his disability; and that his
supervisors not criticize him if he spoke off topic." Filing 99 at 18.
Huryta emailed Trambly with forms to fill out to begin the interactive
accommodation process on March 21, 2018—Trambly alleges the email
disappeared from his inbox. See filing 71 at 2; filing 99 at 14; filing 71-2 at 14.
Trambly alleges he asked for the forms to be sent again, but the defendant
never provided them. Filing 99 at 14-15.
9
In October 2018, Trambly reached out to a different UNK employee
about how to report a disability and request an accommodation. Filing 71 at
24. The employee told Trambly to contact Jill Flagel. Filing 71 at 25. Trambly
also reached out to some other employee, whose position was not specified,
about how to obtain accommodations. Filing 99 at 17. Trambly alleges he
persistently attempted to contact the appropriate supervisors and return the
appropriate forms, but he was ignored. See filing 99 at 15-16; filing 98-1 at 17.
Eventually, sometime in November 2018, Trambly mailed the completed
forms to formally request an accommodation for his ADHD. Filing 99 at 17;
filing 71 at 25. Approximately two weeks later, on December 13, 2018, Flagel
contacted Trambly's medical providers for documentation about his disability.
Filing 71 at 26. She was unable to obtain Trambly's medical records prior to
his termination, though Trambly offered to provide his own copies of those
records. Filing 71 at 26; filing 99 at 17.
(a) Private Work Space
In January 2014, Trambly told Haussermann that working in the "back
office" was "helpful to accommodate his ADHD" because it minimized
distractions. Filing 98-1 at 4; filing 99 at 7. Trambly worked in the "back office"
until some unspecified point in 2016, when Haussermann moved him to the
front area of the Help Desk. See filing 99 at 29; filing 98-1 at 6. According to
Trambly, Haussermann "needed someone to be up in front to assist students
at all times," and Trambly was assigned that role. Filing 98-1 at 7.
Between April 2017 and December 2017, Trambly shared an office with
Moore in Copeland Hall. Filing 98-1 at 8. While Trambly was told by an
unnamed person that he could store his equipment or hardware there, "Moore
occupied most of that space, utilized much of the best hardware that [Trambly]
was able to save there for [Moore's] own purposes, or even threw away some of
10
[Trambly's] items." Filing 98-1 at 8. Moore often came into the office while
Trambly was using it, and Moore and others distracted Trambly from his work.
Id.
When Trambly was reassigned from Bruner Hall to the business and
finance department, Haussermann requested that Trambly have storage and
workspace in that department. See filing 71 at 15. Despite Haussermann's
requests, no workspace was available. Filing 71 at 15; filing 99 at 5. Trambly
alleges that there was a vacant office, but he was not allowed to use it. Filing
98-1 at 10. He "was not designated to work in any single location but worked
in different locations as necessary." Filing 98-1 at 10.
Eventually, around or before November 2018, Trambly was provided
with shared office space in Otto Olsen. Filing 99 at 6; filing 71 at 13; filing 981 at 11. He could not keep equipment or hardware in the office, and he could
not "reconfigure other hardware that was already there," which made his
"work more complicated and stressful." Filing 98-1 at 11.
(b) Bruner Hall
Trambly alleges that he was concerned about working in Bruner Hall
because of his immune suppression. See filing 99 at 35. Bruner Hall allegedly
housed an infectious disease class and other science labs and courses related
to mold, so Trambly was worried about getting sick. See filing 71-2 at 8, 13;
filing 98-1 at 16. Trambly alleges that in 2014, 2017, and 2018, he asked to be
moved out of Bruner Hall because he was afraid of getting an infection. Filing
98-1 at 5, 16. He does not allege that his health was ever impacted by working
in Bruner Hall.
In December 2017, Trambly spoke with Karen Berryman (who is,
presumably, a UNK employee, though it's not clear who she is or what position
she holds) about accommodations for his immune suppression. See filing 99 at
11
15. In January 2018, Trambly told Berryman he did not want to work in
Bruner Hall because of his immune suppression; he was reassigned from
Bruner Hall to the business and finance department a week later "as an
accommodation for [his] immune suppression." Filing 98-1 at 9, 16.
