Kaiser v. Gallup, Inc.

Filing 126

MEMORANDUM AND ORDER that defendant Gallup Inc.'s Motion for Summary Judgment 102 is granted. All other pending motions are denied as moot. A separate Judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SUSAN KAISER,
Plaintiff,
v.
GALLUP, INC.,
Defendant.

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CASE NO. 8:13CV218

MEMORANDUM
AND ORDER

This matter is before the Court on the Defendant’s Motion for Summary Judgment
(Filing No. 102). For the reasons discussed below, the Motion will be granted.
FACTS
The parties’ briefs (Filing Nos. 103, 118,122) and indexes of evidence (Fling Nos.
103-1 to 103-371, 114) reveal that the following facts are not in dispute.2
Defendant Gallup, Inc. (“Gallup”), is a Delaware corporation with its principal place
of business in Omaha, Nebraska. Part of Gallup’s business involves telephone surveys.
Plaintiff Susan Kaiser (“Kaiser”) was at all relevant times a resident of Lincoln,
Nebraska. She began at-will employment at Gallup’s Downtown Lincoln call center in
November 2003. She initiated and conducted structured telephone surveys, asking
specific questions, following a required interview format and technique, and recording
answers. After two years as a part-time associate interviewer, Kaiser was selected for
Gallup’s “Premier Team,” an elite group of Gallup’s highest performing interviewers.

1

Those documents in Gallup’s Index of Evidence that Kaiser seeks to strike in her Motion to
Strike and Motion in Limine (Filing No. 119) were not considered by the Court.
2

The facts summarized in this section were supported by pinpoint citations to admissible evidence
in the record and were admitted by the parties, or not properly resisted as required by NECivR 56.1 and Fed.
R. Civ. P. 56: “Properly referenced material facts in the movant’s statement are considered admitted unless
controverted in the opposing party’s response.” NECivR 56.1(b)(1).

In 2007, Kaiser was involved in a car accident that affected her ability to work. She
suffered multiple physical and mental disorders, including amnesia, blackouts, pre-epilepsy,
post-traumatic stress disorder, depression, vestibular disorder, seizures, sleep apnea,
vision impairment, memory impairment, hearing impairment, brain injury, chronic
inflammation of the voice box, asthma, and vertigo. Her medical and psychological
conditions limited her ability to sleep, work, concentrate, drive, and care for herself, as well
as impairing her cognitive functions.
On July 28, 2008, Gallup advised Kaiser’s medical provider of the essential functions
of Kaiser’s position and requested information about the nature and extent of her condition,
the duration of her condition, her prognosis, and any reasonable accommodations that
would allow her to perform essential functions of her job.
In August 2008, Kaiser moved to Gallup’s Bellevue location, where Seth Schuchman
was her manager. On September 16, 2008, Kaiser met with Gallup’s Vice President and
Associate Counsel, Ken Andersen, as well as Schuchman and another Gallup manager,
to discuss Kaiser’s condition and her request for accommodations. During that meeting,
the parties agreed that Kaiser would work on only three projects and would not work more
than 40 hours per week without medical authorization.
In August 2010, Kaiser moved to Gallup’s Lincoln Greentree location, where her
manager was Jenny Higgins. At Kaiser’s request, Higgins permitted Kaiser to focus on a
single project due to the limitations she suffered with her memory. Gallup also provided
Kaiser with a special chair to accommodate her back issues, and exempted her from
certain requirements imposed on other Gallup employees. As of September 26, 2011,
Gallup met all Kaiser’s requests for accommodations, including her request for a place to
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work with little distraction.
In September 2011, Kaiser experienced problems with the quality of her work. She
skipped two internal quality assurance statements in one week and was issued an
Employee Corrective Action Form. The work errors Kaiser made in September 2011 were
offenses for which she could have been terminated.

