Olinger v. Renville CountyOlinger v. Renville County
OPINION AND ORDER
Markus C. Yira, Yira Law Office, Ltd, Hutchinson, MN; and
Patrick J. Larkin and Michael T. Burke, Lind Jensen Sullivan & Peterson, PA, Minneapolis, MN for Defendants Renville County Hospital & Clinics and Nathan Blad.
Plaintiff Douglas Olinger alleges that Defendants Renville County Hospital & Clinics and its CEO, Nathan Blad, violated the Family and Medical Leave Act (“FMLA”) by downgrading the duties of his position after he returned from an FMLA leave and by later terminating his employment for exercising his right to FMLA leave. Olinger also alleges that these same adverse actions violated Minnesota’s Whistleblower Act because they occurred in retaliation for his exercise of reporting rights protected under the Act. Defendants have moved for summary judgment on all of Olinger’s claims, and that motion will be granted. Olinger’s FMLA entitlement claim based on the alleged downgrading of his position fails because, as a matter of law, the duties of his position when he returned from FMLA leave were not sufficiently different from the duties of the position before his leave. Even if there were a legally sufficient difference, Defendants have shown that the changes to Olinger’s duties would have occurred regardless of his FMLA leave. Olinger’s FMLA discrimination claim based on his termination does not survive because Olinger hаs not identified evidence from which a juror reasonably could infer a causal connection between his exercise of FMLA rights and his termination. Olinger’s claim under Minnesota’s Whistleblower Act fails because he did not report a violation of the law—i.e., he never blew the whistle—as the Act requires.
I1
Olinger began working for Renville County Hospital & Clinics (the “Hospital”) in November 2000. Burke Decl., Ex. 1 (“Olinger Dep.”) at 19 [ECF No. 38-1]; Compl. ¶ 9 [ECF No. 1]. He was employed initially as a maintenance engineer. Olinger Dep. at 31. From the day he started until about October 2007, Olinger reported to the Hospital’s maintenance director, David Lofgren. Id. at 31–33. Lofgren retired at that time, and Olinger applied unsuccessfully for the director of maintenance position. Id. at 32–33. Olinger сontinued working as a maintenance engineer for several years, and in April 2014—with encouragement from the Hospital—Olinger accepted the position of housekeeping and laundry supervisor. Id. at 33–34. As the housekeeping and laundry supervisor, Olinger oversaw the staff of the housekeeping and laundry departments and reported to the Hospital’s CFO. Burke Decl., Ex. 2 (“Position Description”) at 1. Olinger’s duties in this position included supervising staff and performing housekeeping work. See generally id. at 1–2. Olinger spent about fifty percent of his time on
Olinger requested and was granted FMLA leave on multiple occasions during his employment with the Hospital. In May 2014, shortly after beginning work as the housekeeping and laundry supervisor, Olinger requested and was granted FMLA leave to care for his son in connection with a surgery. Id. at 38. Olinger returned from this leave the following month, in June. Id. Olinger requested and was granted a second FMLA leave to care for his son beginning August 21, 2014. Id. at 39. He returned from this leave in mid-September. Id. at 39–40. At some point during October through December 2014, Olinger took a third FMLA leave to care for his son. Id. at 41–42. Olinger identifies no complaints with any of these three FMLA leaves. He acknowledges that these leave requests were approved with no issues and that he encountered no problems on his return to work from any of these leaves. Id. at 38–42.
Olinger twice applied for open maintenance engineer positions during 2015, but he was not successful on either occasion. In May 2015, Olinger applied and interviewed for the position, but another individual named Bruce Jacques was hired. Id. at 49–50; 73. Jacques subsequently was promoted to environmental services director. Id. at 73–74. His promotion created the second open maintenance engineer position for which Olinger applied; Olinger was scheduled to be interviewed for the position in September 2015. Id. at 74–75. Concerns with the Hospital’s hiring process for these positions prompted Olinger to contact then-Renville County Administrator Sara Folstad prior to this interview. Id. at 77–91. Olinger asked Folstad what could be done “about the hiring process about - - if they were going to hire - - if they didn’t hire the most qualified person.” Id. at 86. Folstad told Olinger that he should follow the Hospital’s grievance policy. Id. Olinger asked what he could do if he didn’t “feel comfortable or if at this time I’m not sure if that’s capable of going through that chain,” and Folstad repeated that Olinger should follow the Hospital’s grievance policy. Id. Olinger asked Folstad to keep their conversation confidential and said “if [he] thought something changed or it didn’t look like it was above boаrd, [he] would then follow up with her.” Id. Olinger “never did have to call back and talk to her after that.” Id. Olinger subsequently was interviewed for the open maintenance engineer position, but another individual was hired. Id. at 74–75.
