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Kirkeberg v. Canadian Pacific Railway: US District Court : EMPLOYMENT - monocular vision not disability; no causation or pretext in outsourcing decision higher up

Civil No. 07-4621(DSD/JJG)
Mike Kirkeberg,
Canadian Pacific Railway,
Michael B. Chase, Esq. and Chase Law Office, 101 Fifth
Street East, Suite 2102, St. Paul, MN 55101, counsel for
Thomas J. Conley, Esq., Rebecca L. Neubauer, Esq.,
Elizabeth A. Papacek, Esq. and Leonard, Street and
Deinard, P.A., 150 South Fifth Street, Suite 2300,
Minneapolis, MN 55402, counsel for defendant.
This matter is before the court upon defendants motion for
summary judgment. Based upon a review of the file, record and
proceedings herein, and for the reasons stated, the court grants
defendants motion.
This employment dispute arises out of the May 14, 2007,
elimination of plaintiff Mike Kirkebergs (Kirkeberg) position as
administrator of the employee assistance program (EAP) at
defendant Canadian Pacific Railway (Canadian Pacific). Kirkeberg
1 The last three states were added early in 2002.
began working at Canadian Pacific in April 2000, and was fifty-nine
years old in May 2007.
Kirkebergs job responsibilities evolved and expanded during
his tenure at Canadian Pacific. At the time of his termination,
Kirkeberg provided initial screening, counseling and referrals to
Canadian Pacific employees who were having mental health, substance
abuse and family problems; trained supervisors on drug and alcohol
issues; developed and managed a network of substance abuse
professionals; developed Canadian Pacifics critical incident
program; and trained employees and supervisors on the EAP.
Kirkeberg also wrote Canadian Pacifics policies for drugs, alcohol
and the EAP. The EAP was available to 3,500 Canadian Pacific
employees and their families throughout several Midwestern states,
Pennsylvania, New Jersey and New York.1 Kirkeberg was often
contacted by Canadian Pacific employees outside of regular business
hours. Canadian Pacific also contracted with an organization
called Well Place to provide nonbusiness-hour support at a cost of
,200 a month. (Kirkeberg Dep. at 10-12.)
In December 2002, Darrell Ward (Ward), Kirkebergs former
supervisor, filed a complaint against Canadian Pacific with the
Equal Employment Opportunity Commission (EEOC) after he was not
promoted to be director of the casualty management and health
services division. Canadian Pacific hired Greg Simmons (Simmons)
2 The only written example of such a request is a November 13,
2006, email from Simmons to Kirkeberg requesting a list of
employees in treatment and expected discharge [date]. (Conley
Aff. Ex. F.)
3 Kirkebergs eyesight in his right eye is correctable to
20/25 or 20/30. (Kirkeberg Dep. at 52; Kirkeberg Aff. Ex. 2.)
for the position. Ward stopped working for Canadian Pacific in
April 2003, and brought an age discrimination action in December
2003. Kirkeberg was listed on Wards pretrial disclosures as an
individual with potentially relevant information. (Chase Aff. Ex.
2.) The matter settled in November 2004. Before Ward left
Canadian Pacific, Kirkeberg continued to speak with him and told
others at Canadian Pacific, including Simmons, that Ward received
unfair treatment. Simmons responded to Kirkebergs comment with
hostility. (Kirkeberg Dep. at 83.) After Wards departure,
Kirkeberg reported directly to Simmons.
Throughout the course of Simmonss supervision of Kirkeberg,
Simmons repeatedly asked for information about employees who were
participating in the EAP. Kirkeberg considered this information
confidential and refused Simmonss requests.2
In January 2006, Kirkeberg was diagnosed with a central
retinal vein occlusion in his left eye, leaving him legally blind
in that eye. Soon thereafter, he began wearing a patch over his
left eye at work. Kirkeberg has poor sight in his right eye, but
with a corrective lens his vision in that eye is close to normal.3
On February 2, 2006, Kirkebergs doctor wrote that the
blindness in Kirkebergs left eye was causing him significant
difficulties at work, seeing and significant eye strain.
