Holmquist v. Tyson Fresh Meats, Inc.

Filing 80

MEMORANDUM AND ORDER - Defendant's motion for summary judgment (Filing No. 60 ) is denied. Ordered by Senior Judge Joseph F. Bataillon. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN HOLMQUIST,
Plaintiff,

7:18CV5003

vs.
MEMORANDUM AND ORDER
TYSON FRESH MEATS, INC.,
Defendant.
This matter is before the Court on defendant Tyson Fresh Meats, Inc.’s (“Tyson”)
motion for summary judgment (Filing No. 60).

This is an action for disability

discrimination, failure to accommodate, and retaliation under the Americans with
Disabilities Act, (“ADA”), as amended by the Americans with Disabilities Amendments Act
of 2008 (“ADAA”), 42 U.S.C. § 12112, et seq.
I.

BACKGROUND
The plaintiff, a production supervisor at a packinghouse, alleges he was unlawfully

suspended and terminated after he requested an accommodation after spinal fusion
surgery. He also alleges that Tyson failed to accommodate him and retaliated against
him for requesting the accommodation. The defendant denies the plaintiff’s allegations
and states it had a legitimate, nondiscriminatory reason for the termination—failure to
follow attendance and call-in instructions.

Further, it asserts that the requested

accommodations, to the extent they were made, were unreasonable and would have
placed an undue burden on Tyson.
Tyson moves for summary judgment on all the plaintiff’s claims. It first argues that
undisputed evidence shows that the plaintiff cannot prove any discriminatory animus. It

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next asserts that the plaintiff’s failure-to-accommodate and retaliation claims fail because
there is no dispute that the plaintiff was informally accommodated on his return to work
after surgery. In response, the plaintiff argues there are genuine issues of material fact
that preclude summary judgment.
I.

FACTS
The following facts are gleaned from the parties’ respective statements of

undisputed fact and from the evidence submitted in connection with this motion. Filing
No. 62, Def’s Brief at 2-20; Filing No. 68, Plaintiff’s Brief at 2-7; Filing No. 75, Defendant’s
Reply Brief at 6-18; Filing Nos. 63, 67, and 76, Indices of Evidence. The plaintiff began
working at Tyson’s Lexington, Nebraska meat packing plant in approximately August
2013. He was initially hired to work as an Assistant Supervisor on the B shift, which ran
from 1:30 p.m. to 4:30 a.m. Tyson’s records indicate that he reported back pain in
December 2015. Filing No. 67-2, Health Service Records, Medical Narrative at 3. He
was sent home by the nurse for severe pain in the lumbar area of his back and told to
return with a doctor’s note.

Id.

He returned to work on December 21, 2015 with

restrictions on heavy lifting, pushing and pulling until his follow-up doctor’s appointment.
On Jan 30, 2016, Holmquist had L4-L5 spinal fusion surgery. He took a personal
leave of absence from January 25, 2016 to March 7, 2016. He was released to work with
initial restrictions of no bending, twisting or lifting more than 10 pounds. Filing No. 61-1,
Ex. V, Holmquist Statement at 3. He then applied for and was ultimately hired for the
position of assistant supervisor on the A shift. Filing No. 63-35, Declaration of Marcia
Washkun, (“Washkun Decl.”), Ex. A, Deposition of John Holmquist (“Holmquist Dep.”) at
74, 78. He was interviewed for the position by Kurt Olerich, the A Shift Superintendent.

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Id. The plaintiff testified that when he applied for the A shift position, he informed Olerich
about the back surgery. Id. at 78. Holmquist’s supervisor was Juan Sanchez, Shift
General Foreman, who reported to Olerich. Id. at 90. Mark Sarratt was the Complex
Plant manager, with authority to hire and fire employees. Filing No. 63-28, Declaration of
Mark Sarratt (“Sarratt Decl.”) at 1.