III. DISCUSSION
Trambly has asserted several theories of recovery for alleged disability
discrimination under the ADA and NFEPA. Specifically, Trambly alleges:
• The Regents terminated him because of at least one of his
disabilities;
• The Regents gave him a negative performance evaluation in 2018
because of his disabilities;
• The Regents adversely modified his job duties and workspace
because of his disabilities;
• The Regents subjected him to a hostile work environment on the
basis of his disabilities;
• The Regents failed to accommodate his disabilities; and
• The
Regents
retaliated
against
him
for
requesting
accommodations.
See generally filing 99.
The ADA prohibits covered employers from discriminating against "a
qualified individual on the basis of disability." 42 U.S.C. § 12112(a). The ADA
also prohibits employers from retaliating against employees for engaging in a
statutorily protected activity, which includes requesting an accommodation. 42
U.S.C. § 12203(a); Anderson v. KAR Global, 78 F.4th 1031, 1036 (8th Cir.
2023). When there is no direct evidence of discrimination or retaliation, a
plaintiff may establish an inference of discrimination or retaliation under the
burden-shifting framework established in McDonnell Douglas Corp. v. Green,
12
411 U.S. 792 (1973). Anderson, 78 F.4th at 1036. If the plaintiff can establish
a prima facie case, the burden of production shifts to the employer to show a
"legitimate, nondiscriminatory reason for the adverse action." Id. The burden
then shifts back to the plaintiff "to show that the proffered reason was, in
reality, a pretext for discrimination." Id. at 1037.
1. DISABILITY DISCRIMINATION
To show a prima facie case of his disparate treatment claims, Trambly
must establish that he is disabled under the ADA, he is qualified to perform
the essential functions of the job with or without an accommodation, and he
suffered an adverse employment action because of his disability. Anderson, 78
F.4th at 1036.
(a) Qualified Person with a Disability
The parties do not appear to dispute that Trambly was qualified to do
his job. But the defendant argues that Trambly cannot show that he is disabled
or was regarded as disabled for the purposes of the ADA and NFEPA. To prove
he has a disability, Trambly has the burden to show that he has a physical,
sensory, or mental impairment that materially limits one or more major life
activities, that he has a record of such an impairment, or that he is regarded
as having such an impairment. 42 U.S.C. § 12102(1); Duello v. Buchanan Cnty.
Bd. of Sup'rs, 628 F.3d 968, 972 (8th Cir. 2010); Dovenmuehler v. St. Cloud
Hosp., 509 F.3d 435, 439 (8th Cir. 2007).
Trambly alleges that he has various disabilities: ADHD, Crohn's disease,
"immune suppression," and asthma. See filing 99 at 14. Trambly alleges his
ADHD substantially limits at least one major life activity because he can only
focus "for approximately an hour to an hour and a half at any one point in time
on any one subject," and he has difficulty concentrating. Filing 99 at 23; filing
13
71-2 at 1. And his immune suppression does not cause him to get sick more
often, but when he is sick, it takes him longer to recover. See filing 98-1 at 3.
Trambly has not provided any evidence or argument as to how his asthma2 or
Crohn's disease3 limit any major life activity. See filing 99 at 24-25; filing 98-1
at 2-3, 6. Trambly has not met his burden on summary judgment that he is
disabled within the meaning of the ADA as a result of his Crohn's disease or
asthma. See Dovenmuehler, 509 F.3d at 439.
The Court will assume without deciding (a generous assumption)4 that
Trambly has presented sufficient evidence (for the purposes of the analysis of
the summary judgment motion) that he is disabled based on his diagnoses of
ADHD and "immune suppression." Thus, in the interests of a fully developed
analysis, the Court will proceed to determining whether he suffered an adverse
employment action, and whether there is evidence that the defendant took
such an action on the basis of Trambly's disabilities.
2
Trambly asserts in his declaration that he "was not able to have a normal life" because of
his asthma. Filing 98-1 at 6. He does not connect his asthma to any specific major life
activities, and his conclusory statement is insufficient to meet his burden at the summary
judgment stage. See Dovenmuehler, 509 F.3d at 439; Keiran v. Home Capital, Inc., 858 F.3d
1127, 1132 (8th Cir. 2017) (citing Chavero-Linares v. Smith, 782 F.3d 1038, 1041 (8th Cir.
2015)).
