Strand v. Charles Mix County
Filing
39
Memorandum Opinion and Order denying 20 Motion for Summary Judgment. Signed by U.S. District Judge Lawrence L. Piersol on 5/5/2017. (JLS)
UNITED STATES DISTRICT COURT
filed
DISTRICT OF SOUTH DAKOTA
® ^ 2017
SOUTHERN DIVISION
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TRACY STRAND,
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CIV 16-4037
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Plaintiff,
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-vs-
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CHARLES'MIX COUNTY,A POLITICAL *
SUBDIVISION OF THE STATE OF
ORDER ON MOTION
FOR SUMMARY JUDGMENT
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SOUTH DAKOTA,
MEMORANDUM OPINION AND
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Defendant.
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Defendant Charles Mix-County("County"), filed a motion for summary judgment in this
discrimination action brought by Plaintiff,Tracy Strand("Strand"),pursuant to the Americans with
Disabilities Act("ADA"). (Doc. 20.) For the following reasons, the motion will be denied.
BACKGROUND
The facts are taken primarily from Plaintiffs Supplemental Statement of Material Facts in
Opposition to Defendant's Motion for Summary Judgment,Doc.27,because,on summaryjudgment,
this Court views the facts in the light most favorable to the non-movant.
Strand began working for the County as a road grader in its highway department in 2007.
He was primarily responsible for grading the road east of Platte with a coverage area of
approximately 127 miles. Rick Stemberg("Stemberg") has been employed with the County since
the early 1990s and was Strand's direct supervisor and foreman at all relevant times. From 2009 to
present,Doug Kniffen("Kniffen")was the highway superintendent and Stemberg's supervisor. The
County has thirteen employees in its Highway department including Stemberg and Kniffen.
During the spring,summer and fall, the County's grader operators could have work days up
to ten hours long. They were given two fifteen minute breaks during the day and a half-hour break
for lunch. The County did not have a written policy on bathroom usage or a policy on whether
employees could drive to the shop to use the bathroom. (The highway department had shops in
Platte, Lake Andes and Wagner.) It was commonly understood that ifthe County employees had to
go to the bathroom,they wouldjust go outside wherever they were. County employees brought toilet
paper with them while working in the event they had to go to the bathroom. There were times, but
not often, that Strand had to urinate outside while he was working, but he does not recall ever
defecating outside during his work prior to his cancer diagnosis in 2010. Strand observed other
employees drive to use a bathroom and other employees told him that they did so.
According to Stemberg, getting leave "isn't a big deal." There is a calendar hanging on the
break room wall and employees just write down the days they are going to be gone. It is "common
courtesy" for the employee to tell him what days they have written down to be gone. Likewise, if
an employee is sick,the employee calls Stemberg; when the employee comes back,he fills out"sick
leave" on his time card and gives the time card to the secretary. Employees out on sick leave can
also decide to use vacation time too. An employee should call and let Stemberg know that they will
be out for a couple of days. If they can't get ahold of him, they should call Kniffen or the next
channel. There is no training for employees about how to get leave approved.
In May2010,Strand was diagnosed with advanced stage colon cancer. He was offwork from
May 2010 until the summer of 2011. During that time he had two surgeries, the second of which
involved removal ofa portion ofhis colon. Chemotherapy and radiation followed. After completing
his cancer treatment. Strand retumed to work as a road grader for the County part-time for a while
and then full-time beginning July 1,2011. Prior to his cancer diagnosis. Strand did not have issues
with bowel control or frequent waste elimination. As a result ofhis colon resection surgery. Strand
experienced a change in his bowel movements. In his deposition. Strand describes his post-surgery
bowel movements as loose, more frequent and more problematic. It varies from day to day.
Sometimes he has to eliminate waste up to ten times a day. He would bring his own toilet paper to
work, and his wife had to bring toilet paper to him at work on a couple occasions when he ran out.
When he returned to work after his cancer treatments, Strand told supervisors Stemberg and
Kniffen that the effect ofthe treatment was more fi-equent or more problematic bowel issues. Strand
recalls talking to Kniffen twice and Stemberg about a halfdozen times about his bowel elimination
needs between his retum to work in 2011 and his termination in 2014. Kniffen said it was"common
sense"that Strand would have bowel frequency;he thought Strand wouldjust stop work more often.
