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Brehmer v. Xcel Energy, Inc.: US District Court: EMPLOYMENT - FMLA claim fails; interference with contract claims fail

Gene Brehmer,
v. Civ. No. 06-3294 (JNE/JJG)
Xcel Energy, Inc.,
Edward A. Zimmerman, Esq., The Business Lawyers, and Bryan R. Battina, Esq., Bock and
Battina, appeared on behalf of Plaintiff Gene Brehmer.
Michael J. Moberg, Esq., and Ellen A. Brinkman, Esq., Briggs and Morgan, P.A., appeared on
behalf of Defendant Xcel Energy, Inc.
Gene Brehmer brings this action against Xcel Energy, Inc. (Xcel) asserting claims for
violations of the Family Medical Leave Act (FMLA), 29 U.S.C. 2615 (a)(1) and (2) (2000),
intentional interference with contractual relations, and intentional interference with future
contracts and prospective business relations. The Complaint also alleges a claim for intentional
infliction of emotional distress. However, counsel for Brehmer informed the Court that Brehmer
is no longer pursuing this claim. The case is before the Court on Xcels motion for summary
judgment. For the reasons stated below, the motion is granted.
I. Background
Xcel is a Minnesota corporation that provides energy products and services. Brehmer is a
journeyman lineman and a member of the International Brotherhood of Electrical Workers,
Local 160 (Union). Brehmer began working for Xcel in 1988, where he performed electrical
work on outside power lines until Xcel terminated his employment in 2004. During the first ten
years of his employment with Xcel, Brehmers job performance was unremarkable. However,
Xcel claims that beginning in 1999, issues arose regarding Brehmers absenteeism from work
and his compliance with Xcels safety policies.
Brehmer disputes Xcels claim that he had a problem with absenteeism during his
employment at Xcel. However, it is undisputed that Brehmers received a written reminder in
January 1999 for taking unauthorized time off.1 It is also undisputed that Brehmer took ten paid
sick days in 2002 and eleven paid sick days in 2003. Pursuant to Xcels sick leave policy, a
policy to which the Union had agreed, once an employee reaches a career annual average of
seven paid sick days, Xcel sends a letter to the Union stating that the employee has excessive
sick time. If an employee reaches a career annual average of ten paid sick days, Xcel can revoke
the employees privilege of having paid sick time altogether. As of October 7, Brehmer had
taken ten paid sick days in 2004.
It is also undisputed that Brehmer asked for five days of unpaid personal time in July
2004 so that he could accompany his girlfriend, Donna Dixon, and her child, Cody, to Texas. At
the time Brehmer made the request, he had already exhausted all of his annual vacation days. At
his deposition, Brehmer testified that Cody, who was eleven at the time, suffered from Tourette
Syndrome, Attention Deficit Hyperactivity Disorder, and was an alcohol baby with some brain
damage. According to Brehmer, he needed to accompany Dixon to Texas because Cody easily
became upset, stressed and agitated, and Dixon would need assistance. There is no dispute that
in response to Brehmers request, Xcel, Brehmer, and the Union entered into a written agreement
1 According to the record, Xcel employs a three-step positive discipline program. The first
step is an oral reminder, the second step is a written reminder, and the third step is decisionmaking
leave. The Company is not required to follow the program in every situation or to follow
the steps sequentially. If positive discipline does not result in a change in behavior, or if the
offense is serious enough, Xcel may terminate the employee.
that permitted Brehmer to take the requested personal days provided Brehmer did not request any
additional personal days in 2004.
Brehmer does not dispute that on November 5, 2004, he told his foreman that he had
forgotten his cell phone at home and the two stopped at Brehmers house on the way to another
job site so he could retrieve it. Brehmers deposition testimony indicated that while he was
inside the house, he learned that Cody was having problems at school that required his attention
and that he told the foreman he (Brehmer) was sick and did not accompany the foreman to the
next job. Brehmer admitted that he then called Xcel and reported that he was sick and did not
return to work that day.
Although Brehmer disputes Xcels characterization of his violations of company safety
policies, he does not deny that certain violations occurred. For example, Brehmer does not
dispute that he received an oral reminder in May 2001 after he damaged an automobile while
driving an Xcel boom truck at a job site. He testified that he should have been wearing rubber
gloves while quickly stripping rubber hosing off of energized lines at the conclusion of a job in
May 2004, although he stated that it was common practice for linemen not to do so.
It is undisputed that on October 25, 2004, Brehmer was assigned the task of watching an
apprentice lineman perform work in a bucket up in the air. Brehmer denies that the apprentice
was working on energized lines and denies that he left the apprentice unsupervised, as Xcel
alleges. Brehmer does not, however, dispute that he left the job site for lunch while the
apprentice was still up in the air working or that a foreman later reported Brehmers conduct to a
According to the deposition testimony of Brehmers former supervisor, Jeff Custer,
Brehmer failed to follow company policy regarding the reporting of traffic violations in 2004.
