attorney Michael E. Douglas Attorney at Law
  Personal Injury Attorney
  St. Paul Workers Compensation Lawyer work comp attorney
 > About Me
   :: My Commitment
   :: Our Community
 > Legal Practice Areas
  twin cities comsumer lawPersonal Injury
   :: Traffic Accidents
   :: Medical Malpractice
   :: Social Security Disability
   :: Premises Liability
   :: Wrongful Death
   :: Dog Bite
   :: Back/Spinal/Neck Injuries
   :: Whiplash
   :: Defective Medical Devices
   :: Defective Drugs
  Minnesota Personal InjuryWorkers Compensation
  St. Paul personal injuryConsumer Law
   :: Debt Collection
   :: Repossessions
   :: Foreclosures
   :: Loan, Credit, Banking
   :: Arbitration Agreements
   :: Deception and Fraud
   :: Auto Fraud / Lemon Law
   :: Warranties
   :: Predatory Lending
 > Contact Us
   :: Contact Us

Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551

 Saint Paul Lawyer


Harris v. Wal-Mart Stores, Inc.: US District Court : EMPLOYMENT - Questions of fact regarding injury reporting oral or written; no evidence of retaliation

Nathel Harris,
Civ. No. 07-1191 (RHK/JSM)
Wal-Mart Stores, Inc.,
Ruth Y. Ostrom, Greenman & Ostrom, Minneapolis, Minnesota, Michael L. Lander,
Michael L. Lander, P.A., Minneapolis, Minnesota, for Plaintiff.
David A. Davenport, Holly A. Stocker, Winthrop & Weinstine, P.A., Minneapolis,
Minnesota, for Defendant.
In this action, Plaintiff Nathel Harris has sued his former employer, Defendant Wal-
Mart Stores, Inc. (Wal-Mart), alleging that Wal-Marts termination of his employment
violated the Minnesota Drug and Alcohol Testing in the Workplace Act (the DATWA).
Harris also alleges that Wal-Mart terminated his employment in retaliation for filing a
workers compensation claim. Wal-Mart now moves for summary judgment. For the
reasons set forth below, the Court will grant the Motion in part and deny it in part.
The facts recited herein are undisputed, except where noted. Harris worked as an
overnight stocker in Wal-Marts Apple Valley, Minnesota store beginning in November
1 Harris and his attorney have each submitted a Declaration (not an affidavit sworn before a
notary public) in opposition to Wal-Marts Motion, but neither was made under penalty of perjury.
See Bleavins v. United States, 807 F. Supp. 487, 489 (C.D. Ill. 1992) (declaration has same
evidentiary value as affidavit only if it is signed under penalty of perjury); 28 U.S.C. 1746. Because
Wal-Mart has not objected to the Declarations on this ground, however, the Court will consider them
when resolving the instant Motion. See Cody v. Hillard, 139 F.3d 1197, 1199 n.1 (8th Cir. 1998).
2003. According to Harris, on January 25, 2006, he sustained a back injury while working.
(Harris Decl. 3.)1 He claims that he immediately reported his injury to his supervisor,
Jim Johnson, and reported it again to his store manager, Deborah McNulty, at the end of his
shift the following morning. (Id.) Neither Harris nor Wal-Mart, however, filled out any
paperwork concerning his injury at that time. (See Stocker Aff. Exs. P, Q; Lander Decl. Ex.
Harris continued working at Wal-Mart until February 3, 2006, when he requested a
leave of absence due to depression. Wal-Mart granted Harriss request. On March 10,
2006, while Harris was on leave, he slipped and fell while showering and fractured his jaw.
As a result, his jaw was wired shut for several weeks.
On March 26, 2006, Harris and his mother appeared at the Apple Valley store and
asserted that Harris was entitled to workers compensation for his January 25, 2006, injury.
(Stocker Aff. Ex. P; Lander Decl. Ex. 2.) They met with Kara Rausch, the assistant store
manager, and the three together filled out a workers compensation claim form for Harris.
(Stocker Aff. Ex. Q; Lander Decl. Ex. 3.) Harris filled in the following information on the
When Did You Report Your Injury Debra To whom
2 Debra apparently refers to McNulty.
If Not Reported Immediately, Why Not She would do it
(Lander Decl. Ex. 3.)2
After filling out the paperwork, Rausch informed Harris that, pursuant to Wal-Mart
policy, he was required to undergo a drug test and he would have to be accompanied to the
test site by Neil Black, another Wal-Mart manager. Harris agreed. He, his mother, and
