Hernandez v. Outlook Nebraska, Inc.

Filing 45

MEMORANDUM AND ORDER - ONI's motion for summary judgment, Filing No. 29 , is granted. A separate judgment will be entered in conjunction with this Memorandum and Order. Ordered by Judge Joseph F. Bataillon. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSEPH HERNANDEZ, JR.,
Plaintiff,

8:11CV213

vs.
MEMORANDUM AND ORDER
OUTLOOK NEBRASKA, INC.,
Defendant.

This matter is before the court on defendant Outlook Nebraska, Inc.’s (“ONI”)
motion for summary judgment under Fed. R. Civ. P. 56, Filing No. 29. This is an action
for employment discrimination and retaliation under the Americans With Disabilities Act,
42 U.S.C. § 12101 et seq (“ADA”) and the Rehabilitation Act of 1973, 29 U.S.C. § 794 et
seq. Hernandez also asserts state law disability discrimination and retaliation claims
under the Nebraska Fair Employment Practices Act, Neb. Rev. Stat. §§ 48-1104 and
1114 et seq (“NFEPA”).1 Plaintiff Joseph Hernandez, Jr. (“Hernandez”) is legally blind
and alleges that ONI discriminated against him based on his disability. Filing No. 1,
Complaint. Hernandez further contends his demotion was retaliatory, motivated by his
prior complaints to ONI management and the Occupational Safety and Health
Administration (“OSHA”). Id. ONI moves for summary judgment, arguing that there is
no genuine issue of material fact and ONI is entitled to a judgment as a matter of law.
The court has carefully reviewed the record, the arguments of counsel, and the relevant

1

Disability discrimination claims under NFEPA are analyzed using the same framework as claims
brought under the ADA. See Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 723 (8th Cir. 2002).

statutes and case law. The court will grant ONI’s motion for summary judgment for the
reasons set forth herein.
BACKGROUND
It is undisputed that Hernandez is legally blind and qualifies as disabled under
the ADA, NFEPA, and the Rehabilitation Act.

At all relevant times, ONI employed

Hernandez. ONI employed Hernandez as a stacker/packer during most of his tenure.
He also filled in for other employees during their breaks and fixed different machines.
Hernandez was trained on the machine relating to one of the issues in this lawsuit,
known as the 716 rewinder, for approximately three months.
ONI is a not-for-profit organization that produces toilet paper for the General
Services Administration and other federal entities through the National Industries for the
Blind (“NIB”). These contracts require that seventy-five percent of the direct labor be
performed by legally blind employees.

ONI does not receive any federal grants or

subsidies.
Hernandez alleges that blind workers were treated less favorably than the
sighted workers. Hernandez contends that there was favoritism toward the sighted and
the sighted were allowed to “do more on the floor than [the blind] were allowed to get
away with.”

Filing No. 30-5, Hernandez Deposition, 13:23-25, Page ID #243.

Hernandez specifically alleges that the sighted employees were allowed to take more
bathroom and snack breaks.

However, Hernandez admits that he could go to the

lunchroom to get snacks for his blind co-workers. Hernandez testified that he was
disciplined for using the restroom frequently even though he is a diabetic. Id. at 49:17-

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21, Page ID #252.

However, once he told his supervisors why he frequented the

restroom, he no longer got in trouble for those breaks.
Hernandez also alleges that sighted employees were paid more than blind
employees. Hernandez testified in his deposition that he had heard that the pay raises
between the blind and the sighted were different. Id. at 17:19-18:10, Page ID #244.
Hernandez was offered pay raises, including a pay raise when he began to train on the
716 rewinder, and declined the raises at times in order to keep his Social Security
benefits. Id. ONI President Erik Stueckrath stated that ONI compensates all its blind
and sighted employees in the same manner. Filing No. 30-3, Stueckrath Deposition at
53:24–56:14, Page ID #175.
Hernandez next alleges he requested that certain machines, including the 716
rewinder, be made accessible and these requests were ignored.

Filing No. 30-5,

Hernandez Dep., 40:6-14, Page ID #249. Stueckrath testified that it would cost more to
upgrade the 716 rewinder than the machine is worth. Filing No. 30-3, Stueckrath Dep.,
81:14-21, Page ID #182.