Brehmer testified in his deposition that he forgot to report a traffic violation he received in May
2004 until December 1, 2004, despite his knowledge that, as a holder of a commercial drivers
license, he was required to report the violation within thirty days. Custer further testified that on
several occasions, Brehmer took personal phone calls during department meetings. According to
Brehmers deposition testimony, his cellular phone would sometimes ring during company safety
meetings and he would either turn his cell phone off when it rang or step out of the meeting to
answer the call.
Sometime in early December 2004, Brehmer asked Custer if he could have December 15
off from work because Dixon was scheduled to have surgery. There is a dispute between the
parties regarding the exact date Brehmer told Custer that he needed the day off. Brehmer claims
he first told Custer about the surgery several weeks before December 15, and he asserts that he
told Custer about it on numerous other occasions before a final conversation on December 14.
Custer testified in his deposition that Brehmer first told him he needed the day off for Dixons
surgery on December 13, and that he denied Brehmers request and reminded him of his prior
agreement to refrain from taking additional personal time off during 2004. There is no dispute
that, at the end of his shift on December 14, Brehmer informed Custer he would not report for
work the next day and that he would not call in to report his absence because Dixons surgery
was scheduled for very early in the morning.
There is also a dispute over whether Brehmer told Custer he needed December 15 off
because he needed to care for Cody during Dixons surgery. According to Custers deposition
testimony, Brehmer requested the day off because his girlfriend was having surgery and did not
say anything about caring for Cody when he made the request. Brehmer provides conflicting
testimony. At his deposition, he testified that he did not know for sure, that he could not recall,
and then Yeah, I suppose, yeah I could have when asked whether he mentioned Cody when he
asked to have December 15 off. In a later affidavit, discussed more fully below, Brehmer stated
that he told Custer about his need to care for Cody several weeks before Dixons surgery and
then again on two more occasions a week and a half before Dixons surgery, once at a job site
near Highway 62 and once in Custers office.
It is undisputed that, on the morning on December 15, Brehmer took Dixon to the
hospital for her surgery and that he did not call Xcel to report his absence. Brehmer testified that
he stayed at the hospital until Dixon was in surgery, and then he went to check on Cody, who
had stayed home from school and was at Dixons home under the care of Dixons sister and an
unidentified male tenant who rented the basement of Dixons home. Brehmer testified that he
traveled back and forth between the hospital and Dixons home several times that day to check
on Cody. Brehmer returned to work at Xcel the following day. Dixon remained in the hospital
for several weeks.
Upon his return to work, Xcel sent Brehmer home on crisis suspension, a paid day of
leave, to allow Xcel to consider possible misconduct by Brehmer and to decide whether to
discipline or terminate him. Custer drafted a memo to Larry Crosby, Xcels Director of Metro
West Operations at the time, describing incidents of Brehmers absenteeism, safety violations,
and failure to follow the direction of his supervisors. Custer recommended that Xcel
immediately terminate Brehmer. Xcel then terminated Brehmer citing his defiant refusal to
follow a direct order of his manager and a pattern of behavior showing blatant disregard for
authority as the reasons. After his termination, Brehmer contacted the Union and sought to file
a grievance for wrongful termination. The Union filed a grievance but later withdrew it.
In January 2006, the Union assigned Brehmer to work as a lineman for Donovan
Construction (Donovan). Donovan is a power line contractor for Xcel. Crosby testified that it is
Xcels practice to deny terminated employees access to Xcel facilities and property, and that
consistent with this practice, Xcels contractor agreement with Donovan provides Xcel with the
right to request the removal of Donovan employees from Xcels property. According to
Crosbys deposition testimony, when Xcel learned that Brehmer was performing work for
Donovan on Xcels lines, Xcel informed Donovan that Brehmer could not work on Xcel
property. There is no dispute that following this request, Donovan terminated Brehmers
Brehmer subsequently sought work through the Union. He testified that during the year
or so after his termination from Donovan, he worked for (1) a company in Richfield, Minnesota,
where he changed street lights, (2) a construction company in Ladysmith, Wisconsin, where he
performed transmission line work, (3) a power company in Duluth, Minnesota, where he rebuilt
power lines, and (4) a power company in Superior, Wisconsin, where he performed transmission
line work. Brehmer left his job in Superior, Wisconsin, after a foot injury made it too painful for
him to continue working. According to Brehmers deposition testimony, in March 2007, after he
had recovered from his foot pain, the Union sent him to work for a company in Blaine,
Minnesota, where he installed wireless internet transmitters in Minneapolis. After he was laid
off, the Union sent Bremer to another Minneapolis company where he performed the same work.
In July 2006, Brehmer brought this action against Xcel alleging violations of the FMLA,
intentional interference with his contract with Donovan, and intentional interference with future
contracts and prospective business relations. Xcel seeks summary judgment on all of Brehmers
II. Discussion
Summary judgment is proper if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The movant bears the
initial responsibility of informing the district court of the basis for its motion, and must identify
those portions of [the record] which it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant satisfies its
burden, the party opposing the motion must go beyond the pleadings and set out specific facts,
by depositions, affidavits, or otherwise, showing a genuine issue for trial. Fed. R. Civ. P.
