Norah Oehmke v. Medtronic, Inc.

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-1052
___________________________
Norah C. Oehmke
lllllllllllllllllllll Plaintiff - Appellant
v.
Medtronic, Inc.
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: October 19, 2016
Filed: December 22, 2016
____________
Before GRUENDER, BEAM, and SHEPHERD, Circuit Judges.
____________
BEAM, Circuit Judge.
Norah Oehmke appeals the district court's1 adverse grant of summary judgment
in her suit against Medtronic, Inc., for disability discrimination and retaliation under
1
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act
(MHRA). We affirm.
I. BACKGROUND
Because this case comes before us on Medtronic's motion for summary
judgment, we portray the facts in the light most favorable to Oehmke. Johnson v.
Blaukat, 453 F.3d 1108, 1112 (8th Cir. 2006). Oehmke was diagnosed in 1997 with
Hodgkin's lymphoma, for which she received chemotherapy and radiation treatment
and a bone-marrow transplant. The cancer has been in remission since 1999. Her
treatment resulted in adverse, long-term health effects, including a suppressed immune
system and cardiomyopathy.2 Medtronic, a medical device manufacturer, hired
Oehmke as a Credit Representative in 2003. Oehmke informed Medtronic at that time
of her disability as a cancer survivor with long-term health effects. Oehmke excelled
in this position, winning awards for customer satisfaction and cost efficiency. In 2005
Oehmke took the position of Senior Patient Services Specialist, in which she answered
patient telephone calls and e-mails concerning implantable devices, warranty claims,
or unreimbursed medical claims. At the time she was hired for this position, she again
communicated her disability to her hiring supervisor.
Oehmke's direct supervisor in this position was Mavis Klemmensen. Patient
Services was part of the Technical Services and Patient Services Department,
managed by Lyn Stepaniak. Klemmensen and Oehmke got along well and she
consistently gave Oehmke positive performance evaluations. She allowed Oehmke
to work from home ("telework") on days when Oehmke was ill. Because of her
suppressed immune system, Oehmke became sick easily and it took her longer than
2
Cardiomyopathy is "a general diagnostic term designating primary
noninflammatory disease of the heart muscle." Cardiomyopathy, Dorland's Illustrated
Medical Dictionary (32d ed. 2012).
-2-
normal to recover. Medtronic's policy was to limit teleworking to two days per week,
but Klemmensen allowed Oehmke to do so more often if needed. Throughout this
period–roughly 2005 to 2008–Oehmke often took medical leave for medical
appointments.
Oehmke applied for a higher position, Operations Lead, in April 2008.
Klemmensen talked Oehmke out of applying for the position, explaining that Oehmke
was already slated to be promoted to Principal Patient Services Specialist that July.
During this conversation, Klemmensen stated that she perceived Oehmke as desiring
power in the workplace, and made a reference to Nazis or Hitler. Although the parties
dispute the context around and intent behind that reference, Oehmke understood the
reference to be directed at her. Being of German heritage, she took especial exception
to the statement, and this apparently initiated a deterioration in Oehmke and
Klemmensen's working relationship. Klemmensen selected another, less qualified
candidate for the Operations Lead position. That candidate also was a cancer
survivor. Several nondisabled members of Oehmke’s department were promoted in
May 2008.
Medtronic management received three customer complaints referencing calls
handled by Oehmke in July, August, and September of 2008. Oehmke disputes the
accuracy of these complaints. Two calls involved upset patients, and although it does
not appear from the record that Oehmke necessarily caused their agitated state, one
of the responsibilities of a Patient Services Specialist is to use empathy to calm down
upset customers. Another complaint referenced Oehmke's failure to call the patient
back. In regard to one of these calls, Oehmke had written down in her call notes that
the customer was "rude." This violated Medtronic's policy of using purely objective
language in call notes, which are discoverable. Additionally, Klemmensen received
complaints from other employees regarding Oehmke's blunt communication style. In
July 2008, Klemmensen told Oehmke that she would not, in fact, be promoted to
-3-
Principal Patient Services Specialist, giving as a reason for her decision one of the
patient complaints.
