MICHAEL J. DAVIS, District Judge.
This matter is before the Court on Defendant's Motion for Summary Judgment. [Docket No. 21] The Court heard oral argument on April 1, 2016. Because Plaintiff was not able to perform the essential job functions, with or without reasonable accommodation, and because she cannot show any prejudice under her Family and Medical Leave Act claim, the Court grants Defendant's motion.
Defendant LifeCare Medical Center ("LifeCare" or "Defendant") is a medical care provider headquartered in Roseau, Minnesota, with approximately 450 employees. (Compl. ¶ 2; Ans. ¶ 2; Klotz Dep. 11.) LifeCare has a nursing home facility in Greenbush, Minnesota, called LifeCare Greenbush Manor ("Greenbush"). (Compl. ¶ 8; Ans. ¶ 8.)
In 1993, Defendant hired Plaintiff Vickie Munter as a Licensed Practical Nurse ("LPN") at Greenbush. (Munter Dep. 9, 19.)
There are three shifts at Greenbush: AM from 6:30 a.m. to 3:00 p.m.; PM from 2:30 p.m. to 11:00 p.m.; and night shift from 10:45 p.m. to 7:15 a.m. (Gustafson Dep. 47-48.) Munter worked the PM shift. (Munter Dep. 23.)
There are two pods of residents, Edgewood and Rosewood. (Gustafson Dep. 29.) During the PM shift, each pod was generally staffed by one LPN and two Certified Nursing Assistants ("CNAs"). (Gustafson Dep. 47-48.) A Registered Nurse ("RN") usually worked during the AM shift. (
Susan Lisell is the Vice President of Clinical Services for Defendant. (Lisell Dep. 7.) Lisell is the Administrator at Greenbush and oversees the Director of Nursing. (
From January 2010 until January 2013, Kristi Gustafson was the Director of Nursing at Greenbush. (Gustafson 10.) Today, Gustafson works as an RN at Greenbush. (
Carol Klotz is the LifeCare Director of Human Resources. (Klotz Dep. 6, 8-9.) Klotz is responsible for tracking FMLA leave and for determining possible accommodations for employees with disabilities. (
Whitney Bengtson is an LPN who works the PM shift at Greenbush. (Bengtson Dep. 8-9.) Patti Robinson is an LPN who works the night shift at Greenbush. (Robinson Dep. 6-8.) Corrina Christianson works as an LPN at Greenbush on the AM and PM shift. (Christianson Dep. 10, 13-14.)
Greenbush LPNs are responsible for providing direct care to residents. (LPN Job Descriptions, Exs. 1-5; Bengtson Dep. 71.) They have a physically demanding and fast paced job. (Bengtson Dep. 46; Robinson Dep. 9, 12; Klotz Dep. 72.) The PM shift was more physically demanding than the AM shift because there was less staffing. (Bengtson Dep. 36.)
Greenbush LPNs do significant walking. (
Munter took FMLA leave in the spring of 2002, in the fall of 2002, and in the fall of 2003. (Harder Aff., Ex. C.) Munter testified that she did not perceive any hostility or adverse consequences because of the 2003 leave. (Munter Dep. 12.)
Munter has suffered from osteoarthritis or degenerative joint disease ("DJD") since April 2009. (Munter Dep. 190-91, 214.) Multiple coworkers testified that they noticed that Munter was in pain and moved more slowly. (Bengtson Dep. 12, 34-35; Robinson Dep. 10; Christianson Dep. 18-19.)
She had meniscal tear repair surgery to her left knee in 2009. (Munter Dep. 16.) In Munter's 2009 FMLA request, she checked the line stating that she had a serious health condition that made her unable to perform her job duties. (
In spring 2013, Munter had meniscal repair with chondral treatment in her right knee. (Munter Dep. 13-14, 16.) In the spring of 2013, Munter requested and received 8 weeks of FMLA leave for the procedure from February 2013 through April 2013. (Harder Aff., Ex. C.) The leave was granted with no resistance or hesitation. (Munter Dep. 13-14.) She returned to work in April 2013. (
Munter's doctor told her to take a week off of work beginning on June 24, 2013, and to try new medications. (Munter Dep. 87; Leland Decl., Ex. 6; Gustafson Dep. 21.) Munter requested and was granted time off due to her knee condition for June 24, 2013, to July 2, 2013. (Munter Dep. 87-88.)