56(e)(2); see, e.g., Baum v. Helget Gas Prods., Inc., 440 F.3d 1019, 1022 (8th Cir. 2006). In
determining whether summary judgment is appropriate, a court must look at the record and any
inferences to be drawn from it in the light most favorable to the party opposing the motion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A. Admissibility of Brehmers affidavit
The Court first addresses Xcels objections to Brehmers affidavit. Brehmer submitted a
sworn affidavit in support of his memorandum in opposition to Xcels summary judgment
motion. Xcel contends it is sham affidavit submitted by Brehmer after reviewing Xcels
summary judgment motion in an effort to create a genuine issue of material fact where none
exists. Xcel urges the Court to disregard the affidavit in its entirety.
The Eighth Circuit Court of Appeals has addressed the issue of sham affidavits, stating:
Parties to a motion for summary judgment cannot create sham issues of
fact in an effort to defeat summary judgment. Courts must not deprive juries
from their role in deciding genuine disputes of material fact, however, parties
should not be permitted to fashion a dispute of material fact solely to impede a
lawful exercise of granting a motion for summary judgment. While district
courts must exercise extreme care not to take genuine issues of fact away from
juries, a party should not be allowed to create issues of credibility by
contradicting his own earlier testimony. Ambiguities and even conflicts in a
deponents testimony are generally matters for the jury to sort out, but a district
court may grant summary judgment where a partys sudden and unexplained
revision of testimony creates an issue of fact where none existed before.
Otherwise, any party could head off a summary judgment motion by supplanting
previous depositions ad hoc with a new affidavit, and no case would ever be
appropriate for summary judgment.
Am. Airlines, Inc. v. KLM Royal Dutch Airlines, Inc., 114 F.3d 108, 111 (8th Cir. 1997) (citations
In response to Xcels allegation, Brehmers counsel indicated at oral argument that
Brehmers affidavit was submitted to provide factual details that were foreclosed during
discovery due to the objections of Xcels counsel during Brehmers deposition. Review of the
deposition transcript indicates Xcels counsel objected to the leading form of questions posed by
Brehmers counsel when counsel inquired about what Brehmer told Custer on December 13
regarding why he needed the day off on December 15. For example:
Q: Now, I think you testified that you had spoken to Mr. Custer a number of
times about the need to be off that day, and that you had spoken to him
several times before December 13th, which is the first time he identified
your speaking to him.
A: Uh-huh.
Q: This, as Counsel has just pointed out, is an answer to the interrogatory
under oath. Do you believe that you told him you wanted to care for your
ward because of the stress of that operation?
A: Yeah, I suppose, yeah, I could have, you know. HeCody didnt go to
school that day, and I was at the hospital and back to their house, and I
dont know from one day to the [sic] another to the next who is going to
be there. Im saying, you know, and there were people there that, you
know, I trusted, and I did check on him.
Q: Well this has to do with what you told Mr. Custer. Do you have a clear
recollection of exactly what you told him today as we sit here?
A: I told him that I took Donna to the hospital early and
Q: That you couldnt call in the morning?
A: Yeah. Yeah.
Q: That was once you knew when you would have to go?
A: Yeah.
Q: But on the other times when you told him what you had to do that day,
would that have been before you knew when you had to go in?
A: Yeah.
Q: So the thing that sticks out in your mind about what you told him on the
13th is that you couldnt call in?
Mr. Moberg [Xcels counsel]: Wait a minute, hold on, Counsel, I am
going to object.
Mr. Zimmerman: Okay, I am leading, I am sorry, I will rephrase.
Mr. Moberg: He is your witness, and you dont get to lead him
around by a collar and testifying [sic] on his behalf.
Mr. Zimmerman: And I apologize.
Mr. Moberg: I have no problem if you were trying to clarify what
you view is inconsistent testimony, but we are not
going to spend the rest of the afternoon during my
deposition of him for you to rehabilitate and
resurrect your client.
Mr. Zimmerman: Fair enough. I stand corrected, and accept it.
Sorry. I will withdraw the question. And your
objection was appropriate.
Following this exchange, however, Brehmers counsel did not rephrase his question. On
this record, the Court cannot conclude that Brehmer was foreclosed from providing sufficient
factual details during his deposition. Furthermore, the record contains no explanation of why
Brehmer submitted his affidavit almost five months after his deposition was taken and only after
Xcel had filed its motion for summary judgment. Under these circumstances, the Court views
Brehmers affidavit with suspicion. See Am. Airlines, 114 F.3d at 111. [A] properly supported
motion for summary judgment is not defeated by self-serving affidavits. Conolly v. Clark, 457
F.3d 872, 876 (8th Cir. 2006).