3
Trambly specifically alleges that his Crohn's disease would not affect his job performance
and did not impact any major life activities. Filing 98-1 at 18. While he "would have to go to
the bathroom more often," and might need to take time off, he had not had a bad flare-up
related to his Crohn's disease since 2001. Id.
4
Trambly's evidence of his ADHD is a diagnosis from 1996. See filing 98-1 at 2, 21. He was
not being treated for ADHD during his employment with the defendant. See filing 99 at 23.
And the record is devoid of any actual diagnosis of "immune suppression." See generally filing
98-1.
14
(b) Hostile Work Environment
To survive a motion for summary judgment on a hostile work
environment cause of action, an employee must provide sufficient evidence to
support the allegation that he was subject to unwelcome harassment that
affected a term, condition, or privilege of employment. E.g., Kelleher v. WalMart Stores, Inc., 817 F.3d 624, 634 (8th Cir. 2016). Courts look to the "totality
of the circumstances, including the frequency and severity of the
discriminatory conduct, whether such conduct was physically threatening or
humiliating, as opposed to a mere offensive utterance, and whether the conduct
unreasonably interfered with the employee's work performance." Alvarez v.
Des Moines Bolt Supply, Inc., 626 F.3d 410, 420 (8th Cir. 2010); Moses v.
Dassault Falcon Jet-Wilmington Corp., 894 F.3d 911, 921-22 (8th Cir. 2018).
"Conduct that is merely rude, abrasive, unkind, or insensitive does not
come within the scope of the law." Shaver v. Indep. Stave Co., 350 F.3d 716,
721 (8th Cir. 2003). The ADA does not protect employees from the sporadic use
of abusive language, nor do civil rights laws immunize employees from "petty
slights or minor annoyances" common in the workplace. See Warmington v. Bd.
of Regents of Univ. of Minn., 998 F.3d 789, 799 (8th Cir. 2021); cf. Aubuchon v.
Geithner, 743 F.3d 638, 644 (8th Cir. 2014) (citing Burlington Northern and
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
Trambly has identified a handful of isolated incidents over the course of
five years where he felt disrespected by his supervisors, none of which satisfy
the Eighth Circuit's demanding standard set forth above. See filing 99 at 43.
The totality of the circumstances demonstrates that the alleged poor treatment
Trambly received was infrequent, not severe, and not physically threatening
or humiliating. Alvarez, 626 F.3d at 420; see also Al-Zubaidy v. TEK Indus.,
Inc., 406 F.3d 1030, 1039 (8th Cir. 2005). Trambly also cannot show that the
15
alleged comments interfered with his work performance. He obtained a
promotion and continued to receive positive performance reviews after the
allegedly discriminatory comments.
And Trambly appears to argue that when Haussermann or Petersen
criticized his work performance, he would get confused, and such criticism
exacerbated his disabilities. See filing 99 at 43. But the ADA does not protect
employees from criticism by their supervisors—it protects employees from
unlawful discrimination. Compare filing 98-1 at 4 ("I asked Haussermann and
Petersen to stop complaining when I would become confusing when speaking"),
with O'Brien v. Dep't of Agriculture, 532 F.3d 805, 810 (8th Cir. 2008) ("unfair
criticism and being yelled at did not amount to actionable harassment" (citing
Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1159 (8th Cir. 1999)).
Trambly appears to argue that his supervisors should not be allowed to
criticize his job performance because any "interruption" to his work
exacerbated his ADHD and made him unable to perform his job effectively.
Such an allegation is better framed in his failure-to-accommodate claim, infra,
but does not support his hostile work environment claim.
The evidence supports that Trambly had an unpleasant interpersonal
relationship with Haussermann and Petersen. See filing 98-1 at 5; filing 71-3.
But there is no evidence that the unpleasantness rose to the level of a hostile
work environment.
(c) Adverse Employment Action Because of a Disability
Trambly alleges a variety of changes in his employment conditions that
he says materially disadvantaged him. See filing 99 at 33. An employer is liable
for tangible and intangible changes in employment conditions which produce
a material employment disadvantage due to the employee's disability. Dick v.
Dickinson State Univ., 826 F.3d 1054, 1060 (8th Cir. 2016); Clegg v. Ark. Dept.