Oehmke met with Stepaniak and Klemmensen in September 2008 to discuss
why she was not promoted. Klemmensen discussed the customer complaints and
Oehmke's use of the term "rude" in her call notes. Klemmensen informed Oehmke
that she would begin enforcing the two-days-a-week limit on teleworking until
Oehmke demonstrated that she was consistently empathetic in dealing with patient
phone calls. Oehmke requested that she continue to be able to telework as she needed,
and Klemmensen later granted the request on the condition that Oehmke's calls
handled from home be recorded. Oehmke agreed, although she considered this to be
unfair treatment because other teleworkers were not recorded. In March 2009,
Medtronic began recording all patient-services calls. Later in September 2008,
another meeting occurred between Oehmke and Klemmensen at which Stepaniak was
present. Stepaniak claimed that during this meeting Oehmke leaned forward toward
Klemmensen in a physically intimidating manner, causing Stepaniak to be concerned
that Oehmke might assault Klemmensen. Oehmke disputes this but admitted she
understood that Stepaniak and Klemmensen felt physically intimidated by and fearful
of her. An employee from the human-resources department was brought in at
Oehmke's request for the remainder of the meeting.
Oehmke took a three-week leave of absence for illness in October 2008.
Oehmke stated she had whooping cough, although this is not corroborated by medical
evidence. In November 2008, Oehmke was rear ended in a car accident, causing
injury to her rotator cuff and a herniated disk. In January 2009, Oehmke had a
meeting with Klemmensen and an employee from human resources, Kim Durkee.
During that meeting Klemmensen presented Oehmke with a spreadsheet documenting
what Klemmensen said was a high absenteeism rate of 6.3% of available time to work
over the previous year. Oehmke points out that this spreadsheet counted days missed
for medical leave under the Family and Medical Leave Act (FMLA), which do not
-4-
count as absences under Medtronic's absenteeism policy. Stepaniak agreed in her
deposition that the spreadsheet was inaccurate; Oehmke's actual absenteeism rate was
4.75%. Under Medtronic's policy, absenteeism in excess of 2% of available time to
work over a twelve-month period is considered "excessive," and Stepaniak's policy
regarding her department was to discuss with any employee absenteeism approaching
4%.
Because of Oehmke's injuries from her car accident and an unrelated and
unspecified medical issue not related to her disability, she took a leave of absence
from late February 2009 to mid-June 2009. While Oehmke was on leave,
Klemmensen retired and was replaced by Patti Peltier. When Oehmke returned from
leave, she made an informal request for accommodations based on her doctor's
recommendation. Oehmke was told that she needed to put in a formal request. In the
past, Oehmke had always been granted accommodations without going through the
formal request process. After Oehmke returned from leave, Peltier changed Oehmke's
old 7:00 a.m. to 4:00 p.m. schedule to 8:00 a.m. to 5:00 p.m. Oehmke claims other
employees who returned from leave were allowed to keep their old schedules.
In August 2009, Oehmke received a negative performance evaluation. The
evaluation contained comments from Stepaniak, who performed the review because
of Klemmensen's retirement. Stepaniak, as the department manager, did not directly
supervise Oehmke and so did not have the same degree of familiarity with Oehmke's
work performance as Klemmensen. Oehmke disputed the accuracy of that evaluation
and Durkee, in the presence of Oehmke and Stepaniak, stated that the evaluation was
too hard on Oehmke. Stepaniak revised the evaluation. The revised evaluation
removed some positive comments and was more negative than the first. The
evaluation cited a greater than 8% absenteeism rate, but the spreadsheet on which that
figure was based showed only a 6.3% rate. This was, presumably, the same inaccurate
6.3% absenteeism rate discussed above. The evaluation stated Oehmke violated the
sick-leave call-in policy during her leave for whooping cough in October 2008, but
-5-
Oehmke stated she had covered her shifts by communicating via e-mail, which was
consistent with past practice. Finally, the evaluation stated Oehmke had violated the
telework policy, but Oehmke claims this was only due to the rescission of the past
accommodation of her need to telework often. When questioned about the evaluation
in a deposition, Oehmke admitted that she "sometimes" attempted to undermine
leadership in her workplace.