Higgins had terminated the

employment of other Gallup interviewers for a single offense of skipping an internal quality
assurance statement. To help Kaiser reduce distractions and prevent further errors,
Higgins moved Kaiser’s desk to a less distracting area. Kaiser made no objection, and she
perceived that Higgins was being kind.
At some point after September 27, 2011, Kaiser informed Higgins that she was
diagnosed with a condition related to seizures. Higgins asked what she could do to help.
Kaiser took a medical leave from the end of September 2011 through November 2011, and
Gallup helped Kaiser obtain short-term disability benefits during her leave.
In January 2012, Kaiser asked Higgins if she could relocate to Gallup’s Edgewood
center in Lincoln before the rest of the members of the Premier Team were relocated there
in connection with a planned merger of the Greentree and Edgewood centers. Higgins
granted Kaiser’s request. Higgins remained Kaiser’s manager following Kaiser’s move to
the Edgewood center and throughout the remainder of Kaiser’s employment with Gallup.
In May 2012 Kaiser received another Employee Corrective Action Form for again
skipping Gallup’s internal quality assurance statement. Kaiser understood that completion
of the internal quality assurance statements was an essential function of her job; she knew
her error was an offense for which she could be terminated; and she had been warned
about the seriousness of such an error.
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In May and June of 2012, Kaiser spoke to at least six of her co-workers and four
Gallup managers about what she perceived to be quality issues with another employee’s
performance. When she raised her concerns with each manager, she did not tell the
manager that she had already raised the issue with a different manager. Kaiser later spoke
to several co-workers, expressing her dissatisfaction with the manner in which Gallup
managers handled her complaint about the employee’s performance. Higgins believed that
Kaiser should not have raised concerns about the performance of another employee with
her co-workers. Other managers also expressed concerns to Higgins about the manner
in which Kaiser pursued her complaints.
On June 14, 2012, Higgins terminated Kaiser’s employment, indicating that Kaiser
engaged in inappropriate behavior, negativity, and disruption of the workplace. Kaiser
considered Higgins to be honest.
Kaiser admitted it was improper for her to complain to other employees about Gallup
management and that her complaints about management directed to other employees had
a negative effect on the workplace. She admitted that managers and not co-workers should
address employee performance issues, and that her conduct had a negative effect on the
workplace when she did not trust or allow managers to handle personnel issues. She
further admitted that she did not treat a specific Gallup manager in a professional manner
in May and June 2012 when she complained about him to several other employees and
managers in connection with the incident described above. She acknowledged that she
should have raised her concerns with one Gallup manager and then trusted Gallup
management to address the issue.
Although Kaiser was aware of Gallup’s policies and procedures promoting equal
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employment opportunity and prohibiting harassment and retaliation, and she was familiar
with the process for voicing concerns about such issues to Gallup’s designated managers,
Kaiser never voiced any concern about discrimination or harassment based on her
disabilities during the course of her employment with Gallup. Nor did she voice any
concern about retaliation during the course of her employment with Gallup.
Kaiser brought this action in the district court of Lancaster County, Nebraska, on
June 13, 2013, alleging (1) failure to make reasonable accommodation for her disabilities
in violation of the Nebraska Fair Employment Practices Act (“NFEPA”), Neb. Rev. Stat. §
20-148, and the Americans with Disabilities Act of 1990 (“ADA”) as amended by the ADA
Amendments Act of 2008 (“ADAAA”), 42 U.S.C. §§ 12101-12213; (2) retaliation in violation
of NFEPA and ADA; and (3) discrimination on the basis of her disabilities in violation of
NFEPA and ADA. (Filing No. 1-1.) Gallup removed the action to this Court on July 16,
2013.
STANDARD OF REVIEW
“Summary judgment is appropriate when, construing the evidence most favorably
to the nonmoving party, there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Crozier v. Wint, 736 F.3d 1134, 1136 (8th Cir.
2013) (citing Fed. R. Civ. P. 56(c)). “Summary Judgment is not disfavored and is designed
for every action.” Briscoe v. Cnty. of St. Louis, 690 F.3d 1004, 1011 n. 2 (8th Cir. 2012)
(quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)
cert. denied, 132 S.Ct. 513 (2011)) (internal quotation marks omitted). In reviewing a
motion for summary judgment, the court will view “all facts and mak[e] all reasonable
inferences favorable to the nonmovant.” Gen. Mills Operations, LLC v. Five Star Custom
5

