Hernandez v. Hormel Foods Corporation

Filing 60

MEMORANDUM AND ORDER - Hormel Foods' motion for summary judgment (filing 45 ) is granted. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
OSCAR C. HERNANDEZ,
Plaintiff,

8:17-CV-50

vs.
MEMORANDUM AND ORDER
HORMEL FOODS CORPORATION,
Defendant.
The plaintiff, Oscar Hernandez, is suing his employer Hormel Foods
Corporation for allegedly discriminating against him on the basis of his
disability and national origin. Hernandez also alleges that he was retaliated
against after filing a workers' compensation claim.
This matter is before the Court on Hormel Foods' motion for summary
judgment (filing 45). For the reasons set forth below, the Court will grant
Hormel Foods' motion for summary judgment in its entirety.
BACKGROUND
Hernandez is of Mexican origin. Filing 47 at 30. He is currently employed
by Hormel Foods at a meat processing facility located in Fremont, Nebraska.
See filing 47 at 78; see also filing 54 at 2. Hernandez has worked for Hormel
Foods for nearly fourteen years as a "belly trimmer." Filing 46 at 6; filing 47 at
8. In his "belly trim" position, Hernandez is primarily responsible for using an
electric "whizard" knife to trim fat patches from the pork bellies as they
proceed on the production line. Filing 47 at 7; 80.
On January 23, 2015, Hernandez suffered a left shoulder injury. Filing
47 at 14. This injury was reported to his supervisor and Hernandez received
treatment at the Hormel Foods infirmary. Filing 47 at 14. Over the next

several months, however, Hernandez's shoulder pain became progressively
worse. Filing 47 at 15.
So, on July 16, 2015 Hernandez was evaluated by orthopedic specialist
Dr. Kirk Hutton. Filing 15 at 2. Dr. Hutton opined that Hernandez had a
"[p]robable rotator cuff" tear and suggested that Hernandez schedule an MRI.
Filing 51 at 4. Until then, Dr. Hutton stated that he would "allow [Hernandez]
to continue to work" so long as work was done "below shoulder level and close
to his body." Filing 51 at 4. A few weeks later, the results of Hernandez's MRI
confirmed Dr. Hutton's suspicions: Hernandez had "significant tearing of two
tendons of the rotator cuff" and surgery was scheduled for late November.
Filing 52 at 2. Until surgery, Hernandez remained on a "[ten] pound lifting
maximum" and was ordered to "keep[] work below shoulder level, and within
18" of [his] body." Filing 52 at 2.
Hernandez claims that Hormel Foods did not respect his work
restrictions from July 16, 2015 (i.e., when his rotator cuff tear was first
diagnosed) until November 5, 2015 (i.e., just before he underwent shoulder
surgery).1 See filing 15 at 1-2. As such, Hernandez filed an employment
discrimination charge with the Nebraska Equal Opportunity Commission and
the federal Equal Employment Opportunity Commission, which dismissed his
charge. Filing 15 at 2-3. Hernandez filed this suit asserting claims under 42
U.S.C. § 1981; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq.; and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.

1

The Court acknowledges that the record contains some information concerning Hernandez's

accommodations following surgery. But because the complaint only alleges that
discrimination occurred from July 16, 2015 until November 5, 2015––well before Hernandez
returned to work following surgery––this Memorandum and Order will not address, or
consider, those allegations. See filing 15 at 1.

2

(as amended by the ADA Amendments Act of 2008 (ADAAA), Pub. L. No. 110325, 122 Stat. 3553 (2008)). Filing 15 at 5. He also asserts state-law claims
under the Nebraska Fair Employment Practice Act (NFEPA) Neb. Rev. Stat. §
48-1101 et seq., and common law workers' compensation retaliation. Filing 15
at 4. Hormel Foods has moved for summary judgment on those claims.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does
so, the nonmovant must respond by submitting evidentiary materials that set
out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to show
that disputed facts are material, the party opposing summary judgment must
cite to the relevant substantive law in identifying facts that might affect the
outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751 (8th Cir.
2011). The mere existence of a scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which the
jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
3

Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving party,
there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
DISCUSSION
Although brought under different theories of recovery, Hernandez's
allegations can be grouped into three general categories: disability
discrimination, national origin discrimination, and workers' compensation
retaliation. The Court will discuss each of those claims in turn below.
DISABILITY DISCRIMINATION
Generally

speaking,

Hernandez

contends

that

Hormel

Foods

discriminated against his disability (i.e., his shoulder injury). Filing 15 at 1.
More specifically, Hernandez claims that his "belly trim" position violated his
doctor-imposed work restrictions and as such, Hernandez argues that he
should have been transferred to a less strenuous position. Filing 52 at 2; see
also filing 47 at 67. By failing to transfer him, Hernandez claims Hormel Foods
violated the ADA and the NFEPA. Filing 54 at 8.
Hernandez's ADA and NFEPA claims are functionally identical, so the
Court will consider them together. See Orr v. Wal-Mart Stores, Inc., 297 F.3d
720, 723 (8th Cir. 2002). An employer may not refuse to hire a qualified
individual because he has a disability. Kallail v. Alliant Energy Corp. Servs.,
Inc., 691 F.3d 925, 933 (8th Cir. 2012). An employer also discriminates against
an applicant or employee if the employer does not make reasonable
accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability. Dick v. Dickinson State Univ., 826 F.3d
1054, 1059 (8th Cir. 2016). Discrimination under the ADA encompasses both
disparate treatment because of a disability and failure to provide reasonable
accommodations to a qualified individual's known disability—the former
4

requires proof of discriminatory intent, while the latter does not. Withers v.
Johnson, 763 F.3d 998, 1003 (8th Cir. 2014).
To establish a prima facie case of disability discrimination, a plaintiff
must show: (1) that he was disabled, (2) that he was qualified to do the
essential job function with or without reasonable accommodation, and (3) that
he suffered an adverse action due to his disability. Dick, 826 F.3d at 1059. To
support a failure to accommodate claim, the plaintiff must establish both a
prima facie case of discrimination based on disability and a failure to
accommodate it. See Kelleher v. Wal-Mart Stores, Inc., 817 F.3d 624, 631 (8th
Cir. 2016).
Hormel Foods argues that Hernandez's disability claim fails, as a matter
of law, for at least two reasons. First, Hormel Foods contends that Hernandez
is not disabled within the meaning of the ADA. See filing 46 at 18. And
alternatively, Hormel Foods argues that even if Hernandez was disabled, he
did not, and has not, suffered any adverse employment action as a result of
that disability. See filing 46 at 19. In particular, Hormel Foods points out that
the only allegations of discrimination occurred between July 16, 2015 and
November 5, 2015––a time period that Hernandez was neither demoted nor
discharged from his "belly-trim" position. Filing 46 at 19.
Hormel Foods's former contention is easily disposed of, so the Court will
begin there. Generally speaking, Hormel Foods claims that Hernandez is not
disabled because his shoulder injury has not limited any major life activity.
Filing 46 at 18. That is, Hormel Foods argues that Hernandez's ability to walk,
stand, reach, lift, speak, or care for himself has not been negatively impacted
in any way. Filing 46 at 18. Hernandez, on the other hand, claims that his
major life activities are limited following his injury. Filing 54 at 8. Specifically,
Hernandez claims that before undergoing surgery, it was extremely difficult
5

for him to lift and reach. Those activities, Hernandez suggests, constitutes
major life activities and render him disabled. See 29 C.F.R. § 1630.2; see also
filing 54 at 8.
The ADA defines a disabled person as an individual with a physical or
mental impairment that substantially limits one or more of that person's major
life activities, an individual who has a record of such an impairment, or an
individual who is regarded as having such an impairment. See 42 U.S.C. §
12102(1). Under pre-ADAAA law, temporary impairments with little or no
long-term impact were not disabilities. See Samuels v. Kansas City Missouri
Sch. Dist., 437 F.3d 797, 802 (8th Cir. 2006). The ADAAA, however, expanded
the definition of a disability, and requires it to be construed in favor of broad
coverage. See Rotkowski v. Arkansas Rehab. Servs., No. 3:15-CV-03085, 2016
WL 1452426, at *4 (W.D. Ark. Apr. 13, 2016); see also Regulations To
Implement the Equal Employment Provisions of the Americans With
Disabilities Act, as Amended, 76 Fed. Reg. 16,978 (Mar. 25, 2011)
("Implementing Regulations"). And, post-ADAAA, the effects of a temporary
impairment can be substantially limiting for ADA purposes. Id. at 17,012;
accord Dykstra v. Florida Foreclosure Attorneys, PLLC, No. 15-81275-CIV,
2016 WL 1644069, at *7 (S.D. Fla. Apr. 26, 2016).
Under the ADAAA and its implementing regulations, an impairment is
not categorically excluded from being a disability simply because it is
temporary. Summers v. Altarum Inst., Corp., 740 F.3d 325, 333 (4th Cir. 2014);
accord Geter v. Gov't Publ'g Office, No. CV 13-916, 2016 WL 3526909, at *9
(D.D.C. June 23, 2016). Indeed, a short-term impairment may qualify as a
disability if it is "sufficiently severe." See 29 C.F.R. § Pt. 1630, App. For
example, "if an individual has a[n] impairment that results in a 20–pound
lifting restriction that lasts for several months, he is substantially limited in
6