In September 2009 Oehmke gave incorrect information to a patient's wife
concerning the minimum safe distance between a fork lift and a pacemaker. The
correct distance is two feet; Oehmke told the patient's wife it was six inches. Oehmke
admits she gave incorrect information. While on vacation in Ireland later that month,
Oehmke contracted an unidentified lung illness, for which she took medical leave
from late September 2009 to early November 2009. During this absence, Oehmke
exhausted her leave under the FMLA. On October 22, 2009, Stepaniak notified
Oehmke that because her FMLA leave was exhausted, her position was no longer
being held but that if a same or similar position was available when Oehmke was
ready to return, it would be offered to her. Medtronic cites the business need to
promptly fill the position due to a high volume of customer calls. On October 23
Stepaniak began conducting interviews for the position. On October 28 Oehmke
notified Stepaniak that she would return on November 2. Two days later, on October
30, Stepaniak hired a replacement for Oehmke's position. This new hire took over two
weeks to train and was not ready to begin her position until November 18.
Oehmke claims this delay undercuts Medtronic's business-need justification,
arguing it is inconsistent for Medtronic to, in one breath, claim a need to fill a position
quickly because of high call volume and, in the next, hire someone who could not be
prepared to take calls until more than two weeks after Oehmke's return. Further, an
administrative assistant, Kim Jinks, testified that she overheard Peltier and Stepaniak
creating with relish a new position for Oehmke that they intentionally made miserable
and difficult in the hope that Oehmke would quit or that they could use her inability
-6-
to fulfill the position's responsibilities as a reason to fire her. Jinks testified that
Stepaniak's and Peltier's treatment of Oehmke "was unethical and was possibly
harassment." Further, Stepaniak and Peltier also told Jinks directly that they wanted
Oehmke gone. Oehmke argues that these facts support the inference that Stepaniak
and Peltier had it in for her. In addition, Stepaniak gave deposition testimony from
which it could reasonably be inferred that she doubted whether Oehmke in fact ever
had cancer and that she believed Oehmke might have been lying about it. Stepaniak
also told Oehmke that Oehmke was not disabled.
The new position Stepaniak and Peltier created for Oehmke was called
CareLink Specialist. Oehmke accepted the new position, which she took when she
returned from leave in November 2009. She received the same pay as before, was in
the same department, and reported to the same supervisors. The exact responsibilities,
however, were, as Oehmke puts it, a "demotion." CareLink is a system that remotely
monitors patients' heart devices and transmits information about them. Oehmke was
assigned the job of handling incoming and outgoing patient telephone calls about the
system, as well as attending to "Logcasters," which logged errors in CareLink
transmissions. Additionally, Oehmke was tasked with answering all e-mails that came
in to Medtronic.com and Patient Services. She was not permitted to leave at the end
of the day until all these tasks were completed. Furthermore, she was the only
employee in the department to be required to stay in the queue of incoming telephone
calls while working on other assignments. According to testimony from Jinks, the
Logcasters responsibility was an impossibly large amount of work for a single
employee. One Logcasters entry could take anywhere from five to thirty minutes to
process, and Jinks–who was assigned to Logcasters at one point–reported getting
roughly twenty to eighty a day. Peltier, however, testified that there were ten or less
Logcasters reports a day. Soon after Oehmke took the position, she notified Peltier
that she was unable to respond to certain e-mails, and she failed to keep up with her
assignments.
-7-
Oehmke had submitted a letter from her physician requesting certain
accommodations when she returned from her medical leave. Medtronic granted all
of these except her request for a 7:00 a.m. to 4:00 p.m. schedule. Instead, she was put
on a 9:00 a.m. to 6:00 p.m. schedule so that she could schedule her medical
appointments in the morning before work. After receiving another letter from
Oehmke's physician, Medtronic put her on a 7-to-4 schedule for one month to attend
already-scheduled appointments, but then returned her to a 9-to-6 schedule afterward,
with afternoons off for appointments if a morning appointment was not available.
Oehmke voiced her discontent with that arrangement to both Durkee and Peltier.
Oehmke claims that the 9-to-6 schedule caused her to miss more work than she would
on a 7-to-4 schedule, because her appointments were often lengthy, and so morning
appointments would extend beyond her 9:00 a.m. start time. Had she been able to
work 7 to 4 and schedule her appointments in the late afternoon, she would have been
able to complete more work. Medtronic states that it needed Oehmke to work the 9-
to-6 schedule because call volumes are higher in the afternoon and because, in light
of Oehmke's need for frequent absences, it is difficult to find coverage for the 7:00
a.m. shift.