Accordingly, where the affidavit contradicts Brehmers prior deposition testimony, as it
does on the issue of Brehmers notice to Xcel regarding the purpose of his need for leave on
December 15, the Court will not consider the affidavit. See Am. Airlines, 114 F.3d at 111. On
the other hand, where Brehmers affidavit is consistent with his prior deposition testimony, or it
merely seeks to add more detailed information to that testimony, as it does on the issue of
Brehmers parental relationship with Cody, the Court will consider the affidavit. See Bass v.
City of Sioux Falls, 232 F.3d 615, 619 (8th Cir. 1999) (indicating consideration of subsequent
affidavit testimony on summary judgment is proper where it seems consistent with the affiants
prior deposition testimony).
B. Family Medical Leave Act claims
The FMLA, as relevant to this case, gives an eligible employee the right to take up to
twelve weeks of leave during any twelve-month period in order to care for a family member who
has a serious health condition. See 29 U.S.C. 2612(a)(1)(C) (2000). An employee who takes
FMLA leave generally has the right, upon returning from leave, to be reinstated either to the
position that he occupied when he went on leave or to an equivalent position. Id. 2614(a)(1)
The FMLA creates two types of claims: interference claims and retaliation claims.
Interference claims are based on 29 U.S.C. 2615(a)(1), which forbids employers to interfere
with or deny the exercise of any right provided by the FMLA. Retaliation claims are based on
29 U.S.C. 2615(a)(2), which forbids employers to discriminate against employees for
exercising their FMLA rights. Establishing discriminatory intent on the part of the employer is
essential to proving a retaliation claim, but it is irrelevant to proving an interference claim.
Throneberry v. McGehee Desha County Hosp., 403 F.3d 972, 976 (8th Cir. 2005). Brehmers
Complaint alleges both interference and retaliation claims.
1. FMLA interference claim
To prevail on his interference claim, Brehmer must establish that (1) he is an eligible
employee; (2) Xcel is an employer; (3) he was entitled to leave under the FMLA; (4) he gave
Xcel notice of his intention to take leave; and (5) Xcel denied him FMLA benefits to which he
was entitled. See Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003) (citing 29
U.S.C. 2611(2), (4); Id. 2612(a)(1), (e)(1)); see also Hastings v. Carlson Mktg. Group, Inc.,
No. 04-3370, 2005 WL 2837391, at *4 (D. Minn. Oct. 27, 2005) (quoting Cavin, 346 F.3d at
719.) There are no disputes regarding the first two elements. However, Xcel challenges
Brehmers ability to prove the third and fourth elements of his interference claim.
a. Entitled to leave under the FMLA
To demonstrate entitlement to FMLA leave on December 15, 2004, Brehmer must show
that his absence was to care for the spouse, or a son, daughter, or parent . . . [who] has a serious
health condition. 29 U.S.C. 2612(a)(1)(C); see Frazier v. Iowa Beef Processors, Inc., 200
F.3d 1190, 1195 (8th Cir. 2000). Brehmer does not dispute that the FMLA only provides
protected leave to care for family members and concedes that he was not entitled to FMLA leave
on December 15 to care for his girlfriend Dixon. Brehmer alleges he was entitled to take FMLA
leave to care for Dixons son, Cody, who, Brehmer asserts, was also his son, as that term is
defined by the FMLA.
Under the FMLA, a son means a biological, adopted, or foster child, a step child, a legal
ward, or a child of a person standing in loco parentis. 29 C.F.R. 825.113(c) (2007). It
appears that Brehmer makes two arguments in support of his assertion that Cody was his son
under the FMLA on December 15: (1) Cody was his legal ward, and (2) Brehmer stood in loco
parentis of Cody.
i. Legal ward
In his Complaint, Brehmer alleges that Cody was his legal ward on December 15, 2004.
Brehmer does not provide any further factual support for this assertion. At oral argument,
Brehmers counsel acknowledged his erroneous reliance on the facts as set forth in the
Complaint in opposing summary judgment due to his mistaken belief that the Complaint was
verified when it was first filed in state court. See Roberson v. Hayti Police Dept., 241 F.3d 992,
994 (8th Cir. 2001) (indicating a plaintiffs verified complaint is the equivalent of an affidavit for
purposes of summary judgment). As previously noted, in order to survive summary judgment,
Brehmer must go beyond the pleadings and set out specific facts, by depositions, affidavits, or
otherwise, showing a genuine issue for trial. Fed. R. Civ. P. 56(e)(2); Baum, 440 F.3d at 1022;
see also Anderson, 477 U.S. at 248 (indicating that a nonmoving party must offer proof such
that a reasonable jury could return a verdict for the nonmoving party.). The Court concludes
that Brehmer has abandoned this argument.
ii. In loco parentis
Brehmer also argues that Cody qualified as his son under the FMLA in December 2004,
because Brehmer stood in loco parentis of Cody at that time. Persons who are in loco parentis
include those with day-to-day responsibilities to care for and financially support a child or, in the
case of an employee, who had such responsibility for the employee when the employee was a
child. A biological or legal relationship is not necessary. 29 C.F.R. 825.113(c)(3); see also
Miller v. United States, 123 F.2d 715 (8th Cir. 1941), revd on other grounds, 317 U.S. 192
(1942) ([I]t is also well recognized that the term parent in a broad sense and under certain
circumstances may include anyone who stands in a position equivalent to that of a parent.).
