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Erickson v. Canadian Pacific Ry.: US District Court : EMPLOYMENT - evidence of animus, pretext for FMLA claim

Benjamin Erickson,
Civil No. 06‐3734
Canadian Pacific Railway,
John A. Fabian and Charles G. Frohman, Nichols Kaster & Anderson, PLLP
for and on behalf of Plaintiff.
Thomas J. Conley and Rebecca L. Neubauer, Leonard, Street and Deinard,
P.A. for and on behalf of Defendant.
Plaintiff was an employee of Defendant Canadian Pacific Railway d/b/a
Soo Line Railroad (“Soo Line”) from March 2002 until March 3, 2006. Plaintiff
filed this action, asserting claims under the Family Medical Leave Act, 29 U.S.C. §
2615 (“FMLA”), and the Americans with Disabilities Act, 42 U.S.C. § 12112(a)
Currently before the Court is Soo Line’s motion for summary judgment.
Factual Background
Plaintiff began working for Soo Line in March 2002 as a freight conductor.
In February 2005, Plaintiff’s mother became seriously ill, and he was granted
intermittent FMLA leave from March 25 to September 24, 2005 to allow him to
take care of her. In April 2005, Plaintiff was also granted intermittent FMLA
leave for his own health issues ‐ his depression and check‐ups regarding an
earlier bout of skin cancer.
In June 2005, Plaintiff was accepted to the student engineer training
program. This program includes classroom and field training, and is designed to
be completed in 26 weeks. To graduate from the program, all students must
complete all necessary paperwork, successfully take written and simulator
exams, and pass a final qualification ride. Saladin Aff. ¶ 5. The paperwork
required of students consisted of daily evaluation forms, filled out by
experienced engineers that have completed a training run with the student, and
time slips which document the date, time, train number and supervising engineer
for each ride. This paperwork was to be turned in on a weekly basis.
Plaintiff began classroom training on June 26, 2005, and successfully
passed the required tests during the three weeks allotted. Neubauer Aff. Ex. A.
Thereafter, Plaintiff began the on‐the‐job training (“OJT”) portion of the program,
and his supervisor was Norbert Denzer. Denzer was new to this position when
Plaintiff began OJT.
Shortly after beginning OJT, Plaintiff began to experience some problems.
For example, during a qualifying run on October 18, 2005, Plaintiff experienced
difficulty stopping the train at an intersection where a vehicle was waiting.
Neubauer Aff., Ex. E. Although disputed by Plaintiff, Soo Line asserts that
Plaintiff wasn’t submitting his time slips and daily evaluation sheets on a timely
basis. Id. Denzer Dep. 26‐27. In a letter dated January 6, 2006, Soo Line informed
Plaintiff that because he “failed to follow [his] supervisor’s instructions . . . your
Student Locomotive Engineer Certificate is suspended until you provide [your
supervisor] with the required documents.” Neubauer Aff., Ex. F. Plaintiff caught
up on his paperwork, and resumed training on January 10, 2006. Denzer Dep. 70;
Saladin Dep. 73.
As Plaintiff started the engineer training program on June 25, 2005, he
should have completed the training program twenty‐six weeks later, on or about
December 30, 2005. Erickson Dep. 12; Denzer Dep. 66. During that time period,
however, Plaintiff had taken leave, due to personal health issues, and his
mother’s illness and death on September 11, 2005. Accounting for those days,
Soo Line calculated that Plaintiff should complete his training by February 16,
2006. Denzer Dep. 139.
During a qualification check on January 25, 2006, Plaintiff again exhibited
numerous problems. Neubauer Aff., Ex. G. The comments on his evaluation
sheet for this run noted “poor handling on BN hill”, “too fast in restricted speed
at Paynesville”, “poor with air on BNSF hill”, “lost focus in restricted speed at
Paynesville” and “did not respond in timely manner when instructed to slow in
restricted speed.” Id. Soo Line asserts that despite reminders and special
instructions to Plaintiff to address his specific issues, and knowing that he was
scheduled for his final qualifying trip on February 16, 2006, Plaintiff failed to
report to work on February 4, 5, 6, 7 and 9, 2006. Erickson Dep. 65‐66, 68‐69 and
72. He attended a rules class on February 8, 2006 rather than take a training run.
Erickson Dep 68. Plaintiff is also alleged to have failed to notify Denzer that he
was not working those days. Erickson Dep. 68‐69, 72; Frohman Aff., Ex. 25.