On January 8, 2010, Peltier placed Oehmke on a Performance Improvement
Plan ("PIP"). The PIP referenced numerous violations of Medtronic's patient-call
policies dating back to August 2009–providing incorrect information; giving medical
advice; making unnecessary comments to patients; failing to be empathetic–as well
as failing to meet the responsibilities of the CareLink Specialist position. Oehmke
refused to sign the PIP. Also in January, Stepaniak provided Oehmke with
calculations showing Oehmke had a 6% absenteeism rate, and Peltier criticized
Oehmke for taking medical leave too often. This 6% figure was, like the 6.3% figure
described earlier, inaccurately calculated because it included days taken for FMLA
leave. The figure should have been 3.7%. On January 21, 2010, Stepaniak barred
Oehmke from all meetings until her work was caught up. Around this time
Medtronic's legal team notified Peltier and Stepaniak that they should grant Oehmke's
-8-
request for a 7-to-4 schedule, noting that they did not understand why it was such a
"big deal" to Peltier and Stepaniak.
On January 22, 2010, Oehmke met with Peltier and Durkee. Peltier testified
that she wanted the meeting to take place in the presence of Durkee because of a
previous incident in which Oehmke had leaned toward her with a raised voice,
startling Peltier. Peltier discussed Oehmke's continuing performance issues, including
her failure to stick to the scripted statements Oehmke was supposed to use for
telephone calls. Peltier informed Oehmke that she would be allowed to have the 7-to-
4 schedule but that she would no longer be allowed to telework. Peltier also stated
that Oehmke was not permitted to discuss her workload with other employees, as she
had heard complaints from other employees that Oehmke had been interrupting them
during the day to complain about her workload. Peltier testified that Oehmke was
taunting toward Peltier and laughed at everything she said. Durkee, who was present,
stated that Oehmke asked a lot of questions and never stated agreement with or
understanding of Peltier's statements. Durkee testified that Oehmke did laugh and that
it was a laugh that could be perceived as "sarcastic" and "belligerent." Stepaniak
testified that Peltier told her that Oehmke had said she was "totally protected" because
she was disabled. Oehmke disputes Peltier's and Durkee's accounts of her conduct at
the meeting. Later that day, Peltier and Stepaniak approached Oehmke with a security
guard and told her she was suspended. Oehmke was escorted off of the premises by
the security guard. Durkee stated she was surprised to learn that Peltier and Stepaniak
had suspended Oehmke, and that they did so directly without going through human
resources.
Oehmke and her attorney met with Medtronic's in-house counsel, Anthony
Branch, on February 24, 2010. At this meeting Oehmke explained her desire to be
employed in a different department of Medtronic so she could avoid the toxic
relationship that had developed between her and Stepaniak and Peltier. Oehmke left
the meeting with the understanding that Branch was going to set up an informational
-9-
interview between her and a Medtronic employee about a Clinical Specialist position.
Oehmke testified that at no point during the meeting did the parties discuss her leaving
Medtronic. On March 2, 2010, Oehmke received a letter from Branch with a proposed
separation agreement and release. On March 22, Oehmke wrote an e-mail to Branch
in which she stated that she could not agree to the settlement terms. Oehmke received
a letter from Durkee stating: "Since you have rejected Medtronic's settlement offer,
Medtronic will terminate your employment effective today March 26, 2010."
Oehmke filed this action, bringing claims under the ADA and MHRA against
Medtronic, claiming as a disability her status as a cancer survivor. The district court
granted Medtronic's motion for summary judgment. It found Oehmke's claims time
barred with respect to all of Medtronic's alleged discriminatory acts except for
Oehmke's termination on March 26. As to Oehmke's discrimination claim, it
concluded that Oehmke had not made out a prima facie case of discrimination because
she had not raised a dispute as to causation between her disability and her termination.
In the alternative, it concluded that even if she had shown causation, she had failed to
raise a dispute as to pretext. As to Oehmke's retaliation claim, the district court
concluded Oehmke had again failed to raise a dispute as to causation between her
protected activity and her termination.
