Markgren, Peter et al v. Saputo Cheese USA Inc.
ORDER Defendant's motion for summary judgment, Dkt. 54 , is GRANTED in part and DENIED in part. The motion is granted with respect to Markgren's wrongful termination, hostile workplace, and retaliation claims , and these claims are DISMISSED with prejudice. The motion is denied with respect to Markgren's failure-to-accommodate claim. Defendant's motion for a protective order, Dkt. 108 , is GRANTED. Plaintiff's motion to compel, Dkt. 114 , is DENIED. Signed by District Judge James D. Peterson on 5/19/2023. (acd)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
SAPUTO CHEESE USA, INC.,
OPINION and ORDER
Plaintiff Peter Markgren had worked for defendant Saputo Cheese USA, Inc. for more
than 30 years when Saputo terminated his employment in 2019. Saputo says that it fired
Markgren because he violated two work safety rules. But Markgren contends that Saputo
discriminated against him based on his age, disability, and sex; failed to accommodate his
disability; subjected him to a hostile work environment because of his age; and retaliated
against him for reporting the harassment and requesting disability accommodations.
Saputo moves for summary judgment. Dkt. 54. The court will deny the motion on
Markgren’s failure-to-accommodate claim under the Americans with Disabilities Act. Markgren
has adduced evidence that despite extraordinary heat in the workplace, Saputo failed to
consider a reasonable accommodation for his disability, a heart condition. The court will grant
summary judgment to Saputo on the rest of Markgren’s claims. Saputo had legitimate reasons
for Markgren’s termination: he violated a company safety protocol and a rule against using
physical violence at work. Markgren has not adduced evidence sufficient to support a
reasonable jury finding that either of these reasons were a pretext for discrimination or
retaliatory. Markgen was harassed by his coworkers, but he has not adduced evidence that the
harassment was based on his age. The court will also grant Saputo’s motion for a protective
order, Dkt. 108, and deny Markgren’s motion to compel, Dkt. 114.
PROBLEMS WITH PLAINTIFF’S SUMMARY JUDGMENT SUBMISSIONS
The court begins with the many problems with Markgren’s summary judgment
materials. Markgren submitted lengthy factual finding materials, disputing the vast majority of
Saputo’s 135 proposed facts and proposing an additional 355 facts of his own. Dkt. 84 and
Both documents fail to comply with the court’s summary judgment procedures.
Dkt. 21, at 2. Markgren disregards the court’s rule that a party must respond to proposed facts
with directly responsive facts, not additional and unnecessary ones.1 Many of Markgren’s
responses also raise clearly immaterial factual disputes,2 do not clearly state whether each fact
is disputed or undisputed,3 contain factual and legal arguments,4 and object to the admissibility
of Saputo’s evidence on an array of grounds with vague and conclusory arguments.5 Yet, in
See e.g., Markgren’s Response to Saputo’s Proposed Findings of Fact, Dkt. 84, at ¶¶ 4, 9, 12.
See e.g., id., at ¶ 9 (disputing proposed fact that Margkren was over 40 years old when
terminated on grounds that he was 55 years old when terminated); ¶ 54 (disputing verbatim
and accurate quote from Markgren’s own testimony on grounds that it misrepresented
See e.g., id., at ¶¶ 1, 26.
See e.g., id., at ¶¶ 10, 12, 13
See, e.g., id. at ¶ 16, 18, 20.
some cases, Markgren cited that same purportedly inadmissible evidence to support his own
proposed findings of fact.6
Markgren’s own proposed facts also violate the procedures. Dkt. 86. The facts restate
and dispute Saputo’s proposed facts rather than supplement them,7 contain compound facts,8
make arguments on the merits,9 and cite to Markgren’s own exhibit labels and Bates numbers
rather than to the court’s docket numbers.10
The purpose of the court’s summary judgment procedures is to allow the court to
identify disputed and undisputed material facts. But Markgren’s materials simply treat the
proposed findings of fact as another opportunity to argue his case, which has created
unnecessary repetition and length, and has frustrated the court’s efforts to efficiently decide
this motion. In deciding this motion, the court has disregarded Markgren’s proposed facts or
responses to Saputo’s proposed facts that contain unnecessary, redundant, or unresponsive
facts; that are argumentative and conclusory; and that challenge the admissibility of evidence
that Markgren relied on elsewhere to support his own case.
The court has previously warned Markgren’s counsel about her failure to follow the
court’s summary judgment procedures. Collins v. Energizer Holdings, Inc., No. 21-CV-390-JDP,
2022 WL 17155848, at *1–2 (W.D. Wis. Nov. 22, 2022). In future cases, if counsel submits
See, e.g., Dkt. 102, ¶ 62 (contending that near miss report is inadmissible hearsay) and Dkt.
103, ¶ 137 (relying on same near miss report to support his own proposed fact).
See e.g., Markgren’s Proposed Findings of Fact, Dkt. 86, ¶¶ 2, 5, 6.
