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McLain v. Andersen Corp.: US District Court : EMPLOYMENT - seeing employee as unable to do just one specific job isn't regarding them as disabled

1 On a motion for summary judgment, the Court views the evidence in the light most
favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Kerry McLain,
Plaintiff,
MEMORANDUM OPINION
v. AND ORDER
Civil No. 06-4389 ADM/JSM
Andersen Corporation,
a Minnesota corporation, and
Andersen Distribution, Inc.,
a Delaware corporation,
Defendants.
______________________________________________________________________________
Charles L. Friedman, Esq., Friedman Law Office, Minneapolis, MN, argued on behalf of
Plaintiff.
David M. Wilk, Esq., Larson King, LLP, St. Paul, MN, argued on behalf of Defendant.
______________________________________________________________________________
I. INTRODUCTION
On February 29, 2008, the undersigned United States District Judge heard oral argument
on Plaintiff Kerry McLains (McLain) Motion for Partial Summary Judgment [Docket No.
128] and Defendants Andersen Corporation and Andersen Distribution, Inc.s (collectively,
Andersen) Motion for Summary Judgment [Docket No. 78]. For the reasons set forth herein,
McLains Motion is denied and Andersens Motion is granted.
II. BACKGROUND1
A. McLains Employment at Andersen
In 1998, McLain began employment as a truck driver in Andersens Brooklyn Park,
Minnesota, facility. McLain Dep. (Jan. 15, 2008, Wilk Aff. [Docket No. 126]) Ex. 1 at 23.
2
From March 2006 to April 2007, the time period relevant to this litigation, Senior Line
Supervisor John Mathias (Mathias) supervised the drivers and shipping office personnel at
Andersens Brooklyn Park facility. Mathias Dep. (Jan. 15, 2008, Wilk Aff. Ex. 15) at 8-10.
Mathiass direct supervisor was Plant Manager Tom Rustad (Rustad). Id. Rustad reported to
Center Manager Stephen French (French). Mathias Dep. at 10; French Dep. (Jan. 15, 2008,
Wilk Aff. Ex. 14) at 8-10.
McLain is licensed to drive Class B trucks, trucks shorter than twenty-six feet in length.
French Dep. at 66-67. Until late March 2006, McLains job was primarily to drive Class B
trucks to Home Depot stores and unload Andersens products, such as windows and patio doors,
onto flat loading docks. McLain Dep. at 53-54. McLain occasionally delivered Andersens
products to lumberyards and job sites. Mathias Dep. at 28; French Dep. at 87-88. A job site is a
new home or commercial construction site. McLain Dep. at 51. Because job sites do not have
flat loading docks, the driver must carry products down an inclined ramp extending from the
truck to the ground. Id. at 51-52. The driver is often required to carry products across uneven
terrain before placing them at the job site. Id. at 51-52.
In March 2006, as part of a nationwide initiative to reduce fuel costs and improve
delivery times to Home Depot stores, French, Rustad, and Mathias decided to use only longer
Class A vehicles, such as semi tractor-trailers, for deliveries to Home Depot stores. French Dep.
at 93-95; Mathias Dep. at 27-28. Mathias informed the Brooklyn Park drivers of the changes
and modified their delivery routes accordingly. Mathias Dep. at 30. In late March or early April
2006, Mathias and McLain discussed the scheduling changes. Id. at 46. Mathias discussed the
possibility of McLain obtaining a Class A license to drive a potential evening shift to Home
3
Depot stores, but McLain declined because of family responsibilities. Mathias Dep. at 46, 153-
54; McLain Dep. at 64. McLain told Mathias that the change to Class A trucks would not be
cost-efficient. McLain Dep. at 63-66. McLain claims Mathias responded that drivers who
disagreed with the changes could hit the fucking road. Id. at 67.
Beginning in late March or early April 2006, McLain began making deliveries
exclusively to lumberyards and job sites. Id. at 71. Because of an injury he had suffered in
August 1985, McLain experienced pain in his right knee when he carried products down his
truck ramp and on uneven surfaces at job sites. Id. at 71-72. In 1987, Dr. Philip Haley (Dr.
Haley), an orthopedic physician, had diagnosed McLains 1985 knee injury as a permanent
three-percent impairment to the body. Jan. 15, 2008, Wilk Aff. Ex. 6. Neither Mathias nor
anyone else at Andersen was aware of McLains preexisting knee injury. McLain Dep. at 67.
On May 4, 2006, McLain consulted with Dr. William Fox (Dr. Fox), who signed a
report of work ability stating that McLain would be unable to work until he consulted with an
orthopedic doctor. Jan. 15, 2008, Wilk Aff. Ex. 2. Dr. Foxs report listed the following
restrictions: No lifting. No [s]quat. Id. Ex. 2. McLain faxed a copy of Dr. Foxs report to
Brenda Sandwick (Sandwick) in Andersens human resources department and he personally
delivered a copy to Rustad on May 5. McLain Dep. at 72.
On May 10, 2006, Dr. Haley examined McLain and signed a report of work status stating
that McLain was temporarily disabled from any occupation. Jan. 15, 2008, Wilk Aff. Ex. 3. Dr.
Haley prohibited McLain from working until May 22. Id. Ex. 3.
On May 22, 2006, McLain returned to work and asked Mathias not to schedule him for
job-site deliveries because the increased angle of the truck ramp and the uneven surfaces caused
2 French investigated McLains allegations regarding employees improperly punching the
time clock and determined there was no violation. French Dep. at 114.
4
pain in his right knee. McLain Dep. at 81-84. Mathias responded that McLain would continue
to make job-site deliveries. McLain Dep. at 82-84. McLain continued to make job-site
deliveries and experienced pain in his right knee.
On May 25, 2006, McLain again consulted Dr. Haley. Jan. 15, 2008, Wilk Aff. Ex. 4.
Dr. Haley issued a report of work status imposing restrictions on McLains work for four weeks
starting May 22, 2006. Jan. 15, 2008, Wilk Aff. Ex. 4. Dr. Haley restricted McLain from lifting
more than twenty pounds and from repetitive walking. Id. Ex. 4. McLain faxed Dr. Haleys
report to Sandwick. 1st McLain Aff. [Docket No. 4] 40. Beginning May 26, 2006, Andersen
placed McLain on short term disability leave. Id. 44.