II. DISCUSSION
We review the district court's grant of summary judgment de novo, reading the
record in the light most favorable to the nonmoving party and drawing all reasonable
inferences in the nonmoving party's favor. Montgomery v. City of Ames, 749 F.3d
689, 694 (8th Cir. 2014). A movant is entitled to summary judgment if the record, so
construed, "shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
-10-
A. Discrimination Claim
The ADA prohibits covered employers from "discriminat[ing] against a
qualified individual on the basis of disability in regard to . . . [the] discharge of
employees." 42 U.S.C. § 12112(a). In the absence of direct evidence of
discrimination, we apply the burden-shifting framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), to disability-discrimination claims of disparate
treatment.3 Wenzel v. Mo.–Am. Water Co., 404 F.3d 1038, 1040 (8th Cir. 2005). The
plaintiff first has the burden of establishing a prima facie case: (1) that the plaintiff
was disabled within the meaning of the ADA; (2) that the plaintiff was qualified to
perform the essential functions of the job; and (3) a causal connection between an
adverse employment action and the disability. Id. The burden of production then
shifts to the employer to show a legitimate, nondiscriminatory reason for the adverse
action. Id. Finally, the burden shifts back to the employee to show that the proffered
reason was, in reality, a pretext for discrimination. Id. We employ this same analysis,
3
Direct evidence is evidence that establishes a specific link between alleged
discriminatory animus and an adverse action of such causal strength that the plaintiff
can forgo the burden-shifting framework. St. Martin v. City of St. Paul, 680 F.3d
1027, 1033 (8th Cir. 2012). The district court concluded there was no direct evidence,
and we agree. Oehmke points to evidence showing Stepaniak, despite medical
documentation provided Medtronic, did not believe Oehmke had had cancer and that
she suspected Oehmke may have been lying about it. But this shows Stepaniak might
have targeted Oehmke because she believed Oehmke was untruthful, not because of
her disability. Such a statement fails to prove a sufficiently strong causal connection
as to rise to the level of direct evidence. Because Oehmke did not present direct
evidence of discrimination, we do not reach Medtronic's argument that in the context
of the ADA a plaintiff may not use direct evidence to forgo the McDonnell Douglas
burden-shifting framework.
-11-
with one difference of no consequence here,4 to discrimination claims under the
MHRA. Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004).
Oehmke's theory of disability discrimination is that her bout with cancer left
lingering, long-term effects–a suppressed immune system, cardiomyopathy, and other
unspecified side effects from her treatment–which caused frequent absences from
work for medical appointments, and which left her in need of certain accommodations
such as teleworking and a schedule that allowed her to attend her appointments
without missing work. Oehmke claims Medtronic terminated her because it did not
want to accommodate her scheduling needs, thereby discriminating against her on the
basis of her disability.5 The district court decided Oehmke failed to prove both the
causation element of a prima facie discrimination claim and, in the alternative, that
Medtronic's proffered reason for termination was pretextual. The parties dispute these
two issues as well as the nature of Oehmke's disability.
1. Oehmke's Disability
The ADA defines disability as "a physical or mental impairment that
substantially limits one or more major life activities of [an] individual." 42 U.S.C.
§ 12102(1)(A). Cancer is an impairment, 29 C.F.R. § 1630.2(h)(1), the functioning
of one's immune system is a major life activity, 42 U.S.C. § 12102(2)(B), and
Congress has instructed the courts to determine whether a limitation is substantial in
4
The MHRA applies a less stringent "materially limits" standard in determining
whether a plaintiff is disabled. Kammueller v. Loomis, Fargo & Co., 383 F.3d 779,
784 (8th Cir. 2004).
5
Because the only action of Medtronic's that was within the limitations period
is its termination of Oehmke's employment, Oehmke's claim does not cover any
alleged failure of Medtronic to accommodate her needs. We therefore understand her
claim as one based on a theory of disparate treatment, rather than a failure to
accommodate.
-12-
light of its command to interpret disability broadly, 42 U.S.C. § 12102(4)(B); ADA
Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553. Further, "an
impairment that is . . . in remission," as is Oehmke's cancer, "is a disability if it would
substantially limit a major life activity when active." 42 U.S.C. § 12102(4)(D).