Dave Roemmich was the Slaughter Operations

Manager. Filing No. 63-35, Washkun Decl., Ex. A, Holmquist Dep. at 90. Holmquist
states that on the first day of work on the A shift, he informed Sanchez and Olerich of his
restrictions, his course of recovery, and his need for doctor appointments once a month.
Filing No. 67-1, Ex. V, Holmquist Statement at 4.
The defendant presented evidence that its employees receive training during
orientation and early in their employment that includes, among other things, information
regarding Health Services,1 workplace harassment and discrimination, attendance, rules
of conduct, and how to report work injuries. Holmquist acknowledged that training and
understood that the rules of conduct applied to him as a supervisor. He had been
provided with the attendance policy applicable to his employment at Tyson. He also
understood that he was to provide proper notification of absences and tardiness. As a
supervisor on any shift, plaintiff was required to be at work early every day, before the
meat-processing chain started, for a management meeting.

Under the company’s

absence procedure, a team member was required to “notify his/her supervisor at least

1

Health Services is responsible for Human Resources tasks and functions at the Plant, including
maintaining health records in employee medical files, receiving employee-related medical documentation
for occupational and non-occupational illnesses or injuries, administering Tyson’s Hourly Attendance
Policy, maintaining documentation of any medical restrictions and absences necessitated by medical
conditions or due to an employee’s need to see a medical provider. If an employee receives medical
documentation from his or her medical provider that outlines work restrictions related to a non-occupational
injury, the request is to be provided to Health Services, but the Human Resources Department determines
whether the restrictions can be accommodated. See Filing No. 63-23, Declaration of Bobbie Samoya
(“Samoya Decl.”).

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30-minutes prior to the team member’s start time of any absences or tardies.” Filing No.
67-8, Ex. CC, Attendance Policy at 1.

Points were assigned for various types of

absences, resulting in corrective action. Id. The accumulation of fourteen points would
result in termination. Id. Holmquist also testified that supervisors were expected to
“cover” for production line employees who were absent or on a bathroom or prayer break.
Filing No. 63-35, Washkun Decl., Ex. A Holmquist Dep. at 46-51.
Tyson’s ADA Accommodation Policy states that the company would engage in an
interactive process with an employee on a request for a reasonable accommodation.
Filing No. 67-10, Ex. EE, Tyson ADA Accommodation Policy. The Policy provides: “At
no time will a final decision to deny a requested reasonable accommodation be made
without exhausting the interactive and collaborative process with the respective location
HR, Occupational Health/Nursing Department, Director of HR Operations, the
Employment Compliance Department, and the Legal Department, as circumstances
dictate.” Id. The plaintiff does not dispute that he received certain accommodations, after
providing Health Services with a doctor’s note, while he was employed at Tyson. He was
once excused from working in the cold because of his asthma; he had been limited in
bending, twisting and lifting certain weights, and had been allowed to wear a boot at work.
Filing No. 63-23, Declaration of Bobbie Samoya (“Samoya Decl.”) at 3; Filing No. 63-25
to 63-27, Exs. B, C, and D, Health Services Job Activity Notification Forms; Filing No. 6335, Washkun Decl., Ex. A, Holmquist Dep. at 267-69. He also provided a doctor’s notes
to excuse absences. Filing No. 63-23, Samoya Decl. at 4.
The plaintiff contends that Tyson failed to accommodate him by directing him to
perform work that exceeded his restrictions. He states that on his third day of work he

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was told to do a job on the line that exceeded his weight restriction and declined to do it.
Filing No. 67-1, Ex. V, Holmquist Statement at 6-7.