Hernandez alleges that the machines needed voice

capabilities or text magnification in order to be accessible to the blind. Id. Further, he
argues that the defendant failed to adequately train him on the machines. ONI alleges
that all machinery is accessible to blind employees with the exception of the three
forklifts. However, ONI also admits that some machines, including the 716 rewinder,
are not accessible and alleges that they cannot be made accessible due to mechanical
limitations or undue expense.
Hernandez also alleges that blind employees were not allowed to become
supervisors. Hernandez admits that Stueckrath stated that there could be and would be

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blind managers, but Hernandez alleges that it has never happened. However, when
asked about an employee named Robert Riley, Hernandez recalls that Riley is a legally
blind shift manager at ONI. Hernandez also admitted that he does not know of any
blind employees who applied for supervisor positions and failed to receive the position.
Hernandez filled out a document indicating which machines he would like to be trained
on and he selected all of the machines, including the 716 rewinder.

Hernandez

describes this document as “maybe not an application, but […] the start of an
application” and he interpreted it as an application. Filing No. 30-5, 21:9-14, Page ID
#245. Hernandez also states that he heard Wyatt Rogers, the employee who trained
Hernandez on the rewinder, say that the blind should not operate machinery like the
716 rewinder. Id., 74:22-76:14, Page ID #258. Hernandez never reported Rogers’
comment to a supervisor. Id., 79:1-18, Page ID #259. ONI did in fact attempt to train
Hernandez on the 716 rewinder.
Last, Hernandez contends he was retaliated against for his communication with
OSHA. Hernandez filed an OSHA complaint against ONI.

An OSHA investigation

resulted in violations and fines for ONI. Hernandez argues that ONI was aware of this
complaint by late December of 2008 or early January of 2009. Id. Hernandez also
contends that he felt harassed and that he was watched closely after filing the
complaint. ONI admits that it knew of the complaint at some point after Hernandez filed
his disability complaint. There is no evidence or testimony that any ONI manager or
executive had notice of the OSHA complaint until Hernandez filed the charge of
discrimination.

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STANDARD OF REVIEW
On a motion for summary judgment, the question before the court is whether the
record, when viewed in the light most favorable to the nonmoving party, shows that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Woods v. DaimlerChrysler Corp.,
409 F.3d 984, 990 (8th Cir. 2005). “Where unresolved issues are primarily legal rather
than factual, summary judgment is particularly appropriate.” Mansker v. TMG Life Ins.
Co., 54 F.3d 1322, 1326 (8th Cir. 1995).
The burden of establishing the nonexistence of any genuine issue of material fact
is on the moving party. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S.
144, 157 (1970). “The movant ‘bears the initial responsibility of informing the district
court of the basis for its motion, and must identify ‘those portions of [the record] . . .
which it 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) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

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. ( quoting Celotex, 477 U.S. at 324).
On a motion for summary judgment, the “‘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. (quoting Ricci v. DeStefano, 557 U.S. 557, 585 (2009)). Credibility determinations,
the weighing of the evidence, and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge. Id. The nonmoving party “‘must do more than
simply show that there is some metaphysical doubt as to the material facts,’ and must

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come forward with ‘specific facts showing that there is a genuine issue for trial.’” Id.
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87
(1986)). 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. Id.
There is no “discrimination case exception” to the application of summary
judgment, which is a useful pretrial tool to determine whether any case, including one
alleging discrimination, merits a trial. Torgerson, at 1043 (quoting Fercello v. County of
Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010)).

Nevertheless, “[a]t the summary

judgment stage, the court should not weigh the evidence, make credibility
determinations, or attempt to determine the truth of the matter.” Anderson v. Liberty
Lobby Inc., 477 U.S. 242, 249 (1986). The court’s function is to determine whether a
dispute about a material fact is genuine, that is, whether a reasonable jury could return
a verdict for the nonmoving party based on the evidence. Id. at 248. To be material, a
fact “must affect the outcome of the lawsuit under governing law.” Id. “The evidence of
the non-movant is to be believed, and all justifiable inferences are to be drawn in [the
nonmoving party’s favor].” Id. at 255. “If reasonable minds could differ as to the import
of the evidence,” summary judgment is inappropriate. Id. at 250.
ANALYSIS
I. Application of Relevant Statutes
This action is filed under the Americans with Disabilities Act, 42 U.S.C. §12101 et
seq., and NFEPA, Neb. Rev. Stat. §§ 48-1104 and 1114 et seq. It is undisputed that
Hernandez qualifies as disabled under these statutes and that these statutes apply.