(Kirkeberg Aff. Ex. 2.) The doctor further noted that as Kirkeberg
acclimates to the vision loss in his left eye the strain will
become less on his right eye but for now I think it would benefit
him significantly to have a shorter work week. (Id.) Kirkeberg
gave the doctors letter to Simmons. (Kirkeberg Dep. at 70.)
Infections prohibited Kirkeberg from wearing a contact lens in
his right eye during February and March 2007. This prevented him
from driving and caused him to have greater difficulty reading and
walking. (Kirkeberg Aff. 6.) As a result of his monocular
vision, Kirkeberg tires easily when reading, is less able to
navigate while walking, no longer rides a bike and goes to the
movies less frequently. Nevertheless, Kirkeberg remained able to
perform his job at Canadian Pacific but requested a larger computer
monitor, reconfiguration of his office, better lighting and the
option to work from home on certain days or work a shorter week.
Canadian Pacific provided a larger monitor in March 2007, but did
not act on the other requests.
In December 2006, Kirkeberg told Simmons that he had hepatitis
C and was going to be away from work for a few days for a liver
biopsy. Kirkeberg also mentioned that he was considering treatment
that would affect his ability to work over the summer. Kirkeberg
alleges that thereafter Simmons treated him like he was
invisible. (Kirkeberg Dep. at 47-48.) Around that same time,
Simmons began thinking about outsourcing the EAP function.
(Simmons Dep. at 85.)
In February 2007, Kirkeberg was given his annual bonus and a
salary increase. At that time, Kirkeberg also began reporting
directly to Karen DeTuncq (DeTuncq). As a result, Kirkeberg
informed DeTuncq that he had hepatitis C and was considering
treatment. In February or March 2007, DeTuncq recommended that
Kirkeberg apply for leave pursuant to the Family and Medical Leave
Act (FMLA) because of the frequency of his eye appointments and
the impending hepatitis C treatment. Kirkeberg requested and
completed the FMLA paperwork in March but never submitted it for
processing because other Canadian Pacific employees who missed
several days of work were allegedly not required to take FMLA leave
and he felt like he was being treated like a second class
citizen. (Kirkeberg Dep. at 75.) DeTuncq told Simmons that she
had advised Kirkeberg to apply for FMLA leave. (DeTuncq Dep. at
On March 5, 2007, after Kirkebergs office was broken into and
his computer was stolen, he mentioned to Simmons that the computer
would not have been stolen if Simmons had allowed him to work from
home. Simmons became upset and told Kirkeberg that nobody would
work from home unless Simmons could. That same day, Simmons
4 DeTuncq did not participate in discussions about outsourcing
the EAP and she was first notified of the decision on May 14.
5 Well Place provided services between the time Kirkeberg was
terminated and a final contract was agreed upon. (Simmons Dep. at
emailed his supervisor, Glen Wilson (Wilson), requesting a
meeting to discuss outsourcing the EAP. (Conley Aff. Ex. I.)
After speaking with Wilson, Simmons emailed Wilsons
supervisor, Jim Cunningham (Cunningham), on March 9, 2007, with
a proposal to outsource the EAP to a company called Inova.
According to Simmons, contracting with Inova would have reduced the
cost of the EAP by ,000 annually. Simmons cautioned, however,
that the cost reduction alone would not justify the change if the
EAP benefits decreased or the program was otherwise harmed. (Id.
Ex. B.) Cunningham and Cathy Frankenberg (Frankenberg), Canadian
Pacifics vice president for labor relations and human resources,
later approved Simmonss request for a reduction in force. (Id.
Ex. K; Simmons Dep. at 128.) Simmons notified Kirkeberg on May 14,
2007, that Kirkebergs position had been eliminated.4 (Conley Aff.
Ex. N.)
After soliciting requests for proposals, Canadian Pacific
contracted with Well Place in early 2008 to administer the EAP.5
(Simmons Dep. at 116-17.) Canadian Pacific allegedly selected Well
Place based upon its past performance, geographic scope,
availability of a staff medical doctor and psychiatrist, around6
The court dismissed Kirkebergs defamation claim pursuant to
the parties stipulation on August 19, 2008.
the-clock availability, critical incident teams, translation
services, treatment excellence program and reputation in the
railroad industry. (Id. at 117-18; Conley Aff. Ex. L.) Well
Places provision of EAP services saved Canadian Pacific over
,000 between May 2007 and June 2008. (Conley Aff. Ex. H.)