See e.g. id. at ¶ 3, 13, 20
See e.g. id. at ¶ 150, 151, 152
See, e.g. id. at ¶ 1, 2, 3
responses to proposed facts that present similarly unresponsive and clearly meritless disputes,
the court will disregard the responses and deem the opposing party’s proposed facts
undisputed. If counsel submits additional proposed facts that merely restate the opposing
party’s facts, or simply substitute those facts, or are otherwise excessive or redundant, the court
will disregard the entire filing.
The following facts are undisputed unless otherwise noted.
A. Markgren’s employment at Saputo
Peter Markgren began working at a cheese production plant in Almena, Wisconsin, in
1987. At the time, the plant was owned by Twin Town Cheese Factory; the plant was later
purchased by Saputo, a large-scale cheese producer with facilities throughout Wisconsin.
Saputo opened a second cheese production plant in Almena in 2017.
At the time of the incidents in question, Markgren was 55 years old. He had been
employed at Saputo’s older Almena plant for 32 years, working as a rotary press operator for
18 years in the plant’ s lower make room.
B. Markgren’s health and leaves of absence
In 2012, Markgren began to develop serious heart problems, including coronary artery
disease, congestive heart failure, and hypertension. Between 2012 and 2019, Markgren took
medical leave related to his heart problems and other medical issues numerous times. For
example, he had a heart attack in 2012, underwent heart surgery, and took approximately
three-weeks of medical leave to recover. In early 2013, Markgren had a second heart surgery
and took another eight weeks off work.
In July 2013, a few months after he had returned to work from his heart surgery,
Markgren fainted at work. The lower make room had reached 105 degrees, causing Markgren
to lose consciousness. He was taken to the emergency room and admitted to the hospital. His
provider cleared him to return to work on August 5 with a restriction to working in
temperatures of less than 100 degrees.
In July 2018, Markgren was at work when he began to feel dizzy and weak. He was
taken to the emergency room and was diagnosed with heat exhaustion; the plant had reached
102 to 107 degrees. Markgren had also been experiencing chronic back pain for several years.
In November 2018, he underwent back surgery and returned to work in April 2019.
C. Heat restriction accommodations
Markgren’s medical restriction to work in temperatures under 100 degrees, first given
to him in 2013, remained in place for the remainder of his employment at Saputo. The plant
regularly reached or exceeded 100 degrees, especially during the summer.
Beginning in 2013, Markgren raised the issue of high temperatures in the plant and
proposed several ways to control his exposure to heat. He asked Saputo to repair a broken air
conditioning unit several times. He also requested a larger exhaust fan to improve air circulation
in the lower make room. Saputo did not change the ventilation in the plant.
In 2017, when Saputo opened its new plant in Almena, Markgren asked to be
transferred there because it was air conditioned. Saputo told him that he could transfer but
that his hourly wage would be two dollars less per hour. Markgren declined the transfer. He
says that he could not afford the pay cut.
Saputo began requiring employees to wear more robust personal protective gear when
cleaning the plant in 2017. Markgren says that the new gear was heavy and unbreathable. He
asked Saputo if he could wear the lighter gear that he previously wore to avoid overheating and
triggering his heart condition. Saputo said that he was required to wear the new gear but that
he could take additional breaks if the new personal protective gear made him too hot.
D. Harassment from 2017 to 2019
Markgren contends that three of his coworkers at the plant, Dylan Skow, Anthony
Selkow, and Matt Olson began harassing him in 2017. Specifically, once or twice per week,
they took Markgren’s personal protective gear and his lockout-tagout cards, which are used
when cleaning and disassembling machines. Each time Markgren’s property went missing, he
had to spend time looking for it or obtaining new gear and tags from his supervisor. Skow,
Selkow, and Olson also stuffed hangers in Markgren’s locker twice in November 2019.
Markgren reported the missing property and the hangers in his locker numerous times
to his supervisor, Shann Munson. Munson told Markgren that she would investigate and
address the issue. At staff meetings, Munson sometimes told employees that they should not
interfere with each other’s property. After these announcements, his coworkers’ conduct
improved, but only temporarily.
In November 2019, Markgren told Munson that the problem was getting worse and
that it was adversely affecting his health by making him anxious and nervous when he arrived
at work. Skow, Selkow, and Olson were not disciplined for their conduct.
E. December 23, 2019 “lockout-tagout” incident
On December 23, 2019, Markgren was working in the lower make room when two parts
of his machine plugged with cheese—the augers and the tower, which is located above the
augers. Saputo employees are required to follow a “lockout-tagout” procedure when servicing
or performing maintenance on a machine. The employee must shut off power and “lock out”
of the machine using a tag. This prevents the machine from unexpectedly starting while it is
being worked on. To clean the augers, Markgren powered off the machine, locked out of it, and
cleared cheese. Then, he cleaned the tower, but he didn’t power down or lock out of the
machine for that part of the work.
Two days later, Saputo employee Megyn Kelsch submitted a “near miss” report stating
that Markgren failed to follow the proper lockout-tagout procedures when cleaning the
machine’s tower and another component of the machine called the star valve. In response to
the report, Shann Munson investigated the incident with health and safety specialist Tammy
Bertelsen and another manager. They concluded that Markgren should have followed the
lockout-tagout policy when cleaning the tower. After they shared their findings via email with
plant manager David Miller, human resources manager Julia Fossum, and human resources
generalist Jennifer Ellefson, Fossum recommended that Markgren receive additional training
and a written warning.