Foods, Ltd., 703 F.3d 1104, 1107 (8th Cir. 2013). “[W]here the nonmoving party will bear
the burden of proof at trial on a dispositive issue . . . Rule 56(e) permits a proper summary
judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule
56(c), except the mere pleadings themselves.” Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986). The moving party need not negate the nonmoving party’s claims by showing “the
absence of a genuine issue of material fact.” Id. at 325. Instead, “the burden on the moving
party may be discharged by ‘showing’ . . . that there is an absence of evidence to support
the nonmoving party’s case.” Id.
In response to the movant’s showing, the nonmoving party’s burden is to produce
specific facts demonstrating “‘a genuine issue of material fact’ such that [its] claim should
proceed to trial.” Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir. 2009)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The
nonmoving party “must do more than simply show that there is some metaphysical doubt
as to the material facts, and must come forward with specific facts showing that there is a
genuine issue for trial.” Briscoe, 690 F.3d at 1011 (quoting Torgerson, 643 F.3d at 1042)
(internal quotation marks omitted). “[T]he mere existence of some alleged factual dispute
between the parties” will not defeat an otherwise properly supported motion for summary
judgment. Quinn v. St. Louis Cty., 653 F.3d 745, 751 (8th Cir. 2011) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)) (internal quotation marks omitted).
In other words, in deciding “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.” Guimaraes v. SuperValu, Inc., 674 F.3d 962, 972 (8th Cir. 2012) (quoting
Torgerson, 643 F.3d at 1042) (internal quotation marks omitted). Otherwise, where the
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Court finds that “the record taken as a whole could not lead a rational trier of fact to find for
the non-moving party,” there is no “genuine issue for trial” and summary judgment is
appropriate. Torgerson, 643 F.3d at 1042 (quoting Ricci v. DeStefano, 557 U.S. 557, 586
(2009)) (internal quotation marks omitted).
DISCUSSION
I. Failure to Accommodate
Under the ADA3, an employer must “make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified applicant or employee with a
disability, unless [the employer] can demonstrate that the accommodation would impose
an undue hardship on the operation of its business.” Peebles v. Potter, 354 F.3d 761, 766
(8th Cir. 2004) (quoting 29 C.F.R. 1630.9(a) (2003)) (internal quotation marks omitted).
“[T]he plaintiff fails to make a prima facie case if he fails to show he needs an
accommodation.” Id. at 770 (emphasis omitted) . “[T]here must be a showing of a causal
connection between the accommodation and the disabled employee, so the employee
would be denied the employment benefit but for the accommodation.” Id. at 771. “[B]ecause
necessity is part of the prima facie case, the showing the plaintiff needs the
accommodation precedes the question whether the accommodation was reasonable.” Id.
For purposes of the Court’s analysis, it is assumed that Kaiser was at all relevant
times a qualified person with a disability under the ADA and NFEPA.
Kaiser alleges that the work station Gallup provided to her after she returned from
medical leave in November 2011 did not accommodate her disabilities. Specifically, she
3

“The disability discrimination provisions of NFEPA are patterned after the ADA,” and Nebraska
courts look to federal ADA decisions when construing NFEPA. Orr v. Wal-Mart Stores, Inc., 297 F.3d 720,
723 (8th Cir. 2002).