Plaintiff and Denzer did speak on February 10, 2006, at which time Plaintiff
told Denzer that he had not been called by the crew management center (“CMC”)
for a train on February 5, 2006. Frohman Aff, Ex. 25; Neubauer Aff., Ex. H.
Denzer later learned that Plaintiff had not been assigned to the train because
Plaintiff had called in sick earlier in the evening. Id. Plaintiff was suspended on
February 10, and disqualified from the program on February 17, 2006. Denzer
Dep. 102; Neubauer Aff, Ex. H.
The asserted bases for the disqualification were: 1) his repeated failure to
turn in copies of his time slips and daily evaluation sheets; 2) his failure to work
from February 6 ‐ 10, 2006, and 3) his misrepresentation to Denzer about the
reason he was not called by the CMC on February 5, 2006. Neubauer Aff., Ex. H.
Because of the disqualification, the applicable collective bargaining agreement
prohibited Soo Line from returning Plaintiff to his previous position as a
conductor. Neubauer Aff., Ex. I. His employment was therefore terminated.
Summary judgment is appropriate if, viewing all facts in the light most
favorable to the non‐moving 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 party seeking
summary judgment bears the burden of showing that there is no disputed issue
of material fact. Celotex, 477 U.S. at 323. This burden can be met “by ‘showing’ ‐
that is , pointing out to the district court ‐ that there is an absence of evidence to
support the nonmoving party’s case.” Id. at 325. The party opposing summary
judgment may not rest upon mere allegations or denials, but must set forth
specific facts showing that there is a genuine issue for trial. Krenik v. County of
Le Sueur, 47 F.3d 953, 957 (8th Cir.1995).
The FMLA entitles an employee up to twelve weeks of leave due to the
employee’s own illness, or to care for a sick family member. 29 U.S.C. § 2612(a).
After taking such leave, the FMLA protects the employee’s right to return to the
same or an equivalent position, without loss of benefits. 29 U.S.C. § 2614(a).
Under the FMLA, an employee can assert two types of claims: interference
and retaliation. In this case, Plaintiff has asserted both claims.
1. Retaliation
As indicated above, an employer cannot discriminate against its employees
for taking leave under the FMLA. Stallings v. Hussmann Corp., 447 F.3d 1041,
1051 (8th Cir. 2006). The elements of a prima facie case are: 1) that the plaintiff
exercised rights under the FMLA; 2) he suffered an adverse employment action;
and 3) a causal connection between the two. Kipp v. Missouri Highway &
Transp. Comm’n, 280 F.3d 893, 897 (8th Cir. 2002).
Soo Line argues that summary judgment in its favor on this claim is
appropriate as there is no evidence of a causal connection between Plaintiff’s
termination, and his taking leave under the FMLA. Temporal proximity alone is
not sufficient. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999).
Plaintiff has presented evidence of discriminatory remarks by his
supervisors which raises genuine issues of material fact as to a causal connection
between Plaintiff’s suspension and eventual termination, and his taking FMLA
leave. For example, Plaintiff asserts that after he returned from bereavement
leave on September 18, 2005, Denzer asked him if he was finally done with the
FMLA. Plaintiff Dep. 136, Plaintiff Aff. ¶ 5. When Plaintiff replied no, Denzer
appeared irritated and stated Plaintiff was running out of time to complete his
training, and that it would not be wise to take more leave. Id.