Black then traveled to Apple Valley Medical Center, a 24-hour medical clinic near the
store. Upon arriving at the clinic, however, Harris vomited and appeared to be in pain. His
mother then insisted that he be seen by a doctor before a urine sample could be collected
for the drug test. Ultimately, Harris was unable to provide a urine sample because he was
too dehydrated, due to his jaw being wired shut. Black then withdrew his request for a
urine sample and left the clinic; he did not advise Harris that he needed to follow-up with
store management to schedule another drug test. (Harris Dep. Tr. at 50.) Harris received
intravenous fluids at the clinic and returned home later that day.
In the subsequent days, Wal-Mart allegedly attempted to contact Harris to
reschedule his drug test, but the extent of its efforts is in some dispute. Wal-Mart claims
that it telephoned Harris several times but was unable to reach him, and then sent him a
letter on March 29, 2006, by certified and regular mail, advising him that he needed to
immediately contact the store to reschedule the drug test. (Stocker Aff. Ex. R; Stocker
3 Wal-Mart originally asserted in an Interrogatory answer that Harris had answered one of its
telephone calls but immediately hung up upon learning who was calling; it also asserted that Harris
refused delivery of Wal-Marts certified letter. (Lander Decl. Ex. 7 at 6.) Wal-Mart later amended its
answer to assert only that it attempted to reach Plaintiff by telephone several times to reschedule his
drug and alcohol test. Wal-Mart also sent Plaintiff certified and non-certified letters requesting that he
submit to a drug and alcohol test. Plaintiff never complied or responded to Wal-Marts requests. (Id.
Ex. 8 at 3.)
Supp. Aff. Exs. A-B; Lander Decl. Ex. 10.)3 The post office returned the certified letter to
Wal-Mart on March 31, 2006, as attempted unknown. (Stocker Aff. Ex. R.) Although
Harris nowhere argues that Wal-Mart had an incorrect address or telephone number for
him, he denies ever having received a letter, a telephone call, or any other communication
from Wal-Mart about rescheduling his drug test. (Harris Decl. 11.) When Harris did not
reschedule the drug test or contact Wal-Mart to do so, his employment was terminated on
March 31, 2006.
Harris then commenced the instant action. In his Complaint, he asserts two claims:
(i) his termination violated the DATWA, Minnesota Statutes sections 181.950-181.957
(Count 1); and (ii) he was terminated in retaliation for filing his workers compensation
claim, in violation of Minnesota Statutes section 176.82 (Count 2). Wal-Mart now moves
for summary judgment on both claims.
Summary judgment is proper if, drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). The moving party bears the burden of showing that the material
facts in the case are undisputed. Celotex, 477 U.S. at 322; Mems v. City of St. Paul, Dept
of Fire & Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). The Court must view the
evidence, and the inferences that may be reasonably drawn from it, in the light most
favorable to the nonmoving party. Graves v. Ark. Dept of Fin. & Admin., 229 F.3d 721,
723 (8th Cir. 2000); Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116 (8th Cir.
1997). The nonmoving party may not rest on mere allegations or denials, but must show
through the presentation of admissible evidence that specific facts exist creating a genuine
issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Krenik v.
County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
I. Genuine issues of material fact preclude summary judgment on the DATWA
The DATWA permits employers to test employees for drugs under certain
circumstances. In relevant part, the DATWA provides that an employer may . . . require an
employee to undergo drug and alcohol testing if the employer has a reasonable suspicion
that the employee has sustained a personal injury. Minn. Stat. 181.951, subd. 5(3).
However, an employer cannot require an employee to undergo drug or alcohol testing on
an arbitrary and capricious basis. Id., subd. 1(c).
Here, Harris argues that it was arbitrary and capricious for Wal-Mart to require him
to take a drug test because (i) a drug test 64 days after an injury is incurred is arbitrary and