16
of Correction, 496 F.3d 922, 926, 927 (8th Cir. 2007); Buboltz v. Residential
Advantages, Inc., 523 F.3d 864, 868 (8th Cir. 2008), abrogated on other grounds
by Torgerson, 643 F.3d 1031. Generally, a job change must result in a reduction
in salary, benefits, or prestige, or must hamper an employee's future with an
employer, to establish an adverse employment action. See Buboltz, 523 F.3d at
868-69. But "[m]inor changes in duties or working conditions, even unpalatable
or unwelcome ones, which cause no materially significant disadvantage, do not
rise to the level of an adverse employment action." Clegg, 496 F.3d 927. An
employee who is merely unhappy with employment changes has not been
subjected to an adverse action. Dickinson State Univ., 826 F.3d at 1060 (citing
Buboltz, 523 F.3d at 868). Inconvenient job changes are also not adverse.
Buboltz, 523 F.3d at 868.
Specifically, Trambly asserts that his working conditions were modified
at various points in his career. The allegations are hard to parse. See filing 99
at 34. From what this Court can tell, he alleges that in June 2014 and
December 2017, Haussermann and Petersen made "hostile and embarrassing
comments and conduct" towards him. Sometime in 2014, Trambly was
discouraged from communicating with his superiors about his ADHD. In 2016,
Trambly lost access to a back office he allegedly needed to avoid distractions
because of his ADHD, and he says that throughout his employment he did not
have sufficient access to office or storage space. From April 2017 until January
2018, Trambly had to work at the Help Desk more than his coworkers. In April
2017, Trambly was assigned extra work that should have been done by his
coworkers. And, in 2017 and 2018, Trambly was provided fewer student
support hours than his coworkers. See filing 99 at 34; see generally filing 98-1.
Trambly's argument appears to be that the combination of the above
working conditions made it more difficult for Trambly to complete his job in a
17
satisfactory manner. But many of these conditions existed throughout the
majority of Trambly's employment, and Trambly received overall positive
reviews even in the face of these working conditions. Trambly has not provided
sufficient evidence from which a trier of fact could find, or from which this
Court can draw a favorable inference, that any of the alleged changed working
conditions, alone or in combination, put him at a material disadvantage.
Rather, his complaints about the distribution of the workload and student
support hours, not having office space, and disagreeable conduct from
supervisors represent inconveniences common in almost every workplace, and
are not materially adverse. See Clegg, 496 F.3d 927; Dickinson State Univ., 826
F.3d at 1060; Buboltz, 523 F.3d at 868-69.
And Trambly's allegations about his changed job duties lack any causal
connection to his disability. His allegations regarding comments by his
supervisors collapse into his hostile work environment claim, supra, while his
allegations about his need for office space collapse into his failure-toaccommodate claim, infra. But otherwise, there's no evidence or allegation that
his employment conditions were changed because of his disability, in the face
of his overall positive performance evaluations and the fact that his employers
knew about his alleged disabilities throughout his employment. See filing 99
at 23.
In any event, the parties agree that Trambly's termination constitutes
an adverse employment action. See Clegg, 496 F.3d at 926, 927; filing 71 at 36.
And the parties agree that, to some extent, the 2018 negative performance
evaluation was also an adverse employment action.5 The parties also appear
5
The Court is assuming without deciding that the 2018 performance evaluation was an
adverse employment action, even though "an unfavorable evaluation is actionable only where
the employer subsequently uses the evaluation as a basis to detrimentally alter the terms or
18
to assume that, while he does not have direct evidence of discrimination,
Trambly has shown some evidence of causation to satisfy his prima facie case.
See generally filing 99; filing 71. So, under the McDonnell Douglas framework,
the burden shifts to the defendant to provide a legitimate, nondiscriminatory
reasons for Trambly's termination, and to survive summary judgment,
Trambly must provide evidence that the reasons are pretextual. See Canning
v. Creighton Univ., 995 F.3d 603, 611 (8th Cir. 2021).
The defendant provided several nondiscriminatory reasons for Trambly's
termination: complaints about his job performance, his failure to follow the
chain of command, and his violation of university policy. See filing 71 at 41;
McNary v. Schreiber Foods, Inc., 535 F.3d 765, 769 (8th Cir. 2008); Lors v.