At his deposition, Brehmer testified that both he cared for Cody in a parenting role. In
his subsequently submitted affidavit, Brehmer provided additional information about his
parenting role, stating that he cared for Cody as if he were my son and that he tried to do my
best to be a dad. Brehmer stated that he helped Cody eat, dress, and go to bed; that he drove
Cody to doctor appointments and to school; that he went to Codys softball games; and that he
went to Codys school when Cody had problems there. Brehmer also stated that for several
months before December 15, 2004, and for a year after, he contributed more than half of Codys
financial support. Because Brehmers affidavit testimony is consistent with and further clarifies
his prior deposition testimony regarding his parental role with Cody, the Court includes the
affidavit testimony in its consideration of Brehmers in loco parentis status with regard to Cody.
See Bass, 232 F.3d at 619. Construing the facts in light most favorable to Brehmer, the Court
concludes that an issue of material fact exists as to Brehmers in loco parentis status of Cody on
December 15, 2004.
iii. Serious health condition
Even if Brehmer stood in loco parentis to Cody on December 15, 2004, to defeat Xcels
motion for summary judgment on his interference claim, Brehmer must also demonstrate that
Cody suffered from a serious heath condition on December 15 to establish his eligibility for
FMLA leave to care for Cody. The FMLA defines serious health condition as an illness,
injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital,
hospice, or residential medical care facility; or (B) continuing treatment by a health care
provider. 29 U.S.C 2611(11) (2000).
In this action, the relevant provision is continuing treatment by a health care provider.
Id. 2611(11)(B). The requirements for a condition that involves continuing treatment by a
health care provider are set out in the Department of Labors rules implementing the FMLA. 29
C.F.R. 825.114 (2007); see 29 U.S.C. 2654 (2000) (directing the Secretary of Labor to
prescribe such regulations as are necessary to carry out the FMLA). Continuing treatment is
defined as incapacity of more than three consecutive calendar days with subsequent treatment
or further incapacity relating to the same condition. Caldwell v. Holland of Tex., Inc., 208 F.3d
671, 674 (8th Cir. 2000) (citing 29 C.F.R. 825.114(a)(2)(i)). The rules define incapacity as
inability to work, attend school or perform other regular daily activities due to the serious health
condition, treatment therefor, or recovery therefrom. 29 C.F.R. 825.114(a)(2)(i).
Xcel correctly points out that there is little in the record regarding Codys medical
condition or his incapacity due to a medical condition. Brehmer testified in his deposition that
Cody suffers from Tourette Syndrome and Attention Deficit Hyperactivity Disorder. He
speculated about Codys condition, saying I believe hes an alcoholic baby. Hes got brain
damage . . . He cant concentrate for long periods on things. In his affidavit Brehmer states that
Cody has a brain injury disability and special needs and that Cody gets upset and
Generally, a plaintiffs own statement is insufficient to establish incapacity under the
FMLA. See, e.g., Schoonover v. ADM Corn Processing, No. 06-CV-133-LRR, 2008 WL
282343, at *13 (N.D. Iowa Jan. 31, 2008); Alston v. Sofa Express, Inc., No. 2:06cv0491, 2007
WL 3071662, at * 9 (S.D. Ohio Oct. 19, 2007) (Because Plaintiff has come forward with no
evidence [other than his own testimony] that would establish that he had a serious health
condition under any prong of the regulations, he was not entitled to any protections or benefits
under the FMLA . . ..); Joslin v. Rockwell Intl. Corp, 8 F. Supp. 2d 1158, 1160-61 (N.D. Iowa
1998) (granting summary judgment for the defendant employer where the court found no
medical evidence in the record supporting the plaintiffs contention that she was incapacitated);
Olsen v. Ohio Edison Co., 979 F. Supp. 1159, 1161 (N.D. Ohio 1997) (indicating that ones own
claim that one cannot work because of illness is not sufficient to show incapacity under the
FMLA); Carter v. Rental Uniform Serv. of Culpeper, Inc., 977 F. Supp. 753, 761 (W.D. Va.
1997) (To the extent [the plaintiff] contends she has satisfied pleading requirements simply by
alleging she has a serious health condition, she is mistaken; whether her illness qualifies . . . is
a legal question that she cannot dispose of simply by alleging it to be so.); Brannon v. OshKosh
BGosh, Inc., 897 F. Supp. 1028, 1037 (M.D. Tenn. 1995) (finding plaintiffs testimony that she
was too sick to work insufficient to satisfy her burden on summary judgment, even though it was
undisputed that she had been given three prescriptions by her doctor); cf. Rankin v. Seagate
Techs., Inc., 246 F.3d 1145, 1148 (8th Cir. 2001) (disagreeing with district courts conclusion
that the only evidence indicating incapacity was employees own affidavit that she was too sick
to work and reversing summary judgment because employees testimony, together with medical
records, was sufficient to create a genuine issue of material fact).