Kirkeberg brought this action on November 15, 2007, asserting
discrimination, retaliation and failure to accommodate claims under
the Americans with Disabilities Act (ADA), Age Discrimination in
Employment Act (ADEA), Minnesota Human Rights Act (MHRA) and
Minnesota Whistleblower Act (Whistleblower Act).6 Canadian
Pacific moved for summary judgment on all counts on October 6,
I. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment is appropriate 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. See Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). A fact is material only when its
resolution affects the outcome of the case. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the
evidence is such that it could cause a reasonable jury to return a
verdict for either party. See id. at 252.
On a motion for summary judgment, all evidence and inferences
are to be viewed in a light most favorable to the nonmoving party.
See id. at 255. The nonmoving party, however, may not rest upon
mere denials or allegations in the pleadings but must set forth
specific facts sufficient to raise a genuine issue for trial. See
Celotex, 477 U.S. at 324. Moreover, if a plaintiff cannot support
each essential element of his claim, summary judgment must be
granted because a complete failure of proof regarding an essential
element necessarily renders all other facts immaterial. Id. at
II. Substantive Claims
A court applies McDonnell Douglass burden-shifting analysis
to discrimination and retaliation claims under the ADEA, ADA, MHRA
and Whistleblower Act in cases such as this where there is no
direct evidence of discriminatory or retaliatory intent. See
Baucom v. Holiday Cos., 428 F.3d 764, 766 (8th Cir. 2005) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)); see
also Buytendorp v. Extendicare Health Servs., 498 F.3d 826, 834
(8th Cir. 2007); Mershom v. St. Louis Univ., 442 F.3d 1069, 1074
(8th Cir. 2006). Under McDonnell Douglas, the plaintiff must first
establish a prima facie case. Baucom, 428 F.3d at 766. The burden
of production then shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for its actions. Id. If the
defendant satisfies its burden, the plaintiff must show that the
defendants reason is pretext for unlawful discrimination. Id. at
766-67. Pretext can be shown either directly by persuading the
court that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employers proffered
explanation is unworthy of credence. Tex. Dept of Comty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981). Claims for failure to
accommodate are analyzed under a modified burden-shifting
analysis, because discriminatory intent is not at issue.
Mershom, 442 F.3d at 1074 (quoting Peebles v. Potter, 354 F.3d 761,
766 (8th Cir. 2004)).
A. Disability Claims
1. Discrimination
Kirkeberg first argues that Canadian Pacific unlawfully
discriminated against him because of his eye problems and hepatitis
C infection. To establish a prima facie case of disability
discrimination under the ADA and the MHRA, Kirkeberg must establish
that: (1) he was disabled; (2) he was qualified to perform the
essential functions of the job, with or without reasonable
accommodation; and (3) he suffered an adverse employment action due
to his disability. Libel v. Adventure Lands of Am., Inc., 482 F.3d
1028, 1034 (8th Cir. 2007) (citation omitted); Burchett v. Target
Corp., 340 F.3d 510, 516 (8th Cir. 2003). Canadian Pacific argues
that Kirkeberg was not disabled.
A disability under the ADA is a physical or mental
impairment that substantially limits one or more of the major life
activities of [an] individual. 42 U.S.C. 12102(2)(A). An
individual is disabled under the MHRA if he has a physical,
sensory, or mental impairment which materially limits one or more
major life activities. Hoover v. Norwest Private Mortgage
Banking, 632 N.W.2d 534, 543 (Minn. 2001) (quoting Minn. Stat.
363.01, subdiv. 13 (2000)). A material limitation is less
stringent than a substantial limitation. Id. at 543 n.5.