Olinger requested and was granted a fourth FMLA leave from September 29, 2015 until mid-February 2016 to undergo treatment for a neck condition. Id. at 51–54. Two events following Olinger’s return from this leave form the basis for his FMLA claims in this case. First, Olinger says that after he returned from this leave the duties of his position shifted away from being supervisory and that he “just became a floor worker.” Id. at 54. Second, Olinger’s employment was terminated on April 4, 2016. Burke Decl., Ex. 8. In a letter, the Hospital explаined that Olinger was “being laid off from [his] position as Housekeeping Manager effective immediately.” Id., Ex. 7. The letter cited efficiencies gained from the Hospital’s construction of and move to a “new building and anticipated future cuts in reimbursements” as justifications for the layoff and described that the layoff was “indefinite in duration and should be considered permanent.” Id.
II
Summary judgment is warranted “if the movant shows that there is no genuine
A
1
Olinger alleges that Defendants engaged in acts prohibited by the FMLA, and
(a) Interference with rights
(1) Exercise of rights
It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.
(2) Discrimination
It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.
Our Eighth Circuit Court of Appeals “has rеcognized three types of claims arising under these two subsections. The first type, arising under § 2615(a)(1), occurs where an employer refuses to authorize leave under the FMLA or takes other action to avoid responsibilities under the Act.” Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005 (8th Cir. 2012). “An employee proceeding on this theory need not show that an employer acted with discriminatory intent.” Id. Though in several older cases the Eighth Circuit has described this claim as one for “interference” with FMLA rights, e.g., Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006), it more recently declared that “what we formerly described as ‘interference’ claims henceforth shall be called ‘entitlement’ claims.” Bosley v. Cargill Meat Solutions Corp., 705 F.3d 777, 780 (8th Cir. 2013) (citing Pulczinski, 691 F.3d at 1005). The second type of claim is one for “retaliation.” Pulczinski, 691 F.3d at 1005–06. A retaliation claim arises under § 2615(a)(2) and occurs when an employee opposes any practice made unlawful under the FMLA. Id. The third type of claim
arises when an employer takes adverse action against an employee because the employee exercises rights to which he is entitled under the FMLA. In this scenario, the employer does not prevent the employee from receiving FMLA benefits. Rather, it is alleged that after the employee exercised his statutory rights, the employer discriminated against him in the terms and conditions of employment. An employee making this type of claim must prove that the employer was motivated by the employee’s exercise of rights under the FMLA. Thе textual basis for such a claim is not well developed in [the Eighth Circuit’s] cases, but the claim likely arises under the rule of § 2615(a)(1) that an employer may not “interfere with, restrain, or deny the exercise of or the attempt to exercise” rights defined by the FMLA. To distinguish the “entitlement” claim under § 2615(a)(1), and the “retaliation” claim under § 2615(a)(2), we think it helpful to describe this sort of complaint as a “discrimination” claim.
Pulczinski, 691 F.3d at 1006 (citations omitted); see also Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149, 1157–58 n.5 (8th Cir. 2016) (noting “unresolved difference of opinion” in the Eighth Circuit as to whether a discrimination claim arises under § 2615(a)(1) or (a)(2)). FMLA discrimination claims are evaluated “under the McDonnell Douglas burden-shifting framework that is applied in Title VII cases.” Pulczinski, 691 F.3d at 1007.