Plaintiff’s supervisor, Dave

Roemmich, did not recall if he directed the plaintiff to do that job. Filing No. 67-3, Ex. X,
Deposition of Dave Roemmich (“Roemmich Dep.”) at 32, 35. Holmquist states Juan
Sanchez was disappointed in Holmquist’s refusal. Filing No. 67-1, Ex. V, Holmquist
Statement at 4. Holmquist later spoke to Mark Sarratt about the restrictions. Id. He
testified that on or about May 19, 2016 he was ordered to assist in carrying a number of
trolleys that cumulatively violated his weight restriction. Filing No. 63-35, Washkun Decl.,
Ex. A, Holmquist Dep. at 144-46, 161-62, 320; Filing No. 67-1, Ex. V, Holmquist
Statement at 3-4. Holmquist also testified that he was aware of another supervisor who
had been excused from having to perform production duties on the line and was placed
on light duty after surgery. Filing No. 63-35, Washkun Decl., Ex. A, Holmquist Dep. at
168-71.
The plaintiff also recounts several incidents in May 2016, wherein he contends that
his supervisors, Juan Sanchez and Kurt Olerich made derogatory comments about his
restrictions and inability to perform strenuous work. Filing No. 63-39, Washkun Decl., Ex.
A, Holmquist Statement Excerpt at 4-5. Olerich reportedly referred to the plaintiff as “a
pussy” on May 12, 2016 for refusing to do heavy lifting due to his back, and during the
week of May 27, 2016, Olerich reportedly told the plaintiff he did not care about the
plaintiff’s restrictions. Id.
The record shows the plaintiff had been disciplined several times over the years.
He received a warning for failure to provide a hearing test and disciplined twice for missing
mandatory meetings. Filing Nos. 63-12, 63-13, 63-14, 63-15, Declaration of Suzann

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Reynolds, Exs. K, L, M, and N, Disciplinary Action Notifications. The record shows Tyson
accepted doctor’s notes after the fact to excuse absences. Filing No. 63-24, Samoya
Decl., Ex. A, Health Services Narrative. There is no record of points assessed against
Holmquist for the absence policy infractions.
Plaintiff disputes that he failed to communicate his absences and tardiness to the
defendant. Filing No. 67-1, Ex. V, Holmquist Statement at 8. The record shows the
plaintiff had a medical appointment on June 14, 2016, and was thereafter restricted from
bending, twisting, or lifting over 50 pounds. Filing No. 67-5, Ex. Z, Doctors’ notes. An email from Dave Roemmich to Suzanne Reynolds on June 14, 2016, first states that
Holmquist was a “no show, no call” that day, but later states Holmquist arrived late. Filing
No. 63-16, Reynolds Decl., Ex. O. Roemmich did not request documentation by Human
Resources and stated Holmquist was told to bring doughnuts the following day. Id. Tyson
records show that Health Services was presented with a note showing the restrictions
and documenting the appointment dated June 14, 2016, on July 15, 2016, and notes
indicate that the ADAA accommodation was approved by Human Resources. Filing No.
67-2, Ex. W, Health Services Narrative at 3.
On July 28, 2016, Kurt Olerich e-mailed Dave Roemmich and Suzanne Reynolds
that “[o]n 7/27/16 John Holmquist showed up for the morning meeting at 5:20am, which
is late . . . I would like a discipline sent.” Filing No. 63-18, Ex. Q, E-mail. Reynolds
responded to Roemmich, “So an unexcused tardy you think?” and Roemmich replied “I
told Kurt would allow for him being late one morning nothing else health related.” Id.
The plaintiff contends he provided notice to his supervisors that he would be going
to the doctor on August 9, 2016. Filing No. 67-1, Ex. V, Holmquist Statement at 7. He

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also contends he had informed Juan Sanchez that his back pain had increased and that
he was likely going to need to reduce his hours at work. Id. at 8. An e-mail dated August
9, 2016 indicates that Juan Sanchez was aware by way of a text message that Holmquist
had an appointment that day. Filing No. 63-19, Reynolds Decl., Ex. R, E-mail. Tyson emails also show that Holmquist sent texts to his supervisor regarding August 9, 2016, and
August 10, 2016. Filing No. 63-21, Reynold’s Decl., Ex. T, E-mail at 2 (relating that on
8/9, “John texted at 4:40am he was going to be late” and on 8/10 “texted I’m out today
boss I have a note”).
The record shows Holmquist was seen by his orthopedic surgeon, Dr. John D. Ray
on August 9, 2016, for “increased back pain with full activity at work” and was “at risk for
adjacent segment problems in addition to failed fusion.” Filing No. 67-5, Doctors’ Notes
at 3. Dr. Ray recommended that Holmquist “should have a little more autonomy in terms
of saying no to specific activities” at work. Id. A doctor’s note dated August 15, 2016,
indicates that the plaintiff should be limited to working half days for the reminder of the
month. Filing No. 67-5, Ex. Z, Doctors’ notes at 2.
Mark Sarratt states that, after Holmquist “reportedly had failed to timely
communicate with or respond to his supervisor on August 9, 2016 and August 10, 2016,”
he met with Holmquist on August 11, 2016, to “discuss his need to provide timely, and
proper advance notification of his absences and tardies, and to do so on each day for
which he needed to be absent or tardy, regardless of the reason.” Filing No. 63-28,
Declaration of Mark Sarratt (“Sarratt Decl.”) at 1-2.