Nevertheless, the relevant ADA regulations aid a court in
determining whether an impairment materially limits a major life
activity under the MHRA. Mallon v. U.S. Physical Therapy, Ltd.,
395 F. Supp. 2d 810, 817 n.1 (D. Minn. 2005).
Major life activities are those that are of central
importance to most peoples lives. Toyota Motor Mfg. v. Williams,
534 U.S. 184, 198 (2002). These include functions such as caring
for ones self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, working, thinking and concentrating.
See Gretillat v. Care Initiatives, 481 F.3d 649, 652 (8th Cir.
2007) (citing 29 C.F.R. 1630.2(I) (2006)); Battle v. United
Parcel Serv., Inc., 438 F.3d 856, 861 (8th Cir. 2006) (citations
7 Amendments to the ADA effective January 1, 2009, expressly
abrogated Suttons instruction to consider the ameliorative
effects of mitigating measures, and Williamss narrow construction
of a substantial limitation in performing a major life activity.
ADA Amendments Act of 2008, Pub. L. No. 110-325, 2(b), 122 Stat.
3553, 3554. Kirkeberg does not argue for retroactive application
of the amendments, and the court determines that retroactive
application is not warranted. See Landgraf v. USI Film Prods., 511
U.S. 244, 280 (1994) (no retroactive application of legislation if
it would impair rights a party possessed when he acted, increase
a partys liability for past conduct, or impose new duties with
respect to transactions already completed); see also Elbert v.
True Value Co., No. 08-1222, 2008 U.S. App. LEXIS 26103, at *4 (8th
Cir. Dec. 19, 2008) (presumption against retroactive application of
omitted). A substantial limitation exists if an individual is
significantly restricted as to the condition, manner or duration
under which ... the average person in the general population can
perform the same major life activity. Gretillat, 481 F.3d at 652
(quoting 29 C.F.R. 1630.2(j)(1)(ii)). A court evaluates claims of
disability on an individual basis and considers mitigating measures
to determine whether an individuals impairment substantially
limits a major life activity. Ristrom v. Asbestos Workers Local
34 Joint Apprentice Comm., 370 F.3d 763, 772 (8th Cir. 2004)
(citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999);
Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521 (1999)).7
Individuals with monocular vision are not per se disabled.
Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 567 (1999).
Nevertheless, such individuals ordinarily will meet the [ADAs]
definition of disability [by offering evidence] that the extent of
the limitation [in] their own experience, as in loss of depth
perception and visual field, is substantial. Id. (quotation
Kirkeberg maintains that his monocular vision substantially
and materially limited his ability to see, walk, read, concentrate,
think, drive and work. Kirkeberg, however, testified that his
vision problems did not affect his ability to work and have not
limited his consideration of other jobs. (Kirkeberg Dep. at 54-
55.) Moreover, Kirkeberg was only prevented from driving while he
had an eye infection in February and March 2007, his monocular
vision has made him only less able to navigate while walking and
he can read fairly normally. (Kirkeberg Dep. at 52-55.)
Therefore, Kirkeberg is not substantially or materially limited in
his ability to work, drive, walk, read, think or concentrate. See
Rubink v. Roadway Express, Inc., No. 01-3380, 2002 U.S. App. LEXIS
9920, at *2-4 (8th Cir. May 20, 2002) (monocular individuals
ability to work not substantially limited); see also Anderson v.
N.D. State Hosp., 232 F.3d 634, 636 (8th Cir. 2000) (assuming
without deciding that driving is major life activity). Finally,
Kirkeberg has not provided medical evidence detailing a substantial
loss of depth perception and visual field. See Ristrom, 370 F.3d
at 769 ([A]n individual cannot prove disability status by merely
submitting evidence of a medical diagnosis of an impairment.
(quotation omitted)). Rather, Kirkeberg testified that he is less
able to navigate on foot and that he bumps into people and trips
over objects that are low on his left side. (Kirkeberg Dep. at
54.) This testimony, however, does not support a substantial or
material limitation in Kirkebergs ability to see. See EEOC v.
United Parcel Serv., Inc., 306 F.3d 794, 801-03 (9th Cir. 2002) (no
disability because monocular vision did not prevent two individuals
from using eyesight as most others do for daily life); Still v.