On July 8, 2013, Munter's doctor restricted her to not working more than two days in a row. (Munter Dep. 34; Leland Decl., Ex. 7.) Munter told Gustafson of this new restriction and informed her that she had DJD. (Munter Dep. 56-57.) Munter asked Virginia Brekke, Greenbush's scheduler, to schedule her primarily in the Rosewood pod because Edgewood was more physically demanding; Brekke did so, but Munter still sometimes had to work in Edgewood. (
In September 2013, Brekke told Munter that she was scheduled in Edgewood for the next three shifts because there was a "train-in on Rosewood," and that the "only other way this would work is if [Munter] worked four days in a row." (Munter Dep. 33.) Munter stated that it would be against her restrictions. (
Munter's performance reviews from 2008 through 2012 ranked Munter as "Meets Standards" or "Exceeds Standards" across all categories. (Leland Decl., Exs. 1-5.) Coworkers testified that Munter was a good nurse who helped other nurses with her nursing expertise. (
Munter testified that, after June 2013, she did not consistently comply with Defendant's attendance policy because she was "not punctual." (Munter Dep. 45.) However, she did not have a tardiness problem before developing osteoarthritis. (
Gustafson was responsible for reviewing all nursing employee timecards at Greenbush. (Gustafson Dep. 35.) Defendant's written policy provides: "Tardiness will be recorded when an employee punches in 8 minutes or more after their scheduled time. Eight tardiness offenses will be allowed in each rolling calendar year." (Leland Decl., Ex. 11.) The ninth tardy results in an oral review. (
Gustafson did not know if there was a policy that addressed employees working after their shift. (Gustafson Dep. 43.) She dealt with that issue on an "individualized" basis, usually when an employee was going to be arriving late so another employee was asked to stay late to cover. (
At some point, Gustafson spoke to Bengtson and stated that they would be accommodating Munter by having Munter only work on one pod and only work two days in a row at most. (Bengtson Dep. 40.) Gustafson asked Bengtson if she had any concerns with Munter's knees and Munter being at work. (
Sometimes, Gustafson asked Bengtson about Munter working slowly and would "vaguely ask" questions about Munter. (Bengtson Dep. 42.) Gustafson would ask Bengtson whether she knew that Munter was in extra pain, if Munter was trying to have surgery, if she was getting help for pain management, or if Munter had thought about taking time off from work. (
In September 2013, coworker Patty Truscinski noted a late arrival by Munter. (Harder Aff., Ex. D; Munter Dep. 95.) Truscinski told Munter that Gustafson had told Truscinski to write Munter up when Munter was tardy because it was "a habit." (Harder Aff., Ex. D.)
When Munter learned of the note from Truscinski, Munter wrote a letter to Gustafson dated September 7. (Harder Aff., Ex. D; Munter Dep. 63.) In the letter, she explained that she had been diagnosed with DJD and had severe pain in her knees and right elbow. (Harder Aff., Ex. D; Munter Dep. 90.) She stated that she was on medications to try to control the pain, but the side effects were tiredness. (Harder Aff., Ex. D.) Sometimes she felt so tired that she needed to sleep and did not feel safe to drive to work. (
Gustafson never provided Munter's September 7 letter to Klotz or Lisell; nor did she discuss it with them. (Gustafson Dep. 66-67.)
Soon after Munter provided the note, she asked to speak to Gustafson. (Munter Dep. 60.) They met a few days later and discussed Munter coming in late. (
Munter also told Gustafson that she would leave work in tears because of the pain, would ice her knees at home, had difficulty pushing the medication cart, and moved slowly because of her knees. (Munter Dep. 61.) Gustafson asked why Munter did not just go out on disability and explained that she had a friend that had to go on disability. (
Lisell wrote a note of Gustafson's report of the conversation with Munter. (Leland Decl., Ex. 9; Lisell Dep. 51-52.) The note provides that Gustafson and Munter discussed Munter's attendance and Gustafson felt that the issue was resolved. (Leland Decl., Ex. 9; Lisell Dep. 52.)