Dean, 595 F.3d 831, 834 (8th Cir. 2010). Trambly doesn't assert that the
reasons given by the defendant for the negative performance evaluation were
pretextual; rather, he argues that the evaluation "was largely the result of a
failure to accommodate." Filing 99 at 45. His argument regarding the
evaluation is more appropriately discussed in that context, infra, because he
does not assert that the negative performance evaluation was dishonest.
(d) Nondiscriminatory Reasons and Pretext
To show that a reason for an adverse action is pretextual, Trambly must
produce some evidence that the proffered explanations are "unworthy of
credence." Rollins v. Mo. Dep't of Conservation, 315 F. Supp. 2d 1011 (W.D.
Mo. 2004) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
conditions of the recipient's employment." Clegg, 496 F.3d at 927 (quoting Higgins v.
Gonzales, 481 F.3d 578, 586 (8th Cir. 2007), abrogated on other grounds by Torgerson, 643
F.3d 1031). There is no evidence regarding whether the defendant actually used that
performance review in altering Trambly's employment.
19
143-44 (2000)). An employer's explanation may be unworthy of credence if an
employer "failed to follow its own policies," "treated similarly-situated
employees in a disparate manner," or shifted its explanation of the employment
decision. Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010); see
also Hustvet v. Allina Health Sys., 910 F.3d 399, 412 (8th Cir. 2018) (quoting
EEOC v. Prod. Fabricators, Inc., 763 F.3d 963, 971 (8th Cir. 2014)). However,
the Court does not get to decide whether the proffered reason "was wise, fair,
or even correct." Canning, 995 F.3d at 612; McNary, 535 F.3d at 769. Rather,
Trambly must provide evidence which, if proven, would show that the
defendant is being dishonest in its proffered explanations. See Canning, 995
F.3d at 612; McNary, 535 F.3d at 769-70.
Trambly claims that he has "discredited" the reasons given for his
termination. Filing 99 at 45. It's true that Trambly provided various
explanations for why he didn't do anything wrong when he spoke to supervisors
outside the scope of his command (filing 99 at 5, 31) or removed a hard drive
from a university computer (filing 99 at 12). And he claims that the defendant
did not tell him he would be disciplined or terminated because of the
complaints made against him. Filing 99 at 30. But none of these explanations
by Trambly indicate that the defendant is being dishonest in its proffered
reasons for his termination, and the Court is not "a super-personnel
department that reexamines an entity's business decisions." See McNary, 535
F.3d at 770 (quoting Johnson v. Ready Mixed Concrete Co., 424 F.3d 806, 812
(8th Cir. 2005)).
Trambly asserts that the defendant did not include any of its purported
reasons for firing him in the termination notice, filing 73-32, and so these
reasons should not be believed. Filing 99 at 28. But Trambly has not provided
any evidence that the defendant is required to give Trambly such justifications,
20
either by law or by UNK policy or custom. Trambly's termination notice didn't
provide any reason for firing him. This isn't a case in which the employer
changed its story. Trambly does not allege, nor does he have evidence to
support, that the defendant changed its justifications for his termination at
any point. Trambly has not supported his contention that the defendant's
failure to include the reasons for terminating him in the termination notice
creates a genuine dispute of material fact on the issue of pretext.
Trambly has not identified a policy that the defendant failed to follow,
an employee who was treated differently,6 or any other indication that the
proffered nondiscriminatory reasons are unworthy of credence. See Prod.
Fabricators, 763 F.3d at 970. For these reasons, Trambly has failed to show
any genuine issue of material fact as to whether the defendant's proffered
justifications were pretext for an illegal discriminatory motive based on his
disability, and the defendant is entitled to summary judgment.
2. FAILURE TO ACCOMMODATE
To prevail on his failure-to-accommodate claim under the ADA, Trambly
must show he has a disability within the meaning of the ADA, he is a qualified
individual under the ADA, and he suffered an adverse employment action due
to his disability. Mobley v. St. Luke's Health Sys., Inc., 53 F.4th 452, 456 (8th
Cir. 2022). Trambly must put on evidence that the alleged failure to
6
Trambly appears to assert that his coworker, Nathan Moore, was treated better than him.
See filing 99 at 46. But to show pretext by evidence of disparately treated employees, Trambly
must demonstrate that he and the other employee were similarly situated in all relevant
respects. See McNary, 535 F.3d at 770. Trambly has not presented any such evidence, see
generally filing 99, and he cannot meet his burden. Trambly also references another
coworker, "Lineman," but he does not even identify that coworker's first name or job title. See
filing 99.