On June 19, 2006, Dr. Haley restricted McLain from returning to work until July 10. Jan.
15, 2008, Wilk Aff. Ex. 5. McLain remained on short term disability leave.
On July 10, 2006, McLain returned to work. McLain Dep. at 84. Mathias refused
McLains renewed request that he not be scheduled for job-site deliveries. 1st McLain Aff.
45-46. On August 3, 2006, McLain told French that the change to Class A truck delivery at
Home Depot stores was a mistake and McLain requested that he not be scheduled to make jobsite
deliveries. French Dep. at 111; McLain Dep. at 86. French denied McLains request.
French Dep. at 111. McLain also notified French that Mathias had used vulgar language in
March 2006, and that certain employees were improperly punching the time clock for other
employees. French Dep. at 111, 115.2 McLain told French that Andersens use of two trucks to
make a delivery to a single job site on August 2 was pathetic. French Dep. at 118. McLain
5
also stated that morale at Andersens Brooklyn Park facility was bad. French Dep. at 120.
French responded that other employees had complained about McLains poor attitude and that
McLain could look for another job if he was unhappy at the Brooklyn Park facility. Id. at 121,
123. McLain responded that he w[ould] leave on his terms when he is ready to leave and only
then. Id. at 124. McLain walked out of the meeting before French could respond. Id.
The following day, French explained to McLain that Andersen used two trucks to make
one delivery on August 2 because the deliveries would not fit on one truck. French Dep. at 126.
French then talked about McLains attitude and respect for others. French Dep. at 126. French
warned McLain that he must change his behavior and respect and obey his supervisors or
McLain would no longer work for Andersen. Id. During this meeting, McLain gave French a
December 11, 1987, report signed by Dr. Haley. McLain Dep. at 86; Jan. 15, 2008, Wilk Aff.
Ex. 6. The report listed August 23, 1985, as the date of injury, and it listed a three percent
impairment to the body. Jan. 15, 2008, Wilk Aff. Ex. 6. However, French refused to accept the
form because the patient name and address fields were blank. French Dep. at 99; McLain Dep.
at 86; Jan. 15, 2008, Wilk Aff. Ex. 6. French asked McLain how could this be yours without
your name on it[?] . . . [T]his is a form thats how old and youve been an employee for how
many years and why would we not have known about this before? French Dep. at 100.
McLain responded that the form had not previously been relevant to his employment at
Andersen. Id. McLain continued to make job-site deliveries. McLain Dep. at 87.
On August 10, 2006, Dr. Haley examined McLains knee and issued a report of work
status stating that McLains knee pain was related to his 1985 injury. Jan. 15, 2008, Wilk Aff.
Ex. 7. Dr. Haleys report indicated McLain was disabled permanently from [his] or any
6
occupation. Id. Ex. 7. However, the report also stated McLain was able to work but he was
permanently restricted from making job-site deliveries. Id. Ex. 7. McLain faxed Dr. Haleys
report to Sandwick in Andersens human resources department. Id. Ex. 8. Late in the afternoon
of August 10, Sandwick called McLain and asked him if he could do a run-off delivery on
August 11. Id. Ex. 8. Run-off deliveries are extra deliveries to lumberyards that are scheduled
when a delivery does not fit on a standard delivery truck. French Dep. at 66. McLain responded
that he could do a run-off delivery. McLain Dep. at 91. McLain completed run-off deliveries on
August 11, 14, and 15. 1st McLain Aff. 58.
Shortly after Andersen received Dr. Haleys August 10, 2006, report, French called
Human Resources Generalist James Olson (Olson) and Case Manager Deborah Hauble
(Hauble) to discuss McLains restrictions. 1st Olson Dep. (Jan. 15, 2008, Wilk Aff. Ex. 18) at
77-78; French Dep. at 129-30; Hauble Dep. (Jan. 15, 2008, Wilk Aff. Ex. 17) at 67. French,
Olson, and Hauble were unsure whether McLain could safely perform his job given his
restrictions. Hauble Dep. at 115; French Dep. at 132. On the afternoon of August 15, French,
Sandwick, and Rustad met with McLain. French Dep. at 130-33. French asked for and McLain
provided the 1987 report listing the three percent permanent disability. French Dep. at 130; 1st
McLain Aff. 62. French instructed McLain not to report to work until Andersen clarified his
restrictions. French Dep. at 132.
On August 16, 2006, Dr. Haley faxed Andersen a report of work ability. Jan. 15, 2008,
Wilk Aff. Ex. 9. Dr. Haleys report stated that: (1) McLain could rarely (defined as no more
than five percent of an eight-hour work day) squat or climb; and (2) McLain could occasionally
(defined as no more than thirty-three percent of an eight-hour work day) stand or walk. Jan. 15,
7
2008, Wilk Aff. Ex. 9. Dr. Haley commented that McLain can drive but he cannot deliver to
new home sites because of ramp angles and uneven surfaces. Id. Ex. 9. After receiving the
report, Hauble faxed Dr. Haley a list of follow-up questions to determine whether McLains
restrictions extended beyond new home sites. Hauble Dep. at 85; Jan. 15, 2008, Wilk Aff. Ex.
11. Dr. Haley responded that: (1) McLain could not tolerate increased ramp angles wherever
they occur; (2) McLain could not use his truck ramp unless it was horizontal or nearly so; and
(3) the term uneven surfaces on the August 16 report of work ability included uneven loading
docks, uneven walkways, uneven stairs, etc. Jan. 15, 2008, Wilk Aff. Ex. 11.
Based on these restrictions, Mathias, French, Olson, and Hauble determined that McLain
could not make deliveries because of the potential that a particular site would require use of the
truck ramp at an angle or would present uneven surfaces. Mathias Dep. at 60-61; French Dep. at
84-85; Hauble Dep. at 105-06. On August 16, 2006, Olson told McLain not to report to work on
August 17. Feb. 11, 2008, Wilk Aff. [Docket No. 134] Ex. 41. On August 17, Mathias told
McLain not to report to work on August 18. Id. Ex. 41.