Here, the record is devoid of any medical evidence regarding Codys medical condition
or treatment. Brehmer has not offered any medical evidence of a diagnosis for Cody. Nor has he
offered any medical evidence regarding the severity of any condition from which he alleges
Cody suffers or the type or duration of treatment Cody has received for any such conditions.
Moreover, there is no evidence in the record that Cody suffered from a medical condition that
required any further care after Dixons surgery on December 15, and it is undisputed that
although Codys mother remained in the hospital for several weeks following her December 15
surgery, Brehmer returned to work at Xcel the very next day.
Viewing the record in light most favorable to Brehmer, the Court concludes that Brehmer
has failed to raise a genuine issue of material fact as to whether Cody suffered from any serious
medical condition in December 2004 for which Brehmer would qualify for protected leave under
the FMLA. Where an employee has not shown his absences to be a result of a serious health
condition, he is not protected by the FMLA. Frazier, 200 F.3d at 1195; see also Rankin, 246
F.3d at 1147. Without evidence that Cody suffered from a serious health condition, Brehmer
cannot establish that he was entitled to take FMLA leave to care for Cody, a required element of
his FMLA interference claim.
iv. To care for
Even if Brehmer could sufficiently establish that Cody suffered from a serious health
condition that required his care on December 15, 2004, the undisputed facts before the Court are
that Brehmer did not actually care for Cody on that day. Rather, Brehmer accompanied Dixon to
the hospital early in the morning, leaving Cody in the care of Dixons sister and Dixons
unidentified tenant. Brehmer does not dispute that his contact with Cody on December 15 only
occurred when he left the hospital several times during the day to travel to Dixons home and
check on Cody. While Brehmers actions toward Cody and his concern for Cody may be
laudable, they do not qualify under the broadest reading of the statute as physical or
psychological care under the FMLA. The FMLA does not protect mere visitation. See Fioto v.
Manhattan Woods Golf Enters., LLC, 270 F. Supp. 2d 401, 404 (S.D.N.Y. 2003), affd, 123 Fed.
Appx. 26 (2d Cir. 2005). Because there is no dispute of material fact that Brehmer did not care
for Cody on December 15, Brehmer cannot establish that his absence from work on that day was
due to his taking protected leave under the FMLA to care for Cody.
In sum, in order to survive summary judgment on his FMLA interference claim, Brehmer
must establish a prima facie case of his eligibility to take FMLA leave to care for Cody on
December 15, 2004. See Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006)
(requiring a showing of entitlement to the protected benefit in a FMLA interference claim). On
the record before it, the Court concludes that Brehmer has failed his burden and that summary
judgment in favor of Xcel on Brehmers FMLA interference claim is appropriate. See Celotex,
477 U.S. at 322 (indicating that when a nonmoving party fails to make a specific showing on an
essential element of that partys claim, summary judgment is appropriate.).
b. Notice
Xcel also challenges Brehmers FMLA interference claim on the grounds that Brehmer
cannot prove that he provided adequate notice of his intention to take protected leave on
December 15, 2004. In order to benefit from the protections of the FMLA, an employee must
provide his employer with enough information to show that he may need FMLA leave. Woods v.
Daimlerchrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). When an employee gives notice, it is
not necessary for the employee to name the statute, but the employee must express both the need
and reason for the leave. 29 C.F.R. 825.302(c) (2007); see also Woods, 409 F.3d at 990. In
connection with the need for leave, if the need is foreseeable, an employee must give her
employer no less than thirty days advance notice. See 29 U.S.C. 2612(e)(1),(2)(B); 29 C.F.R.
825.302. If the need for leave is unforeseeable, an employee must give her employer notice as
soon as practicable, but within no more than two working days of learning the need for leave. 29
C.F.R. 825.303 (2007). A mere declaration . . . that a family member is ill, is insufficient to
comply with the FMLA notice requirement. McGraw v. Sears, Roebuck & Co., 21 F. Supp. 2d
1017, 1022 (D. Minn. 1998). Because Brehmer fails to establish a prima facie case of eligibility
to take FMLA leave to care for Cody on December 15, the Court need not decide whether
Brehmer provided sufficient notice to Xcel of his intention to take any such protected leave.2
See Celotex, 477 U.S. at 322.
2. FMLA retaliation claim
Brehmer also asserts a FMLA retaliation claim against Xcel. For a FMLA retaliation
claim to survive a motion for summary judgment, a plaintiff must establish a prima facie
showing of wrongful retaliation. McBurney v. Stew Hansens Dodge City, Inc., 398 F.3d 998,
1002-03 (8th Cir. 2005). To do so, a plaintiff must show that (1) he engaged in conduct
protected under the FMLA, (2) he suffered an adverse employment action, and (3) there is a
causal connection between the two. Id.