Stemberg told Strand to defecate in a field, in a tree belt or to go behind a tire. Strand said that was
unacceptable and indicated that he wanted to be able to driye to use a toilet to eliminate waste,
preferably at one ofthe County's shop buildings. Stemberg told Strand that he could not drive to use
an indoor toilet. Strand asked Kniffen about the possibility of having a port-a-potty at the County
gravel pit or at roadside locations where he worked. Strand claims that Kniffen's response was to
say that port-a-potties were not necessary. Kniffen denies that conversation and says he would have
aeeommodated Strand if he had known Strand needed a place to go to the bathroom. Kniffen says
he even would have allowed Strand to drive to the shop to use an indoor bathroom. Stemberg recalls
Strand generally asking about having port-a-potties around the County and in the gravel pit, and he
replied that it was the contractors'responsibility to have port-a-potties, nothis. But Stemberg denies
that Strand ever asked for any accommodation of his bathroom needs. When asked ifStrand would
have asked for accommodations, Stemberg testified:
Q.[Ms. Poehop] What would you - what should you have said if[Strand] would
have brought up [his need to go to the bathroom more frequently after his cancer
treatments?].... What do you imagine your response to that would have been under
your policies?
A.[Mr.Stemberg]I assume that-you know,like I said, call. It'sjust common sense.
If you got a-anybody sick or got problems,ifyou-if you got to go every 5 minutes,
you shouldn't be in a blade. Call me and I'll switch with you, and you can go home.
You know,if you got a medical condition, you shouldn't be in a blade.
Q. What do you mean,"if you've got a medical condition, you shouldn't be in a
blade?"
A. If you got medical condition, you shouldn't be running a 230,000-dollar piece of
equipment on a public road where people can get hurt.
(Stemberg Depo at 61-62).
In April 2014, Strand was driving a gravel dump truck at the County's gravel pit in Wagner
when be needed to use the bathroom. After Strand dumped the gravel from bis truck, be told a coworker that be would briefly be out ofthe line oftrucks, and be drove 5 or 6 miles to the County's
shop bathroom in Wagner.When Strand retumed to the County's Platte shop that evening,Stemberg
confronted bim and asked why be bad left the line that day. Strand told bim that be bad to use the
restroom in Wagner. Stemberg told Strand that be should relieve himself behind the gravel pile at
the pit. Strand said be can't do that. Strand bad observed other drivers drive to use a bathroom and
other drivers have told bim that they do so.
Strand testified that every time be left work for a doctor's appointment, Stemberg would
follow bim out oftown. Stemberg denies this. On one occasion in May 2014,Stemberg told Strand
that be bad followed bim to see if be went to a chiropractic appointment from work. Stemberg
accused Strand of going home instead of to bis chiropractic appointment because Strand bad not
driven to a chiropractic office in Platte. But Strand has seen a chiropractor in Gregory,South Dakota
since 2007. Stemberg admitted that be disagreed with Strand taking sick leaye instead of vacation
time after going to a chiropractor one day.
Strand's wife called Stemberg on May 13, 2014, to inform bim that Strand was sick due to
a kidney infection. Strand also missed work on May 14 and 15,but did not call in. He did not know
that be needed to call in those days. A note from Strand's doctor releasing bim from work on May
13,14 and 15 was filed in Strand's personnel file by the County auditor on May 16,2014. Stemberg
admitted that the leave policy is "very relaxed" and that be does not know if Strand violated any
County policy by not calling in on May 15 and 16. Strand bad not been required to call in during bis
extended leave for bis cancer treatment so this was new to bim. Stemberg did not say anything to
Strand about this sick leave when Strand returned to work after May 15 until his termination on June
12.
On June 10,2014, Stemberg expressed disagreement with how Strand was blading the road
and asked him to do it differently. Stemberg talked to Kniffen about reprimanding Strand. Kniffen
talked to the County Commissioners. On June 12,2014, Stemberg called Strand into his offiee and
gave him two reprimands. The first sheet titled "Tracy Strand 1st Reprimand" states:
Was told by Forman [sic] to pick windrow up when Blading on Tues. June 10
Thursday June 12th was told Again and Was Snippy about it when I told him to do
it Right. Was told By Myself and other froman [sie] on How to Law Graven and
eontinuously does it different way.
(Doe. 27, Tab 4.) Stemberg first told Strand that he was reprimanding Strand for not blading
properly.(Strand Depo at 89). Strand replied that he had been blading for the County for seven years
without any prior eomplaints. {Id). Stemberg told Strand that he should go home and think about
whether he could do the job the way Stemberg wanted it done.(Strand Depo at 90).