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claims that her desk was moved to a middle-seat location rather than an end-seat location,
with less desirable lighting, causing her to be distracted by excessive noise and leading her
to become depressed. Evidence cited by Kaiser in support of this allegation is not such
that any reasonable jury could infer that Gallup failed to accommodate her disabilities with
respect to her seating location.4

Instead, the evidence indicates that Kaiser made

conflicting requests for accommodations related to her seating assignment, i.e., requests
for a location away from noise and distractions, and requests for placement amid coworkers to accommodate her outgoing nature, so she would not feel isolated.
Kaiser also alleges that in December 2011 she asked a Gallup manager for a printed
copy of an email communication concerning a Gallup survey and the manager yelled at her
and failed to provide her with the printed document. Assuming Kaiser’s allegation is true,
she nonetheless failed to demonstrate that the document she requested was needed for
the performance of her job duties or that the manager’s failure to provide the document
when requested in any way precluded her from performing essential functions of her job.
4

Kaiser cites an email string she initiated with Higgins in January 2016. (Filing No. 114-12 at
ECF 11-12.) On January 25, 2012, Kaiser wrote: “I might consider the desk across from Joe. I haven’t
checked out the lighting.” Higgins responded: “The first three are on Dialer 2 – so you don’t want those.
The back is dialer one – you want those ”. On January 26, 2012, Kaiser wrote: “Hi, Jenny, I sat in the
other desk last night and the angle is the same as my original desk. Those huge round lights outside the
break area reflect through the glass.” Higgins responded: “You aren’t a pain.  There are desks along
the South side that would be away from the light. The corner ones, just may not be an option especially if
the light is a medical issue. Once you sit in those let me know how it feels.” Kaiser responded: “Jenny,
the difficult part is that I am not able to sit in a corner away from people and I already know that. That
back corner would not be a good move for me psychologically. Confidentially I am currently struggling
with depression. A lot of stressors over the past months. My top strength is Woo. I have already walked
around back there and it has too much of an isolated feel. Even in the best of spirits it would go against
my outgoing nature. If my glasses, etc. don’t work, I may just stay out on the interviewing floor.” Higgins
responded: “Actually if you sit in desk #4 you are across from Jennie and Anita is diagonal to you. Also
you will be in the traffic line to my office so LOTS of people walking by your desk. It might be a great area
to consider for a good view of everyone headed down to this end of the center. Don’t think that because
isn’t [sic] a corner it can’t work. Let me know.”