Munter testified that she explained to Gustafson that she was staying past her shift because the night-shift LPNs were incompetent and she could not leave orders for them. (Munter Dep. 207.) Later, she told the same thing to Lisell and then Gustafson "stopped me from being able to say what I wanted to say about my degenerative joint disease," and said, "No, that's not it." (
Sometime in October 2013, Gustafson and Munter met and discussed Munter's problems of leaving late. (Gustafson Dep. 81-82.)
On October 30, 2013, Munter had an appointment with an orthopedic surgeon. (Munter Dep. 48-49.) The doctor informed her that there was no medical intervention possible other than a total knee replacement for both knees. (
On November 4, 2013, Munter called Klotz to discuss a potential future knee surgery. (Munter Dep. 49; Klotz Dep. 21-22.) She also informed Klotz of her DJD diagnosis and that she needed two total knee replacements. (Munter Dep. 46; Klotz Dep. 22.) According to Munter, Klotz told her that she had used up all of her FMLA leave for 2013. (Munter Dep. 49.) Munter "knew" that she had probably used all of her FMLA leave, but was willing to take a personal leave of absence in order to have the knee replacement on December 12. (
Munter told Klotz that she wanted a "regular" leave of absence so that she could have her knee replacement surgery on December 12. (Munter Dep. 219.) Klotz encouraged Munter to wait to have surgery until February 22, 2014, when her FMLA leave would be renewed, because if she took personal leave, she would need to pay $900 per month for COBRA benefits and would have no guarantee of job reinstatement upon her return. (
On November 21, 2013, during a meeting with Lisell, Munter, and Gustafson, Gustafson gave Munter a written warning "for not following staffing schedule start & end times." (Leland Decl., Ex. 13.) The warning continued:
(
Gustafson told Munter "we need[] to see improvement from this day forward, because we want to work with you and we want to move forward and continue employment." (Gustafson Dep. 85.) When Munter told her that she was taking medications that made her tired and made it difficult for her to make her scheduled shift, Gustafson offered a different shift, suggested that she take her medications at a different time, and offered her use of the Employees Assistance Program ("EAP"). (
Munter tried to tell them that her DJD and depression affected how she came in and left work off schedule, but Gustafson cut her off and said, "No, that's not it." (Munter Dep. 200-01.) On Munter's timecards, Munter had listed the reasons why she stayed late as talking to family members, charting, and other tasks. (Gustafson Dep. 87.) Munter also told them that she took pain medications that made her sleepy and she sometimes felt unsafe to drive so she needed to arrive late. (Munter Dep. 59; Lisell Dep. 29.) She offered to change her medication schedule to reduce her late arrivals. (Lisell Dep. 29.) Munter stopped taking a particular pain medication so that she could get to work on time. (Munter Dep. 208-09.)
Between November 21, 2013, when Munter received a written warning, and December 2, 2013, she punched in after 2:30 p.m. by between 1 and 6 minutes each day and punched out late by more than one hour every single day. (Harder Aff., Ex. K.) Munter does not contest the accuracy of the time records. (Munter Dep. 100-03.) The next shift after she received her written warning, she punched out at 1:51 a.m., 2 hours and 51 minutes after the scheduled end of her shift. (Harder Aff., Ex. K; Munter Dep. 102-03.)
On December 2, 2013, Gustafson, Lisell, and Munter met, and Gustafson provided Munter a written warning and two-day suspension. (Munter Dep. 98, 103; Harder Aff., Ex. H.) The written warning stated:
(Harder Aff., Ex. H.)