The seeond sheet, titled "Traey Strand 2nd Reprimand," states: "Called In Sick Tues. May
13th gone 14th 15th No Call Either Day."(Doe.27,Tab 5.) When Strand saw that he was also being
reprimanded because he had allegedly failed to call about his sick leave on May 13,14 and 15, Strand
advised Stemberg that his wife had ealled in for him and that Strand had also provided a doetor's
note to be excused from work for those dates. (Stemberg was not aware ofthe doctor's note until
after he reprimanded Strand.) When Strand said that there had been a eall in and a doctor's note for
his May absences, Stemberg replied,"You're fired." That was the end of the conversation.
Kniffen has not terminated or reprimanded any County employees.(Kniffen Depo at 39).
Stemberg has not diseiplined any other employees besides Strand.(Stemberg Depo at 36). He is not
aware ofanybody else who has ever reeeived a written reprimand. {Id. at 45.) Stemberg eould think
of only one other County employee who has ever been fired other than Strand. One County
Commissioner testified that an employee who was accused ofsexual harassment was only talked to
and told to quit the harassing behavior.
In December 2014, Strand filed a Chkrge of Discrimination with the Equal Employment
Opportunity Commission("EEOC"). On or about December 28,2015, Strand received a Notice of
Suit Rights from the EEOC. This action followed.
In his Complaint, Strand alleges that the County violated the ADA by refiising to provide
reasonable accommodations for Strand's disability, subjecting him to disciplinary actions and
terminating his employment because of his disability.
The County asserts that it is entitled to summaryjudgment because Strand fails to establish
he has a disability and, even if he has a disability, he fails to show that his employment was
terminated because of his disability.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be
granted "ifthe movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter oflaw."FED.R.CIV.P. 56(a). In ruling on a motion for summary
judgment,the Court is required to view the facts in the light mostfavorable to the non-moving party
and must give that party the benefit of all reasonable inferences to be drawn from the underlying
facts. AgriStor Leasing V. Farrow, S26F.2d 732,734 {Sth Civ. 1987). The moving party bears the
burden of showing both the absence of a genuine issue of material fact and its entitlement to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., All U.S. 242,
257(1986). Once the moving party has met its burden, the non-moving party may not rest on the
allegations ofits pleadings but must set forth specific facts, by affidavit or other evidence,showing
that a genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Anderson, All U.S. at 257; City of
Mt. Pleasant v. Associated Elec. Coop., Inc., 838 F.2d 268, H7>-1A (8th Cir. 1988). All facts
presented to the district court by the non-moving party are accepted as true ifproperly supported by
the record. See Beck v. Skon, 253 F.3d 330, 332-33 (8th Cir. 2001). Employment discrimination
cases are not immune from summary judgment, and there is no separate summary judgment
standard that applies to these cases. See Fercello v. Cty. ofRamsey,612 F.3d 1069,1077(8th Cir.
2010).
DISCUSSION
The ADA provides that"[n]o 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 ofemployment."42U.S.C.§ 12112(a). In employment discrimination eases,theplaintiff
bears the initial burden of establishing a prima facie case to survive summaryjudgment. Miners v.
Cargill Commc'ns, Inc., 113 F.3d 820, 823(8th Cir. 1997)."To establish a prima facie ease under
the ADA,a plaintiffmust show [(1)] that she was a disabled person within the meaning ofthe ADA,
[(2)] that she was qualified to perform the essential functions ofthejob, and [(3)] that she suffered
an adverse employment action under circumstances giving rise to an inference of unlawful
discrimination."/J. (citing Price V. 5-5 Power Tool, 75 F.3d 362,365 (8th Cir. 1996)). Once
the plaintiff demonstrates a prima facie case,"the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its actions." Id. (citing McDonnell Douglas
Corp. V. Green, 411 U.S. 792, 802 (1973)). Finally, after the employer produces its
nondiscriminatory reasons for its actions,"the burden ofproduction then shifts back to the plaintiff
to demonstrate that the employer's proffered reason is a pretext for unlawful discrimination."
Id. (citing 5t. Mary's Honor Ctr. v. ifrcAs, 509 U.S. 502, 507-08(1993)). The evidence produced
by the plaintiff to demonstrate the prima facie ease "and the 'inferences drawn therefrom may be
considered by the trier offact on the issue of whether the [employer's] explanation is pretextual.'"