F. December 28, 2019, physical contact incident
A few days later, on December 28, 2019, at the beginning of Markgren’s shift, one of
the augers on his machine again plugged with cheese. He cleaned it out, causing some cheese
to fall onto the floor. He turned on a hose under his machine and walked to the other side of
the machine to turn on a second hose. When he returned, the first hose had been turned off.
He noticed that Selkow had a pair of pliers in his pocket, which were needed to turn
off the hose. He asked Selkow if he had shut the water off. Selkow first denied turning off the
hose, but later in the conversation admitted that he had. Markgren and Selkow began arguing,
and Skow got involved. By the end of the exchange, all three were yelling at each other.
Markgren walked away from the argument and heard Skow and Selkow laughing at
him. Markgren was upset and called Munson, who came down to the lower make room.
Markgren asked for the rest of the day off because he was extremely angry and worried about
his heart condition. Munson agreed to let him go home. The parties dispute what happened as
Markgren left the room. According to Saputo, Markgren intentionally bumped into Skow on
the way out. Markgren denies this. He says that he did not make physical contact with Skow,
but that if he did, it was either unintentional, or it was Skow who backed into Markgren.
Munson conducted an initial investigation into the incident by talking to Markgren,
Skow, and Selkow. She shared her findings with Fossum and Ellefson. Fossum called Markgren
to discuss what had happened. Later that day, Fossum left for vacation, and Ellefson took over
the investigation. Ellefson spoke with Selkow and Skow. After the investigation was complete,
Ellefson met with Miller and regional human resources manager Lisa Housner and told them
that Markgren was at fault in the incident. Miller decided that Markgren should be terminated,
and Saputo fired Markgren on December 31.
The court will discuss additional facts as they are relevant to the analysis.
Markgren asserts several claims against Saputo. He contends that Saputo:
(1) wrongfully terminated him on the basis of disability, age, and sex in violation of the
Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), and
Title VII; (2) subjected him to a hostile work environment because of his age in violation of
the ADEA; (3) retaliated against him on the basis of his disability and age under the ADA,
ADEA, and Family Medical Leave Act (FMLA); and (4) failed to accommodate his disability
under the ADA.
Saputo is entitled to summary judgment if it shows that there are no genuine issues of
material fact and is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The court views the evidence in the light most favorable to Markgren
and draws all reasonable inferences in his favor. Miller v. American Family Mutual Ins., 203 F.3d
997, 1003 (7th Cir. 2000). But in response to Saputo’s motion, Markgren bears the burden of
identifying evidence that would allow a reasonable jury to find in his favor on his claims. Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
A. Wrongful termination claims
Markgren’s core contention is that Saputo wrongfully terminated him because of his
age, disability, and sex. To prevail on his wrongful termination claims based on age and
disability, Markgren must show that he would not have been fired “but for” having these
characteristics. Marnocha v. St. Vincent Hosp. & Health Care Ctr., Inc., 986 F.3d 711, 718 (7th
Cir. 2021) (ADEA); Brooks v. Avancez, 39 F.4th 424, 440 n.11 (7th Cir. 2022) (ADA). To
establish his sex discrimination claim, the causation standard is lower, and only requires
Markgren to show that his sex was a “motivating factor” in his termination. Kluge v. Brownsburg
Cmty. Sch. Corp., 64 F.4th 861, 882 (7th Cir. 2023). The court concludes that Markgren cannot
prevail under either standard, so it will discuss Markgren’s age, disability, and sex
discrimination claims together.
The core question in any discrimination case is whether a reasonable jury could find
that the defendant treated the plaintiff adversely because of a protected characteristic, in this
case, Markgren’s age, disability, or sex. See Lewis v. Indiana Wesleyan University, 36 F.4th 755,
760 (7th Cir. 2022). The parties rely on the burden-shifting framework introduced in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, the plaintiff
must present evidence on the elements of a prima facie case, which vary slightly depending on
the type of claim the plaintiff is asserting. Lewis, 36 F.4th at 759–60. The burden then shifts
to the employer to present evidence on its reason for taking the adverse action. Id. Finally, the
plaintiff must show that the employer’s reason is a pretext for discrimination. Id.
The McDonnell Douglas framework can be an efficient way to organize, present, and
assess evidence in discrimination cases. Johnson v. Advoc. Health & Hosps. Corp., 892 F.3d 887,
894 (7th Cir. 2018). But the Seventh Circuit has encouraged district courts to focus on the
central issue, which is whether the evidence as a whole would permit a reasonable jury to
conclude that the plaintiff’s age, sex, or other protected trait caused the employer’s adverse
action. Monroe v. Ind. Dep’t of Transp., 871 F.3d 495, 504–05 (7th Cir. 2017).
Saputo offers two reasons for terminating Markgren: he violated a company safety
procedure called lockout-tagout and a policy prohibiting physical violence. Markgren attacks
the legitimacy of both violations. He says that the safety policy was not applicable to his
conduct, that he did not push Skow, and that Saputo’s investigations into the incidents were
biased. Markgren also offers other evidence that these violations were pretext: Saputo did not
fire similarly situated employees with commensurate disciplinary histories, treated younger,
female, and able-bodied employees more favorably than Markgren, and discriminated against
other older employees.