Sarratt “specifically instructed

[Holmquist] to call-in his absences or tardies on each day he could not report to work by
his start time, to do so timely in advance of his shift, and to make personal contact with

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certain individuals I identified for him in the meeting, including his direct supervisor, Juan
Sanchez.” Id. at 2. Holmquist was not formally disciplined for any failure to timely report
on August 9, 2016, or August 10, 2016. Id. Sarratt states that Holmquist “failed to follow
those directives to call-in before his shift as instructed on August 15, 2016” and Sarratt
“made the decision to terminate Plaintiff’s employment due to his failure to follow
[Sarratt’s] directives and to call-in as I had directed, and because he did not provide any
excusable justification for this failure.” Id. An e-mail from Sarratt to a superior at Tyson
states:
You may see a request to term on him. After I sat down with him on
Thursday, I was very clear with him with expectations on communication,
he didn’t show up this morning until 11:30 with a Dr's note to work half days,
he couldn't call in because the charging cord on his phone broke. If that's
how he views his duties after I directed him, l don't need him here.
Filing No. 63-21, Ex. T, E-mail at 3. The superior responded, “I would agree, half days
because of what?” Id. Suzanne Reynolds then wrote to another Tyson management
employee requesting Holmquist’s termination.

Id. at 2.

She related that she told

Holmquist on August 15, 2016, that “we had two different issues here. 1. Was his
continued failure to appropriately report his absences. 2. An accommodation for a nonocc issue. Those two things had absolutely nothing to do with each other. I suspended
him pending disciplinary action.” Id. at 2.
Tyson records show Holmquist attempted to provide documentation of restrictions
and absences to Health Services on August 11, 2016. Filing No. 67-2, Medical Narrative
at 4. Holmquist testified he again went to Health Services on August 15, 2016, with the
doctor’s note dated August 15, 2016, and spoke to Ms. Samoya. Filing No. 63-35,
Washkun Decl., Ex. A, Holmquist Dep. at 243-44; see also Filing No. 63-23, Samoya
Decl. at 5. He then took the note to Human Resources for accommodation, as required
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by Tyson procedure. Id. Human Resources Manager Suzanne Reynolds suspended the
plaintiff when he met with her about the restrictions. Filing No. 67-1, Ex. V, Holmquist
Statement at 8. The plaintiff was terminated on August 19, 2016. Filing No. 63-22, Ex.
U, Personnel Action.
II.

LAW
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
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. 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.
The ADA prohibits discrimination “against a qualified individual on the basis of
disability.” 42 U.S.C. § 12112(a). In the absence of direct evidence of discrimination,
courts evaluate an ADA wrongful termination claim under the familiar McDonnell Douglas
framework. Ryan v. Capital Contractors, Inc., 679 F.3d 772, 776–77 (8th Cir. 2012); see
also Young v. United Parcel Serv., Inc., 575 U.S. 206, 228 (2015). To establish a prima
facie case under the ADA, an employee must demonstrate that he or she: (1) is disabled