Id. (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255 n.lO (1981)).
Moreover, "[t]he proof necessary for discrimination eases is flexible and varies with the specific
facts of each case." Id. (citing Young v. Warner-Jenkinson Co., 152 F.3d 1018, 1022 (8th Cir.
1998)).
I. Strand's Prima Facie Case
1. Disabled Person within Meaning of ADA
The County first argues that Strand is not disabled within the meaning ofthe ADA because
his alleged impairment does not substantially limit a major life activity, and therefore Strand fails
to establish the first element of his prima facie case.
The ADA Amendment Act of 2008 ("ADAAA"), effective January 1, 2009, altered the
analysis ofthis element of a plaintiffs prima facie case. The ADAAA substantially broadened the
definition of a disability under the law,in explicit response to Sutton v. United Air Lines, 527 U.S.
471 (1999), and Toyota Motor Mfg. v. Williams, 534 U.S. 184(2002), in which the ADA's terms
defining disability had been limited, "thus eliminating protection for many individuals whom
Congress intended to protect." Rohr v. Salt River Project Agric. Imp. and Power Dist., 555 F.3d
850, 861 (9th Cir. 2009)(citing 122 Stat. at 3553). Under the ADAAA "disability" is to be broadly
construed and coverage is to apply to the "maximum extent" permitted by the ADA and the
ADAAA.Rohr, 555 F.3d at 861 (citing 122 Stat. at 3553); see also 42 U.S.C. § 12102(4)(A).
The ADA defines "disability" as:
(A)a physical or mental impairment that substantially limits one or more major life
activities ofsuch individual;
(B)a record of such an impairment; or
(C)being regarded as having such an impairment.
42 U.S.C.A. § 12102(1). Strand relies on the first definition of disability, arguing that he has an
actual disability, i.e., a substantial limitation on his ability to control elimination of waste.
42 U.S.C.A. § 12102(4) provides the following rules of construction for determining a
disability under the ADA:
(A)The definition of disability in this chapter shall be construed in favor of broad
coverage ofindividuals under this chapter, to the maximum extent permitted by the
terms ofthis chapter.
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(B)The term "substantially limits" shall be interpreted consistently with the findings
and purposes ofthe ADA Amendments Act of2008.
(C)An impairment that substantially limits one major life activity need not limit
other major life activities in order to be considered a disability.
(D) An impairment that is episodic or in remission is a disability if it would
substantially limit a major life activity when active.
(E)(i) The determination of whether an impairment substantially limits a major life
activity shall be made without regard to the ameliorative effects of mitigating
measures such as-
(I) medication, medical supplies, equipment, or appliances, low-vision devices
(which do not include ordinary eyeglasses or contact lenses), prosthetics including
limbs and devices, hearing aids and cochlear implants or other implantable hearing
devices, mobility devices, or oxygen therapy equipment and supplies;
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42U.S.C.A. § 12102.
i. Imnairment
The EEOC regulations define a "[pjhysical or mental impairment" to mean
(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical
loss affecting one or more body systems, such as neurological, musculoskeletal,
special sense organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genitourinary,immune,circulatory, hemic,lymphatic,skin,
and endocrine; or
29 C.F.R. § 1630.2(h). To prove impairment. Strand relies on his diagnosis ofcolon cancer and the
resulting complications from surgery, chemotherapy and radiation that caused him to have the
frequent and unpredictable need to eliminate waste. Strand's medical history and testimony supports
that he has a physical impairment, and the County does not contend otherwise.
ii. Major Life Activity
After the enactment ofthe ADAAA,major life activities include "the operation of a major
bodily function, including but not limited to, functions ofthe immune system, normal cell growth,
digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive
functions." 42 U.S.C.A. § 12102(2)(B). The County agrees that the operation of Strand's bowel
meets the definition of a major life activity. (Doc. 22 at 8.)
hi. Substantial Limitation
The County argues that there is insufficient evidence from which a jury could find that
Strand's bowel problems substantially limit his ability to perform a major life activity as compared
to most people in the general population. The EEOC regulations provide the following rules of
construction for determining whether an impairment substantially limits an individual:
(i) The term "substantially limits" shall be construed broadly in favor of expansive
coverage,to the maximum extent permitted by the terms ofthe ADA."Substantially
limits" is not meant to be a demanding standard.
