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Miller v. Northwest Airlines, Inc.

United States District Court, Eighth Circuit

September 27, 2013

Idonna Jean Miller, Plaintiff,
Northwest Airlines, Inc.; Delta Air Lines, Inc. as Successor in Interest; Kathleen A. Swanson; Pamela M. Hegstrom; Chris E. Talbert; and Francelle L. Slocum, Defendants.

Idonna Jean Miller, 3260 Valley Ridge Dr., Eagan, MN 55122, pro se Plaintiff.

Gregory J. Stenmoe and Britt M. Gilbertson, Briggs and Morgan, P.A., 2200 IDS Center, 80 South 8th Street, Minneapolis, MN 55402, on behalf of Defendants.



This matter is before the undersigned United States District Court Judge for consideration of Plaintiff Idonna Miller's Objections [Doc. No. 124] to United States Chief Magistrate Judge Arthur J. Boylan's August 19, 2013, Report and Recommendation ("R & R") [Doc. No. 115]. The Chief Magistrate Judge recommended that Defendants' Motion for Summary Judgment [Doc. No. 95] be granted and Plaintiff's claims be dismissed with prejudice. (Report and Recommendation dated August 19, 2013 ("R & R"), at 24 [Doc. No. 115].) For the reasons set forth below, Plaintiff's objections are overruled and the Court adopts the R & R.


The factual and procedural background of Plaintiff's case is well documented in the magistrate judge's R & R and is incorporated herein by reference.[1] Briefly stated, Plaintiff commenced employment with Defendant Northwest Airlines, Inc. ("Northwest")[2] in February 1987. (Miller Work History, Ex. 7 to Gilbertson Aff. [Doc. No. 98-1].)[3] During the time period relevant to this litigation, Plaintiff held the position of Cargo Customer Service Representative. (Miller Dep. at 77, Ex. 1 [Doc. No. 98-1].) In that position, Plaintiff was responsible for taking and responding to phone calls from Cargo customers relating to shipping and tracking freight. ( Id. at 77, 79-80.) Plaintiff's supervisors were Defendants Pamela Hegstrom and Chris Talbert, who were assistant managers in the Cargo Call Center. (Hegstrom Dep. at 8, Ex. 2 [Doc. No. 98-1]; Talbert Dep. at 10, Ex. 3 [Doc. No. 98-1].) Defendants Hegstrom and Talbert reported to the manager of the Cargo Call Center, Defendant Kathleen Swanson. (Swanson Dep. at 8-9, Ex. 5 [Doc. No. 98-1].) Defendant Francelle Slocum was a human resources manager who worked with the Cargo department. (Slocum Dep. at 7-8, Ex. 6 [Doc. No. 98-1].)

A. Plaintiff's FMLA Requests

Plaintiff requested, and was approved for, leave pursuant to the Family and Medical Leave Act ("FMLA") on numerous occasions during her employment at Northwest, including on at least eight occasions between 2004 and 2008. (See Miller's FMLA Leave Documents, Exs. 10-12 [Doc. No. 98-2].) Relevant to this lawsuit, however, are two instances in which Plaintiff requested, but was denied, FMLA leave. The first request, which was assigned Case No. 511 by Northwest, related to a leg injury Plaintiff suffered in October 2007. Northwest denied her request on November 6, 2007, because "medical certification was not adequate and/or does not support that the requested leave is FMLqualifying." (Miller's FMLA Leave Documents re: Case Nos. 502, 505, 506, 507, 508, and 509, Ex. 10 [Doc. No. 98-2].) Plaintiff was informed that the request was denied because she had not been absent for three days. (Id.)

The second request, which was made in April 2008 and assigned Case No. 602, related to chronic muscle strain dating from an injury Plaintiff sustained in 1996. (Miller's FMLA Leave Documents re: Case No. 602, Exs. 20-21 [Doc. Nos. 98-1 & 98-2].) This request, like many of the previous requests that had been approved, was supported by medical certifications provided by Dr. Ronald Bateman. (See Miller's FMLA Leave Documents re: Case Nos. 502, 505, 506, 507, 508, and 509, Ex. 10 [Doc. No. 98-2].)) However, Northwest's Director of Labor Relations believed that Dr. Bateman's certification providing for Plaintiff's absence of up to twenty hours per week due to an inability to work conflicted with his statement that she could work full time. (See Miller's FMLA Leave Documents re: Case No. 602, Exs. 20-21 [Doc. Nos. 98-1 & 98-2].) Pursuant to Northwest's Family and Medical Leave Policy:

Where the Company has reason to doubt the validity of the information provided on a medical certification, the Company may require that the employee... take part in a second opinion at the Company's expense.... Where the opinions of the employee's... health care provider and the Company's designated health care provider differ, the Company may require a third medical opinion, again at the Company's expense.