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within the meaning of the ADA, (2) he or she was qualified to perform the essential
functions of the job, and (3) that he or she suffered an adverse employment action under
circumstances giving rise to an inference of unlawful discrimination. Ryan, 679 F.3d at
777.
Under pre-ADAA law, temporary impairments with little or no long-term impact
were not disabilities. See Samuels v. Kansas City Mo. Sch. Dist., 437 F.3d 797, 802 (8th
Cir. 2006). Since the amendments, the courts have construed “disability” more broadly.
Oehmke v. Medtronic, Inc., 844 F.3d 748, 756 (8th Cir. 2016); Gardea v. JBS USA, LLC,
915 F.3d 537, 541 (8th Cir. 2019); see 42 U.S.C. § 12102(4)(A) (stating “[t]he definition
of disability in this chapter shall be construed in favor of broad coverage”).
Once a plaintiff has established a prima facie case, the burden shifts to the
employer to articulate a legitimate, non-discriminatory reason for the employee’s
termination; if it does so, the burden shifts back to the employee to demonstrate that the
employer’s proffered reason is a pretext for unlawful discrimination. Ryan, 679 F.3d at
777. The Eighth Circuit Court of Appeals has “‘consistently held that violating a company
policy is a legitimate, non-discriminatory rationale for terminating an employee.’” Id.
(quoting Twymon v. Wells Fargo & Co., 462 F.3d 925, 935 (8th Cir. 2006) (citation
omitted)). A plaintiff can demonstrate pretext various ways, including “showing than an
employer (1) failed to follow its own policies, (2) treated similarly-situated employees in a
disparate manner, or (3) shifted its explanation of the employment decision.” Lake v.
Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010). When demonstrating pretext by
showing disparate treatment between similarly situated employees, but a plaintiff must

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show that he and his comparator were similarly situated in all relevant respects. Ryan,
679 F.3d at 777.
The ADA also has elements similar to Title VII for any claim for retaliation. Heisler,
931 F.3d at 794–95. The initial burden is on the plaintiff to show (1) that he or she
engaged in statutorily protected activity; (2) an adverse employment action was taken
against him or her; and (3) a causal connection exists between the two events. Stewart
v. Indep. Sch. Dist. No. 196, 481 F.3d 1034, 1042–43 (8th Cir. 2007). Though the
standard under the ADA naturally continues to include protected conduct like filing a
complaint or participating in a hearing before the EEOC, it has also been interpreted to
cover when an employee requests a reasonable accommodation and is subsequently
discriminated against because of that request. Heisler v. Metro. Council, 339 F.3d 622,
632 (8th Cir. 2003) (stating that “requesting an accommodation is a protected activity”)
see also Larsen v. Maynard, Inc., No. 5:18-CV-5093, 2019 WL 2774329, at *6 (W.D. Ark.
July 2, 2019) (noting that “the recognition that requesting an accommodation qualifies as
“protected activity” for purposes of an ADA retaliation claim has broadened the nature of
the claims that can be asserted as retaliation claims and increased the likelihood that an
ADA discrimination and ADA retaliation claim will look nearly identical in some contexts.”).
An employee may show the causal link based on the temporal relation of the protected
activity and the adverse employment action. See Smith v. Fairview Ridges Hosp. 625
F.3d 1076, 1088 (8th Cir. 2010). “The mere coincidence of timing, however, is rarely
sufficient to establish the causation element.” Ebersole v. Novo Nordisk, Inc., 758 F.3d
917, 925 (8th Cir. 2014) (citation omitted).

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“Although [the Court of Appeals has] not

drawn a definitive line, [it has] determined that a one-month or two-month lag is too long
absent other evidence.” Id.
Discrimination includes “not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual.”
12112(b)(5)(A).