During the meeting, Munter stated that she had not been tardy based on the 8-minute policy. (Munter Dep. 104.) Gustafson explained that the discipline was actually based on "clocking out late." (
Gustafson and Lisell talked with Munter about ways she could be more efficient at her job and be more of a team player. (Lisell Dep. 55-56; Munter Dep. 121.) Munter told Gustafson and Lisell that she sometimes stayed late because the night shift nurses did not know how to put orders into the computer system and she could not leave them work like the AM shift did for the PM shift. (Munter Dep. 128, 132-33.) Munter's supervisors suggested that, in order to leave on time, she spend less time with residents and their families and spend more time forming relationships with staff and leave on time. (
Munter testified that she told Lisell, "If you want me to clock out at 11:00 o'clock and then go back and finish my job, I will." (Munter Dep. 125.) She explained, "That's how much I didn't care about it. I needed to finish my job. Because there was nobody on the night staff that could do what I was doing." (
Between December 2, 2013, and January 14, 2014, Munter punched out late every single shift, usually more by than one hour late. She punched in at 2:30 p.m. only three times. (Harder Aff., Ex. K.)
On January 14, 2014, Gustafson, Lisell, and new Greenbush Manor Director of Nursing Tracey Masloff met with Munter, and Gustafson read aloud the termination notice. (Gustafson Dep. 102-04; Munter Dep. 125.) The notice stated:
(Leland Decl., Ex. 16.)
On October 28, 2014, Munter commenced a lawsuit against LifeCare in Minnesota state court, Roseau County. The Complaint alleges: Count One: Disability Discrimination in Violation of the Minnesota Human Rights Act ("MHRA"); Count Two: Failure to Accommodate in Violation of the MHRA; Count Three: Reprisal in Violation of the MHRA; Count Four: Interference in Violation of the FMLA; and Count Five: Retaliation in Violation of the FMLA. Plaintiff has now withdrawn Count Five. (
On October 30, 2014, LifeCare removed the matter to this Court based on federal question jurisdiction. It now moves for summary judgment on all claims against it.
Summary judgment is appropriate if, viewing all facts in the light most favorable to the non-moving party, there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
The MHRA prohibits an employer from discharging or otherwise discriminating against an employee because of the employee's disability. Minn. Stat. § 363A.08, subd. 2. Generally, a disability discrimination claim under the MHRA is analyzed in the same manner as a claim under the ADA.
To establish a prima facie case of disability discrimination, "an employee must show that she (1) is disabled within the meaning of the ADA, (2) is a qualified individual under the ADA, and (3) has suffered an adverse employment decision because of the disability."
For the purposes of this motion, Defendant concedes that Munter has a disability under the MHRA. (
The Court holds that Defendant is entitled to summary judgment because Munter cannot show that she was a qualified individual. "To be a qualified individual . . . an employee must (1) possess the requisite skill, education, experience, and training for [her] position; and (2) be able to perform the essential job functions, with or without reasonable accommodation."
"An employee who is unable to come to work on a regular basis [is] unable to satisfy any of the functions of the job in question, much less the essential ones."
There is no dispute that Munter was chronically late to arrive for her shift and significantly late to leave after her shift ended. Moreover, Munter admits that these issues became more severe in June 2013. These attendance issues failed to resolve, even after progressive discipline and clear warnings. Munter was still staying late for between 48 minutes and more than 3 hours every shift during her last month of employment. During the time between her December 2 suspension and her termination, she also punched in 43, 20, and 11 minutes late.
Regular attendance during the scheduled shift is an essential job duty, particularly for a shift-based job that required in-person LPN coverage to assist residents. Munter has been unable to point to any accommodation that would have allowed her to arrive and leave on time. Defendant offered her another shift time, offered the EAP, suggested that she change her medication schedule, and asked Munter for suggestions. The only suggestion she gave to her employer was to allow her to illegally work off the clock. In her brief, Munter asserts that Defendant could have staffed a CNA on the PM shift, but hiring a new employee, creating a new position, or reassigning existing employees are not reasonable accommodations.
The MHRA provides that it is illegal for an employer to "not to make reasonable accommodation to the known disability of a qualified disabled person. . . unless the employer, agency, or organization can demonstrate that the accommodation would impose an undue hardship on the business, agency, or organization." Minn. Stat. § 363A.08, subd. 6.
In order to survive a motion for summary judgment for failure to accommodate under the MHRA, a plaintiff "must present evidence sufficient to permit a reasonable jury to conclude that he was (1) disabled within the meaning of the MHRA, (2) qualified to perform the essential functions of the job with or without reasonable accommodation, and (3) suffered an adverse employment action because of his disability."