In a letter dated August 18, 2006, McLain requested that Hauble initiate short term
disability benefits. Id. Ex. 41. McLain also inquired about returning to work. Id. Ex. 41. In an
August 21 letter, Hauble responded that McLains restrictions precluded him from performing
the essential functions of his position. Id. Ex. 16. Hauble notified McLain that he was eligible
for short term disability benefits and that she would file for long term disability benefits. Id. Ex.
16. Hauble stated that she would continue to explore return to work opportunities on an ongoing
basis and that McLain should contact her every two weeks. Jan. 15, 2008, Wilk Aff. Ex.
16. Andersen ultimately approved McLain for short term disability benefit effective August 18,
8
2006. As of that date, McLain had almost six months of short term disability benefits remaining.
1st Olson Dep. at 150-51.
By letter dated August 23, 2006, McLain urged that the restrictions imposed by Dr.
Haley did not prevent him from making deliveries to Home Depot stores and lumberyards. 1st
McLain Aff. Ex K. McLain requested that Andersen accommodate his disability by allowing
him to do run-off routes. Id. Ex. K.
In a letter of August 29, 2006, McLain asked Mathias about the availability of work that
would meet his restrictions. 1st McLain Aff. Ex. L. Mathias responded that no such work was
available. McLain Dep. at 115. By late August 2006, McLain was aware of a slowdown in the
new home construction industry that was affecting Andersens business. Id. at 115-16.
In an August 31, 2006, letter, McLain asked Hauble to explain her conclusion that his
restrictions precluded him from performing the essential functions of his job. 1st McLain Aff.
Ex. M. In a separate August 31, 2006, letter to Olson and Hauble, McLain asserted Andersen
was discriminating against him on the basis of disability, gender, and age. This includes what,
thus far, has been a refusal to accommodate my request [to drive run-off routes]. I also believe
that my disability . . . has been used by my supervisors against me for complaining about
company policy and practices and for requesting accommodation. Feb. 11, 2008, Wilk Aff. Ex.
42.
In a September 7, 2006, letter, Hauble acknowledged receipt of McLains August 18 and
August 31 letters. 1st McLain Aff. Ex. O. Hauble reiterated that McLain could not perform the
essential functions of his job because of his restrictions. Id. Ex. O. Hauble stated Andersen did
not have work available within McLains restrictions. Id. Ex. O. Hauble informed McLain that
9
she would contact him by phone if work became available. Id. Ex. O.
On September 11, 2006, McLain faxed Hauble a September 5, 2006, letter from Dr. Fox
and a September 8, 2006, letter from Dr. Haley. Id. Exs. Q-S. Dr. Fox wrote that McLain
tolerates more consistent sites such as Home Depot stores and other sites with loading docks.
Id. Ex. Q. Dr. Haley reached a similar conclusion:
[McLain] tolerates the use of loading docks at places like Home Depot,
lumberyards and the like. Where the problem arises is job sites where loading
and unloading areas are improvised, irregular in contour and the like.
Consequently, he and Dr. Fox and I are hoping that you will be able to
accommodate a situation that I have just described where he can deliver to places
which have more permanent and standardized loading and unloading areas. . . . I
know terms [such as] regular and the like are open to interpretation but I am
hoping I am getting my point across to you.
Id. Ex. R.
On September 12, 2006, Olson reiterated to McLain that he could not safely perform his
job duties. Id. 121. McLain complained that Andersen had accommodated other employees in
the past. Id. Ex. T. Olson responded that Andersen accommodated the other employees because
other jobs were available for them, whereas Andersen did not have any jobs available that met
McLains restrictions. Id. Ex. T.
On September 15, 2006, Olson informed McLain that a Class A truck run to Iowa might
satisfy his restrictions because it was mostly driving. Id. 136, Ex. U. Later that day, McLain
wrote a letter to Olson and Hauble requesting that Hauble identify in writing the jobs she thought
McLain was qualified for. Id. Ex. T.
In a September 20, 2006, letter, Olson notified McLain that Mathias denied using a
profanity in his March 2006 conversation with McLain about the scheduling changes. Id. Ex. U.
Olson stated that he had reiterated with both Mathias and French that the use of profanity in the
3 Haubles reference to the on-site job analysis refers to an analysis performed by Olson,
French, and Mathias of time records to determine how many, if any, delivery routes complied
with McLains restrictions. French Dep. at 152; Mathias Dep. at 90; Hauble Dep. at 159; 1st
Olson Dep. at 119-20. Hauble testified that they did not find a route that satisfied McLains
restrictions. Hauble Dep. at 46.
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workplace was unprofessional and unnecessary. Id. Ex. U. Regarding McLains allegation of
discrimination, Olson stated that unfortunately Andersen cant always reasonably accommodate
every medical condition and while some associates with restrictions have returned to work,
others have not. Id. Ex. U. Finally, Olson confirmed that a truck run to Iowa might work with
McLains medical restrictions, but McLain would need to upgrade to a Class A drivers license.
Id. Ex. U.
In a September 21, 2006, letter, Hauble explained to Dr. Fox and Dr. Haley that despite
their respective September 5 and September 8 letters, she had concluded that McLain could not
perform the essential functions of his Driver/Warehouse Associate I position:
Considering Mr. McLains primary job duties involve driving and
frequent deliveries, it is unreasonable to accommodate his restriction of No Job
site Deliveries. Based on our On-Site Job Analysis, for the Driver/Warehouse I
position, essential functions include[:] frequent standing, walking, very heavy
lifting, pushing and pulling and occasional squatting and climbing. Our drivers
often stand and walk 35 to 75% of their shift. As a result, Mr. McLains
permanent restrictions preclude him from performing one or more of the essential
functions of the Driver/Warehouse I position.
Id. Ex. V.3 Hauble stated that she would continue to explore alternative job options that matched
McLains physical capabilities. Id. Ex. V.
On September 29, 2006, McLain faxed to Hauble a cover letter attaching September 28,
2006, medical reports in which Drs. Fox and Haley revised their restrictions. Id. Exs. W-Y. Dr.