The court will consider Saputo’s proffered reasons for its actions and assess Markgren’s
evidence that those reasons are a pretext for discrimination. Monroe, 871 F.3d at 504–05. But
the court does not act as a “super-personnel department with authority to review an employer’s
business decision as to whether someone should be fired or disciplined because of a work-rule
violation.” See Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 697 (7th Cir. 2006). The question is
not whether the employer’s termination decision was accurate or fair. Coleman v. Donahoe, 667
F.3d 835, 852 (7th Cir. 2012). All that matters is whether the employer honestly believed the
stated reasons it offered for the termination. Id.
So, to avoid summary judgment, Markgren must show that Saputo’s given reasons were
not the true reasons for his termination. Arrigo v. Link, 836 F.3d 787, 796 (7th Cir. 2016). To
meet this burden, he must “identify such weaknesses, implausibilities, inconsistencies, or
contradictions” in Saputo’s asserted reasons “that a reasonable person could find [them]
unworthy of credence” and infer that they did not actually prompt the termination. Coleman,
667 F.3d at 852 (citing Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Cir. 2007)).
1. December 23, 2019, “lockout-tagout” incident
Markgren contends that the lockout-tagout violation was pretextual because he did not
actually violate the policy. It is undisputed that on December 23, 2019, the augers and the
tower of Markgren’s machine plugged with cheese. He followed the lockout-tagout procedure
when cleaning out the augers, but he did not follow those procedures with the tower. Markgren
contends that the lockout-tagout instructions did not apply to the tower at the time of the
The question for this case is not whether Saputo correctly determined that Markgren
committed the violation. What matters is whether Saputo honestly believed that he engaged
The evidence cited by both parties demonstrates that several Saputo employees who
investigated the incident concluded that even if the lockout-tagout instructions were not clear,
Markgren should have known that his actions posed a safety risk. After receiving the near miss
report, Munson investigated the incident with Bertelsen and another manager. They concluded
that Markgren should have used lockout-tagout because the tower was close enough to other
components of the machine to pose a safety hazard. Dkt. 88-4. Bertelsen sent a summary of
the investigation findings to Miller, Fossum, and Ellefson later that day. Dkt. 88-10. Bertelsen
noted that Markgren had missed some lockout-tagout training because he was on leave. Fossum
responded that she understood that Markgren had missed training but that he should have
understood the safety risk based on the trainings that he had completed. Dkt. 88-11. She
recommended additional training and a written warning. Id.
No reasonable jury could conclude from the evidence that Saputo imposed mild
discipline on Markgren for the lockout-tagout violation in bad faith or to cover up for
2. December 28, 2019, physical contact incident
Markgren also contends that the physical violence violation was pretext. A few days
after the lockout-tagout incident, Markgren got into a verbal argument with Skow and Selkow
in the lower make room. Markgren became upset and got permission to leave for the day. All
that is undisputed. The parties now dispute whether Markgren intentionally bumped Skow.
Following the bumping incident, Munson conducted an initial investigation; Fossum
and Ellefson investigated further over the next few days. Ellefson met with Miller and Housner
on December 31 and reported her conclusion that Markgren had deliberately pushed Skow.
Markgren was terminated later that day.
Markgren contests Saputo’s conclusion. His core contention is that he did not actually
push Skow. Markgren testified that he did not intentionally touch Skow as he left the lower
make room, but if the two did touch each other, it was Skow who stepped back into Markgren.
Dkt. 45 (Markgren Dep. 113:14–23; 114:1–5).
As the court explained above, the question is not whether Saputo correctly concluded
that Markgren had engaged in misconduct. The pertinent question here is whether Saputo
honestly believed that Markgren had engaged in misconduct. Coleman, 556 F.3d at 852.
Markgren provides several reasons why the physical violence violation was not the true
reason for his termination. He first contends that Fossum and Ellefson colluded in conducting
a biased investigation to get him fired. He asserts that they did not interview the right
witnesses, including one employee who observed what happened and did not see Markgren
bump Skow. But Fossum and Ellefson are not required to conduct investigations that meet
certain quality standards. And they are not required to interview every witness that they
possibly could have. The law is clear that even an impulsive or shoddy investigation does not
demonstrate discriminatory intent. Kariotis v. Navistar Int’l Transp. Corp., 131 F.3d 672, 678
(7th Cir. 1997).
Markgren also contends that Fossum and Ellefson knowingly accepted Skow and
Selkow’s lies during the investigation. Specifically, Markgren argues that Saputo should have
known that Skow and Selkow were lying because when Munson initially interviewed them,
both discussed the verbal argument but neither mentioned the physical altercation. Dkt. 88-15.
Again, this is not evidence of bad faith or a sham investigation. Munson had reported that she
witnessed Markgren push Skow immediately after the incident. Dkt. 88-13 and Dkt. 88-14.
And Fossum and Ellefson independently interviewed Skow and Selkow after Munson did.
During those conversations, both employees reported physical contact. Because Fossum and
Ellefson decided to credit a version of events that Markgren disputes does not mean that the
investigation was a sham.