4 There are 64 days between January 25, 2006, the date Harris purportedly was injured, and
March 26, 2006, the date Wal-Mart demanded a drug test.
capricious in all circumstances, since the test cannot reveal whether the employee was
under the influence of drugs or alcohol on the date of the injury,4 and (ii) Wal-Mart violated
its own drug-testing policy by demanding a drug test 64 days after his injury, because the
policy requires a drug test to occur immediately, or as soon as practical after an accident.
(See Mem. in Oppn at 18-23.) While the former argument fails, the latter argument raises
a genuine issue of material fact that cannot be resolved on summary judgment because the
parties dispute what date Harris first reported his injury.
A. Requiring an employee to undergo a drug test 64 days after an injury
is not arbitrary and capricious per se.
Harris first argues that a drug test administered 64 days after an injury must be
arbitrary and capricious because the test would . . . not . . . detect[] the presence of drugs in
[the employees] system at the time of injury. According to Harris, to allow an employer
to test for drugs when the test will tell [the employer] absolutely nothing about the
employees condition at the time of the work accident is clearly arbitrary and capricious.
(Mem. in Oppn at 19.) The Court might be inclined to agree with Harris if the record here
supported this argument, but it does not.
The evidence in the record indicates that certain drugs are indeed detectable more
than two months after they are used. Glynda Caldwell, Wal-Marts personnel manager,
testified at her deposition that marijuana is one such drug, depending on how much of it had
5 This statement is in a September 14, 2007 letter from Manley to Harriss counsel.
Immediately prior to the sentence quoted above, Manley states that any type of drug analysis done on
a urine sample collected approximately two months after an incident would have absolutely no scientific
validity in determining if an individual had any type of drug in his/her system at the time of the incident
itself. (Lander Decl. Ex. 16.) Harris seizes on this sentence to argue that the drug test Wal-Mart
requested here would have yielded no valid information upon which to conclude that Harris did (or
did not) have drugs in his system on January 25, 2006, the date of his alleged injury. (Mem. in Oppn
at 19.) Yet, Harris ignores that Manley qualifies this statement in the very next sentence in her letter.
been used and the employees frequency of use. (Caldwell Dep. Tr. at 57-58.) That
testimony is consistent with Harriss own expert, Anne Rummel Manley, who opined that a
drug may remain in an individuals system for [two months if] the drug were being taken on
a routine basis. (Lander Decl. Ex. 16.)5 See also Emily J. Sovell, Note, State v. Hanson:
Has the Exigent Circumstances Exception to the Warrant Requirement Swallowed the
Rule?, 45 S.D. L. Rev. 163, 175-76 (2000) (Experts have found that marijuana can be
stored in an individuals fat tissue and detected for as long as seventy-seven days after
ingestion.). Accordingly, the premise upon which Harris bases his argument that a drug
test 64 days after an injury occurred could not detect[] the presence of drugs in [the
employees] system at the time of injury (Mem. in Oppn at 19) is contradicted by the
record before the Court.
Harris also argues that a drug test administered 64 days after an injury is arbitrary
and capricious because it cannot pinpoint when the employee actually used drugs. (Id.)
But there is no evidence before the Court indicating that a post-injury drug test can
pinpoint, to the precise moment, when a person used drugs. For example, assume that an
employee had been injured on the job and his employer administered a drug test three hours
later. A positive test result would only indicate that the employee had drugs in his system
at the moment of the test; the Court has no evidence before it suggesting that such a test
would (or could) indicate whether the employee had used drugs one minute before the
injury or one minute after. Accordingly, on the facts here, the most a positive test result