Freeport-McMoran, Inc., 120 F.3d 50, 52 (5th Cir. 1997) (monocular
individual not substantially limited); see also Rohland v. St.
Cloud Christian Sch., No. A04-821, 2004 Minn. App. LEXIS 1415, at
*22 (Minn. Ct. App. Dec. 21, 2004) (Vision problems do not
constitute a disability [under the MHRA] when through medication,
eye glasses, assistive devices, or the bodys own ability to
compensate, the individuals disability is mitigated and the
individual is not substantially limited in the major activity of
seeing.). But cf. Doane v. City of Omaha, 115 F.3d 624, 627-28
(8th Cir. 1997) (blindness in one eye substantially limits major
life activity of seeing if mitigating measures not considered).
Therefore, the court determines that Kirkeberg has not established
a fact issue as to whether his monocular vision substantially or
materially limited his participation in major life activities.
Kirkeberg further alleges that he was disabled because of the
hepatitis C infection. He indicates that the infection caused
bloody noses, brain fog, fatigue, sleep disturbances, painful
joints, painful muscles, weakness, headaches, depression,
8 The new ADA amendments provide that:
An individual meets the requirement of being regarded as
having such an impairment if the individual establishes
that he or she has been subjected to an action prohibited
under [the ADA] because of an actual or perceived
physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life
irritability and cognitive changes all of which made work more
difficult and made reading, thinking and concentrating harder.
(Kirkeberg Aff. 7.) Kirkeberg, however, has provided no evidence
as to the degree or duration of these side effects. Therefore, he
has not shown that the hepatitis C infection substantially or
materially limited a major life activity. See Gretillat, 481 F.3d
at 652 (court considers nature, severity, duration, and long-term
impact of the impairment). Accordingly, the court determines that
Kirkeberg was not actually disabled.
Even if an individual is not actually disabled, however, he is
considered disabled under the ADA and MHRA if he is regarded as
having a disability. See 42 U.S.C. 12102(2)(C); Minn. Stat.
363A.03, subdiv. 12(3). One situation in which an individual is
regarded as having a disability is when an employer mistakenly
believes an actual, non-limiting impairment substantially [or
materially] limits one or more of the individuals major life
activities. Pittari v. Am. Eagle Airlines, Inc., 468 F.3d 1056,
1061 (8th Cir. 2006) (citing Sutton, 527 U.S. at 489).8
ADA Amendments Act of 2008, Pub. L. No. 110-325, 4(a)(3)(A), 122
Stat. 3553, 3555. As noted above, however, these amendments do not
apply to the present action.
Kirkeberg argues that Simmons knew he had eye problems and
hepatitis C, and that Simmons treated him poorly as a result.
Nevertheless, even if Simmons became hostile toward Kirkeberg after
learning of Kirkebergs impairments, no evidence suggests that
Simmons believed that those impairments substantially or materially
limited Kirkebergs major life activities. Instead, the evidence
shows that Simmons thought that Kirkeberg was competently
performing his job. Indeed, Simmons supported Kirkebergs request
for a pay raise early in 2007 and did not question the doctors
judgment that Kirkeberg could perform normal daily functions.
(Simmons Dep. at 4, 65.) Therefore, the court determines that
Simmons did not regard Kirkeberg as disabled, and Kirkeberg cannot
establish a prima facie case of disability discrimination under the
Moreover, even if Kirkeberg could establish a prima facie
case, he cannot show that Canadian Pacifics cost-saving and
resource-enhancing rationales for outsourcing the EAP functions
were pretext for unlawful discrimination. Kirkeberg first argues
that Canadian Pacifics proffered rationales are pretextual because
Simmons began thinking about outsourcing the EAP function at the
time he allegedly learned of Kirkebergs hepatitis C diagnosis,
actively pursued outsourcing only after becoming upset at Kirkeberg
on March 5, 2007, and terminated Kirkeberg hastily before Kirkeberg
began hepatitis C treatment. Simmonss decision, however, was
approved by Frankenberg and Cunningham, and the record contains no
evidence that their approval was influenced by Kirkebergs health
problems. Moreover, Simmonss initial discussions about
outsourcing were with Wilson, who had never met Kirkeberg and knew
nothing about his medical conditions. (Wilson Dep. at 8.)