Second, Markgren contends that Ellefson deliberately provided Miller with
misinformation during the December 31 meeting to get him fired. The parties do not dispute
that at the meeting, Ellefson told Miller that Munson, Skow, and Selkow all agreed that
Markgren had pushed Skow. She also stated that Markgren had “admitted to the physical
contact, but disagreed that it was intentional or severe as the witnesses described, but that it
had occurred.” Dkt. 47 (Miller Dep. 47:9–12).
Markgren contends that Ellefson mislead Miller when she said that Markgren admitted
to the contact. But the evidence does not support an inference that she lied. When Munson
asked Markgren why he bumped Skow immediately after the incident, he replied that Skow
had “stepped back into him.” Dkt. 88-13. When Fossum called Markgren later that day, he
stated that Skow “was putting cheese on the rack and stepped backwards. I didn’t realize I had
touched him until [Munson] said something. I said sorry I must have bumped into him.”
Dkt. 88-16. Ellefson’s statement to Miller is not fundamentally inconsistent with Markgren’s
responses during the investigation: he acknowledged the physical contact, but neither admitted
nor denied that it was intentional. Id.
Markgren also contends that Ellefson lied to Miller by omitting important information:
she did not tell Miller that Markgren left the plant because he was afraid that he was going to
have a heart attack, that the incident occurred in a narrow walkway, that Skow and Selkow
had a history of harassing Markgren, that Selkow had started the altercation by turning off
Markgren’s hose and refusing to help Markgren clean up the cheese spill. If Ellefson had
provided this fuller context, it might have informed Miller about the reasons for Markgren’s
conduct. But Markgren does not explain why this information would have been relevant to the
central question in the investigation, which is whether Markgren pushed Skow, not why he
The court’s task here is not to redo the investigation or to decide if the termination
decision was fair. The question for the court is whether Markgren has adduced evidence that
Saputo’s investigation was so shoddy that a reasonable jury could conclude that Saputo did
not honestly believe that Markgren had engaged in misconduct. Markgren has failed to adduce
3. Treatment of other employees involved in the physical incident
Markgren also contends that the lockout-tagout and violence policy violations were not
the true reasons for his termination because Skow and Selkow kept their jobs, even though
they were also culpable in the December 28 incident and had serious disciplinary histories. An
employment discrimination plaintiff may establish pretext by adducing evidence that a
similarly situated employee without the plaintiff’s protected characteristics was treated more
favorably. Coleman, 667 F.3d at 841. But a similarly situated employee must be directly
comparable in all material respects. Burks v. Wis. Dep’t. of Transp., 464 F.3d 744, 751 (7th Cir.
2006). Generally, a plaintiff must show that a proposed comparator “dealt with the same
supervisor, [was] subject to the same standards and had engaged in similar conduct without
such differentiating or mitigating circumstances as would distinguish their conduct or the
employer’s treatment of them.” Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir. 2008).
Skow and Selkow are not adequate comparators to Markgren for two reasons. First,
Saputo investigated the December 28 incident and determined that Skow and Selkow were
not at fault. So unlike Markgren, neither Skow nor Selkow had physical violence violations in
their personnel records stemming from the December 28 incident. Markgren does not contend
that they had violence violations in their disciplinary histories based on any other events,
Second, Skow and Selkow’s disciplinary histories were not more serious than
Markgren’s. Saputo’s employment records show that between January 2010 and November
2019, Selkow had received 21 warnings: one for sexually inappropriate comments; three for
missed timecard punches; ten for tardiness or other attendance issues, two for carelessly using
equipment; three for work quality issues, and one for horseplay because he had thrown a piece
of cheese. Dkt. 88-34 and Dkt. 88-35. Skow’s records list two disciplinary warnings in 2019,
for attendance and a lockout-tagout violation. Dkt. 88-40.
Selkow and Skow were not star employees. In fact, Selkow was fired several months
after Markgren for making racially offensive comments at work. But Selkow and Skow’s
employee records at the time of the events in question do not contain violations that compared
in seriousness to physical violence against a co-worker. And without comparable disciplinary
histories, a comparator is not similarly situated. Amrhein v. Health Care Serv. Corp., 546 F.3d
854, 860 (7th Cir. 2008). Markgren has not established pretext based on similarly situated
4. Saputo’s treatment of other older employees
Markgren next contends that Saputo had a pattern of terminating of forcing older
employees to resign. He points to two older employees, Tammy Toll and Daryl Strohschein,
who he says were forced out of their jobs at Saputo after they filed age and disability
discrimination claims against the company in 2021. Markgren also cites the forced resignation
of Munson in 2020 after she had worked at Saputo for 15 years. And he identified the names
of six other “older, long-term employees” who “he did not like how Saputo treated.” Dkt. 82,
at 31 and Dkt. 103, ¶ 355. But Markgren provides no specific details about these individuals
or what happened to them. Without additional information about the employees’ situations,
the court cannot evaluate whether these are informative comparator employees, or whether
they support an inference that Saputo discriminated against Markgren and other older
employees because of their age.