(ii) An impairment is a disability within the meaning ofthis section ifit substantially
limits the ability ofan individual to perform a major life activity as compared to most
people in the general population. An impairment need not prevent, or significantly
or severely restrict, the individual from performing a major life activity in order to
be considered substantially limiting. Nonetheless, not every impairment will
constitute a disability within the meaning ofthis section.
(iii) The primary object of attention in cases brought under the ADA should be
whether covered entities have complied with their obligations and whether
discrimination has occurred, not whether an individual's impairment substantially
limits a major life activity. Accordingly, the threshold issue of whether an
impairment "substantially limits" a major life activity should not demand extensive
analysis.
(iv) The determination of whether an impairment substantially limits a major life
activity requires an individualized assessment. However,in making this assessment,
the term "substantially limits" shall be interpreted and applied to require a^ degree of
functional limitation that is lower than the standard for "substantially limits" applied
prior to the ADAAA.
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(v) The comparison of an individual's performance of a major life activity to the
performance ofthe same major life activity by most people in the general population
usually will not require scientific, medical, or statistical analysis. Nothing in this
paragraph is intended,however,to prohibit the presentation ofscientific, medical,or
statistical evidence to make such a comparison where appropriate.
(vi) The determination of whether an impairment substantially limits a major life
activity shall be made without regard to the ameliorative effects of mitigating
measures. However,the ameliorative effects ofordinary eyeglasses or contact lenses
shall be considered in determining whether an impairment substantially limits a
major life activity.
(vii) An impairment that is episodic or in remission is a disability if it would
substantially limit a major life activity when active.'
(viii) An impairment that substantially limits one major life activity need not
substantially limit other major life activities in order to be considered a substantially
limiting impairment.
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29 C.F.R. § 1630.2(j)(l).
In arguing that Strand's bowel problems are not substantially limiting, the County focuses
on the fact that Strand continued to work for the County for three years after his cancer treatment,
that he could go to the bathroom outside if he needed to,"and his more frequent need to eliminate
waste did not preclude him from working or limit his ability to do so." (Doc. 22 at 9-10.) Strand
counters that he did not ever need to defecate outside in the three years ofemployment prior to his
cancer diagnosis, but now he sometimes voids up to ten times a day. He takes prescription
medication to try to normalize his bowel control, but it is not entirely effective. There were times
he needed his wife to deliver toilet paper to him on the job when he ran out.
Viewing all facts in the light most favorable to Strand, there are genuine issues of material
fact as to whether the limitation on the major life activity of the operation of his bowels is
substantial.
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2. Qualified to Perform Essential Functions of Job
There is no dispute that Strand was qualified to perform the essential functions of his job
driving the road grader for the County, the second element of a prima facie ADA ease.
3. Adverse Employment Action
Assuming Strand was disabled and was able to complete the essential functions of his
position with or without reasonable accommodation, Strand must also meet the third element of a
prima facie ADA ease, i.e, an adverse employment action under eireumstanees giving rise to an
inference of unlawful discrimination. To satisfy this third and final element of a prima facie ease,
-Strand must show
a specific link between the alleged discriminatory animus and the challenged
decision,sufficient to support a finding by a reasonable fact finder that an illegitimate
criterion actually motivated the adverse employment action. In the absence ofdirect
evidence,the plaintiffmay survive summaryjudgment with evidence thatthe adverse
employment action occurred under circumstances giving rise to an inference of
unlawful discrimination.
Simpson v. Des Moines Water Works, 425 F.3d 538, 542-43 (8th Cir. 2005), abrogated on other
grounds by Torgerson v. City ofRochester,643 F.3d 1031 (8th Cir. 2011). Strand admits he does
not have direct evidence that his alleged disability played a role in his termination, which is common
in employment discrimination cases. Strand argues that the following facts give rise to an inference
of unlawful discrimination:
1. After Strand returned to work in 2011 and prior to this termination in June 2014,
he talked to Stemberg and Kniffen about his bowel control needs. When he asked to
be able to drive to a County building Stemberg told him to go behind a tree, go into
a field or behind a tire; Strand replied that suggestion was "unacceptable for what I
have."
2. Kniffen admits that he and Strand talked about Strand's bathroom fi-equency;
Kniffen said that he anticipated Strand would have bowel frequency after his cancer
treatment. BCniffen acknowledges that this would cause Strand to "stop more often"
and said that it was fine. Kniffen's testimony about bathroom accommodations for
Strand conflicts with what Stemberg told Strand. In fact, Kniffen testified that if he
were Strand's direct supervisor, permitting Strand to drive back to the shop to use an
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indoor bathroom would have been a reasonable accommodation if he was close
enough to make it back.