Therefore, the timing of Simmonss actions does not create a fact
issue as to whether Canadian Pacifics justification for
outsourcing the EAP function was pretext for unlawful
Kirkeberg also attempts to establish pretext by challenging
the necessity and effect of outsourcing his position. Kirkeberg
argues that Simmons was not directed by Canadian Pacific management
to cut EAP costs, that Kirkeberg already provided sufficient
services and that the savings identified by Canadian Pacific as a
result of hiring Well Place are illusory. It is undisputed,
however, that Simmons had a general duty to cut costs so long as
the cuts would not affect services. The evidence also shows that
Well Place provides greater resources than Canadian Pacific
maintained in-house. Moreover, Kirkeberg has not presented any
facts to challenge Canadian Pacifics cost-savings claim. Rather,
Kirkeberg maintains that the figures in the record exclude costs
for training, travel and critical incident response, but he does
not support this claim with evidence. Therefore, even if Kirkeberg
was disabled under the ADA and MHRA, he cannot establish that
Canadian Pacifics termination of his position was pretext for
unlawful discrimination. See Kincaid v. City of Omaha, 378 F.3d
799, 805 (8th Cir. 2004) ([T]he employment-discrimination laws
have not vested in the federal courts the authority to sit as
super-personnel departments reviewing the wisdom or fairness of the
business judgments made by employers, except to the extent that
those judgments involve intentional discrimination. (quotation
omitted)). Accordingly, the court grants summary judgment on this
2. Failure to Accommodate and Retaliation
Kirkeberg next argues that Canadian Pacific violated the ADA
by not providing him with reasonable accommodations. The ADA and
MHRA require employers to provide reasonable accommodations to
disabled employees. 42 U.S.C. 12112(b)(5)(A); Minn. Stat.
363A.08, subdiv. 6. An employee establishes a violation of this
duty by showing he is a qualified individual with a disability and
the employer knew of the disability but did not provide reasonable
accommodations. EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 797
(8th Cir. 2005) (citation omitted). Kirkebergs claim fails
because he has not established a fact issue as to whether he is
disabled. Nevertheless, an individual who is adjudged not to be
a qualified individual with a disability may still pursue a
retaliation claim under the ADA as long as [he] had a good faith
belief that the requested accommodation was appropriate. Heisler
v. Metro. Council, 339 F.3d 622, 632 (8th Cir. 2003) (quotations
To support a prima facie case for retaliation under the ADA
and MHRA, Kirkeberg must show that he engaged in a protected
activity, suffered an adverse employment action, and that there is
a causal connection between the two. Id. at 632. Requesting an
accommodation is a protected activity and termination of employment
is an adverse action. Id. Kirkeberg argues that the temporal
proximity between his March 5, 2007, statement about working from
home and Simmonss same-day e-mail to Wilson about eliminating the
EAP position establishes causation. See Mitchell v. Iowa Prot. &
Advocacy Servs., 325 F.3d 1011, 1014 (8th Cir. 2003) (temporal
proximity between protected activity and adverse employment action
may prove causation). Assuming Kirkeberg has established a fact
issue as to causation, he has not, as discussed above, done the
same as to pretext. Accordingly, the court grants summary judgment
on Kirkebergs failure to accommodate and retaliation claims under
the ADA and MHRA.
B. Age Claims
1. Discrimination
The ADEA and MHRA prohibit an employer from discharg[ing] any
individual or otherwise discriminat[ing] against any individual
with respect to his compensation, terms, conditions, or privileges
of employment, because of such individuals age. 29 U.S.C.
623(a)(1); see also Minn. Stat. 363A.08, subdiv. 2; Carraher v.
Target Corp., 503 F.3d 714, 716 (8th Cir. 2007) (same analysis
applies to age discrimination claims under ADEA and MHRA). To
establish a prima facie case of age discrimination where there has
been a reduction in force, the plaintiff must show: (1) he is over
40 years old; (2) he met the applicable job qualifications; (3) he
suffered an adverse employment action; and (4) there is some
additional evidence that age was a factor in the employers
action. Ward v. Intl Paper Co., 509 F.3d 457, 460 (8th Cir.