Plaintiff also asserts he was suspended on January 6, 2006 not because he
did not turn in his time slips, but because he did not provide Denzer with an
accounting of his FMLA leave, as is evidenced in an email from Denzer to
Saladin. Plaintiff Ex. 11.
On January 7, 2006, Plaintiff provided Denzer with all the FMLA
information he could find, and confided that he suffered from depression and
ADHD. Frohman Ex. 13 and 14; Erickson Dep. 20‐21. Denzer asked Plaintiff if he
took medication, and if he wished to quit his job. Erickson Dep. 22, Frohman
Aff., Ex. B, resp. 5. Plaintiff said no, and Denzer suggested he take a few more
days to think about it. Plaintiff Dep. 24.
Plaintiff further asserts that later, he learned that Denzer had contacted
Mike Kirkeberg with the Employee Assistance Program (“EAP”). Mr. Kirkeberg
recalls that Denzer asked him general questions about ADHD, and specifically
asked questions about Plaintiff filling out time sheets. Kirkeberg Dep. 17‐21.
When he learned the phone call was specifically about Plaintiff, Kirkeberg
testified that he ended the conversation. Id. 21‐22. Plaintiff testified that
Kirkeberg had informed him of Denzer’s phone call, and that during said call,
Denzer had asked if Plaintiff’s ADHD would be grounds for disqualification.
Erickson Dep. 50‐52.
Plaintiff further asserts that prior to receiving the probationary warning
letter dated January 6, 2006, he was unaware that the basis for his suspension was
his failure to provide paperwork other than the FMLA documents. Erickson
Dep. 31. He further asserts that prior to that time, he was not aware that he
should be turning in his time slips and daily evaluations more frequently than
what he was doing. Id.
The Court further finds there are genuine issues of material fact concerning
Soo Line’s articulated business reason for its decision to disqualify Plaintiff from
the engineer training program may be pretextual. With regard to his absence
during the early part of February, Plaintiff asserts that he reported to work on
February 4, 2006, but that the CMC released the crew from the job and they did
not go out. Plaintiff Ex. 13 ¶ 7. Plaintiff fell sick later that day, and notified the
CMC. Id.; Plaintiff Dep. 66‐67. He did not work on February 5 due to illness, but
he did report to work on February 6, 2006. Plaintiff told Denzer he had been out
sick, and that same day the CMC failed to call Plaintiff on an assignment.
Plaintiff Ex. 13 ¶ 10; Plaintiff Dep. 66, 78. Plaintiff was set to go out with the west
side crew on February 7, 2006, but the CMC called Plaintiff that morning and told
him to attend a mandatory rules class on Wednesday, Feb. 8. Plaintiff Dep. 68.
Plaintiff attended the rules class on February 8, and the crew he was assigned to
go out with did not return until the next day, February 9, 2006. Plaintiff Ex. 13, ¶
7. This same crew was scheduled to go out again on February 10, 2006. Id.
Before setting out on his scheduled trip on February 10, Plaintiff went to
speak with Denzer in his office. Id. ¶ 8. He asserts that he wanted to check with
Denzer whether he was still on track for marking up as an engineer, even though
he was sick earlier in the week. Id. Plaintiff asserts that after operating a train all
day on February 10, he was informed that he had been suspended from service.
Id. ¶ 12. When Plaintiff returned to the St. Paul yard later that night, he was
escorted off the property by the yard manager, Mark Kirkpatrick, and was told
that Soo Line can’t “keep catering” to employees who have FMLA issues.
Plaintiff Aff. ¶ 8. Mr. Kirkpatrick also allegedly said that as Plaintiff was in
trouble, “the company did not want me to ‘fall in the parking lot’ or ‘walk in
front of a train.’” Plaintiff Ex. 2.