(Northwest's FML Policy, Ex. 9 [Doc. No. 98-2].) Therefore, Northwest decided to seek a second opinion regarding Case No. 602. (Letter from C. Talbert to I. Miller, Ex. 23 [Doc. No. 98-3].) The doctor who provided the second opinion, Dr. Brad Helms, concluded that Plaintiff's 1996 injury had resolved and that no additional treatment of any kind was medically necessary. (IME Report, Ex. 30 [Doc. No. 98-3].) He also found that Plaintiff had no physical limitations or restrictions on work duties. (Id.) After receiving this report, Northwest denied Plaintiff's leave request. (See Letter from C. Talbert to I. Miller, Ex. 32 [Doc. No. 98-3]; Email Exchange between K. Swanson & H. Taylor, Ex. 33 [Doc. No. 98-3].) Northwest then provided Plaintiff with a letter explaining that her request was denied based on the information provided by Dr. Helms, which "d[id] not support leave due to a serious health condition." (Letter from K. Swanson to I. Miller attaching FMLA Denial, Ex. 34 [Doc. No. 98-3].)

B. Plaintiff's Non-Work-Related Activities

In addition to her employment at Northwest, Plaintiff also worked as an independent demonstrator for Stampin' Up, a home-based business that sells materials used to create homemade greeting cards and scrapbooks. (Miller Dep. at 45-47, Ex. 1 [Doc. No. 98-1]; Stampin' Up Documents, Ex. 18 [Doc. No. 98-2].) Beginning in April 2007, Plaintiff used Northwest company property and time to conduct business related to Stampin' Up. For example, Plaintiff used company printers to print order forms and other materials for Stampin' Up, (see Hegstrom Dep. at 128-29, Ex. 2 [Doc. No. 98-1]; Talbert Dep. at 150-51, Ex. 3 [Doc. No. 98-1]; Email from P. Hegstrom to K. Swanson, Ex. 15 [Doc. No. 98-2]); she discussed Stampin' Up with a Northwest customer and solicited the customer's email address in order to send her additional information, (see Hegstrom Dep. at 95, Ex. 2 [Doc. No. 98-1]; Email from P. Hegstrom to I. Miller, Ex. 17 [Doc. No. 98-2]); and she used her pass travel benefits to fly to Michigan on a trip during which Northwest believed she conducted a Stampin' Up camp as advertised on one of Plaintiff's flyers, (see Email from C. Talbert to F. Slocum & B. Sagnes, Ex. 29 [Doc. No. 98-3]). Defendants Hegstrom and Talbert reminded Plaintiff multiple times in 2007 and 2008 that she should not be conducting these activities during work hours and that these activities were in violation of company policy. (See Talbert Dep. at 97-99, 152, Ex. 3 [Doc. No. 98-3]; Email from P. Hegstrom to K. Swanson, Ex.15 [Doc. No. 98-2]; Email from P. Hegstrom to I. Miller, Ex. 17; Email from B. Sagnes to I. Miller, Ex. 28 [Doc. No. 98-3]; Email from C. Talbert to F. Slocum & B. Sagnes, Ex. 29 [Doc. No. 98-3].)

C. Plaintiff's Q & A Sessions and Termination of Employment

Based on evidence that Plaintiff was conducing non-work-related activities during work hours, Northwest's Director of Labor Relations suggested conducting a "Q & A session" with Plaintiff. (See Email from F. Slocum to M. Cvengros, Ex. 35 [Doc. No. 98-3].) During Q & A sessions, managers interview an employee to gather facts. (Sagnes Dep. at 90, Ex. 4 [Doc. No. 98-1].) Defendants Slocum and Swanson met with Plaintiff and a union representative on July 18, 2008. (7/18/08 Q & A, Ex. 36 [Doc. No. 98-3].) During the meeting, Plaintiff acknowledged that she had used her pass travel benefits to fly to Michigan and hold stamp camps in February, March, and June 2008. (See Swanson Dep. at 230, Ex. 5 [Doc. No. 98-1]; 7/18/08 Q & A, Ex. 36 [Doc. No. 98-3].) She also acknowledged using the company internet and printer for her Stampin' Up business. (7/18/08 Q & A, Ex. 36 [Doc. No. 98-3].) Finally, while some of the dates that Defendants Slocum and Swanson questioned Plaintiff about were incorrect, Plaintiff acknowledged using her pass travel benefits to fly on days following taking sick or FMLA leave. (Id.)