can do is create an inference that the employee used drugs prior to the injury, an inference
that may be strong or weak based on the amount of drugs in the employees system and the
length of time between the injury and the drug test. While the inference that may be drawn
from a positive drug test administered two months after an injury is certainly weaker than
that of a positive drug test administered immediately after an injury has been sustained, the
inference nevertheless exists; it is only the weight to which the inference is entitled that
has changed.
Taken to its logical conclusion, Harris is arguing that all post-injury drug testing is
improper, because a positive test result simply cannot indicate precisely when the
employee used drugs. The law does not support that argument. See Minn. Stat. 181.950,
subd. 5(3) (drug testing permissible on reasonable suspicion that employee has sustained a
personal injury; use of past tense clearly indicates that after-the-fact testing is
Accordingly, the Court concludes that it is not necessarily arbitrary and capricious
to require an employee to undergo a drug test 64 days after sustaining a work-related injury.
6 The Court notes that Harriss employment was not terminated due to a positive drug-test
result, but rather due to Harriss purported refusal to take the test. In the Courts opinion, however,
if the request to take the drug test was unlawful, then Harriss termination for refusing to take that test
was equally unlawful. See NewMech Cos., Inc. v. Youness, No. C6-00-2162, 2001 WL 1083933,
at *3-4 (Minn. Ct. App. Sept. 18, 2001) (employee terminated for refusing to take drug test entitled to
unemployment benefits; employee had not engaged in employment misconduct by refusing to take test
where he reasonably believed that he was not subject to testing under DATWA).
B. There is a genuine issue as to whether Wal-Mart applied its
drug-testing policy in an arbitrary and capricious manner in this case.
Harris next argues that Wal-Mart violated its drug-testing policy when it demanded a
drug test 64 days after his injury. He claims that he notified Wal-Mart of his injury on
January 25, 2006, but that Wal-Mart stood idly by until he appeared with his mother at the
Apple Valley store on March 26, 2006, inquiring about workers compensation; only then
did Wal-Mart demand the drug test. Wal-Marts drug-testing policy, however, requires a
drug test to be administered immediately, or as soon as practical after an injury is
sustained. Since Wal-Mart waited to seek a drug test for more than two months after Harris
allegedly reported the injury, he asserts that Wal-Mart arbitrarily and capriciously applied
its drug-testing policy to him, in violation of the DATWA.6
There is support for the argument that requiring an employee to take a drug test in
violation of the terms of a drug-testing policy is arbitrary and capricious under the
DATWA. For example, in Kise v. Product Design & Engineering, Inc., the first Minnesota
case discussing the arbitrary-and-capricious standard, the court held that an employers
request for a drug test was not arbitrary and capricious because the request was not in
conflict with its testing policy. 453 N.W.2d 561, 565-66 (Minn. Ct. App. 1990).
Accordingly, the employers termination of the plaintiff for refusing to submit to the test
was not unlawful. Id. By implication, then, a request that does conflict with a drug-testing
policy may be arbitrary and capricious, unless there is some reasonable explanation for the
conflict. See also Sledge v. Minneapolis Pub. Hous. Auth., No. A04-2479, 2006 WL
463542, at *5 (Minn. Ct. App. Feb. 28, 2006) (rejecting argument that employers drug test
was arbitrary and capricious because employer did not undertake pre-testing steps
inconsistent with drug-testing policy).
Moreover, cases in other contexts suggest that a drug test that violates an
employers drug-testing policy satisfies the definition of arbitrary and capricious. See,
e.g., United States v. Chromalloy Am. Corp., 158 F.3d 345, 353 (5th Cir. 1998)
(administrative-law case; noting that dictionary defines arbitrary as based on random or
convenient selection or choice rather than by reason or nature and capricious as, inter