21
accommodate
"negatively
impacted
[his]
medical
condition
or
job
performance." See Lenzen v. Workers Comp. Reins. Ass'n, 705 F.3d 816, 822
(8th Cir. 2013); Beasley v. O'Reilly Auto Parts, 69 F.4th 744, 754 (11th Cir.
2023) ("[D]iscrimination in the form of a failure to reasonably accommodate is
actionable under the ADA only if that failure negatively impacts the
employee's hiring, advancement, discharge, compensation, training, and other
terms, conditions, and privileges of his employment." (citing 42 U.S.C. §
12112(a))). And, Trambly must show a requested accommodation is
"reasonable on its face, i.e., ordinarily or in the run of cases." Peebles v. Potter,
354 F.3d 761, 768 (8th Cir. 2004) (quoting US Airways, Inc. v. Barnett, 535
U.S. 391, 401 (2002)). The requested accommodation must be related to the
employee's disability. Id. (an accommodation must "meet an individual's
disability-related needs" (quoting Barnett, 535 U.S. at 399)).
For his failure-to-accommodate claim to survive summary judgment,
Trambly "must also show that his employer failed to engage in the interactive
process in good faith." Mobley, 53 F.4th at 457. But if he requested an
unreasonable accommodation, his employer is not liable for failing to engage
in that process. Peebles, 354 F.3d at 769.
(a) Immune Suppression Accommodations
Trambly alleges that because of his immune suppression, he requested
that he not be required to work in Bruner Hall. Filing 99 at 35. Trambly alleges
that he was reassigned to the business and finance department "as an
accommodation for my immune suppression." Filing 98-1 at 9. This move
occurred a week after he spoke to Berryman in January 2018 about his
concerns working in Bruner Hall. Filing 98-1 at 16.
Trambly has not carried his burden of showing that the defendant's
failure to remove him from working in Bruner Hall negatively impacted his
22
medical condition or his job performance. Lenzen, 705 F.3d at 822. First, he
only received a negative performance review after he stopped working in
Bruner Hall. See filing 72-16. And Trambly has not identified, through
evidence or argument, how working in Bruner Hall exacerbated his immune
suppression, only that Trambly feared it might. E.g., filing 98-1 at 9-10. The
defendant is entitled to summary judgment on Trambly's claim that the
defendant failed to accommodate him by assigning him to work in Bruner Hall.
(b) ADHD Accommodations
Trambly alleges that he needed several accommodations based on his
ADHD. Trambly's argument is, or at least appears to be, that if he had access
to a private office space and student support, if he had not been interrupted,
and if he had been assigned less work, he would have more efficiently
completed service tickets. He also appears to allege that he would not have
been terminated but for the defendant's failure to accommodate him.
But prior April 1, 2017, the beginning of the period for his only negative
performance evaluation, Trambly had no issues with his job performance. See
filing 71 at 12. He was promoted. Id. And Trambly does not allege that his
ADHD was somehow made worse by the defendant's failures to provide him
with a private office or by the defendant's criticisms and interruptions, nor is
it possible to draw such an inference from the evidence provided. Trambly has
not carried his burden that the defendant's failure to accommodate his ADHD
prior to April 1, 2017, "negatively impacted [his] medical condition or job
performance." See Lenzen, 705 F.3d at 822.
The Court will address the defendant's alleged failures to accommodate
Trambly's ADHD beginning only after April 1, 2017. Trambly argues that he
received a negative employment evaluation because the defendant failed to
accommodate his disabilities, which might support an inference that he was
23
unable to adequately perform some of the essential functions of his job without
an accommodation. See filing 99 at 45; Dickinson State Univ., 826 F.3d at 1060
(quoting Hatchett v. Philander Smith Coll., 251 F.3d 670, 675 (8th Cir. 2011));
29 C.F.R. § 1630.2(o)(1)(ii). A featured criticism on the evaluation was that
Trambly took too long to respond to service tickets, so, presumably, completing
work tickets in an efficient manner is an essential function of the Workstation
Support
Specialist
position.
See
filing
72-16.