3. Stemberg did recall that Strand had asked him about whether the County was
supposed to have port-a-potties at the gravel pits where the County was hauling from.
Stemberg recalls telling Strand that port-a-potties were a contractor duty, not the
County's responsibility. Stemberg did not ask anyone at the County about getting
port-a-potties because "that's not my position" even though he was responsible for
requisitioning other items for Highway projects.
4. Kniffen testified that Stemberg should have brought accommodation requests
forward to him. According to Kniffen, Kniffen would have asked the County
Commissioners about making the port-a-potty accommodation for Strand. On the
other hand.Strand testified that he asked Kniffen directly about the port-a-potties and
Kniffen said that that was not "necessary."
5. Strand testified that Stemberg discovered in April 2014 that Strand had driven a
gravel tmck out ofa hauling line in order to drive to an indoor bathroom. Stemberg
found out about this and confronted Strand at the end of the day. Strand said that
Stemberg was belligerent about it and remarked, again, that Strand could relieve
himselfbehind a gravel pile. This confrontation was approximately a month and half
before Stemberg terminated Strand.
6. The County has a very relaxed leave policy. It was not a hassle for other
employees when Strand missed work in May of2014 due to illness.
7. After denying that Strand talked to him about his bathroom needs, Stemberg
testified:
Q.[Ms. Pochop] What would you- what should you have said if[Strand] would
have brought up [his need to go to the bathroom more frequently after his cancer
treatments?].... What do you imagine your response to that would have been
under your policies?
[Mr. Stemberg] I assume that- you know,like I said, call. It's just common
sense. If got a- anybody sick or got problems, if you- if you got to go every 5
minutes, you shouldn't be in a blade. Call me and I'll switch with you, and you
can go home. You know,if you got a medical condition, you shouldn't be in a
blade.
Q. What do you mean,"if you've got a medical condition, you shouldn't be in a
blade?"
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A. If you got medical condition, you shouldn't be ranning a 230,000-dollar piece
of equipment on a public road where people can get hurt.
(Stemberg Depo. at 61-62).
Strand argues that this testimony reveals Stemberg's discriminatory animus about
Strand's requests for bathroom access and port-a-potties.
8. Strand believed that Stemberg was following him when he left work for medical
appointments,and Stemberg admitted that he was noticing Strand's use ofsick leave
versus vacation time after going to the chiropractor. While employees are generally
allowed to take time.off and use either sick leave or vacation time, Stemberg had a
problem with Strand putting down the missed time as sick leave instead of vacation
time when Strand left work for a medical appointment.
Reviewing the record in the light most favorable to Strand, the Court finds that sufficient
evidence exists from which ajury could,find an inference of discrimination. Thus, Strand has met
his initial burden of establishing a prima facie case of disability discrimination under McDonnell
Douglas.
II. Legitimate, Non-Discriminatory Reason for Discharge
As stated earlier, once a plaintiffhas made out a prima facie case ofdisability discrimination,
the burden shifts to the defendant to articulate a legitimate,non-discriminatoryreason for the adverse
employment action. McDonnell Douglas, 411 U.S. at 802.
The County asserts that Strand was terminated for his "documented insubordination and
repeated inability to follow directions from his supervisors." (Doc. 22 at 17.) The following
discussion is taken directly from the section ofthe County's Briefin Support ofSummary Judgment
where the proof of this asserted reason for Strand's firing is set forth. {See Doc. 22 at 16-17.)
The County contends that, on more than one occasion, Strand was told by Stemberg that he
needed to grade the road pursuant to Stemberg's direction, and Strand ignored these requests.
(Stemberg Depo., pp. 71-73; Kniffen Depo., pp. 21-22; Strand Depo., pp. 85-86). Additionally, in
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May 2014, Strand was off work for three consecutive days on May 13, 14, and 15, due to a kidney
infection, and Strand only called in sick on May 13.(Strand Depo., pp. 77-78). Strand testified that
no one told him that he did not have to call in ifhe was sick. {Id. at p. 79). Stemberg was not aware
of Strand's whereabouts on May 14 or May 15, 2014, and testified that just like with all other
employees, Stemberg simply wanted to know whether Strand was coming into work or not so,in his
role as the supervisory, he could plan accordingly. (Stemberg Depo., p. 65). Strand knowingly
ignored his supervisor's policy regarding calling in to work if he would not be coming in that day.