Fox reported that McLain could occasionally squat and frequently (up to sixty-six percent of an
11
eight-hour work day) bend, twist, climb, drive, sit, stand, walk, push, pull, reach over his
shoulder, and reach to his front and side. Id. Ex. W. Dr. Haleys report stated that McLain could
occasionally squat and climb, and he could frequently stand and walk. Id. Ex. X. Both doctors
noted that McLain still could not do job-site deliveries. Id. Exs. W-X. McLains cover letter
noted that [b]oth of my doctors say that I am able to return to work as a truck driver, delivering
to Home Depot, to lumber yards, and to complete run-off deliveries, as I had done well for over
8 years. Id. Ex. Y. McLain also requested all the job descriptions for Andersen employees
working in Minnesota. Id. Ex. Y.
Hauble reviewed Dr. Foxs and Dr. Haleys September 28, 2006, reports and concluded
that McLain still could not perform job-site deliveries, which Olson, French, and Mathias
considered an essential function of McLains position. Hauble Dep. at 187. Hauble testified that
because she did not have access to all of Andersens job descriptions, she relied on Olson to
provide the descriptions to McLain. Hauble Dep. at 216-17. Olson testified that Hauble never
asked him to send job descriptions to McLain. 1st Olson Dep. at 42-43. Neither Olson nor
Hauble ever sent job descriptions to McLain.
On September 29, 2006, McLain contacted Mathias and Hauble to discuss the possibility
of on-the-job training for a Class A license. McLain Dep. at 136-37. McLain, who had obtained
his Class A learners permit on September 7, 2006, explained that he believed Andersen had
provided on-the-job training for other employees. 1st McLain Aff. 155-160, 165. Mathias
said he would discuss on the-job-training with French. Id. 161.
On October 2, 2006, Hauble asked McLain for an updated resume. McLain Dep. at 138.
Prior to that time, Hauble had focused exclusively on finding truck-driving work for McLain
12
because McLain kept telling [her] he wanted to go back to work as a truck driver. Hauble
Dep. at 194. Based on McLains inquiries in late September regarding the availability of other
positions, and based on the decrease in demand for Andersens products, Hauble expanded her
search to encompass other jobs at Andersen. Id. Hauble regularly reviewed Andersens intranet
for job postings of suitable positions, but she never found an open position that she thought
McLain would qualify for. Hauble Dep. at 26. Hauble explored the possibility of cross
training McLain to work at a different position, but French, Olson, and Mathias reported that no
openings were available in other positions. Hauble Dep. at 147.
On October 6, 2006, Mathias informed McLain that Andersen required its drivers to go to
training school to obtain a Class A license. McLain Dep. at 139-40; Jan. 15, 2008, Wilk Aff. Ex.
28. On October 10, 2006, Olson called McLain to discuss arranging a conference call between
Olson, Hauble, Haubles supervisor, French, and McLain to discuss possible jobs and review
McLains restrictions. McLain Dep. at 142; Jan. 15, 2008, Wilk Aff. Ex. 28. On October 11,
Mathias informed McLain that Olson had obtained the information regarding the Class A
training program. McLain Dep. at 143.
On October 13, 2006, Olson called McLain to discuss suitable times for the meeting.
Jan. 15, 2008, Wilk Aff. Ex. 31. McLain informed Olson that he had filed the instant lawsuit
and that Olson should speak to Andersens attorneys. Jan. 15, 2008, Wilk Aff. Ex. 31. Olson
and McLain did not discuss setting up the conference call. McLain Dep. at 146-48; Jan. 15,
2008, Wilk Aff. Ex. 31.
In a letter of October 19, 2006, McLain inquired whether Andersen would provide onthe-
job training for a Class A license. Jan. 15, 2008, Wilk Aff. Ex. 32. In a November 6, 2006,
13
letter, Olson stated that under Andersens fleet guidelines, McLain would need to successfully
complete a training program at a local school. Olson Aff. [Docket No. 12] Ex. 1. Olson noted
that Andersen would likely reimburse McLains tuition for such a program. Id. Olson cautioned
McLain that there was no guarantee that Andersen would have a job for him even if he obtained
his Class A license. Id. McLains return to work would depend on available work and any
restrictions that you have. Id.
At a November 22, 2006, meeting, Olson and French placed McLain on on-call status.
McLain Dep. at 155; 1st Olson Dep. at 138-39; 2d Olson Dep. (Jan. 15, 2008, Wilk Aff. Ex. 24)
at 126-27. Olson and French stated that they did not have any driving positions that satisfied
McLains medical restrictions. 1st Olson Dep. at 140-41. Olson and French also told McLain
that they did not have an open warehouse position. Id. Olson provided McLain with a copy of
Andersens fleet guidelines, which required a driver to attend formal training classes before
driving a Class A truck at Andersen. 1st Olson Dep. at 171; Feb. 19, 2008, Wilk Aff. [Docket
No. 140] Ex. 47. Olson and French stated that if a conflict arose between attendance at classes
for a Class A license and available work at Andersen, McLain would be expected to miss class
and come to work. 1st Olson Dep. at 140-41.
In a December 6, 2006, letter to Olson, McLain stated that Dakota County Technical
College in Rosemount, Minnesota, offered a day class and a night class. Jan. 15, 2008, Wilk
Aff. Ex. 36. McLain explained that the sixteen-week night program, which consisted of fourhour
classes beginning at 5:00 p.m. on weekdays, was impractical because if Andersen had work
for him, he could not return his truck to the Brooklyn Park facility and arrive in time for
4 Olson testified that he, French, and Mathias had told McLain that if work became
available for him, they would try to manage McLains schedule so that he could attend the night
class. 2d Olson Dep. at 144-45. McLain does not recall such a discussion. McLain Dep. at 160.
14
mandatory class sessions. Id. Ex. 36.4 McLain also stated that it would be too difficult to work
a full day and attend class at night. Id. Ex. 36. McLains letter also discussed an eight-week
day class beginning on January 8, 2007. Id. Ex. 36. McLain asked that Andersen place him on
paid leave while he attended day class. Id. Ex. 36.
In a December 11, 2006, letter, Olson responded that Andersen does not have a program
that pays regular wages while an associate[] attends classes [of] this sort. Id. Ex. 37. Olson
testified that Andersen has never paid wages or short term disability benefits to employees who
are not available for work because they are in school. 1st Olson Dep. at 156-57.