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Hernandez also alleges violations of the Rehabilitation Act of 1973, 29 U.S.C.
§ 794 et seq. This act applies to any “program or activity receiving federal financial
assistance or under any program or activity conducted by any Executive agency or by
the United States Postal Service.” Id. ONI alleges, and Hernandez does not contest,
that ONI fails to meet the definition of a “program or activity” covered under the
Rehabilitation Act because ONI only receives federal contracts, not federal funding or
stipends. The plaintiff has conceded this issue for purposes of the summary judgment
motion. Therefore, the court will grant summary judgment in favor of the defendant for
all claims arising under the Rehabilitation Act.
II. Disability Legal Standard
The Americans with Disabilities Act provides that “no covered entity shall
discriminate against a qualified individual on the basis of disability in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a). Discrimination includes “not making reasonable accommodations
to the known physical or mental limitations of an otherwise qualified individual with a
disability who is an applicant or employee, unless such covered entity can demonstrate
that the accommodation would impose an undue hardship on the operation of the
business of such covered entity” and “denying employment opportunities to a job
applicant or employee who is an otherwise qualified individual with a disability, if such
denial is based on the need of such covered entity to make reasonable accommodation
to the physical or mental impairments of the employee or applicant[.]”
§ 12112(b)(5).

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42 U.S.C.

“In the absence of evidence of direct discrimination, we analyze ADA claims
under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 804, (1973).” Lors v. Dean, 595 F.3d 831, 834 (8th Cir. 2010) (citing Rehrs v. Iams
Co., 486 F.3d 353, 356 (8th Cir. 2007)).

Under the burden-shifting framework, “a

plaintiff bears the burden of establishing a prima facie case showing he (1) had a
disability within the meaning of the ADA; (2) was qualified, with or without a reasonable
accommodation, to perform the essential job functions of the position in question; and
(3) suffered an adverse employment action because of his disability.” Id. “The burden
then shifts to the employer to articulate some legitimate, nondiscriminatory reason for
the employer’s actions.” Id. “If the employer articulates such a reason, the burden
returns to the employee to show the employer’s justification is a pretext.” Id. “‘To
demonstrate pretext, a plaintiff must present sufficient evidence to demonstrate both
that the employer’s articulated reason for the adverse employment action was false and
that discrimination was the real reason. . . . [T]he plaintiff must do more than simply
create a factual dispute as to the issue of pretext; he must offer sufficient evidence for a
reasonable trier of fact to infer discrimination.’” McNary v. Schreiber Foods, Inc., 535
F.3d 765, 769 (8th Cir.2008) (quoting Wilking v. County of Ramsey, 153 F.3d 869, 874
(8th Cir. 1998)).
III. Employment discrimination based on disability
A. Treated less favorably and wage disparity claims
Hernandez alleges that he received less pay than signed employees due to his
disability. It is clear that Hernandez meets the first element of his prima facie case, as
he is disabled. It is also undisputed that in general Hernandez is qualified to work at

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ONI. However, Hernandez fails to meet his burden with respect to the third element, an
adverse employment action.
discrimination occurred.2

Hernandez has offered no evidence that any wage

With respect to the wage disparity claim, Hernandez

concedes that “nothing indicates a discriminatory pattern.” Filing No. 34, Plaintiff’s Brief
Opposing Defendant’s Motion for Summary Judgment, Page ID #299. He apparently
had a conversation with a co-worker that made him believe there existed wage
disparities.

However, at the summary judgment stage, his subjective belief is

insufficient to support this claim. ONI contends that in fact there is no discrimination
based on wages. Hernandez offers no evidence that contradicts such assertion. In
fact, Hernandez admitted at his deposition that he had received pay raises in the past,
and that he had declined raises so as not to affect his Social Security benefits.
Hernandez Dep., Filing No. 30-5, 18:11-25 and 19:8-23, Filing No. 30-1, Plutschak
Affidavit, Ex. B. Based on the lack of any evidence to support plaintiff’s claim, the court
grants summary judgment for ONI with respect to the wage disparity claim, as plaintiff
has failed to make a prima face showing of disability discrimination.
B. Harassment
Hernandez alleges that he suffered harassment due to his disability. The Eighth
Circuit has set forth the elements to show harassment under the ADA:
To prevail on a hostile work environment claim under the ADA, Ryan must
show “that he is a member of the class of people protected by the statute,
that he was subject to unwelcome harassment, that the harassment
resulted from his membership in the protected class, and that the
harassment was severe enough to affect the terms, conditions, or
privileges of his employment.” Shaver v. Indep. Stave Co., 350 F.3d 716,
720 (8th Cir.2003) (citing Reedy v. Quebecor Printing Eagle, Inc., 333
2