2007) (citation omitted).
The first three factors are uncontested in this case, and
Kirkeberg maintains that the fourth factor is satisfied because no
younger employees had their positions eliminated and younger
employees were allowed to work from home, were not told to take
FMLA leave and received promotions and pay increases that Canadian
Pacific denied Kirkeberg. Again, however, assuming that Kirkeberg
has stated a prima facie case of age discrimination, he has not
established a fact issue regarding pretext. See Dammen v. UniMed
Med. Ctr., 236 F.3d 978, 981 (8th Cir. 2001) (When an employer
articulates a nondiscriminatory reason for an employee's discharge
... the factual inquiry proceeds to a new level of specificity."
(quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715 (1983)). Therefore, the court grants summary judgment on
this claim.
2. Retaliation
Kirkeberg further argues that Canadian Pacific unlawfully
retaliated against him for his support of Ward. To establish a
prima facie case of retaliation in violation of the ADEA and MHRA,
Kirkeberg must present evidence that he engaged in a protected
activity, suffered an adverse employment action and a causal
connection between the two. Lewis v. St. Cloud State Univ., 467
F.3d 1133, 1138 (8th Cir. 2006).
More than two years elapsed between the resolution of Wards
suit against Canadian Pacific and Kirkebergs termination.
Kirkeberg offers no additional evidence to support a causal
connection between these events. Accordingly, Kirkeberg has not
established a prima facie case of retaliation, and summary judgment
is warranted on this claim. See id. (We have held that an
interval as brief as two months did not show causation for purposes
of establishing a retaliation claim.).
C. Whistleblower Act Claim
The Whistleblower Act forbids an employer from terminating an
employee because:
(c) the employee refuses an employers order to perform
an action that the employee has an objective basis in
fact to believe violates any state or federal law or rule
or regulation adopted pursuant to law, and the employee
informs the employer that the order is being refused for
that reason.
Minn. Stat. 181.932, subdiv. 1. A plaintiff establishes a prima
facie case by showing that (1) he engaged in a statutorily
protected activity, (2) he suffered an adverse employment action
and (3) there is a causal connection between the two. See Cokley
v. City of Otsego, 623 N.W.2d 625, 630 (Minn. Ct. App. 2001)
(citing Hubbard v. United Press Intl, Inc., 330 N.W.2d 428, 444
(Minn. 1983)).
Kirkeberg argues that he engaged in protected conduct by
refusing to disclose information about EAP participants to Simmons.
Assuming that Kirkeberg engaged in statutorily protected activity,
he has not shown a causal connection between that activity and the
termination of his position. The only dated evidence of a request
by Simmons for allegedly confidential information is the November
13, 2006, email. The temporal proximity between Kirkebergs
termination and his refusal of this request for information does
not support causation. See Freeman v. Ace Tel. Assn, 404 F. Supp.
2d 1127, 1141 (D. Minn. 2005) (A time gap between a report and a
termination can undermine the claim of a connection between the
two.). Moreover, even if Simmons requested confidential
information shortly before termination of Kirkebergs position,
Kirkeberg acknowledged that he refused Simmonss requests on
several occasions without experiencing recriminations. This weighs
against a causal connection. See id. at 1142. Accordingly, the
court determines that Kirkeberg cannot establish a prima facie case
of retaliation. Moreover, even if Kirkeberg could make such a
case, as noted above, he has not established that Canadian
Pacifics justification for his termination is pretext for unlawful
retaliation. Therefore, the court grants summary judgment on this
Based upon the above, IT IS HEREBY ORDERED that Canadian
Pacifics motion for summary judgment [Doc. No. 20] is granted.
Dated: January 26, 2009
s/David S. Doty
David S. Doty, Judge
United States District Court


  What day were you injured?

  / /

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

  How have your injuries affected

  your life?


  What kinds of medical care
  professionals have you seen?


  What has your treatment cost?


  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

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

Police Responded but Did
        Not File a Police Report



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