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Finally, Kaiser asserts that Gallup failed to enter into a deliberative process with her
to address her requests for accommodation. “There is no per se liability under the ADA if
an employer fails to engage in the interactive process.” Minnihan v. Mediacom Commc’ns
Corp., 779 F.3d 803, 813 (8th Cir. 2015) (citing Cravens v. Blue Cross and Blue Shield of
Kansas City, 214 F.3d 1011, 1021 (8th Cir. 2000)). “However, at the summary judgment
stage ‘the failure of an employer to engage in an interactive process to determine whether
reasonable accommodations are possible is prima facie evidence that the employer may
be acting in bad faith.’” Id. (quoting Cravens, 214 F.3d at 1021). “An employee with a
disability must show the following elements to establish his employer failed to participate
in the interactive process: (1) the employer knew about the employee's disability; (2) the
employee requested accommodation or assistance for his or her disability; (3) the employer
did not make a good faith effort to assist the employee in seeking accommodation; and (4)
the employee could have been reasonably accommodated but for the employer's lack of
good faith.” Id. Viewing the evidence in the light most favorable to Kaiser, the record is
clear that Gallup made a good faith effort to assist Kaiser in finding reasonable
accommodations for her disabilities. “[A] disabled individual is not entitled to an
accommodation of his choice.” Rehrs v. Iams Co., 486 F.3d 353, 359 (8th Cir. 2007).
II. Retaliation
“The ADA also prohibits employers from discriminating against any individual
because that individual ‘has opposed any act or practice made unlawful by this chapter or
because such individual made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing.’” E.E.O.C. v. Product Fabricators, Inc., 763 F.3d
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963, 972 (8th Cir. 2014) (quoting Hill v. Walker, 737 F.3d 1209, 1218 (8th Cir.2013)). “In
order to succeed on this retaliation claim, there must either be direct evidence of retaliation
or an inference of retaliation must be created under the McDonnell Douglas burden-shifting
framework.” Id. (citing Lors v. Dean, 746 F.3d 857, 865 (8th Cir. 2014)) (referencing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973)). Without direct evidence
to establish a retaliation claim, a “plaintiff must show that (1) she engaged in a statutorily
protected activity, (2) the employer took an adverse action against her, and (3) there was
a causal connection between the adverse action and the protected activity.” Id. (quoting
Hill, 737 F.3d at 1218) (alterations omitted). “Once this prima facie case is established, the
claim proceeds under the familiar McDonnell Douglas burden-shifting framework.” Id.
Assuming, without deciding, that Kaiser can establish a prima facie case of
retaliation, Gallup articulated a legitimate, non-retaliatory reason for its adverse action. The
burden then shifts to Kaiser to demonstrate that Gallup’s proffered reason was pretext for
retaliation.
“A plaintiff may show pretext, among other ways, by showing that an employer (1)
failed to follow its own policies, [or] (2) treated similarly-situated employees in a disparate
manner . . . .” Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010). Kaiser has
shown neither. Based on the undisputed evidence before the Court, no reasonable jury
could infer that Gallup terminated Kaiser’s employment in retaliation for her exercise of
rights under the ADA, ADAAA, or NFEPA .
III. Discrimination
Because Kaiser did not present any direct evidence of disability discrimination, the
Court must analyze her claim under the McDonnell Douglas framework. First, Kaiser must
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establish a prima facie case of disability discrimination. “To establish a prima facie case
of discrimination under the ADAAA, a plaintiff must show that (1) he is a disabled person
within the meaning of the ADAAA; (2) he was qualified to perform the essential functions
of the job, with or without a reasonable accommodation; and (3) he suffered an adverse
employment action because of his disability.” Minnihan, 779 F.3d at 810 (citing E.E.O.C.
v. Wal–Mart Stores, Inc., 477 F.3d 561, 568 (8th Cir. 2007)). “In order to be a qualified
individual for the purposes of the ADAAA, the plaintiff must ‘(1) possess the requisite skill,
education, experience, and training for [the] position, and (2) be able to perform the
essential job functions, with or without reasonable accommodation.’” Id. (quoting Fenney
v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 712 (8th Cir. 2003)).
If Kaiser establishes a prima facie case of discrimination, the burden shifts to Gallup
to articulate a legitimate, non-discriminatory reason for the adverse action. Product
Fabricators, 763 F.3d at 969. If Gallup demonstrates a legitimate, non-discriminatory
reason for its actions, the burden shifts back to Kaiser to demonstrate that the proffered
reason was a pretext for discrimination. Id.
Assuming, without deciding, that Kaiser can meet her initial burden of proving a
prima facie case of discrimination, Gallup has presented a legitimate non-discriminatory
reason for her termination, and the burden shifts to Kaiser to demonstrate that the reason
was a pretext for discrimination.
Kaiser alleges that her performance errors were related to her disability, and that
Gallup treated similarly situated non-disabled employees in a more favorable manner. The
evidence before the Court, however, demonstrates that Gallup terminated other nondisabled employees who committed errors of the kind for which Kaiser received more
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lenient corrective actions.
With respect to her termination, Kaiser has not presented any evidence from which
a reasonable jury could infer that Gallup’s proffered reasons for the termination of her
employment were a pretext for discrimination against her on the basis of her disabilities.
Accordingly,
IT IS ORDERED:
1.

Defendant Gallup Inc.’s Motion for Summary Judgment (Filing No. 102) is
granted;

2.

All other pending motions are denied as moot;

3.

A separate Judgment will be entered.

DATED this 13th day of April, 2015.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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