the major life activity of lifting, and therefore covered under the first prong of
the definition of disability." Id., accord Summers, 740 F.3d at 329.
And that is nearly the precise scenario at issue here: Hernandez suffered
a shoulder injury resulting in a ten-pound lifting restriction which lasted over
six months. See filing 51 at 2-4; filing 52 at 2. That injury substantially limited
the major life activity of lifting––thus, the Court finds that Hernandez was
disabled for purposes of his ADA claim. See Matthews v. Pa. Dep't of Corr., 613
F. App'x 163, 168 (3d Cir. 2015); Summers v. Altarum Inst., 740 F.3d 325 (4th
Cir. 2014).
Nevertheless, Hernandez's disability discrimination claim still fails as a
matter of law. As noted above, to establish a prima facie case of disability
discrimination, the plaintiff must also demonstrate that he suffered an adverse
employment action as a result of his disability. An adverse employment action
is a tangible change in working conditions that produces a material
employment disadvantage. Spears v. Mo. Dep't of Corr. & Human Resources,
210 F.3d 850, 853 (8th Cir. 2000). That may include, for example, termination,
cuts in pay or benefits, changed duties, or other changes that affect an
employee's future employment prospects. Wagner v. Campbell, 779 F.3d 761,
766 (8th Cir. 2015). A transfer to a new position may also be considered an
adverse employment action if the plaintiff cannot perform the responsibilities
of the new position due to disability. See Kelleher v. Wal-Mart Stores, Inc., 817
F.3d 624, 632 (8th Cir. 2016).
Here it is undisputed that Hernandez was neither discharged nor forced
to switch positions, nor did he suffer any reduction in pay because of his
shoulder injury. Filing 47 at 9; see also filing 54 at 2. So, the only plausible
adverse employment action includes Hernandez's allegation that he was
medically unable to perform his "belly-trim" position. See filing 55-1 at 93-95.
7

But there is no evidence in the record to substantiate that claim.
Kelleher, 817 F.3d at 632. To the contrary, Hernandez admits that his "belly
trim" position neither required him to lift his arm above shoulder level, see
filing 47 at 17, nor perform work beyond eighteen inches of his body, see filing
47 at 28; see also filing 47 at 48. Hernandez also acknowledges that he was
generally not required to lift over ten pounds. Filing 47 at 17. In fact, the only
time the "belly-trim" position had the potential to violate Hernandez's work
restrictions was if there was a "pile up" or "jam" on the production line. See
filing 47 at 59. But when that did happen, Hormel Foods gave Hernandez
specific orders not to lift or move jammed pork bellies. Filing 47 at 17; see also
filing 47 at 59. Instead, Hernandez was instructed to notify his supervisor and
ask for help in alleviating the jam. Filing 47 at 17; see also filing 47 at 59.
So, although Hernandez may have been apprehensive about staying in
his "belly trim" position, there is no evidence that a medical professional or
any member of management determined that Hernandez was medically unable
to perform his "belly trim" position so long as he did not lift the bellies in the
event of a pile up. And while "[t]o be 'adverse' the action need not always
involve termination or even a decrease in benefits or pay . . . not everything
that makes an employee unhappy is an actionable adverse action." Sellers v.
Deere & Co., 791 F.3d 938, 941 (8th Cir. 2015). Instead, Hernandez must be
unable to perform the job as a result of his disability. Kelleher, 817 F.3d at 632.
There is no evidence to suggest that is the case here. Accordingly,
Hernandez has not made out a prima facie case of discrimination and as such,
the Court will grant Hormel Foods's motion for summary judgment.2

2

The Court also notes that even if Hernandez could establish a prima facie case of disability

discrimination, his reasonable accommodation claim would still fail. Indeed, the crux of
Hernandez's complaint stems from his belief that he should have been transferred to a