5. Other evidence of discrimination
Markgren offers several additional reasons why he believes Saputo terminated him on
the basis of age, sex, and disability, rather than because of the rule violations. First, he contends
that the managers primarily responsible for his termination were able-bodied women who were
younger than Markgren. But the mere fact that the decisionmakers involved in Markgren’s
termination were women is not evidence that they harbored discriminatory animus. Women
are not automatically biased against older, disabled men.
Second, Markgren contends that it was suspicious timing to fire him shortly after he
returned from a several-months-long disability leave. But the timing is not very suspicious.
Markgren was terminated a full eight months after his most recent leave of absence. And he
had taken numerous leaves of absence before 2019 without experiencing adverse employment
actions. Temporal proximity, absent other evidence of pretext, is rarely enough to evidence to
demonstrate discriminatory intent. Stone v. City of Indianapolis Pub. Utils Div., 281 F.3d 640,
644 (7th Cir. 2002).
Third, Markgren contends that Saputo did not follow its own progressive discipline
policy when terminating him. A company’s failure to follow its own internal procedures can
raise an inference of discriminatory motivation in some cases. See Rudin v. Lincoln Land Cmty.
Coll., 420 F.3d 712, 723 (7th Cir. 2005) (failing to follow hiring procedures was circumstantial
evidence of discrimination in hiring). But Markgren doesn’t identify anything that Saputo
should have done differently under its policies. He says that he should have received a written
warning for the lockout-tagout policy rather than being terminated. But Fossum recommended
that warning, even though Markgren did not receive it before he was terminated.. Markgren
also says that immediate termination is only warranted under Saputo’s internal policies if an
employee engages in intentional and gross misconduct. But Markgren was found liable of
violating Saputo’s physical violence policy for intentionally pushing a coworker, and he does
not explain why immediate termination based on the violation was not appropriate under the
internal disciplinary rules.
Finally, Markgren contends that he can demonstrate pretext because he was replaced
by a 28-year-old woman, Megan Kelsch. But Markgren’s evidence on this point is speculation
based on hearsay. He testified that he had heard from coworkers that she was operating his
machine after he was terminated and ultimately replaced him. Dkt. 45 (Markgren Dep. 126:1–
9). For its part, Saputo adduces admissible evidence that it filled Markgren’s position with a
male employee from a third-party contracting company. Dkt. 58, ¶ 22. But even if Kelsch had
replaced Markgren, it would not matter given the lack of other evidence of discrimination in
this case. “The mere fact that an older employee is replaced by a younger one does not permit
an inference that the replacement was motivated by age discrimination.” La Montagne v. Am.
Convenience Prod., Inc., 750 F.2d 1405, 1413 (7th Cir. 1984), overruled on other grounds by
Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016).
In sum, Saputo has asserted legitimate, non-discriminatory justifications for Markgren’s
termination. Markgren has not adduced sufficient evidence that these reasons were so
unreasonable or implausible that Saputo did not actually believe and act on them, or any other
evidence supporting an inference of pretext. No reasonably jury could find that Saputo fired
Markgren because of his age, sex, or disability. The court will grant Saputo’s motion for
summary judgment on Markgren’s wrongful termination claims.
B. Hostile work environment based on age
Markgren contends that Saputo subjected him to a hostile work environment by
allowing his coworkers to harass him because of his age.11 He says that Skow, Selkow, and
another employee, Matt Olson, regularly stole his lockout-tagout tags and personal protective
gear and twice filled his locker with hangers in November 2019. Markgren also contends that
the February 28 incident constituted harassment by Skow and Selkow.
The ADEA protects workers 40 years of age and older from age-based employment
discrimination. The ADEA does not expressly prohibit workplace harassment based on age, but
the Seventh Circuit has assumed that plaintiffs may bring hostile work environment claims
under the ADEA. Tyburski v. City of Chicago, 964 F.3d 590, 600 (7th Cir. 2020). To succeed on
his hostile work environment claim, Markgren must show that: (1) he was subject to
unwelcome harassment; (2) the harassment was based on his age; (3) the harassment was
sufficiently severe or pervasive that it altered the conditions of his employment and created a
hostile or abusive atmosphere; and (4) there is a basis for employer liability. Id. at 601.
In his brief, Markgren contends that Saputo subjected him to a hostile work environment
based on his age and disability. But the operative complaint, Dkt. 35, labels Markgren’s hostile
workplace claim as “harassment based on age in violation of the Age Discrimination in
Employment Act” and contains no factual allegations that would support disability-related
harassment. Markgren’s hostile workplace claim is limited to age under the ADEA.
The parties do not dispute that Markgren was subjected to unwelcome harassment that
was sufficiently severe and pervasive. Rather, Saputo contends that Markgren cannot show
that his coworkers harassed him because of his age or that Saputo was aware of the
discriminatory nature of the harassment.
Markgren’s claim fails because he has not pointed to sufficient evidence that he was
harassed because of his age. The only evidence that Markgren cites on this point is that Skow,
Selkow, and Olson were 20 to 30 years younger than him. But just because Markgren possessed
a protected characteristic that his harassers did not does not support an inference of animus.