Because Brehmer has failed to raise any genuine issue of fact that he was eligible to take
FMLA leave to care for Cody on December 15, 2004, he cannot establish a prima facie claim
that he engaged in FMLA protected activity that led to an improper retaliatory termination of his
employment by Xcel. See Schmittou v. Wal-Mart Stores, Inc., Civ. No. 011763, 2003 WL
22075763, at *7 (D. Minn. Aug. 22, 2003) ([Plaintiff] was not eligible for leave under the
2 Nonetheless, the Court notes that Brehmers affidavit testimony submitted in support of
his opposition to Xcels motion for summary judgment contradicts his prior deposition testimony
on this issue. During his deposition Brehmers recollection of his conversations with Custer
were vague and unspecific. He repeatedly stated that he did not know for sure or could not
recall whether he advised Custer that he needed December 15 off from work to care for Cody.
Yet his affidavit, prepared five months later, provides many specific and favorable details about
conversations Brehmer claims he had with Custer in the weeks before Dixons surgery about
Codys condition and the need to care for Cody on the day of his mothers surgery. The Eighth
Circuit Court of Appeals has directed the rejection of this type of self-serving post-deposition
affidavit testimony. See Am. Airlines, 114 F.3d at 111.
FMLA, so it is impossible for her to engage in any activity protected by the statute.). Under
these circumstances, Xcel is entitled to summary judgment on Brehmers retaliation claim.
C. Intentional interference with contractual relations
In addition to his FMLA claims, Brehmer alleges that Xcel intentionally interfered with
his contractual relations with Donovan. Brehmer asserts that Xcel owned 100% of the power
lines in the Twin Cities metropolitan area and that Xcels exclusion of Brehmer from its property
effectively caused the termination of his employment with Donovan. Xcel denies it interfered
with Brehmers contract and claims that it was enforcing its company policy and exercising its
contractual rights when it informed Donovan that Brehmer could not work on Xcel property.
Xcel claims it never sought the termination of Brehmers employment with Donovan.
In Minnesota, a claim for wrongful interference with a contractual relation requires (1)
the existence of a contract; (2) the alleged wrongdoers knowledge of the contract; (3) intentional
procurement of the breach; (4) without justification; and (5) damages. Peterson v. County of
Dakota, 479 F.3d 555, 559 (8th Cir. 2007) (quoting Furlev Sales & Assocs., Inc. v. N. Am. Auto.
Warehouse, Inc., 325 N.W.2d 20, 25 (Minn. 1982)); Kjesbo v. Ricks, 517 N.W.2d 585, 588
(Minn. 1994). The parties do not dispute the existence of a contract between Brehmer and
Donovan. Xcel does not deny its knowledge of that contract. However, Xcel denies it
intentionally procured a breach of Brehmers contract with Donovan and argues that Brehmer
has failed to raise a material issue of fact that Xcel intentionally procured any such breach. The
Court agrees.
Crosby testified that Xcel only advised Donovan that Brehmer could not work on Xcel
property after it learned that he was working for Donovan on Xcel power lines. Crosby also
testified that Xcel does not own all of the outdoor power lines in the Twin Cities metropolitan
area and that, to his knowledge, Donovan worked for entities other than Xcel. Without citing to
any legal authority, other than to identify the procurement of the breach element of his claim,
and without pointing to any specific evidence in the record, Brehmer responded with the
following argument:
Merely by the fact that Xcel was aware Donovan employed Plaintiff, and that
because it owned all outside lines in the Metro area, it could reasonably foresee
that ejecting Plaintiff from its property would likely result in Plaintiffs
termination, common sense dictates that Xcel must have had the intent to
interfere with Donovans and Plaintiffs contract.
Aside from these unsupported allegations and speculative and conclusory assertions, Brehmer
fails to present any documents or testimony establishing Xcels ownership of all of the power
lines in the Twin Cities metropolitan area. Nor has Brehmer presented any evidence showing
that Xcel sought the termination of his employment from Donovan by informing Donovan that
Brehmer could not work on Xcel property.
Although all reasonable inferences must be drawn in Brehmers favor, he 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. See Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th
Cir. 1995) (citing Fed. R. Civ. P. 56(e)). Evidence, not contentions, avoids summary
judgment. Mayer v. Nextel W. Corp., 318 F.3d 803, 809 (8th Cir. 2003); Armour and Co., Inc.