2
Defendants, using the older FMLA nomenclature, argue that Olinger’s claim challenging the post-leave downgrading of his position should be evaluated as a “retaliation” claim and not as one for “interference.” See Mem. in Supp. at 13–22 [ECF No. 37]. Olinger pleads that Defendants violated his FMLA restoration right, and this aspect of Olinger’s complaint must be analyzed as an entitlement claim under the Eighth Circuit’s more recent decisions. Olinger alleges that he “was entitled to restoration to his position as described in the FMLA,
“Upon return from FMLA leave, an employee is entitled to be restored to the same position held prior to the beginning of the leave, or its equivalent, in terms of benefits, pay and other terms and conditions.” Bloom v. Metro Heart Grp. of St. Louis, Inc., 440 F.3d 1025, 1029 (8th Cir. 2006) (citing
Olinger acknowledges that the position he occupied after returning from his September 2015-to-February 2016 FMLA leave had the same hours, salary, and benefits as the position he occupied before the leave. Olinger Dep. at 55–57. Regardless, he says that “major changes to his position occurred” that made the position he occupied after returning “materially different” from the position he occupied before the leave. Mem. in Opp’n at 13–14 [ECF No. 41].2 The housekeeping and laundry supervisor position Olinger occupied before his leave included supervisory duties (Olinger refers to these as “office” duties) and housekeeping duties (Olinger calls these “floor” duties). Olinger Dep. at 46. The supervisory duties included evaluating, planning, organizing, and controlling the activities and staff for the Hospital’s housekeeping and laundry departments. Positiоn Description at 1–2. Housekeeping duties “range[d] from cleaning patient rooms, hallways, exam rooms to the surgery area.” Olinger Dep. at 47. Olinger testified that he split his time evenly between supervisory and housekeeping duties: “it was 50 percent floor, 50 percent office.” Id. at 46. Olinger testified this split changed when he returned from his September 2015-to-February 2016 FMLA leave:
Upon return, the duties of the position was different. Wasn’t a supervisor. I didn’t manage the staff. I didn’t put their schedules together. I didn’t implement the . . . policies or treatments or trainings or methods or any of that. I just became a floor worker.
Id. at 54; see also id. at 59 (testifying that, following return from leave, he no longer
Defendants argue that they did not violate Olinger’s restoration rights because the position Olinger occupied on return from leave was not “outside of the core competencies” of the housekeeping and laundry supervisor position. Reply Mem. at 8. Defendants do not seem to dispute that Olinger’s duties shifted at least somewhat and that he spent comparatively more of his time performing housekeeping work and less time on supеrvisory work after he returned from leave. However, the Hospital’s human resources director, Lynette Bernardy, testified that Olinger retained responsibility to manage the housekeeping and laundry departments, and that this responsibility included conducting performance evaluations, ensuring compliance with Hospital policies, disciplining employees, and managing timecards. Burke Decl., Ex. 5 (“Bernardy Decl.”) ¶¶ 5–6.3
As a matter of law, Olinger has not shown that the duties of his housekeeping and laundry supervisor position were materially different during the not quite two months he worked after his September 2015-to-February 2016 FMLA leave from before he took this leave. As noted above, Olinger’s title, hours, salary, and benefits all stayed the same. He was not required to perform new tasks. Housekeeping or “floor” duties were a significant part of Olinger’s responsibilities before his leave. This is clear from the housekeeping and laundry supervisor position description. For example, it identifies the performance of “cleaning procedures” as a core competency, among others related to housekeeping duties. Position Description at 1. It lists several housekeeping tasks as “[g]eneral [r]esponsibilities.” Id. These include, for example, maintaining the “cleanliness” of the Hospitаl and “[f]ollow[ing] established safety precautions when performing tasks and when using equipment and supplies.” Id. The physical demands described for the position seem primarily to concern housekeeping duties. Id. at 2–4. As presented, the increase in housekeeping duties Olinger describes is de minimis as a matter of law under
Even if Olinger had shown the existence of a genuine issue of material fact regarding whether the duties of the housekeeping and laundry supervisor position were “materially different from those of the employee’s pre-leave position,” Cooper, 246 F.3d at 1091, the FMLA “does not impose strict liability on employers for interference [now entitlement] claims,” Ballato v. Comcast Corp., 676 F.3d 768, 772 (8th Cir. 2012). If the employer can show that the employee’s restoration rights would have been affected in the same way if the employee had not taken FMLA leave, then the employer cannot be liable under an entitlement claim. See id. “An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.”