Hall v. City of Chicago, 713 F.3d 325, 333 (7th Cir. 2013). And general harassment, personal
animosity, and juvenile behavior, absent a link between the harassment and age, is insufficient
to establish a hostile workplace claim. Tyburski, 964 F.3d at 602 (quotations omitted);
Bennington v. Caterpillar Inc., 275 F.3d 654, 660 (7th Cir. 2001). No reasonable jury could find
that Markgren faced age-based harassment. The court will grant summary judgment on this
Markgren contends that Saputo terminated him in retaliation for taking medical leave
and requesting accommodations for his heart condition in violation of the ADA and FMLA.
He also contends that Saputo terminated him to retaliate for complaining about his age-based
harassment in violation of the ADEA.
The ADA, ADEA, and FMLA prohibit employers from retaliating against employees
who assert their rights under the statutes. Freelain v. Vill. of Oak Park, 888 F.3d 895, 900 (7th
Cir. 2018). To establish a retaliation claim, Markgren must show that: (1) he engaged in a
statutorily protected activity; (2) he suffered an adverse employment action; and (3) there is a
causal connection between the two. Dickerson v. Bd. of Trustees of Comm. Coll. Dist. No. 522, 657
F.3d 595, 601 (7th Cir. 2011) (ADA); Malin v. Hospira, Inc., 762 F.3d 552, 562 (7th Cir. 2014)
(FMLA); Barton v. Zimmer, Inc., 662 F.3d 448, 455 (7th Cir. 2011) (ADEA). The parties also
discuss elements of the McDonnell-Douglas framework, which would require Markgren to show
that he (1) engaged in protected activity; (2) suffered an adverse employment action; (3) was
meeting his Saputo’s legitimate expectations; and (4) was treated less favorably than similarly
situated employees who did not engage in protected activity. McDaniel v. Progress Rail
Locomotive, Inc., 940 F.3d 360, 370 (7th Cir. 2019). The ultimate question is whether the record
contains sufficient evidence to permit a reasonable jury to find that a retaliatory motive caused
the termination. Lord v. High Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir. 2016).
Markgren’s retaliation claim fails for the same reasons that his wrongful termination
claims did. He has failed to present evidence of any comparator who had lockout-tagout and
physical violence violations, requested accommodations, and complained about harassment,
but was treated more favorably than he was. And he has not adduced any other evidence
suggesting that his accommodations requests or complaints about harassment caused his
termination. The court will grant summary judgment on Markgren’s retaliation claims.
D. Failure to accommodate
Markgren contends that Saputo failed to give him reasonable accommodation for his
heart condition after he was limited to working in temperatures below 100 degrees. The ADA
requires an employer to make reasonable accommodations to the known physical or mental
limitations of a disabled employee unless the employer can demonstrate that the
accommodation would pose an undue hardship on its business. 42 U.S.C. § 12112(b)(5)(A).
To prevail on a failure-to-accommodate claim, Markgren must show that: (1) he is a qualified
individual with a disability; (2) Saputo was aware of his disability; and (3) Saputo failed to
provide a reasonable accommodation. Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 682 (7th
It is undisputed that Markgren’s heart condition was a qualifying disability that Saputo
knew about. It also undisputed that Saputo was aware of Markgren’s heat restriction, and that
temperatures in the Saputo lower make room regularly exceeded 100 degrees.
The central question, therefore, is whether Saputo failed to reasonably accommodate
Markgren’s heat restriction. Markgren identifies three potential accommodations for his heat
restriction that he requested: improved ventilation in the plant, transfer to Saputo’s airconditioned plant, and permission to wear lighter personal protective gear when cleaning. The
initial burden is on Markgren to show that each of these accommodations was “reasonable on
its face.” Taylor-Novotny v. Health All. Med. Plans, Inc., 772 F.3d 478, 493 (7th Cir. 2014) (citing
Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 783 (7th Cir. 2002). An
accommodation is reasonable if it is effective and proportional to the costs of implementation.
Oconomowoc, 300 F.3d at 784. Saputo must then demonstrate that the accommodation is
unreasonable, meaning that it would have created an undue financial or administrative
hardship for the business. Taylor-Novotny, 772 F.3d at 493.
The court concludes that all three of Markgren’s requested accommodations were
facially reasonable and that Saputo has not demonstrated that they would pose an undue
hardship on its business.
First, Markgren testified that he requested better ventilation many times beginning in
2013. Specifically, he says that he suggested Saputo fix the plant’s broken air conditioning unit
or install a larger exhaust fan in the lower make room. Dkt. 103, ¶ 91. Markgren testified that
he did not know how difficult it would be for Saputo to implement these changes. Dkt. 45
(Markgren Dep. 67:6–8). But the court will assume that the improvements would have
effectively reduced plant temperatures. And even without additional information on the costs
and benefits, the court concludes that steps to improve ventilation in a manufacturing plant
that regularly exceeded 100 degrees was facially reasonable. Saputo adduces no evidence that
ventilation improvements would have been unduly costly or burdensome.
Second, Markgren requested transfer to Saputo’s recently opened and air-conditioned
plant in 2017. Saputo told Markgren that he could transfer jobs but that he would have to
take a pay cut of two dollars per hour. Markgren testified that he didn’t accept the transfer
because he couldn’t afford the lower wage. Dkt. 45 (Markgren Dep. 127:12–16).