In letters dated December 15 and 22, 2006, McLain repeated his request that Andersen
agree not to call him into work if he signed up for the day class. Id. at 155, 161-62. By letter
dated January 2, 2007, Olson stated that McLain could take an unpaid leave of absence if he
wished to take the day class. Id. at 164-65. Olson asserted that [t]he entire time you have been
on short-term disability, since late summer, you have been free to sign up for one of the
programs needed to advance your skills. Id. at 164.
In a letter dated January 8, 2007, McLain responded that November 22, 2006, was the
first time that anyone at Andersen told him that he would need to take a training course to obtain
his Class A license. Id. at 166-68. McLain explained that he had decided not to register for the
day class because he could not risk losing his tuition payment if Andersen required him to miss
class and report to work. Id. at 168-69. McLain also stated that he could not take an unpaid
leave of absence because he would not have any income while his short term disability benefits
15
were suspended. Id. at 169. McLain concluded by stating that [u]nder either plan there is no
guarantee that work would be available to me or that my tuition would be reimbursed. That is
another reason why I did not register for the course beginning today. Id.
On January 18, 2007, McLain told Olson that Andersens insurance carrier denied his
claim for long term disability benefits. 1st Olson Dep. at 174. Olson responded that he hoped
Andersen could return McLain to work before his short term disability benefits ended in
February. Id. at 174-75. McLain asked for information regarding the inception of Andersens
fleet guidelines. Jan. 15, 2008, Wilk Aff. Ex. 34. Olson responded that he believed the fleet
guidelines came out in the fall of 2006. Id. Ex. 34.
In a February 7, 2007, letter, Olson repeated the information he provided McLain during
their January 18 conversation. Jan. 15, 2008, Wilk Aff. Ex. 34. Olson also informed McLain
that under Andersens disability protection program, if you have exhausted your STD and your
LTD claim has been denied, the associate is eligible to continue on a leave for up to two months
while he/she attempts to return to work or appeal the LTD claim. Id. Ex. 34. At the end of the
two months, Andersen would terminate McLains employment. 1st Olson Dep. at 176.
McLains short term disability benefits ended on February 12, 2007. 1st Olson Dep. at
178. On February 15, McLain requested that he be placed on leave. Jan. 15, 2008, Wilk Aff.
Ex. 30. Olson granted McLains request. Id. Ex. 30. Olson and McLain discussed that
Andersen would make a reasonable accommodation for McLain if it could do so. Id. Ex. 30.
Olson informed McLain that Andersen was laying off employees and there were no open or
regular positions available at Andersens Brooklyn Park facility. Id. Ex. 30. Olson and McLain
agreed that McLain would remain on an on-call status, and he would call Mathias on the first of
16
each month to inquire about available work. Id. Ex. 30.
In an April 12, 2007, phone conversation, French, Mathias, Hauble, and Olson discussed
whether work would be available for McLain in the foreseeable future. Id. Exs. 38-39. French
and Mathias stated that they did not foresee that any work would be available for McLain. Id.
French and Mathias reported that they could not make a reasonable accommodation for McLain
without terminating another employee. Id. Ex. 39. In a letter dated April 17, 2007, Olson
informed McLain that Andersen was terminating his employment because two months had
elapsed since his benefits expired, and Andersen still did not have available positions within
McLains restrictions. Id. Ex. 35.
B. Procedural History
On October 13, 2006, McLain filed this litigation in state court. His initial Complaint
asserted claims under the Minnesota Human Rights Act (MHRA), Minn. Stat. Ch. 363A, for
failure to accommodate, interference with age and pension benefits, age discrimination, sex
discrimination, disability discrimination, and discriminatory reprisal. McLain also asserted a
claim of common law misrepresentation.
On November 2, 2006, Andersen removed McLains action to federal court under 28
U.S.C. 1441 alleging that McLains claim of interference with age and pension benefits was
completely preempted by the Employee Retirement Income Security Act of 1974 (ERISA), 29
U.S.C. 1001-1461. Notice of Removal [Docket No. 1]. Andersen asserted this Court had
federal question jurisdiction under 28 U.S.C. 1331 over McLains ERISA claim, and
supplemental jurisdiction under 28 U.S.C. 1367 over McLains other claims. McLain did not
oppose removal of the action to federal court on the basis of federal question jurisdiction.
17
On November 16, 2006, the Court denied McLains Amended Motion for a Preliminary
Injunction [Docket No. 5] ordering Andersen to return him to work.
On March 6, 2007, the Court granted Andersens Motion for Partial Summary Judgment
[Docket No. 24] on McLains failure-to-accommodate claim. Mar. 6, 2007, Order [Docket No.
37]. The Court determined that McLains failure-to-accommodate claim failed as a matter of
law because he conceded he is not actually disabled under the MHRA. Compl. 21; Nov. 16,
2006, Hrg. Tr. [Docket No. 23] at 11-12.
On May 15, 2007, McLain filed an Amended Complaint [Docket No. 64] omitting the
ERISA-preempted claim of interference with pension benefits. On June 19, approximately a
month and a half before the then-applicable discovery deadline, McLain moved to remand this
matter to state court. Pl.s Mot. to Remand [Docket No. 67]; 1st Am. Pretrial Sched. Order
[Docket No. 56]. On July 19, the Court denied McLains Motion to Remand. July 19, 2007,
Hrg. Tr. [Docket No. 91] at 21-24. The Court determined that remand was discretionary under
28 U.S.C. 1367(c)(3), and that the mandatory remand provision of 28 U.S.C. 1447(c) did not
apply. Id. Given the advanced posture of the litigation, judicial economy was best served by
retaining jurisdiction in federal court. Id.
III. DISCUSSION
A. Standard of Review
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); see Matsushita Elec.
18
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for
summary judgment, the Court views the evidence in the light most favorable to the nonmoving
party. Ludwig, 54 F.3d at 470. The nonmoving party may not rest on mere allegations or
denials, but must demonstrate on the record the existence of specific facts which create a genuine
issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
B. McLains Remaining Claims
This Court has previously dismissed McLains MHRA failure-to-accommodate claim,
which is asserted in Count One of the Amended Complaint. McLain concedes that Andersen
should be granted summary judgment on the MHRA sex and age discrimination claims asserted
in Counts Two and Three of his Amended Complaint. Pl.s Mem. in Oppn to Def.s Mot. for
Summ. J. [Docket No. 137] at 1 n.1. McLains remaining claims are disability discrimination
and discriminatory reprisal under the MHRA, and misrepresentation under Minnesota common
law.