v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir. 1993) (Self-serving, conclusory statements
without support are not sufficient to defeat summary judgment.); see also JRT, Inc. v. TCBY
Sys., Inc., 52 F.3d 734, 737 (8th Cir. 1995) ([A] successful summary judgment defense requires
more than argument or re-allegation; [the party] must demonstrate that at trial it may be able to
put on admissible evidence proving its allegations.). Brehmers failure to provide any evidence
showing that Xcel intentionally interfered with his contractual relations with Donovan is thus
dispositive. He cannot rely on unreasonable inferences or speculation to establish the necessary
evidentiary basis required to defeat Xcels motion for summary judgment on his intentional
interference with contractual relations claim. Sip-Top, Inc. v. Ekco Group, Inc., 86 F.3d 827,
832 (8th Cir. 1996).3
D. Intentional interference with future contracts and prospective business relations
Brehmer also alleges Xcel improperly interfered with his future contracts and prospective
business relations by excluding him from Xcels property. To prevail on this claim, Brehmer
must establish that Xcel intentionally committed a wrongful act that improperly interfered with
his prospective business relationships. See United Wild Rice, Inc., v. Nelson, 313 N.W.2d 628,
633 (Minn. 1983). Xcel asserts that there are no issues of material fact in dispute regarding
Xcels right to exclude terminated employees from its property and that Brehmer has thus failed
to demonstrate Xcel intentionally committed a wrongful act. The Court agrees.
According to Xcels interrogatory responses, [g]enerally, when the Company learns that
a terminated employee seeks access to Company facilities, the Company denies such access.
Crosby testified that Xcels policy of excluding terminated employees from subsequently
working on Xcel property was due to Xcels interests in the safety of its employees. He testified
that Xcel applies the policy to all employees, because Xcel cannot get into the governance of
our augmenting resource . . . we cant slice and dice at that micro level. Crosby explained that
Xcels practice is if youve been terminated for workmanship and/or other cause on our
property, our practice is that we do not allow you to work on our property thereafter.
3 Xcel also argues that its exclusion of Brehmer from Xcel property was justified. The
Court need not address this fourth element of Brehmers intentional interference with contractual
relations claim, because Brehmer has failed to establish the claims required third element. See
Celotex, 477 U.S. at 322.
Crosby also testified that the contractor agreement between Xcel and Donovan granted
Xcel the right to control who worked on its property by requesting that Donovan remove one of
its employees from a worksite if Xcel deems that employee unfit. According to Crosby, in
Brehmers case, because of his history of violations of Xcels safety procedures, the exclusion
policy protected both Brehmer and any of Xcels employees who might perform work on power
lines on which Brehmer had previously worked. Although Brehmer attempts to explain the
circumstances surrounding his safety violations while employed by Xcel in his affidavit, he
admits that he failed to follow safety procedures when he damaged a car with the boom of an
Xcel truck that he was operating in May 2001 and when he failed to wear rubber gloves while
working on energized lines in March 2004. He also admits that he failed to report his May 2004
traffic violation within the thirty-day reporting period required under Xcels policy. Brehmers
undisputed safety violations in Brehmers employment record lend further support to Xcels
assertions that its interest in safety underlies its exclusion policy and its application to Brehmer.
In response, Brehmer claims Xcels exclusion policy is a blind company policy and
that being the owner of all outside power lines in the Minneapolis Metro area, Xcel should have
easily known that [Brehmers] inability to work on Xcel property would foreclose any and all of
his opportunities as an outside contractor in the Metro. Once again, Brehmer argues that under
these circumstances, common sense dictates a finding that Xcel wrongfully intended to deprive
him of the benefit of future employment contracts. As previously discussed, the only evidence
offered by Brehmer is his own self-serving contentions and conclusory allegations that Xcel
owned all of the power lines in the Twin Cities metropolitan area. Such evidence is insufficient
to establish the necessary evidentiary basis of his claim to defeat a motion for summary
judgment. See Krenik, 47 F.3d at 957; Mayer, 318 F.3d at 809; Armour, 2 F.3d at 279.
Moreover, Brehmer fails to identify any particular future business relationships of which
he was deprived as a result of his exclusion from Xcels property. Brehmer merely states that
[i]f Xcel called one employer, it could and would certainly call another. The mere loss of
unspecified business does not establish the tort of intentional interference with prospective
business relations under Minnesota law. Rather, wrongful interference with prospective business
relations requires intentional conduct affecting specific relationships. H Enters. Intl v. Gen.
Elec. Capital Corp., 833 F. Supp. 1405, 1417 (D. Minn. 1993) (citing Witte Transp. Co. v.
Murphy Motor Freight Lines, Inc., 93 N.W.2d 148, 151 (Minn. 1971)).
Once a moving party has demonstrated that the record does not disclose a genuine
dispute on a material fact, it is the burden of the nonmoving party to set forth affirmative
evidence, specific facts, showing there is a genuine dispute on that issue. Counts v. MKFerguson
Co., 862 F.2d 1338 (8th Cir. 1988). If the nonmoving party fails to carry that burden,
summary judgment should be granted. Id. Brehmer has failed to meet his burden, and
summary judgment in favor of Xcel is warranted on his intentional interference with future
contracts and prospective business relations claim.
III. Conclusion
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
1. Xcel Energy, Inc.s Motion for Summary Judgment [Docket No. 17] is
2. The Complaint [Docket No. 1] is DISMISSED WITH PREJUDICE.
Dated: August 4, 2008
s/ Joan N. Ericksen
United States District Judge


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