Here, Defendants have shown that the changes Olinger describes to his housekeeping and laundry supervisor services position would have happened even if Olinger had not taken his September 2015-to-February 2016 FMLA leave. Scheduling is one of the primary supervisory or administrative duties Olinger says was not restored to him following his return from this leave. Olinger Dep. at 54. During Olinger’s leave (or at least around the same time his leave began), the Hospital moved to a new building. Bernardy Decl. ¶ 2. As part of the move, the Hospital developed a new “block scheduling system” that remains in use today. Id. ¶ 3. The system “was implemented beginning on November 13, 2015,” during Olinger’s leave. Id. With the new scheduling system in place, “there was no longer a need for Mr. Olinger to work on a four-week rotation to schedule the housekeeping and laundry departments.” Id. Budgeting is another of the principal administrative duties Olinger says was not restored following his leave. Olinger Dep. at 59. But Bernardy testified that the Hospital budget was last updated on December 18, 2015, which was the version approved by the board on December 23, 2015. Bernardy Decl. ¶ 7. Though Olinger does not seem to identify it specifically, managing the Hospital’s telephone system was another of his pre-leave duties affected by the move. Id. ¶ 2. In its new facility, the Hospital installed a “Cisco phone system” that “was a much more sophisticated phone system that even [the Hospital’s] IT department struggled with,” prompting the Hospital to contract with an
3
Olinger alleges an FMLA discrimination claim based on Defendants’ termination of his employment. To establish a prima facie FMLA discrimination claim, Olinger must show that Defendants terminated his employment because Olinger exercised FMLA rights. See Brown v. City of Jacksonville, 711 F.3d 883, 891 (8th Cir. 2013). In the absence of direct evidence of discriminatory intent, an FMLA discrimination claim is analyzed under the burden-shifting framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).4 See, e.g., City of Jacksonville, 711 F.3d at 891; Diversified Distribution Sys., 801 F.3d at 908. Under that framework, Olinger “must show: (1) that he engaged in activity protected under the Act, (2) that he suffered a materially adverse
employment action, and (3) that a cаusal connection existed between [his] action and the adverse employment action.” Diversified Distribution Sys., 801 F.3d at 908 (quotation omitted); see also Pulczinski, 691 F.3d at 1007. The burden of showing a prima facie case is “minimal.” Logan v. Liberty Healthcare Corp., 416 F.3d 877, 881 (8th Cir. 2005) (quotation omitted). If Olinger satisfies that minimal hurdle, the burden then shifts to Defendants “to articulate some legitimate, nondiscriminatory reason” for their actions. McDonnell Douglas, 411 U.S. at 802. If Defendants meet this burden, then Olinger will have to demonstrate that Defendants’ purportedly legitimate, nondiscriminatory reason was pretextual or discriminatory in its application. Id. at 807. Here, there is no dispute that Olinger engaged in protected activity when he took FMLA leave from September 2015 to February 2016. There also is no dispute that he suffered an adverse employment action when his employment was terminated.
The issue is whether Olinger has shown causality, and the record establishes that he has not. The Eighth Circuit “has said that an employee must prove that his exercise of FMLA rights ‘played a part’ in the employer’s decision.” Pulczinski, 691 F.3d at 1007 (citing Marez v. Saint-Gobain Containers, Inc., 688 F.3d 958, 963 n.3 (8th Cir. 2012) and
B
Minnesota’s Whistleblower Act prohibits an employer from terminating an employee in retaliation for reporting a violation of the law.
Olinger did not engage in conduct protected by the Minnesota Whistleblower Act because he did not “report[] a violation, suspected violation, or planned violation of any federal or state law or common law or rule adopted pursuant to law.”
ORDER
Based on the foregoing, and all of the files, records, and proceedings herein, IT IS ORDERED THAT:
-
Defendants’ motion for summary judgment [ECF No. 29] is GRANTED; - This action is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: November 12, 2019
s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court