1. Disability Discrimination
The MHRA provides that [e]xcept when based on a bona fide occupational
qualification, it is an unfair employment practice for an employer, because of . . . disability to . . .
discharge an employee; or discriminate against a person with respect to hiring, tenure,
compensation, terms, upgrading, conditions, facilities, or privileges of employment. Minn. Stat.
363A.08, subd. 2. A person is disabled within the meaning of the MHRA if he (1) has a
physical, sensory, or mental impairment which materially limits one or more major life activities;
(2) has a record of such an impairment; or (3) is regarded as having such an impairment. Minn.
19
Stat. 363A.03, subd. 12. As discussed above, early in this litigation McLain conceded he does
not have an impairment that materially limits a major life activity. Additionally, McLain does
not argue that he has a record of such an impairment. Mem. in Oppn to Def.s Mot. for Summ.
J. [Docket No. 137] at 17-20. Thus, McLain is asserting solely a regarded as claim.
The parties agree that McLains disability discrimination claim should be analyzed under
the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
To establish a prima facie case of disability discrimination, McLain must show that: (1) he was
disabled within the meaning of the MHRA; (2) he was qualified to perform the essential
functions of his job, with or without a reasonable accommodation; and (3) he suffered an adverse
employment action because of his disability. Snow v. Ridgeview Med. Ctr., 128 F.3d 1201,
1206 (8th Cir. 1997). If McLain establishes a prima facie case, the burden of production shifts to
Andersen to articulate a legitimate, nondiscriminatory reason for its actions. Kiel v. Select
Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999). Once Andersen has done so, the burden
shifts back to McLain to present evidence that Andersens legitimate nondiscriminatory reason is
mere pretext. Id. The Court may look to federal case law under the ADA because courts
analyze ADA and MHRA claims under the same standard. Kammueller v. Loomis, Fargo &
Co., 383 F.3d 779, 784, 788 (8th Cir. 2004); Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d
707, 711 n.5 (8th Cir. 2003).
To show that Andersen regarded him as disabled, McLain must present evidence that
Andersen mistakenly believed that his knee injury substantially limits at least one major life
activity. Sutton v. United Airlines, 527 U.S. 471, 489 (1999). McLain argues that Andersens
decision to place him on short term disability leave in August 2006 demonstrates that Andersen
20
mistakenly believed his knee injury substantially limited his major life activity of working. Pl.s
Mem. in Oppn to Def.s Mot. for Summ. J. at 19. McLain also argues that Andersen did not
take into account that McLain was capable of doing many jobs at Andersens Brooklyn Park
facility, such as working in the shop and in the warehouse. Id. at 17.
To be regarded as substantially limited in the major life activity of working, one must be
regarded as precluded from more than a particular job. Murphy v. United Parcel Serv., Inc.,
527 U.S. 516, 523 (1999). A plaintiff must demonstrate that his employer regarded him as
unable to work in a broad class of jobs. Knutson v. Ag Processing, Inc., 394 F.3d 1047, 1052
(8th Cir. 2005). Measured against this standard, McLains regarded as claim fails as a matter
of law.
Andersen determined that McLains medical restrictions precluded him from performing
his specific Class B driving job, which required deliveries to lumberyards and job sites. McLain
does not cite any evidence that Andersen viewed him as unable to perform a broad class of
driving jobs or manual labor. Moreover, the record reflects that Olson and others at Andersen
believed McLain could perform delivery jobs that were mostly driving, such as the Class A
truck run to Iowa.
Similarly, McLains assertion that Andersen did not take into account that [he] was
capable of doing many jobs does not support his regarded as claim. Pl.s Mem. in Oppn to
Def.s Mot. for Summ. J. at 17. The evidence demonstrates that Andersen did not have any job
openings at the Brooklyn Park facility from August 2006 until McLain was terminated in April
2007. In December 2006, Andersens manufacturing facility laid off 400 employees. 1st Olson
Dep. at 190. By March 2007, Andersen reduced its number of Class B trucks from seven to five,
21
and Andersens Brooklyn Park facility had temporarily laid off seven of its fourteen shop
employees, ten of its twenty-four warehouse employees, and five of its fifteen drivers (including
McLain). Mathias Dep. at 146-47; French Dep. at 13, 25-26. Andersens failure to consider
McLain for filled positions is not evidence that Andersen regarded McLain as incapable of
performing those positions or a broad class of positions. McLains prima facie case fails because
he cannot show he was disabled as defined by the MHRA. Andersens Motion for Summary
Judgment on McLains disability discrimination claim is granted.
Assuming McLain could demonstrate a genuine issue of material fact concerning whether
Andersen regarded him as disabled, his regarded as claim still fails as a matter of law. On
August 15, 2006, McLain could not perform his Class B driving duties at Andersen unless
Andersen accommodated him by giving him work that did not include job-site deliveries.
Absent a duty to make a reasonable accommodation, Andersen did not violate the MHRA when
it placed McLain on disability leave and eventually terminated him because he could not perform
his job duties. See Weber v. Strippit, Inc., 186 F.3d 907, 910, 915-18 (8th Cir. 1999) (affirming
summary judgment for employer where employee who was regarded as disabled was denied an
accommodation and was terminated).
Arguing against this result, McLain contends that job-site deliveries were not an essential
function of his job at Andersen. However, the testimony is uncontroverted that Andersen
required its Class B drivers to make deliveries to job sites. Olson, Hauble, French, and Mathias
all testified that Andersen expected Class B drivers to make job-site deliveries. 1st Olson Dep.
at 67-68; Hauble Dep. at 31, 36; French Dep. at 87; Mathias Dep. at 155-56. Gary Solseth,
another Class B driver at Andersens Brooklyn Park facility, testified that job-site deliveries
22
were one of his job duties. Solseth Dep. (Jan. 15, 2008, Wilk Aff. Ex 21) at 22, 73. Kenneth
Snyder and Michael Jackson, two of Andersens Class A drivers, also testified that their jobs
require them to deliver to job sites. Snyder Dep. (Jan. 15, 2008, Wilk Aff. Ex. 22) at 148;
Jackson Dep. (Jan. 15, 2008, Wilk Aff. Ex. 19) at 29, 81.