Plaintiff asserts that after he was suspended in February, he provided Soo
Line a letter rebutting each basis for suspension. Plaintiff Ex. 13. In response to
that letter, Saladin sent an email to Plaintiff’s EAP representative and other
managers, noting
I do have some concerns about his reference to FMLA in his letter,
however, note in my letter, I never made an issue of his time off for lack of
documentation regarding the FMLA. I see also he made comments about
problems at home, health issues, etc. and ADHD. I take his discussion on
these items as personal problems and a distraction to the real issues here
that I raised in my letter.
Plaintiff Ex. 30. Plaintiff argues that the personal problems Saladin referred to
are presumably the illness and death of his mother, his divorce, loss of custody of
his children and his ADHD and depression. These aren’t distractions, they are
part of the reason Plaintiff took FMLA leave. Saladin’s dismissal of the reasons
behind Plaintiff’s FMLA leave shows discriminatory animus in the decisional
process to terminate his employment.
The manner in which he was disqualified further raises genuine of issues
as to pretext. Soo Line pulled Plaintiff from service days before his final
qualification ride. If he had been allowed to take this final test, he would either
have been promoted to engineer if he passed, or he could have returned to the
conductor job if he failed. By not allowing him to take the test, however, Plaintiff
had to be terminated. From these facts, a jury could reasonably infer a
discriminatory intent on the part of Plaintiff’s supervisor’s. Accordingly,
summary judgment on this claim is inappropriate.
2. Interference claim
The elements of an interference claim are that Plaintiff was entitled to
FMLA leave, and that Soo Line unlawfully interfered with that leave. Bacon v.
Hennepin County Med. Ctr., 2007 WL 4373104 * 4 (D. Minn. Dec. 11, 2007). Soo
Line asserts that summary judgment is appropriate as Plaintiff cannot
demonstrate that Soo Line interfered with his right to take FMLA leave. By
Plaintiff’s own admission, Soo Line granted every FMLA request Plaintiff made.
Discouraging an employee from using FMLA leave constitutes interference
with the employee’s FMLA rights. 29 C.F.R. § 825.220(a); Stallings, 447 F.3d at
1050. Plaintiff asserts that he has submitted evidence that Soo Line discouraged
his rights to take leave under the FMLA, such as Denzer asking Plaintiff if he was
done taking FMLA leave.
Plaintiff further asserts that Soo Line interfered with his FMLA rights by
holding him out of service until he turned over FMLA documentation. It was
Soo Line’s responsibility for making and preserving records pertaining to their
obligations under the FMLA, however, and Soo Line did not do so. As of March
1, 2006, Soo Line did not have FMLA leave recorded for Plaintiff after October 1,
2005 although Plaintiff had taken leave after that date. Plaintiff Exs. 34 and Ex. 32.
The Court agrees that genuine issues of material fact exist as to whether
Soo Line interfered with Plaintiff’s rights under the FMLA. Summary judgment
as to this claim must also be denied.
2. ADA
The elements of a prima facie case of disability discrimination are: 1)
1In opposition to Defendant’s motion for summary judgment, Plaintiff does not argue
that he was regarded as having a disability. Accordingly, the Court need not address this issue.
Plaintiff is disabled as defined by the ADA; 2) he is qualified to perform the
essential functions of the job, with or without reasonable accommodation; and 3)
he has suffered an adverse employment action due to his disability. Pittari v.
American Eagle Airlines, Inc., 468 F.3d 1056, 1061 (8th Cir. 2006).
Soo Line asserts that Plaintiff does not have a disability as defined under
the ADA ‐ which requires a showing of “(A) a physical or mental impairment
that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or (C) being regarded as having such an
impairment.1” Ristrom v. Asbestos Workers Local 34 Joint Apprentice
Committee, 370 F.3d 763, 768 (8th Cir. 2004). To prove he is substantially limited
in a major life activity, Plaintiff must show that he is unable to perform, or is
significantly restricted in performing, an activity that the average person in the
general population can perform. Ristrom, 370 F.3d at 769.