Thereafter, in a meeting on June 12, 2014, Stemberg issued two reprimands to Strand: one
for continuing to ignore the repeated requests to blade the road properly and one for failing to call
in to inform his supervisor that he would not be coming in to work for several days.(Stemberg
Depo., pp 68-70). The reprimands given to Strand were approved by Kniffen and the County
Commissioners.(Stemberg Depo., p. 69-70; Kniffen Depo., pp. 30-32; Vonesehen Depo, p. 39;
Mushitz Depo., p. 29). Kniffen testified that Stemberg, as a supervisor, has the authority to fire his
employees.(Kniffen Depo.,p. 38). Stemberg issued the reprimands to Strand at the meeting on June
12,2014, without the intention offiring Strand,but rather to remind him,via a written notice, ofthe
things that needed to be done and what was expected of Strand as an employee.(Stemberg Depo.,
p. 43). After getting insubordinate with Stemberg,Stemberg requested that Strand take the weekend
to cool-down and Strand refused to do so and repeatedly told Stemberg to fire him. Ultimately
Stemberg determined Strand was disrespectful and insubordinate and terminated him during this
exchange.{Id. at 15;42-43). Strand's termination, and the reasons therefore, were later approved by
Kniffen and the County Commissioners.(Kniffen Depo., p. 41; Vonesehen Depo., pp. 36-37).
III. Pretext
The burden then shifts back to the plaintiffto adduce sufficient evidence to establish that the
employer's legitimate reason was a pretext for the employment discrimination. According to the
Eighth Circuit
There are at least two ways a plaintiff may demonstrate a material question of fact
regarding pretext. A plaintiffmay show that the employer's explanation is unworthy
of credence ... because it has no basis in fact. Altematively, a plaintiff may show
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pretext by persuading the court that a [prohibited] reason more likely motivated the
employer. A plaintiff may show pretext, among other ways, by showing that an
employer (1) failed to follow its own policies, (2) treated similarly-situated
employees in a disparate marmer, or(3) shifted its explanation of the employment
decision.
Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899,904(8th Cir. 2015)(internal citations and
quotation marks omitted).
Strand relies on the following facts as evidence of the pretextual nature of the County's
explanation of Strand's reprimand and termination:
1. Neither Stemberg or Kniffen had ever written up a disciplinary action for anyone
before the two reprimands for Strand.
2. County Commissioners and supervisors could not come up with many examples
of employees who have been fired by the County.'
3. A County Commissioner testified in his deposition that an employee who had
complaints of sexual harassment against him was talked to and told to quit the
harassment.
4. It is not clear why Strand was issued a written reprimand for his blading on June
12, 2014, when he had worked for the County for seven years without a single
reprimand or disciplinary incident.
5. The leave policy is very relaxed, and Strand's absence from work in May of2014
did not cause a hassle for any other employee. Stemberg admitted that he does not
know if Strand violated any County policy by not calling in on May 15 and 16.
Strand had not been required to call in during his extended leave for his cancer
treatment so this was new to him.
'Along with its Reply Brief, the County submitted the Affidavit of Sherri Fuchs.(Doc. 34.)
Fuchs, the County Auditor, attests that in the 1990s the County terminated another male highway
worker who did not have a medical condition"due to his failure to follow direction,his poor attitude,
and insuhordination."(Doc. 34 at ^ 2.) This evidence does not persuade the Court that the County
is entitled to summaryjudgment in this case.
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6. Stemberg could not recall talking to Strand about the sick leave issue when Strand
returned to work after May 15, 2014,and Stemberg could not explain why he waited
until June 12to address the sick leave issue with Strand by way ofwritten reprimand.
When the evidence is viewed most favorably to Strand, giving him the benefit of all
reasonable inferences,sufficient evidence has been identified to allow a reasonablejury to conclude
that his alleged disability was a reason for Stemberg's decision to fire him. Thus the Court must
deny the County's motion for summaryjudgment. Accordingly,
IT IS ORDERED that Defendant's motion for summaryjudgment, doc. 20,is denied.
Dated this
a
day of May,2017.
BY THE COURT:
[jbtiwrence L. Piersol
uted States District Judge
ATTEST:
JOSEPH HAAS,CLEI
BY:
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