In support of his argument that job-site deliveries were not an essential function, McLain
asserts that Andersens job description for a Commercial Vehicle Driver does not include any
reference that job-site deliveries are an essential function of the job. Pl.s Reply Mem. in Supp.
of Partial Mot. for Summ. J. [Docket No. 144] at 3. However, the job description contradicts
McLains argument because it states the job is [t]o transport and deliver freight by driving
gasoline or diesel powered tractor-trailer combinations. Destinations may include dealers,
distribution centers, and construction job sites. Feb. 19, 2008, Wilk Aff. Ex. 47 at 3 (emphasis
added).
McLain also avers that [b]ased on information and belief, truck driver Dan [Farrand] has
not made job site deliveries for many months, after requesting that he be taken off job site
deliveries. 5th McLain Aff. [Docket No. 136] 8. In response, Andersen relies on Mathiass
declaration, which states that certain Class A drivers may not be required to make job site
deliveries depending upon their route and economic conditions. In todays market, Class A
drivers make job site deliveries. I . . . have personal knowledge that Mr. Farranddespite being
a Class A driverhas regularly made job site deliveries. Mathias Decl. [Docket No. 142] 3.
McLain offers no evidence that contradicts Mathiass declaration, which is based on personal
knowledge.
In summary, Andersen required its drivers to make deliveries to lumberyards and job
23
sites as needed. Although McLains route prior to March 2006 rarely included job-site
deliveries, Andersen made a business decision to deliver with larger trucks to certain locations.
As a result, Andersen scheduled McLain for more job-site deliveries, which he was medically
unable to perform. Even if Andersen regarded McLain as disabled, it did not have a duty to
accommodate McLain by modifying his delivery route to avoid job sites. Therefore, Andersen
cannot be liable under the MHRA for placing McLain on disability leave and terminating him
after he could no longer perform his job.
2. Discriminatory Reprisal
Both McLain and Andersen seek summary judgment on McLains discriminatory reprisal
claim. Minn. Stat. 363A.15 prohibits an employer from intentionally engaging in a reprisal
against an employee who opposed a practice forbidden by the MHRA. The parties agree that
McLains discriminatory reprisal claim should also be analyzed under McDonnell Douglas
framework. To establish a prima facie case of reprisal, an employee must adduce evidence of:
(1) statutorily-protected conduct by the employee; (2) adverse employment action by the
employer; and (3) a causal connection between the two. Fletcher v. St. Paul Pioneer Press, 589
N.W.2d 96, 101-02 (Minn. 1999).
Regarding the first prong of McLains prima facie case, the parties do not dispute that
McLain engaged in statutorily protected conduct beginning on May 22, 2006 and continuing
through April 2007 when he repeatedly requested a reasonable accommodation for his knee
injury. Additionally, it is undisputed that the MHRAs anti-retaliation provision protected
McLain when he wrote the August 31, 2006, letter and filed his October 13, 2006, Complaint
asserting unlawful discrimination by Andersen.
24
That termination of McLains employment in April 2007 constitutes an adverse
employment action is uncontested. McLain also claims he suffered two other adverse
employment actions: (1) Andersen sent him home from work on August 15, 2006, and placed
him on short term disability leave; and (2) Andersen did not accommodate his knee injury. Pl.s
Mem. in Supp. of Mot. for Partial Summ. J. [Docket No. 130] at 14. For the purposes of the
parties cross-summary judgment motions on McLains retaliation claim, Andersens decision to
send McLain home from work and Andersens decision not to accommodate McLains injury
will be treated as adverse actions.
Whether McLain can establish a prima facie case of retaliation turns on demonstrating a
causal connection between his protected activity and the adverse actions. McLain argues the
temporal proximity between his first request for accommodation, made on May 22, 2006, and
Andersens August 15, 2006, decision to send him home creates an issue of fact as to whether
being sent home was causally connected to his request for accommodation. However, McLains
argument is fatally undermined by Andersens continuing to give McLain work in May, July,
and early August 2006 even after he repeatedly requested an accommodation in his delivery
route. Andersen sent McLain home on August 15 only after it learned from Dr. Haleys August
10 report that McLain could not safely perform job-site deliveries. On this record, McLain
cannot demonstrate that Andersens decision to send him home in August 2006 was retaliation
against him for requesting an accommodation.
McLain next argues that Andersen decided not to accommodate him in retaliation for his
5 If McLain is instead arguing that Andersens refusal to accommodate him was
retaliation for requesting an accommodation, that argument fails to state a retaliation claim.
McLain cannot resurrect his dismissed failure-to-accommodate claim by labeling it as a
retaliation claim.
25
complaints of discrimination on August 31, 2006.5 McLain seems to assert that the temporal
proximity between his allegations of discrimination and Andersens refusal to accommodate him
supports an inference of retaliatory intent. To the extent McLains retaliation claim is premised
on Andersens refusal to modify his delivery route to avoid job-site deliveries, McLains
retaliation claim fails as a matter of law because Andersen denied his request before McLain
complained of discrimination. Mathias refused McLains request for a modification to his
delivery schedule on May 22, 2006, and French refused McLains request on August 3, 2006.
McLain did not complain of discrimination until August 31, 2006. Accordingly, McLain cannot
rely on temporal proximity to argue that Andersen retaliated against him by refusing to modify
his delivery schedule.
McLain also argues Andersen had a customary employment practice of accommodating
similarly situated employees who did not complain of discrimination by reassigning them to
other jobs. McLain proffers evidence that Andersen reassigned two drivers, Michael Vaughn
(Vaughn) and Terry Skare, to positions as unloaders when they were restricted from driving.
After Vaughn lost his truck license for a year due to a DWI in February 2001, Andersen
reassigned him new duties. Vaughn Dep. (Jan. 15, 2008, Wilk Aff. Ex. 23) at 18, 64. Andersen
reassigned Terry Skare in 2005 when his seizure medication restricted him from driving. French
Dep. at 198-200; J. Skare Dep. (Feb. 11, 2008, Wilk Aff. Ex. 40) at 53-54. McLain also argues
that Andersen routinely provided cross-training for its employees, and that its failure to allow
26
him to cross-train while he was on disability leave supports an inference of retaliatory intent.