The Ristrom decision is particularly instructive as the plaintiff in that case,
like Plaintiff in this case, argued that he was disabled under the ADA due to his
ADD and depression. The plaintiff had successfully completed two years of a
three year apprenticeship program. Ultimately, the plaintiff was not able to
complete the third year of the program, as he was having continued problems
passing tests and completing course work. In response to his argument that his
ADD and depression substantially limited him in the major life activity of
learning, the Eighth Circuit noted that ADD and depression are not disabilities
per se under the ADA. Ristrom, 370 F.3d at 769. The court further held that
evidence that the plaintiff had graduated high school and had successfully
completed the first two years of the apprenticeship program while working at a
full time job demonstrated that the plaintiff was not substantially limited in the
major life activity of learning, as compared to the average person. Id.
“Employees who fail to learn or learn at a slower pace do not automatically
qualify for protection under the ADA. Instead, the ADA protects only those
individuals who present reliable evidence proving a physical or mental
impairment that substantially limits their ability to learn as compared to the
average person.” Id. See also, Leisen v. City of Shelbyville, 153 F.3d 805, 808 (7th
Cir. 1998) (finding that just because the plaintiff had difficulty passing a course
“does not show she was substantially limited in a major life activity of learning,
any more than the fact that a particular individual might not be able to pass a
course in physics or philosophy would allow an inference that all learning
activity was substantially limited.”)
The Court finds that the Plaintiff in this case has also failed to present
evidence that his ADHD and depression substantially limit his ability to
concentrate. The record shows that Plaintiff completed high school, some college
courses, passed the conductor training program and the classroom portion of the
engineer training program, demonstrating that Plaintiff is able to succeed at tasks
despite his ADD and depression. Furthermore, the record shows that during
engineer training, Plaintiff’s mother passed away and he was going through a
divorce. Given this evidence, Plaintiff would have to show that his
ADD/depression, as opposed to his other personal issues, caused him to have
problems during training. Ristrom, at 770. Plaintiff has not done so, however.
With regard to his trouble sleeping, Plaintiff must demonstrate that his
sleeping patterns are significantly different from the rest of the population. Rask
v. Presentus Medical Care North Am., Civ. No. 05‐1267 (ADM/RLE) 2006 WL
3060143 at * 11 (D. Minn. Oct. 26, 2006) aff’d 509 F.3d 466 (8th Cir. 2007). The
Eighth Circuit determined that evidence that a plaintiff could only sleep two or
three hours at a time, for a total of four to five hours per night, is not sufficient to
show sleeping patterns different from the rest of the population. Nuzum v.
Ozark Auto Distrib., Inc., 432 F.3d 839, 848 (8th Cir. 2005). As in Nuzum, Plaintiff
has only demonstrated that he has trouble sleeping. Plaintiff has not presented
the Court any evidence demonstrating that his sleeping patterns are significantly
different from the rest of the population.
The Court further finds that Plaintiff has not demonstrated that he has a
record of a disability. To establish that a plaintiff has a record of a disability, he
must show “‘a record relied on by an employer indicates that the individual has
or has had a substantially limiting impairment.’ In other words, the record must
show an impairment that satisfies the ADA.” EEOC v. Automatic Systems Co.,
169 F. Supp.2d 1001, 1006 (D. Minn. 2001) (citations omitted). As discussed
above, there is no record that Plaintiff suffers from a substantially limiting
As Plaintiff has failed to raise a genuine issue of material fact that he is
disabled as defined in the ADA, summary judgment as to Plaintiff’s ADA claim
is appropriate.
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment
[Doc. No. 23] is GRANTED in part and DENIED in part. Count II of the First
Amended Complaint is hereby DISMISSED WITH PREJUDICE.
Date: April 9, 2008
s / Michael J. Davis
Michael J. Davis
United States District Court
Civil No. 06‐3734


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