42 U.S.C. §

The burden-shifting analysis also applies to a reasonable

accommodation claim. Brunckhorst v. City of Oak Park Heights, 914 F.3d 1177, 1182
(8th Cir. 2019), reh'g denied (Mar. 21, 2019). If a plaintiff claims that he “could not perform
the essential functions of his job without an accommodation, he must ‘make a facial
showing that reasonable accommodation is possible.’” Id. (quoting Fjellestad v. Pizza
Hut of Am., Inc., 188 F.3d 944, 950 (8th Cir. 1999). At that point, the burden of production
shifts to the defendant to show that it is unable to accommodate the plaintiff. Id. A
“plaintiff may reach a jury on this issue by providing sufficient evidence that the employer's
policies impose a significant burden on [disabled] workers, and that the employer's
‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but
rather—when considered along with the burden imposed—give rise to an inference of
intentional discrimination. Young, 575 U.S. at 229.
“An accommodation is not reasonable if it requires an employer to ‘reallocate or
eliminate the essential functions of a job.’” Higgins v. Union Pac. R.R. Co., 931 F.3d 664,
671 (8th Cir. 2019)(quoting Faulkner v. Douglas Cty. Neb., 906 F.3d 728, 733 (8th Cir.
2018) (citation omitted)). The Eighth Circuit Court of Appeals “has consistently stated
that ‘regular and reliable attendance is a necessary element of most jobs.’” Greer v.
Emerson Elec. Co., 185 F.3d 917, 921 (8th Cir. 1999) (quoting Nesser v. Trans World
Airlines, Inc., 160 F.3d 442, 445 (8th Cir. 1998)); see also Lipp v. Cargill Meat Sols. Corp.,

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911 F.3d 537, 545 (8th Cir. 2018) (involving 195 days of unplanned absences for both
personal and medical reasons in less than a year); Schierhoff v. GlaxoSmithKline
Consumer Healthcare, L.P., 444 F.3d 961, 966 (8th Cir. 2006) (finding that a mechanic’s
172 missed days in two years amounted to an inability to perform the job); Buckles v. First
Data Res., Inc., 176 F.3d 1098, 1102 (8th Cir. 1999) (finding numerous and unpredictable
absences and an unfettered ability to leave work at any time is not a reasonable
accommodation); Pickens v. Soo Line R.R. Co., 264 F.3d 773, 778 (8th Cir. 2001) (finding
employee’s request to “work only when he feels like working . . . unreasonable as a matter
of law”).
III.

DISCUSSION
The Court finds Tyson’s motion for summary judgment on the plaintiff’s disability

discrimination claim should be denied. Tyson has not shown as a matter of law that it is
entitled to judgment on the plaintiff’s claims.
Viewing the evidence in the light most favorable to Holmquist, he has presented
evidence that creates an issue of fact as to whether his recovery from surgery and
attendant restrictions motivated Tyson to terminate him. The question for a jury to decide
in this case is whether the defendant had a legitimate, non-discriminatory reason to fire
Holmquist or whether the decision was motivated by plaintiff’s disability. The evidence
shows Tyson was aware of his back problem in December 2015 and granted him a sixweek leave of absence for the surgery. He was thereafter restricted from bending,
twisting, and lifting first 10, then 20, pounds and eventually 50 pounds. Though Tyson
contends Holmquist did not follow proper procedures and channels for his work

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restrictions, he testified he told his supervisors about the restrictions, and at this stage of
the proceedings, the Court must credit that testimony.
The evidence suggests Tyson did not seriously implement restrictions of which his
supervisors were aware, nor did it accommodate his request to be relieved of having to
cover for particularly strenuous jobs on the kill floor. There is some evidence that Tyson
treated Holmquist differently than another supervisor with medical restrictions.
Also, it does not appear that Tyson followed its own absence or accommodation
policies. Though there is evidence in the record that Holmquist had been disciplined in
the past, the violations do not appear to be particularly serious (for example failure to
provide a hearing test) and discipline for unexcused absences appears to have been
remedied by doctors’ notes. The plaintiff was disciplined for missing two mandatory
meetings over the course of three years. In short, there is evidence in the record from
which a jury could reasonably infer that Tyson’s purported reason for terminating
Holmquist was a pretext for disability discrimination.
Viewing the evidence in the light most favorable to Holmquist, he has satisfied his
burden of showing there are genuine issues for trial. The record shows conflicts and
disagreements between the plaintiff and his supervisors regarding the level of exertion
expected of Holmquist when subbing for others on the kill floor. Holmquist contends that
his supervisors knew of and informally accommodated his restrictions, to some extent.
He contends he furnished the doctor’s restrictions to Tyson representatives and Tyson
admits it had proof of restrictions on July 15, 2016, that dated back to June 16, 2016. The
evidence of record creates a classic issue of fact and the outcome will depend on whose
testimony is credited.