Because, as discussed with regard to Count One, Munter cannot show that she was a qualified individual, Defendant is entitled to summary judgment on Count Two.
Under the MHRA,
Minn. Stat. § 363A.15, subd. 1.
"To defeat summary judgment on a retaliation claim, a plaintiff must produce either direct evidence of retaliation, or create an inference of retaliation under the
It is unclear which activity Munter claims was the protected activity of requesting reasonable accommodation under the MHRA. The Court will analyze her claim both in relation to her September 2013 letter to Gustafson regarding her DJD and to her November 2013 leave discussion between Klotz. Assuming without deciding that both of these activities were protected activities under the MHRA, Defendant is entitled to summary judgment based on the lack of causal connection.
Munter suffered an adverse employment action when she was fired on January 14, 2014.
Interpreting Munter's protected activity to be her September 2013 letter to Gustafson regarding her DJD, Defendant did begin disciplining Munter one month later based on her late arrivals and departures. However, the timing is insufficient to show a prima facie case of causation because Munter's September 2013 letter to Gustafson was written in response to a coworker writing Munter up for tardiness because management had told the coworker that Munter's tardiness was a problem. Thus, according to Munter, Defendant had already begun singling her out for her tardiness before she wrote the September 2013 letter. Munter, herself, admits that, beginning in June 2013, she was not punctual and that she usually worked after her shift ended. She further testified that she did not have a tardiness problem before this time period. Additionally, Munter testified that Defendant began treating her "differently" and in a retaliatory manner beginning in July 2013 (Munter Dep. 106-07), before Munter allegedly requested accommodation in September 2013.
Alternatively, the Court could interpret the November 2013 leave discussion between Klotz and Munter as the protected activity. In that case, written discipline followed soon after. However, Munter had already received an oral warning beforehand and, according to Munter, she was treated "differently" before the November meeting. Munter further admits that she was not punctual after June 2013 and does not dispute the accuracy of the time records showing that she continued to have late arrivals and to consistently be substantially late in leaving her shift up until her termination. Moreover, Defendant had previously granted Munter's five prior FMLA requests and her personal leave requests, all without hesitation or negative reaction. Overall, the Court concludes that Munter cannot show a causal connection.
The FMLA provides eligible employees up to 12 weeks of unpaid leave during any 12-month period for, among other things, "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). "Under the FMLA, employers are prohibited from interfering with, restraining, or denying an employee's exercise or attempted exercise of any right contained in the FMLA."
The Eighth Circuit has recognized
"[A] plaintiff proceeding under the FMLA must show actual monetary loss to recover."
According to Munter, Klotz mistakenly told her that, as of November 2013, she had used up all of her FMLA leave so that if she took her leave of absence at that time she would have no guaranteed job reinstatement and would have to pay COBRA. Klotz further stated that that if Munter waited to take her leave until her FMLA leave bank replenished, in February 2014, she would not have to pay COBRA and she would have guaranteed job reinstatement. In fact, as of November 2013, Munter had four weeks of FMLA leave available. Thus, Munter asserts that Klotz told her that none of her two-to-three-month recovery and leave period would be covered by the FMLA, but that Klotz should have said that the first four weeks of her two-to-three-month recovery would have been covered by the FMLA.
There is no evidence that Klotz's misstatement regarding whether Munter had four weeks of FMLA leave available deterred Munter from taking FMLA leave. Munter does not dispute that she needed and requested multiple months' leave. It is undisputed that 4 weeks' leave was insufficient to cover her surgery and recovery. Therefore, Klotz's statement that, if Munter had her surgery and took leave before February 2014, Munter would need to pay for COBRA and would not have a job guaranteed by the FMLA when she returned was true even though Munter had four weeks of FMLA leave available. Klotz's misstatement regarding the four remaining weeks of FMLA leave was not material.
Munter has not shown that she would have taken the four weeks of FMLA leave in December if she had been told that it was available. Her surgery rendered her unable to work for substantially longer than the available 4 weeks of FMLA leave. "The FMLA provides no relief unless the employee has been prejudiced by the violation."
Accordingly, based upon the files, records, and proceedings herein,
