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McCracken v. Carleton College

United States District Court, D. Minnesota

August 26, 2013


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Jeffrey D. Schiek and Philip G. Villaume, Villaume & Schiek, P.A., Counsel for Plaintiff.

Daniel G. Wilczek and Jennifer J. Kruckeberg, Faegre Baker Daniels LLP, Counsel for Defendant.

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Michael J. Davis, Chief United States District Judge.


This matter is before the Court on Defendant's Motion for Summary Judgment. [Docket No. 10] The Court heard oral argument on June 7, 2013. For the reasons that follow, the Court grants in part and denies in part Defendant's motion.


A. Factual Background

1. The Parties

Plaintiff Gregory F. McCracken (" McCracken" ) was hired as a custodian at Carleton College in 1970. (Compl. ¶ 4.) Carleton is a liberal arts college in Northfield, Minnesota. (Id. at ¶ 2.) Carleton's Facilities Department maintains the campus grounds and buildings. The Facilities Department employed eight supervisors and/or managers. (Ex. H to Kruckeberg Aff., McCracken Dep. Ex. 3.)

McCracken held various positions during his forty years of employment. (Ex. A to Kruckeberg Aff., McCracken Dep. 27:12-28:5.) At the time of his discharge, McCracken was a Maintenance Supervisor and supervised eleven employees. (Id. at 43:1-5, 46:14-19.)

Carleton terminated McCracken's employment on April 27, 2011. (Id. at 179:21-180:12.) At that time, Kirk Campbell, the Director of Maintenance, was McCracken's direct supervisor, and Steven Spehn, the Director of Facilities, was Campbell's direct supervisor. (Id. 38:10-14; Ex. C to Kruckeberg Aff., Spehn Dep. 5:22-6:5.) The Director of Facilities reports

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to Carleton's Vice President and Treasurer, Fred Rogers.

2. McCracken's Employment Concerns in 2006

In April 2006, McCracken believed that his job was in jeopardy. (McCracken Dep. Ex. 15; McCracken Dep. 138:3-22.) He met with Vice President Rogers to discuss his concerns about his job. (McCracken Dep. Ex. 15; McCracken Dep. 138:13-25.) McCracken also raised concerns about Richard Strong, who at that time was Director of Facilities. (McCracken Dep. 72:17-73:3, 138:23-25.) McCracken stated that Strong was too focused on sustainable building methods and not on departmental needs, and that Strong proceeded with construction of a wind turbine project without obtaining county approval for the footing drawings. (Id. at 74:1-13.) McCracken also stated that Strong was threatening Campbell and another employee by making their jobs more difficult. (Id. at 74:13-14, 75:19-76:11.) McCracken asked Vice President Rogers to investigate. (Id. at 74:16-17.)

Strong was terminated in May 2006. (Compl. ¶ 6.) McCracken believed that Strong was fired as a direct result of Vice President Rogers' investigation. (McCracken Dep. 74:22-75:13.) Carleton hired Spehn as the Director of Facilities in November 2006. (Spehn Dep. 5:22-6:5.)

3. McCracken's Job Performance

During the time that Campbell was McCracken's direct supervisor, McCracken had daily contact with Campbell. (Ex. F to Kruckeberg Aff., Campbell Dep. 9.) On April 9, 2007, McCracken received a positive performance evaluation from his supervisor Campbell. (Compl. ¶ 10.) However, at the end of 2007, Campbell was dissatisfied with aspects of McCracken's job performance. (Campbell Dep. 51:9-52:18, 53:23-54:7.) Campbell was concerned that McCracken was not conducting building audits, which consisted of walking through buildings on campus to determine maintenance needs and writing work orders for those tasks. (Id. at 45:24-47:15.) Campbell had previously counseled McCracken on the need to perform these audits for years. (Id.) Campbell created what he termed a " recipe" for improving McCracken's performance of the building tours, which included directions on how to conduct the audits and frequency at which he should conduct the audits. (Id. at 48:13-49:11.)