alia, marked by variation or irregularity; lacking a predictable pattern or law); Pearson v.
Ind. High Sch. Athletic Assn, No. IP99-1857, 2000 WL 1030616, at *23 (S.D. Ind. Feb.
22, 2000) (evidence of inconsistent application of not-for-profit corporations internal
rule would satisfy arbitrary-and-capricious standard); Vann v. Natl Rural Elec. Co-op Assn
Ret. & Sec. Program, 978 F. Supp. 1025, 1043 (M.D. Ala. 1997) (ERISA case;
inconsistent application to similarly situated persons is evidence that a decision is
arbitrary and capricious).
In fact, Wal-Mart conceded at oral argument that if it had demanded a drug test in
violation of its drug-testing policy, then its actions were arbitrary and capricious. (See also
Def. Mem. at 10 (arguing that its request for a drug test was not arbitrary and capricious
because it followed its policies and procedures).) Nevertheless, Wal-Mart argues that it
did nothing wrong in this case because its drug-testing policy requires all employees to
take a drug test as soon as a work-related injury is reported, and Harris did not report his
injury until March 26, 2006, when he came to the Apple Valley store with his mother. (See
Def. Mem. at 9 (Plaintiff did not report [his] alleged injury until March 26, 2006.).)
Thus, Wal-Mart argues that its actions were not arbitrary and capricious because [a]s soon
as [it] received the report of a work-related accident allegedly causing [Harris] to sustain an
injury, it requested [Harris] to submit to an alcohol and drug test. (Id.)
Wal-Marts argument, however, ignores a critical point: there is a genuine issue as
to whether Harris reported his accident on January 25, 2006 (as he claims) or on March 26,
2006 (as Wal-Mart claims). Indeed, Wal-Mart conceded this point at oral argument. And,
there is ample evidence in the record from which a reasonable jury could conclude that
Harris did, in fact, report his injury on January 25, 2006. First, Harris has submitted a
Declaration in which he affirmatively states that he reported his injury, both to his
supervisor and to McNulty, immediately after it occurred. (Harris Decl. 3.) Wal-Mart
has not proffered any evidence, such as an affidavit or deposition testimony from either of
these individuals, contradicting Harriss statement. Second, Harris has proffered
documents corroborating his claim that he reported his injury to store personnel on the day
it occurred. For example, when he filled out his workers compensation paperwork on
March 26, 2006, Harris indicated that he had previously notified McNulty of his injury.
7 A not-so-subtle change from Wal-Marts opening brief to its Reply laid bare Wal-Marts
awareness of a fact dispute concerning when Harris first reported his injury. In its opening brief, Wal-
Mart repeatedly argued that Harris did not report [his] alleged injury until March 26, 2006. (Def.
Mem. at 9; accord id. at 5 (noting that Plaintiff had not previously reported [his] alleged injury to Wal-
Mart when he appeared at the Apple Valley store with his mother on March 26, 2006).) After Harris
argued in his Opposition that he reported the injury on January 25, however, Wal-Mart argued for the
first time in its Reply brief that Harris did not make a first, written report of injury until March 26,
2006. (Reply at 7 (emphasis added); accord id. at 8 (discussing Plaintiffs first, written report of injury
on March 26, 2006); id. at 9 (by requesting that Plaintiff undergo drug testing the very day that it
received a first, written report of injury, Wal-Mart acted reasonably and not in an arbitrary or
capricious manner).) Tellingly, there is no evidence in the record that any type of written reporting is
required; Wal-Mart has proffered no evidence indicating that under its policies or procedures an
employee reporting a workplace injury must do so in writing. Wal-Marts shift from first report of
injury in its opening brief to first written report of injury in its Reply leaves it beyond doubt that Wal-
Mart knows this issue is not ripe for plucking on summary judgment.
8 In denying Wal-Marts Motion as to Count 1, the Court in no way expresses an opinion on
Harriss likelihood of success at trial on this claim or his ability to survive a motion for judgment as a
matter of law after the presentation of his case.