Hernandez contends that ONI would not provide copies of pay records for his review. However,
a motion to compel would have produced the relevant records.
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F.3d 906, 907–08 (8th Cir.2003)). When the alleged harasser is the
plaintiff’s fellow employee there is a fifth element: that the employer knew
or should have known of the harassment and failed to take proper action.
See Palesch v. Mo. Comm'n on Human Rights, 233 F.3d 560, 566 (8th
Cir.2000). This element does not apply to allegations of supervisory
harassment. Id. at n. 5.
Ryan v. Capital Contractors, Inc., 679 F.3d 772, 778 (8th Cir. 2012).
Hernandez contends that blind workers were called “monkeys” and “expletive
deleted idiots”. Filing No. 34 at 5. Again, it is certain that Hernandez suffers from a
disability. Hernandez has failed to put forth any evidence of such harassment. There is
no evidence that this harassment occurred because of Hernandez’ disability. There is
no evidence that the alleged harassment was severe enough to affect the terms,
conditions or privileges of Hernandez’ employment. Further, as alleged by ONI, there is
no evidence that Hernandez reported any harassment to management. Based on the
lack of any evidence to support plaintiff’s claim, the court grants summary judgment for
ONI with respect to the harassment claim, as plaintiff has failed to make a prima face
showing of disability discrimination.
C. Failure to promote
Hernandez claims that he received an adverse employment action when ONI
failed to promote him because of his disability. “An adverse employment action is a
material employment disadvantage, such as a change in salary, benefits or
responsibilities [including] failing to promote.” Ledbetter v. Alltel Corporate Services,
Inc., 437 F.3d 717, 724 (8th Cir. 2006). Hernandez alleges that the blind employees
were treated less favorably than sighted employees.

He primarily argues that the

sighted employees were given preference in terms of promotions and supervisor
positions.

Hernandez alleges that there was favoritism toward the sighted and the
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sighted were allowed to do more on the floor than [the blind] were allowed to get away
with. Hernandez alleges that he repeatedly asked his supervisor if he could apply for a
shift lead position, and the supervisor responded that he would “get back to him” and
never did. Hernandez alleges, and ONI does not disagree, that he was qualified, with
reasonable accommodation, to perform the essential job functions of the shift lead
position.
ONI’s argument for why Hernandez was not promoted is simple: Hernandez
never applied. ONI further provides that 9 or 10 of its approximately 15 managerial
positions are filled by blind or visually impaired employees. Filing No. 30-3, 17:6-24,
Page ID #166, Stueckrath Dep.

“To plead a prima facie case of employment

discrimination for an employer’s failure to promote an employee, typically that employee
must show that [he] applied for the promotion and was rejected. However, in cases
where the very discrimination alleged would have made it futile for the plaintiff to apply
for the position in question, the plaintiff’s failure to apply may be excused if [he] can
show that in the absence of such discrimination [he] would have applied.” Culpepper v.
Vilsack, 664 F.3d 252, 256-57 (8th Cir. 2011) (citations omitted). Although Hernandez
alleges that Rose never “got back to him” about the application, Hernandez never
requested an application from any other supervisor or manager. Hernandez fails to
show that he was prevented from applying because he was blind or that he was
prevented from applying directly to management. Additionally, Hernandez was later
invited to apply for a shift lead position and declined to apply. Therefore, the court
grants summary judgment for the defendant with respect to the claim of adverse
employment action by failure to promote.

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D. Demotion—716 Rewinder
Hernandez contends that he was demoted from his position as a 716 rewinder.
The evidence presented by the parties shows that plaintiff requested training on the 716
rewinder. ONI thereafter trained Hernandez. According to ONI, it took longer to train
plaintiff than anticipated. A meeting occurred regarding this issue, and management
decided to continue with the training. Hernandez admitted during his deposition that he
was removed from training on the 716 rewinder, as he had problems, such as feeding
too much paper into the machine. Filing No. 30-5, Hernandez Dep., 30:19-31:14. ONI
spent three months training Hernandez. According to ONI, Hernandez continued to
make mistakes on the rewinder, even with the additional training. Hernandez admitted
during his deposition that at least two employees who were visually impaired worked the
716 rewinder. Id., Hernandez Dep., 28:3-12. It should be noted, also, that when
Hernandez was removed from the 716 rewinder, his pay was not decreased by ONI
when he returned to his job as a packer/stacker.
With regard to the alleged demotion, the court again finds that Hernandez is
disabled. The court finds that Hernandez fails to meet his burden of showing
discrimination based on disability that led to a demotion.

“Whether a particular

reassignment is materially adverse depends upon the circumstances of the particular
case, and ‘should be judged from the perspective of a reasonable person in the
plaintiff's position, considering ‘all the circumstances.’” Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 71 (2006) quoting Oncale v. Sundowner Offshore Services,
Inc., 523 U.S. 75 at 81 (1998). It is clear that training occurred with regard to the 716
rewinder. The evidence shows that Hernandez had difficulty operating the machine.