The general rule is that a demotion to a lower-paying job can be a reasonable
accommodation if the employer is unable to accommodate the employee in his current job or
in an equivalent position. Ford v. Marion Cnty. Sheriff's Off., 942 F.3d 839, 854 (7th Cir. 2019).
Neither party specifies what position Markgren was offered at the new plant, so the court will
infer that he would have remained a rotary press operator. Absent evidence that equivalent
jobs were not open at the new plant, Markgren should have been offered the same wage for the
same work at a plant in the same town. Saputo cites Markgren’s deposition testimony that the
pay cut “kind of makes up for being in the heated room” and that Saputo had a “pay structure
already set out, and that's the way they were following it.” Dkt. 45 (Markgren Dep. 127:14–
15; 128:1–2). But Markgren’s personal feelings and perceptions about Saputo’s pay policies
aren’t sufficient to explain the wage differential. Saputo offers none of its own corporate
materials justifying lower pay at the new plant, outlining its general pay structure, or
demonstrating why it would have been financially burdensome to keep Markgren’s wage the
Third, Markgren asked to wear lighter personal protective gear when Saputo began
requiring employees to wear more robust personal protective gear in 2017. Previously,
employees wore light aprons, gloves, and face shields when cleaning. The new gear for cleaning
included pants with a bib, coat, long gloves, hair nest, helmets, and face shields. Markgren
testified that the new suit was heavy, unbreathable, and trapped heat, and he requested
permission to return to wearing the lighter set of gear. Saputo said no.
Like the other accommodations that Markgren requested, modified personal protective
gear to protect him from heat was reasonable on its face. Saputo had used the lighter gear plantwide for many years, and it does not explain its decision to adopt more robust gear in 2017.
Saputo contends that it was not reasonable to exempt Markgren from the company’s safety
standards. But the only evidence it cites to support this contention is Markgren’s deposition
statement that personal protective gear is used to protect employees from chemicals and
prevent food contamination in a general sense. Saputo does not identify any specific safety
concerns with the lighter gear or point to any financial or administrative burdens that the
accommodation would have created.
Saputo contends that it offered Markgren an alternative reasonable accommodation to
wearing lighter personal protective gear that Markgren declined. Saputo told him that he could
take additional breaks if he overheated when wearing the new gear. Saputo is correct that an
employee isn’t entitled to the accommodation of his choice. Bunn, 753 F.3d at 682–83. But a
reasonable accommodation must enable the employee to perform his job. Severson v. Heartland
Woodcraft, Inc., 872 F.3d 476, 481 (7th Cir. 2017). And Markgren testified that he was unable
to take advantage of the additional breaks because he didn’t have spare time to complete his
work before the end of his shift. Dkt. 45 (Markgren Dep. 130:12–18). He says that he
requested more time and extra help, but Saputo did not provide it. Id. at 131:6–132:19. Saputo
offers no evidence to contradict Markgren’s testimony or explain how extra breaks still allowed
him to do his job.
Finally, Saputo argues that it had no way to know that Markgren’s working conditions
were inadequate because he performed his job from 2013 to 2019 without accommodations.
But there is sufficient evidence in the record to demonstrate that Saputo was on notice that
Markgren needed accommodations. In addition to his requests for better ventilation, a transfer,
and lighter gear, Markgren was taken to the emergency room in 2018 and diagnosed with heat
exhaustion after working in plant temperatures of 102 to 107 degrees.
A reasonable jury could find that Saputo failed to reasonably accommodate Markgren’s
heart condition by failing to control his exposure to high temperatures. Saputo’s motion for
summary judgment on Markgren’s failure-to-accommodate claim will be denied.
E. Discovery motions
Two discovery motions are pending before the court. Saputo moves for a protective
order against a large volume of requests for admission, interrogatories, and requests for
production of documents that Markgren served on Saputo one month before the close of
discovery. Dkt. 108. Markgren moves to compel the deposition of Jim Burdick, a supervisor at
Saputo who was involved in the lockout-tagout incident. Dkt. 114.
The court will grant Saputo’s motion and deny Markgren’s under Federal Rule of Civil
Procedure 26(b)(1), which governs the scope of discovery based on relevancy and
proportionality to the case, among other factors. The vast majority of the discovery that
Markgren seeks is related to his termination, retaliation, and hostile workplace claims, which
will be dismissed. The only discovery that Markgren seeks that is relevant to the remaining
failure-to-accommodate claim is a series of requests for admission about his disability
accommodations. But the requests merely seek admission to legal conclusions and to facts that
have already been addressed at summary judgment. Markgren is not entitled to the additional
discovery that he seeks.
1. Defendant’s motion for summary judgment, Dkt. 54, is GRANTED in part and
DENIED in part. The motion is granted with respect to Markgren’s wrongful
termination, hostile workplace, and retaliation claims, and these claims are
DISMISSED with prejudice. The motion is denied with respect to Markgren’s
2. Defendant’s motion for a protective order, Dkt. 108, is GRANTED.
3. Plaintiff’s motion to compel, Dkt. 114, is DENIED.
Entered May 19, 2023.
BY THE COURT:
JAMES D. PETERSON
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