(Lander Decl. Ex. 3.) Similarly, Harris has proffered a hand-written letter delivered to the
Apple Valley store indicating that he advised McNulty of his injury before taking his leave
of absence on February 3, 2006. (Id. Ex. 2.)7
At bottom, when the facts are viewed in the light most favorable to Harris, a
reasonable jury could conclude that he reported his injury on the date it occurred, January
25, 2006. And, if a jury were to conclude that Wal-Mart waited more than two months after
the injury was reported to demand that Harris submit to a drug test, then it could also
reasonably conclude that Wal-Mart arbitrarily and capriciously applied its drug-testing
policy. Accordingly, the Court concludes that Wal-Mart is not entitled to summary
judgment on Count 1.8
9 Harris devotes only the last two pages of his 31-page Opposition brief to this claim, and he
did not address it at oral argument.
II. The retaliation claim fails.
Harris next alleges that he was terminated in retaliation for filing his workers
compensation claim.9 Wal-Mart argues that it is entitled to summary judgment on this
claim because Harris cannot establish (1) a prima facie case of retaliation and (2) that its
reason for terminating him (his failure to submit to a drug test) was pretextual. (Def. Mem.
at 11-16.) Because the Court agrees with the latter argument, it need not address the
Under Minnesota law, an employer may not discharge an employee for filing a
workers compensation claim. Minn. Stat. 176.82, subd. 1. When analyzing such a claim
for retaliatory discharge, the Court must employ the tripartite burden-shifting framework
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Graham v. Special
Sch. Dist. No. 1, 472 N.W.2d 114, 119 n.7 (Minn. 1991). Under McDonnell Douglas, an
employee must first establish a prima facie case of retaliation, which requires him to show
that he sought workers compensation benefits, he was then discharged, and there is a causal
link between the two. Once the employee has stated a prima facie case, the burden shifts to
his employer to articulate a legitimate reason for his discharge. If the employer does so,
the employee must then proffer sufficient evidence to create a genuine issue that the
proffered reason for his discharge is a pretext for retaliation. Id.; Neumann v. AT&T
Commcns, Inc., No. A04-355, 2004 WL 2050779, at *3 n.3 (Minn. Ct. App. Sept. 14,
10 It could be argued that this is not a legitimate reason because Wal-Marts request for a
drug test was arbitrary and capricious under Minnesota law. (See supra at 9-13.). Harris has not
made that argument, however. Moreover, a legitimate reason in this context is an explanation
unrelated to . . . seeking workers compensation benefits. Benson v. Nw. Airlines, Inc., 561 N.W.2d
530, 539 (Minn. Ct. App. 1997). Wal-Marts proffered reason Harriss failure to take a drug test
is indisputably unrelated to his workers compensation claim, regardless of whether that proffered
reason may itself be unlawful.
Here, the Court assumes arguendo that Harris has stated a prima facie case of
retaliation. Wal-Mart has articulated a legitimate reason for terminating Harriss
employment, namely, that Harris failed to submit to a drug test.10 Accordingly, in order to
survive summary judgment, Harris must proffer evidence indicating that Wal-Marts reason
for terminating his employment is merely a pretext for retaliation. He can do so either (1)
indirectly, by showing that Wal-Marts proffered reason for his termination is unworthy
of credence, or (2) directly, by showing that a retaliatory reason likely motivated Wal-
Marts actions. Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986).
Harris has opted to take the indirect route, arguing that Wal-Marts proffered
reason for his discharge is false. In support, he points to the date of his termination and the
letter Wal-Mart sent him requiring him to submit to a drug test within 24 hours, which was
mailed on March 29, 2006. He argues that the letter could not have been delivered before
March 30 and, hence, the 24-hour deadline for him to respond could not have expired until
March 31. Because he was fired on March 31, before [Wal-Mart] could have determined