Assuming arguendo that this evidence establishes McLains prima facie case, McLain
still cannot prevail on his retaliation claim. Andersen has articulated a legitimate, nondiscriminatory
reason for not reassigning or cross-training McLain: it did not have any open
positions. Although Andersen found alternate work for Vaughn in 2001 and Terry Skare in
2005, Andersen experienced a downturn in 2006 and early 2007, during the time that McLain
was on disability leave. As discussed above, the evidence conclusively demonstrates that
Andersen did not have vacant positions from August 2006 to April 2007.
McLain argues Andersens reason for not reassigning or cross-training him is pretextual.
McLain alleges Andersen failed to inform him of a cross-training opportunity in the shipping
office that arose in December 2006 when an employee was terminated. Mathias Dep. at 71.
However, the evidence reflects that Andersen did not hire anyone to fill the position full time.
Instead, Andersen directed John Skare, who was working in the warehouse, to cross-train as
needed in the shipping office. 2d Olson Dep. at 174-75. In early 2007, Skare trained in the
shipping office a few hours per week. French Dep. at 182-84. Andersens failure to notify
McLain of a position it did not fill does not support a finding of pretext.
McLains argument that Andersen terminated his employment because he complained of
discrimination fails for similar reasons. Again, McLain has not adduced any evidence of vacant
positions to which he could have been reassigned. Accordingly, McLain cannot demonstrate
that Andersens asserted reason for terminating himthat there were no vacant positionsis
pretextual.
McLains other arguments in support of his reprisal claim merit little discussion. McLain
27
argues that Andersen allowed Derrick Wills (Wills), a Brooklyn Park employee, to attend
Class A driving classes in January 2007 but imposed obstacles when McLain attempted to do so.
Pl.s Reply Mem. in Supp. of Pl.s Mot. for Partial Summ. J. at 14-15. However, Wills attended
classes while he was on a voluntary lay-off period. Id. at 15. Wills did not receive any pay
while he was on lay-off. Andersen offered a similar unpaid leave of absence to McLain.
Therefore, McLains argument regarding Wills provides no support for a retaliation claim.
McLains argues Andersen committed a per se violation of the MHRA because it only
considered him for reassignment to vacant positions. Pl.s Reply Mem. in Supp. of Pl.s Mot. for
Partial Summ. J. at 19-20. However, this Court has already held that Andersen had no duty to
accommodate McLain. Therefore, Andersen did not have a duty to consider job restructuring,
modified work schedules, or the other examples of reasonable accommodations listed in Minn.
Stat. 363A.08, subd. 6.
The Court grants Andersens Motion for Summary Judgment on McLains discriminatory
reprisal claim, and denies McLains Motion for Partial Summary Judgment.
3. Misrepresentation
Under Minnesota law, the threshold for a claim of fraudulent misrepresentation is high.
Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 747 (Minn. 2000). McLain must
establish:
[A] false representation of past or present material fact that is susceptible to
knowledge; the representor knew the fact was false or asserted it as her own
knowledge without knowing whether it was true or false; the representor intended
that the plaintiff act on the statement; the plaintiff, in fact, acted in justifiable
reliance on the statement; the plaintiff suffered damage; and the statement was the
proximate cause of this damage.
Piekarski v. Home Owners Savings Bank, F.S.B., 956 F.2d 1484, 1493 (8th Cir. 1992).
28
In his Amended Complaint, McLain alleges Andersen misrepresented that it was
seeking to find other job opportunities for [his] continued employment. Am. Compl. 216.
Andersen argues McLain has no evidence to support this allegation. This Court agrees. Both
Hauble and Olson testified they regularly reviewed whether Andersen had jobs available for
McLain. Hauble Dep. at 21; 1st Olson Dep. at 55; 2d Olson Dep. at 36. McLain does not offer
any evidence to the contrary.
McLain responds by offering additional misrepresentations not alleged in the Amended
Complaint. Putting this deficiency aside, McLains fraudulent misrepresentation claim still fails
as a matter of law. One of McLains allegations is that Andersen promulgated its requirement
that drivers go to an outside school for their Class A license specifically to prevent McLain from
receiving on-the-job training. However, although Olson stated the fleet guidelines were
promulgated in the fall of 2006, the fleet guidelines themselves reflect that Olson was mistaken.
Andersens senior managers signed the fleet guidelines in April 2006, well before McLain
sought Class A training. Feb. 19, 2008, Wilk Aff. Ex. 47 at 11.
McLain also argues that Andersen committed a misrepresentation by failing to disclose
the fleet guidelines until November 22, 2006. McLain first inquired about on-the-job training on
September 29, 2006. There is some evidence that Olson was prepared to discuss Andersens
Class A requirements when they spoke on October 13, 2006, to set up a meeting. Both McLain
and Olson testified the conversation ended abruptly when McLain informed Olson of this lawsuit
and stated that Olson should speak to Andersens lawyers. Olson testified he understand McLain
was suggesting they communicate through their attorneys. 1st Olson Dep. at 132-33. Olsons
November 6, 2006, letter provides contemporaneous corroboration of Olsons testimony. Olson
29
Aff. Ex. 1. Although McLain disputes Olsons account, he concedes that both he and Olson
failed to pursue scheduling the conference call in their October 13, 2006, conversation. McLain
Dep. at 148. On this record, McLain cannot demonstrate that Andersen intentionally delayed
providing him the fleet guidelines.
Even assuming arguendo that Andersen intentionally withheld its fleet guidelines,
McLain does not provide any evidence that he changed his position and suffered damages as a
result of Andersens approximately two-month delay in disclosing its guidelines. Therefore, the
Court grants Andersens Motion for Summary Judgment on McLains fraudulent
misrepresentation claim.
30
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Defendants Andersen Corporation and Andersen Distribution, Inc.s Motion for
Summary Judgment [Docket No. 78] is GRANTED; and
2. Plaintiff Kerry McLains Motion for Partial Summary Judgment [Docket No.
128] is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: June 2, 2008
 

 
 
 

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