McCracken's failure to perform the audits was documented in his 2008, 2010, and 2011 performance appraisals. (Id. at 49:25-55:7, 57:1-58:3; Campbell Dep. Ex. 1-3.) In February 2011, Carleton issued McCracken a written warning for refusing to take the new Environmental Health and Safety Compliance Manager on building tours. (McCracken Dep. 140:1-15.) McCracken informed his supervisor and the new manager that he " did not do social tours." (McCracken Dep. 140:16-25, 141:7-18; McCracken Dep. Ex. 16; Ex. E to Kruckeberg Aff., Haase Dep. 6:11-20, 19:20-20:16.) After he received the written warning, he performed the tours as instructed and testified that he understood the reason he was assigned that duty. (McCracken Dep. 146:20-148:1.)

4. McCracken's Continued Employment Concerns

McCracken's concerns about losing his job continued in to February 2009. At this time, he stopped making payments on the first and second mortgages on his home to prepare for the anticipated loss of income if he lost his job. (McCracken Dep. 14:12-25.) McCracken believed that Vice President Rogers was out to get him, and that Campbell's critiques and warnings were really messages from Rogers, who wanted to terminate his employment. (Id. at 99:9-16.)

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Campbell testified that the goal of the warnings and evaluations was to improve McCracken's performance. (Id. at 72:12-14.)

In April 2009, McCracken met with Joanne Mullen, Carleton's Ombudsperson,[1] to discuss his concerns about Rogers. (Ex. G to Kruckeberg Aff., Mullen Dep. 5:24-6:5; McCracken Dep. 71:3-25.) McCracken informed Mullen that he felt that Rogers did not like him and that Rogers treated him unfairly. (McCracken Dep. 71:3-25.) McCracken also stated that he believed Rogers was retaliating against him because of their conversation three years earlier about former employee Strong. (Id. at 194:10-15.) McCracken thought he made Rogers look bad because Rogers was Strong's supervisor. (Id. at 91:22-92:10.) McCracken also thought Rogers was retaliating against him because of his age or weight. (Id. at 114:10-115:7.) Mullen agreed to keep McCracken's concerns confidential per her standard practice and discussed McCracken's idea to present his concerns directly to then Carleton President Rob Oden. (Id. 83:14-84:2.)

In June 2009, McCracken met with Oden. (Id. at 93:13-94:18.) After this meeting, Oden told Rogers that McCracken was concerned about his employment. (Ex. D to Kruckeberg Aff., Rogers Dep. 28:3-19, 29:14-23.) At this time, Carleton was in the middle of discussions regarding possible reductions in force due to budget issues. (Id.) Oden told Rogers that Carleton should not pursue any disciplinary action against McCracken at that time. (Id.) Rogers had little interaction with McCracken, but he was aware that Spehn and Campbell had considered disciplining McCracken because of complaints to Human Resources regarding McCracken's bullying of his employees. (Id. at 29:6, 30:3-10; Spehn Dep. 18:12-19:9.) Following Oden's instructions, Spehn and Campbell did not discipline McCracken. (Spehn Dep. 18:18-23.)

In January 2011, McCracken reported to Campbell that he witnessed one employee stealing air filters from a Carleton vehicle and putting them into his personal vehicle. (McCracken Dep. 221:13-223:17.) Campbell in turn reported this information to Spehn. (Id. at 223:18-20, 224:3-10.) The employee received a warning letter stating that he was not to take property from Carleton without receiving advance permission. (Cárdenas Aff. ¶ 3.)

McCracken identifies the April 2009 report to Mullen, the June 2009 report to Oden, and the January 2011 report to Campbell as his whistleblower reports. [Docket No.16, Memorandum in Opposition to Motion for Summary Judgment]

5. McCracken's Medical History

In March 2007, McCracken was referred to a psychiatrist by his medical doctor to cope with job-related stress. (Compl. ¶ 8.) McCracken testified that he had a history of depression that dated back to 1994. (McCracken Dep. 24.)

On July 1, 2009, McCracken received a pacemaker implant in his heart. (Compl. ¶ 39.) McCracken believed that his heart failed as a result of stress caused by the harassment at work. (Id. ¶ ¶ at 15-16.) McCracken returned to work on July 13, 2009 with no work restrictions or any requests ...

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