12

ONI gave him additional training. Hernandez did not improve. ONI then transferred him
back to his former job.

Hernandez received no adverse action as a result of the

transfer, and in fact, he was permitted to keep his wage increase if he chose to do so.
Hernandez has failed to establish a prima facie case of disability discrimination.
Further, ONI has articulated a nondiscriminatory reason for its actions. Hernandez has
failed to rebut these nondiscriminatory reasons and show a pretext for discrimination.
The court finds that this particular change in working environment is not an adverse
employment action. Minor changes in working conditions are not adverse employment
actions. See Sallis v. Univ. of Minn., 408 F.3d 470, 476 (8th Cir. 2005); Saulsberry v.
St. Mary’s Univ. of Minn., 318 F.3d 862, 868 (8th Cir. 2003).
Hernandez also argues that ONI could have made reasonable accommodations
to the 716 rewinder.

Hernandez argues that ONI should have made reasonable

accommodations to make him more successful on the 716 rewinder, such as larger
printed instructions. ONI then submitted evidence that such accommodations were not
reasonable. Apparently the 716 rewinder is old and the accommodations would cost
more than the machine.3 Filing No. 30-3, Stueckrath Dep., 81:14-21.
Plaintiff must “make a facial showing that reasonable accommodation is possible
and that the accommodation will allow [him] to perform the essential functions of the
job.” Burchett v. Target Corp., 340 F.3d 510, 517 (8th Cir. 2003). Hernandez alleges
that ONI failed to make accommodations to make some machinery accessible to the
blind and failed to properly train him on the 716 rewinder. It is clear from the evidence

3

Many of the machines operated by the employees have accommodations such as magnified
operating panels and text-to-speech capabilities. ONI admits it cannot make some of the machines
accessible because of mechanical difficulties and expense .
13

that ONI has made accommodations to other machines. The testimony offered by ONI
management is that this particular machine is too old to cost effectively change to
accommodate the requests of Hernandez. Hernandez offers no evidence to rebut this
contention. The court finds Hernandez has failed to meet his burden in this regard, and
ONI has in fact met its burden. Accordingly, the court will grant summary judgment with
regard to the issue of demotion.
IV. Retaliation based on being a whistleblower
The Occupational Safety and Health Act of 1970 provides that “[n]o person shall
discharge or in any manner discriminate against any employee because such employee
has filed any complaint or instituted or caused to be instituted any proceeding under or
related to this chapter or has testified or is about to testify in any such proceeding or
because of the exercise by such employee on behalf of himself or others of any right
afforded by this chapter.” 29 U.S.C. § 660(1).
“In considering retaliation cases, this Court has adopted a three-pronged
framework for analysis. First, the plaintiff must make a prima facie case by showing
participation in a protected activity, a subsequent adverse action by the employer, and
some evidence of a causal connection between the protected activity . . . and the
subsequent adverse action. Second, once the plaintiff has established a prima facie
case, the burden shifts to the employer to articulate an appropriate non-discriminatory
reason for its action. Finally, if the employer satisfies this burden, the plaintiff must then
demonstrate that the proffered reason is pretextual.” Reich v. Hoy Shoe Co., Inc., 32
F.3d 361, 365 (8th Cir. 1994) (citations omitted).

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Hernandez has established that he participated in a protected activity, the filing of
an OSHA complaint. Hernandez, as discussed herein previously, has not established
any adverse action as a result of his OSHA claim or any other claim in this lawsuit.
Hernandez was not fired. He was not demoted. His wages were not decreased. His
transfer to his previous job from the 716 rewinder had nothing to do with his OSHA
filing. Any harassment he may have undergone was not reported to management. With
regard to this claim, the court notes there is no evidence that ONI knew of the OHSA
complaint until at least sometime after Hernandez filed his charge of discrimination
against ONI.

Further, there is no evidence that any retaliatory actions occurred.

Further, there were no adverse actions taken against Hernandez.

Accordingly, the

court finds that Hernandez failed to meet his burden with respect to both elements two
and three.
For the reasons set forth herein, the court finds that the motion for summary
judgment, Filing No. 29, should be granted.
THEREFORE, IT IS ORDERED:
1. ONI’s motion for summary judgment, Filing No. 29, is granted.
2. A separate judgment will be entered in conjunction with this Memorandum
and Order.
Dated this 2nd day of October, 2012.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

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