Therefore, Oehmke's cancer, even while in remission, is clearly a covered disability
under the ADA.
In her briefing, Oehmke argues her disability as a cancer survivor includes its
lingering effects on her health and her suppressed immune system. She argues that
the district court took an inappropriately narrow view of her disability, treating it as
a past event when in fact it was a continuing condition with extended effects.
Essentially, Oehmke appears to argue that both her cancer and the substantial
limitations it has placed on her health are "disabilities" under the ADA. Medtronic
responds that Oehmke did not make this argument below and that she only alleged her
bout with cancer itself as a disability. Ultimately, however, it does not matter how we
characterize the effects of Oehmke's bout with cancer. There is evidence in the record
supporting a causal connection between the cancer and certain of her long-term health
problems, and so in either event the causation element of Oehmke's prima facie claim
rises or falls on the existence of a causal connection between the challenged
employment action and those long-term health problems.
2. Causation
We apply a mixed-motive causation standard, allowing claims based on an
adverse employment action that was motivated by both permissible and impermissible
factors. See Pedigo v. P.A.M. Transport, Inc., 60 F.3d 1300, 1301 (8th Cir. 1995).6
6
Medtronic argues that under the Supreme Court's holding in Gross v. FBL
Financial Services, Inc., 557 U.S. 167 (2009), ADA discrimination claims require a
but-for causation standard. Gross's reasoning, which it applied to the "because of"
language in the Age Discrimination in Employment Act, arguably could be extended
-13-
The issue, then, is whether the record supports the conclusion that absences caused by
Oehmke's cancer-related health problems and her need for accommodations motivated
Medtronic's decision to terminate her. The record discloses that the decision to
terminate Oehmke was made because of her rejection of Medtronic's settlement offer,
which in turn was caused by her suspension for failing to meet the requirements of her
CareLink Specialist position and her PIP. Giving Oehmke the benefit of all
reasonable inferences, we assume that the CareLink Specialist position carried
impossibly difficult responsibilities, and that Stepaniak and Peltier assigned Oehmke
to that position in the hopes of having cause to suspend or terminate her. We will not
consider, therefore, Oehmke's inability to keep up with her duties in that position as
the true cause of her termination.
It is clear that Stepaniak and Peltier had myriad concerns with Oehmke's
performance that provide a permissible motive for her termination. She gave incorrect
and potentially life-threatening advice concerning a patient's pacemaker; she was
perceived by her managers as insolent, threatening, and she admitted to attempting to
undermine their authority; she failed to follow Medtronic's procedures such as using
objective language in call notes and sticking to call scripts; and she was repeatedly
to the comparable "on the basis of" language in the ADA. See Pulczinski v. Trinity
Structural Towers, Inc., 691 F.3d 996, 1002 (8th Cir. 2012) ("We have our doubts
about the vitality of the pre-Gross [ADA] precedent."); see also Gentry v. E.W.
Partners Club Mgmt. Co., 816 F.3d 228, 233-36 (4th Cir. 2016) (holding, in reliance
on Gross, ADA discrimination claims require a showing of but-for causation); Lewis
v. Huboldt Acquisition Corp., 681 F.3d 312, 317-22 (6th Cir. 2012) (en banc) (same
for earlier, differently worded version of ADA); Serwatka v. Rockwell Automation,
Inc., 591 F.3d 957, 958-63 (7th Cir. 2010) (same for earlier version). Because the
potential effect of Gross on our interpretation of the ADA has been only cursorily
briefed by Medtronic and because we agree with the district court that Medtronic is
entitled to summary judgment even under the less restrictive mixed-motive causation
standard, we decline to address this important question at this time.
-14-
present in interactions with customers that gave rise to complaints. These problems
certainly provided a permissible basis for concern from Medtronic.