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Although Tyson contends that it accommodated the plaintiff, the record does not
provide evidence that the accommodations were ever put into practice. Holmquist was
suspended at the same time he asked for the reduction-in-hours accommodation. There
is no evidence that Tyson representatives participated in any interactive or collaborative
discussion of the feasibility of the requested restrictions, and no showing that it would
have been unduly burdensome for Tyson to provide a temporary reduction in hours. The
evidence that supervisors and other employees covered for each other on the production
line, at least suggests that there was some flexibility and amounts to a facial showing by
Holmquist that the accommodation was possible. This case is qualitatively different that
those cases that have found requested accommodations involving absences and
reduction in hours unreasonable as a matter of law. See, e.g., Lipp, 911 F.3d at 545 (195
absences); Schierhoff, 444 F.3d at 966 (172 missed days); Buckles, 176 F.3d at 102
involving a request to leave work any time chemicals were present); and Pickens, 264
F.3d at 778 (involving a request to work only when the employee felt like it). The plaintiff
requested only a temporary reduction of daily hours for a relatively short period of time.
Tyson has not shown that it is entitled to judgment as a matter of law on the plaintiff’s
failure-to-accommodate claims.
The plaintiff’s retaliation claim is premised on the exercise of his right to request a
reasonable accommodation. The timing of the termination, close on the heels of the
request for a reduction in hours, gives some credence to the claim. The record, viewed
in the light favorable to Holmquist, supports a conclusion that Tyson suspended and
terminated the plaintiff because he had requested accommodations.

The e-mail

colloquies between and among Tyson managerial personnel provide some evidence of a

15

discriminatory animus in that management acknowledged that 2 issues—the absence
policy/call in procedure and the reasonableness of a requested accommodation—were
both at play. Although the Human Resources manager stated that the two issues had
nothing to do with each other, a jury could find that the arguably legitimate rationale of
failure to follow an order functioned as a pretext for a termination actually motivated by
the company’s reluctance to accommodate the plaintiff’s post-surgical restrictions.
Whether the requested accommodations were reasonable is a matter of dispute. The
Court is unable to make these determinations without an assessment of credibility.
Tyson’s reliance on Holmquist’s failure to call in and excessive absences as a
legitimate and nondiscriminatory reason for the termination is suspect in that Tyson had
allowed the absences with a later-provided doctor’s note, and there is conflicting evidence
as to whether or when Holmquist informed his supervisors of his needs for time-off. Also,
a jury could conclude that the plaintiff’s absences and need for doctor’s appointments
were not excessive but were reasonable as a follow-up to the surgery. As far as failing
to follow an order, there is some question as to what motivated Tyson to place call-in
obligations on the plaintiff that exceeded those in its written policy.
Similarly, the evidence of Tyson’s Human Resources policies and Holmquist’s
acknowledged awareness of the policies is not particularly probative in the absence of
evidence that they were uniformly applied and routinely followed. The evidence suggests
the contrary. Here, Tyson maintained a written attendance policy and enforced its policy
with a system of progressive discipline, culminating in termination after accruing fourteen
points. There is no evidence that Tyson followed the policy in Holmquist’s case. Further,
it has not established that it followed its interactive disability accommodation procedure.

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Viewing the evidence in the light most favorable to Holmquist, he has presented
evidence from which a reasonable jury could find that he was terminated because of a
disability, as that term is defined in the 2008 amendments to the ADA. Tyson was clearly
aware of his back surgery. Viewing the evidence in the light most favorable to Tyson, he
has presented evidence that creates an issue of fact as to whether his post-surgery
restrictions caused his suspension or termination. Holmquist has presented evidence of
derogatory comments in the workplace that are sufficient to support the inference by a
reasonable fact finder that his disability and request for accommodations motivated
Tyson’s conduct.
Holmquist has presented evidence of genuine issues of material fact on the
elements of his disability discrimination, failure to accommodate, and retaliation claims.
The defendant has not established that it is entitled, as a matter of law, to a summary
judgment in its favor. Accordingly,
IT IS ORDERED:
1.

Defendant’s motion for summary judgment (Filing No. 60) is denied.

DATED this 15th day of April, 2020.

BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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