Trambly's
proposed
accommodations were not being criticized or interrupted by his supervisors,
being assigned more student support hours, adjusting his workload, and being
provided a private office. Filing 99 at 36, 37, 19.
(i) Criticism and Interference
Trambly has not identified any specific incidences when his supervisors
interrupted or criticized him on or after the relevant date. See filing 98-1 at 4.
Nor would such an accommodation be reasonable. See Cannice v. Norwest Bank
Iowa N.A., 189 F.3d 723, 728 (8th Cir. 1999) ("We do not believe . . . that the
obligation to make reasonable accommodation[s] extends to providing an
aggravation-free environment."); Schwarzkopf v. Brunswick Corp., 833 F.
Supp. 2d 1106, 1122-23 (D. Minn. 2011) (employee's request for an
accommodation that supervisors and others "not yell at him" was not
reasonable) (collecting cases). Trambly's proposed accommodation to be free
from criticism or interference by his supervisors or coworkers is not reasonable
on its face, nor has Trambly provided any caselaw or argument to the contrary.
See Peebles, 354 F.3d at 768.
(ii) Student Support Hours and Workload Adjustments
Trambly's request for more student support hours and less work is also
unreasonable as a matter of law. According to Trambly, Haussermann
24
allocated more student support hours to Moore because Moore was behind on
his work. Filing 98-1 at 9. An employer "is not required to reassign existing
workers to assist [the employee] in his essential duties." Knutson v. Schwan's
Home Serv., Inc., 711 F.3d 911, 916 (8th Cir. 2013) (quoting Dropinski v.
Douglas Cnty, Neb., 298 F.3d 704, 709 (8th Cir. 2002)) (alteration in original).
An employer is permitted to distribute work as needed, and Trambly does not
allege that being assigned additional work was related in any way to his
disability. See Peebles, 354 F.3d at 769. These proposed accommodations are
facially unreasonable.
(iii) Private Office
To the extent Trambly asserts that he was not afforded any storage
space, such an accommodation is not related to his disability. See Peebles, 354
F.3d at 769. Trambly has made clear his need for a private office as it relates
to his ADHD is his need to be free from distractions so that he can effectively
do his job. His ADHD was irrelevant when he needed to traverse across the
UNK campus with his equipment. See id.
While the defendant assigned Trambly some space, Trambly alleged that
the accommodations were insufficient. Trambly alleges that the Copeland Hall
office was insufficient because he had to share the office with Moore, who
frequently interrupted him. Filing 98-1 at 8-9. Trambly makes this same
complaint about the office in Otto Olsen that he was provided in November
2018: he had to share the space with others, and was interrupted by Petersen
and other coworkers. Filing 98-1 at 11. He alleges that he complained about
these working conditions to Huryta in March 2018. See filing 99 at 18.
A request for a private office is not unreasonable as a matter of law. See
Lenzen, 705 F.3d at 821. Trambly has provided at least some evidence that he
requested a better accommodation than the shared office space, and the
25
defendant did not accommodate him. See id. However, Trambly has still not
met his burden of showing that being denied an office negatively impacted his
job performance or medical condition.
The employment evaluation specifically identified the areas where
Trambly's performance suffered. Trambly needed to "Reduce excessive time
spent on completing tickets." Filing 72-16 at 3. But the more specific feedback
was that he needed to reduce that time by "delegating work and tasks to
students where applicable more frequently," and "sometimes things that
should be a quick fix . . . end up taking a lot longer due to explanations that
don't need to be given and facts that don't pertain to the situation." Id. at 2.
The performance evaluation indicated that Trambly worked after hours to
finish tickets. There's no indication that Trambly received a negative
performance review, was terminated, or was otherwise negatively affected by
interruptions from others in a shared workspace. See filing 72-16.
The evidence reflects that Trambly's performance began to decline, at
the earliest, around April 2017. See filing 72-16. The earliest example of poor
performance provided by the defendant was not until November 2017,
regarding Trambly's judgment in interacting with a third-party vendor. See
filing 71 at 14. Trambly does not allege that his disability worsened throughout
his employment. Trambly was not provided a private office to his satisfaction
at any point, yet he continued to receive positive evaluations. It was not until
his promotion, the duties of which Trambly alleges he had already been
performing (filing 99 at 3), that his performance began to suffer.