Oehmke argues that evidence in the record supports the inference that
Medtronic had impermissible motives. She points to two indications that Stepaniak
and Peltier were motivated by Oehmke's frequent need to be absent for medical
appointments and for scheduling and other accommodations. First, there does appear
in the record evidence that Oehmke's absenteeism, in part, motivated Stepaniak and
Peltier's negative view of Oehmke's performance. Stepaniak and Peltier brought up
Oehmke's absenteeism to her on at least two occasions, and on three occasions,
Stepaniak overestimated Oehmke's absenteeism rate. What is less clear is the causal
connection between Oehmke's absences and her disability. Oehmke makes a
generalized claim that she needed to make frequent medical appointments because of
health problems caused by her struggle with cancer, testifying that she was ill a
minimum of four times a year and that she saw her physician every four weeks due
to a risk of stroke or heart attack related to her fight with cancer. But this claim is not
supported by particularized medical evidence of any specific appointments and the
health issues for which they were necessary. Were we to extend the reach of
reasonable inference to the questionable conclusion that any illness-related absence
of Oehmke's was necessarily caused by her suppressed immune system, this
conclusion would only reach her absences for whooping cough and an unidentified
lung illness. Oehmke presents no medical evidence diagnosing her with either of
these alleged afflictions, and no evidence connects her absences for other identified
medical issues to her disability.
Second, Oehmke argues that Stepaniak's belief that Oehmke might not have had
cancer and was lying about it could give rise to an inference that Stepaniak did not
think Oehmke's accommodations were necessary, that she did not want to provide
those accommodations, and that this in turn caused her to take a negative view of
Oehmke's performance. This inference is supported by Stepaniak's reluctance to
-15-
provide Oehmke with an exception to Medtronic's teleworking policy and to
accommodate her requested 7-to-4 schedule. But other evidence undercuts this
inference. Medtronic granted nearly every accommodation request made by Oehmke
and its insistence on a 9-to-6 schedule had a legitimate, business-need justification.
Further, the 9-to-6 schedule accommodated Oehmke's need to attend medical
appointments, just not precisely in the manner Oehmke would have preferred. We
also note that Stepaniak's statement questioning whether Oehmke had suffered from
cancer were made in a deposition years after the events in question, minimizing its
relevance.
In this context, we agree with the district court that there does not exist a strong
enough causal connection sufficient as a matter of law to establish a prima facie case.
Therefore we affirm the grant of summary judgment for Medtronic on Oehmke's
disability discrimination claims under the ADA and MHRA, and we find it
unnecessary to address the alternate ground for affirmance of pretext.
B. Retaliation Claim
Oehmke also claims that Medtronic terminated her in retaliation for asserting
her rights under the ADA and MHRA at her meeting with Branch and for her rejection
of Medtronic's settlement offer. The ADA provides that "[n]o person shall
discriminate against any individual because such individual has opposed any act or
practice made unlawful by this chapter." 42 U.S.C. § 12203(a). A retaliation claim
follows the same direct evidence or burden-shifting analysis employed in
discrimination claims. EEOC v. Prod. Fabricators, Inc., 763 F.3d 963, 972 (8th Cir.
2014). A prima facie case of retaliation requires the plaintiff to show (1) she engaged
in statutorily protected activity; (2) she suffered an adverse employment action; and
(3) a causal connection between the two. Hill v. Walker, 737 F.3d 1209, 1218 (8th
Cir. 2013). A retaliation claim under the ADA requires a but-for causal connection
between the employee's assertion of her ADA rights and an adverse action by the
-16-
employer. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013). The
district court determined Oehmke could not show causation. As we have already
stated, Medtronic had cause to terminate Oehmke due to her performance issues.
Oehmke presented no evidence that any purported statements she made to Branch at
their meeting motivated Medtronic's decision to terminate her, and her rejection of
Medtronic's proposed settlement agreement is not an activity protected under the
ADA.
Claims for retaliation are analyzed in the same manner under the MHRA.
Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983). Although the
Minnesota Supreme Court has looked to claims under Title I of the ADA in
interpreting the MHRA, Kolton v. County of Anoka, 645 N.W.2d 403, 408 (Minn.
2002), no Minnesota case we are aware of has addressed whether Nasser's application
of the but-for causation standard to ADA claims applies to MHRA claims as well. But
there is no evidence of a retaliatory motive on Medtronic's part to support a showing
of causation even under a mixed-motive standard. We therefore affirm judgment for
Medtronic on this claim as well.
III. CONCLUSION
For the foregoing reasons, we affirm.7
______________________________
7
Because we affirm, we do not reach Medtronic's alternate argument that all of
Oehmke's claims are time barred.
-17-