whether [he had] even received the letter and, more importantly, before 24 hours were up
11 Neither party has indicated what time on March 31 Wal-Mart purportedly decided to
terminate Harriss employment.
(Mem. in Oppn at 29), Harris argues that Wal-Mart must have already decided to terminate
his employment when it mailed the March 29 letter. He argues, therefore, that it can be
fairly inferred that [its] decision was . . . made in retaliation for seeking workers
compensation benefits, since he had filed for workers compensation on March 26, only
three days before Wal-Mart purportedly opted to fire him. (Mem. in Oppn at 28-29.)
Although creative, Harriss argument is unpersuasive. Simply put, he has failed to
offer any evidence indicating, or even suggesting, that Wal-Mart had already opted to
terminate his employment at the time it mailed the March 29 letter. Indeed, even under the
timing argument set forth in Harriss brief and discussed above, Wal-Mart could have
provided Harris with 24 hours to comply with its demand for a drug test and still fired him
on March 31 without necessarily having made the decision to fire him at some earlier point
in time; there is no support for Harriss assertion that he was fired before 24 hours were
up.11 Moreover, the evidence suggests that Wal-Mart opted to terminate Harriss
employment only after it received notice from the post office that Harris had refused to
accept the March 29 certified letter (even if that so-called refusal was based on a
misinterpretation of the reason that the letter was returned to Wal-Mart by the post office).
(See Lander Decl. Exs. 22, 25.) Accordingly, Harris has failed to demonstrate that Wal-
Mart decided to terminate his employment before mailing the March 29 letter. He has
therefore failed to show that its proffered reason for his discharge is unworthy of
12 Harris also points to a stay remark purportedly made by McNulty when he advised her of his
injury on January 25, 2006: Good luck getting workers compensation benefits. This statement
cannot reasonably be perceived as evidence of any animus on McNultys part. Indeed, she simply
could have been suggesting that it is hard for employees to obtain workers compensation benefits or
that such claims are difficult to prove. See Back, 335 F.3d at 792 (notes taken by plaintiff during
telephone call stating terminated over phone + youre on w/c-were having cutbacks + youre one of
the cutbacks insufficient to support retaliatory-discharge claim, because notes could reasonably be
viewed to suggest things other than animus by supervisor).
Harris also has failed to demonstrate that a retaliatory reason likely motivated Wal-
Marts decision to terminate his employment. The only evidence Harris can point to
linking his discharge and his workers compensation claim is the close proximity in time
between the two; this is simply not enough. See Back v. Danka Corp., 335 F.3d 790, 792
(8th Cir. 2003) (applying Minnesota law) (for purposes of prima facie case, employees
termination shortly after filing for workers compensation benefits was certainly some
evidence of causation, but [was] not sufficient standing alone) (emphasis added); Wolhart
v. Genuine Parts Co., Civ. No. 05-254, 2006 WL 839506, at *4-5 (D. Minn. Mar. 30,
2006) (Kyle, J.) (same).12
Based on the foregoing, and all the files, records, and proceedings herein, it is
ORDERED that Defendants Motion for Summary Judgment (Doc. No. 10) is GRANTED
IN PART and DENIED IN PART as follows:
1. The Motion is GRANTED as to Harriss retaliation claim, and Count 2 is
2. The Motion is DENIED as to Harriss claim under the Minnesota Drug and
Alcohol Testing in the Workplace Act (Count 1).
Dated: November 8 , 2007 s/Richard H. Kyle
United States District Judge


  What day were you injured?

  / /

  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall

  How have your injuries affected

  your life?


  What kinds of medical care
  professionals have you seen?


  What has your treatment cost?


  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



          By visiting this page or clicking the
  "submit" button above, you agree
  that you have read and accept this   "disclaimer".
Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.