Trambly has not provided sufficient evidence to support an inference
that his declining performance was caused by the defendant's failure to provide
a private office. In fact, he offers his own theories of causation: Haussermann
assigned more work to him than his coworkers, he was unable to access the
26
buildings in which he needed to work, and he could not store his equipment in
an office unoccupied by anyone else. But the Court has already explained why
Trambly has not sufficiently evidenced a connection between those allegations
and his disability. Trambly has no evidence that the failure to provide a private
office negatively impacted his job performance or medical condition.
Because Trambly did not request a reasonable accommodation
sufficiently tied to his "disability-related needs," see Barnett, 535 U.S. at 399,
the Court need not address whether the defendant engaged in the interactive
process in good faith. Mobley, 53 F.4th at 457; Peebles, 354 F.3d at 769.
3. RETALIATION
To show a prima facie case of retaliation, Trambly must establish that
(1) 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. Hustvet v. Allina Health Sys., 910 F.3d 399 (8th Cir. 2018) (ADA);
Haffke v. Signal 88, LLC, 306 Neb. 625, 633-34 (2020) (NFEPA). For the
reasons explained above, the adverse employment actions at issue are limited
to the negative performance evaluation from April 2018, and Trambly's
termination in February 2019.
Requesting an accommodation is a protected activity. Anderson, 78 F.4th
at 1036. Trambly alleges that he made several requests for accommodations
over the course of his career with UNK, to several different individuals. See
filing 99 at 44. And apparently, at some point, something changed, and he
began to be retaliated against for the requests he made between 2013 and
2017. See id. Trambly received his first negative performance evaluation only
one month after he spoke with Huryta about receiving disability
accommodations, and his termination came several months after that.
27
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." Anderson, 78 F.4th at 1037 (quoting Kiel v. Select
Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999)). An employee must prove
that an impermissible retaliatory motive was the 'but-for cause' of an adverse
employment action. See Donathan v. Oakley Grain, 861 F.3d 735, 739 (8th Cir.
2017) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013)).
Trambly has not shown any evidence, other than a temporal connection,
which would show that that the defendant gave him a negative performance
evaluation and retaliated against him because of his March 2018 request for
accommodations. But even if he did, he cannot show that the defendant's
nondiscriminatory reasons for those actions are pretextual.
In Kiel, the Eighth Circuit affirmed a grant of summary judgment where
the employee requested accommodations on numerous occasions, but suffered
no adverse employment action until he engaged in undesirable conduct
towards his employer. 169 F.3d at 1136. Like in Kiel, Trambly alleges that he
made several requests for accommodations between 2014 and 2018, but he was
never treated differently until his declining performance beginning in
November 2017, when he had an issue with Haussermann and Schroeder.
Trambly has not alleged that the defendant disciplined other employees less
harshly for comparable behavior, like his increasingly poor performance,
complaints from parents, complaints from other supervisors, and failing to
communicate effectively. See id.; see generally filing 99.
There is simply no evidence from which a reasonable jury could find that
the defendant gave Trambly a negative performance evaluation and
terminated him in retaliation for requesting accommodations. See Kiel, 169
F.3d at 1136; Donathan, 861 F.3d at 739. Trambly has not presented sufficient
28
evidence to create a material question of fact as to whether his termination
was motivated by retaliation rather than the multiple instances of alleged
unprofessional conduct. For these reasons, the defendant is entitled to
summary judgment.7
IV. CONCLUSION
Trambly's
claims
for
disability
discrimination,
a
hostile
work
environment, a failure-to-accommodate, and retaliation all must fail, under
both federal and state law. See Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1106
n.2 (8th Cir. 2016). Even drawing every possible inference in his favor,
Trambly has not presented any evidence that would allow a finder of fact to
find for him on any of his claims. Accordingly,
IT IS ORDERED:
1.
The defendant's motion for summary judgment (filing 70) is
granted.
7
2.
The plaintiff's complaint is dismissed.
3.
A separate judgment will be entered.
Because the record on summary judgment establishes that Trambly has no valid retaliation
claim against the defendant, the Court need not determine whether Title V of the ADA was
a valid abrogation of sovereign immunity. Lors v. Dean, 746 F.3d 857, 864 (8th Cir. 2014).
29
Dated this 27th day of March, 2024.
BY THE COURT:
John M. Gerrard
Senior United States District Judge
30
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