8

NATIONAL ORIGIN CLAIM
Next, Hernandez alleges that he was discriminated against based on his
national origin. Those allegations are brought under Title VII and the NFEPA.
Those claims are also functionally identical such that the Court will consider
them together. See Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030, 1039-40 (8th
Cir. 2005); Kim v. Nash Finch Co., 123 F.3d 1046, 1056 (8th Cir. 1997).
Hernandez

has

alleged

nothing

suggesting

direct

evidence

of

discrimination. See Torgerson v. City of Rochester, 643 F.3d 1031, 1044 (8th
Cir. 2011) (direct evidence is evidence showing specific link between alleged
discriminatory animus and challenged decision). So, his claim depends on the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), pursuant to which a plaintiff's prima facie case requires him to
establish that (1) he was a member of a protected class, (2) he was qualified for
his job, (3) he suffered an adverse employment action, and (4) there are facts
that give rise to an inference of discrimination. Holland v. Sam's Club, 487
F.3d 641, 644 (8th Cir. 2007).
But as Hormel Foods correctly points out, Hernandez's national origin
discrimination allegation fails for at least two reasons. First, as discussed
above, there is no evidence that Hernandez suffered an adverse employment
action. See filing 47 at 8; see also filing 54 at 2. And second, there is nothing in
the record to support an inference of discrimination: there are no allegations

different position even if his "belly trim" position could be performed with some
accommodation. Filing 47 at 5. But under the ADA an employer is not required to provide a
disabled employee with an accommodation that is ideal from the employee's perspective, only
an accommodation that is reasonable. See Cravens v. Blue Cross & Blue Shield of Kan. City,
214 F.3d 1011, 1019 (8th Cir. 2000). And here, there is no evidence in the record to suggest
that the accommodation was not reasonable. See 42 U.S.C. § 12111(9)(B).

9

that anyone from Hormel made negative statements about his Mexican origin,
see filing 47 at 31, nor allegations that Hernandez believed he was treated
differently because he is Hispanic, see filing 47 at 38, nor does Hernandez
allege that he was targeted because of his Hispanic heritage, see filing 47 at
39.
In other words, the only evidence before the Court is that Hernandez was
born in Mexico—but nothing else. That is plainly insufficient to state a claim
for actionable discrimination––much less survive a motion for summary
judgment. See Hager v. Arkansas Dep't of Health, 735 F.3d 1009, 1015 (8th Cir.
2013); Williams v. Arkansas Dep't of Correction, 438 F. App'x 535, 536 (8th Cir.
2011); see also Hervey v. Cty. of Koochiching, 527 F.3d 711, 722 (8th Cir. 2008);
Miller v. Coca-Cola Enterprises, Inc., 178 F. App'x 583, 585 (8th Cir. 2006);
Palesch v. Missouri Comm'n on Human Rights, 233 F.3d 560, 566 (8th Cir.
2000); Shannon v. Ford Motor Co., 72 F.3d 678, 683-84 (8th Cir. 1996); cf.
Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 522 (8th Cir. 2010).
Accordingly, the Court will grant Hormel Food's motion for summary judgment
as to his claim of national origin discrimination.
WORKERS' COMPENSATION RETALIATION
Last, Hernandez claims that Hormel Foods retaliated against him
because he filed a workers' compensation claim for his work related injuries. 3
See filing 15 at 4. While filing a workers' compensation claim is not protected
under the ADA, it is protected under Nebraska common law. See, e.g., Trosper

3

It is not entirely clear to the Court what period of time Hernandez is referring to for

purposes of his retaliation claim. But because there has been no demotion, discharge, or any
change in employment at any time, the Court does not find this oversight particularly
significant.

10

v. Bag 'n Save, 734 N.W.2d 704, 707 (Neb. 2007).; see also Brown v. Reg'l West
Med. Ctr., 300 Neb. 937, 946 (2018). But claims for workers' compensation
retaliation require evidence of discharge or demotion. Trosper, 734 N.W.2d at
707. And as discussed above, there is simply no evidence before the Court that
Hernandez was discharged or demoted in any way. See filing 47 at 8; see also
filing 54 at 2. Accordingly, Hernandez's retaliation claim fails as a matter of
law, and the Court will grant Hormel Food's motion for summary judgment on
Hernandez's workers' compensation retaliation claim.
IT IS ORDERED:

1.

Hormel Foods' motion for summary judgment (filing 45) is
granted.

2.

A separate judgment will be entered.

Dated this 6th day of September, 2018.
BY THE COURT:

John M. Gerrard
United States District Judge

11