At the end of the meeting, Plaintiff was suspended with pay. (Swanson Dep. at 230-31, Ex. 5 [Doc. No. 98-1].) Plaintiff then asked to return to her desk to complete her time sheet. (Id.) However, upon returning to her desk, Plaintiff forwarded a large number of company files to her personal email address. (See Email from K. Swanson to F. Slocum & M. Cvengros, Ex. 38 [Doc. No. 98-4]; Email from F. Slocum to M. Cvengros, Ex. 39 [Doc. No. 98-4].) These files included information that Northwest considers proprietary, such as call center statistics, customer levels, and goals. (See Email from K. Swanson to F. Slocum and others, Ex. 40 [Doc. No. 98-5].)

On July 23, 2008, Defendants Slocum and Swanson met with Plaintiff and a union representative for a second Q & A session. (7/23/08 Q & A, Ex. 42 [Doc. No. 98-5].) Plaintiff admitted that she sent attendance, statistics, and family medical leave files to her personal email account, and that the information was considered proprietary. (See id.) Northwest terminated her employment the following day, on July 24, 2008. (See Letter from K. Swanson to I. Miller, Ex. 44 [Doc. No. 98-5].) Plaintiff's termination letter stated:

This termination is a result of violations of the Rules of Conduct for Northwest Airlines Employees as determined as a result of a thorough Company investigation. Specifically, the Company has determined that you have conducted business related to your second occupation while being paid to perform your job at Northwest Airlines.

(Id.) It then listed several rules that Plaintiff had violated. (See id.)

D. This Lawsuit

Plaintiff's Complaint in this matter was filed on July 25, 2011 [Doc. No. 1]. Plaintiff asserts that Defendants interfered with her rights under the FMLA by: (1) denying her Case No. 511 request for FMLA leave, (see Compl. ¶¶ 48, 50); and (2) denying her Case No. 602 request for FMLA leave and failing to obtain a third medical opinion pertaining to that request, (see id. ¶¶ 48, 52). Plaintiff also asserts that Defendants retaliated against her for exercising her rights under the FMLA. (See id. ¶¶ 54-55.)

Defendants filed an Answer [Doc. No. 25] on October 21, 2011, and moved for summary judgment [Doc. No. 95] on February 15, 2013. Defendants filed a brief [Doc. No. 97] and an affidavit [Doc. No. 98] in support of their Motion. Pursuant to 28 U.S.C. § 636(b), the Motion was referred to Chief Magistrate Judge Arthur J. Boylan [Doc. No. 101], who granted Plaintiff's request for an extension of time to file her response. (See Order dated Mar. 11, 2013 at 1 [Doc. No. 108].) Chief Magistrate Judge Boylan ordered Plaintiff's response due on March 13 and Defendants' reply due on March 27. (See id. at 2.) Although Plaintiff failed to file a response, Defendants filed a timely reply brief [Doc. No. 109].

Plaintiff provided no further communications prior to appearing at the April 10 hearing on Defendants' Motion. At that time, Plaintiff submitted and filed her opposition to Defendants' Motion, which consisted of a memorandum [Doc. No. 113] and an affidavit with attached exhibits [Doc. No. 112]. She also made brief arguments at the hearing[4]. Defendants, on the other hand, objected to Plaintiff's untimely submissions and asked that they be stricken. (See R & R at 13 [Doc. No. 115].) Chief Magistrate Judge Boylan took the Motion under advisement [Doc. No. 111].

The magistrate judge issued his R & R on August 19, 2013. As a preliminary matter, he refused to consider Plaintiff's opposition papers because they were "grossly untimely." (R & R at 13 [Doc. No. 115].) Therefore, he considered Defendants' Motion to be unopposed. (Id.) He noted, however, that "[e]ven if a motion for summary judgment is unopposed, the district court must still determine that the moving party is entitled to judgment as a matter of law." ( Id. at 14) (citing Interstate Power Co. v. Kansas City Power & Light Co. , 992 F.2d 804, 807 (8th Cir. 1993)). As for Plaintiff's claims, Chief Magistrate Judge Boylan found that: (1) Plaintiff's FMLA entitlement claim failed to meet the statute of limitations, and that even if the claim was timely, it would still fail as a matter of law for lack of willfulness, (id. at 16-18); and (2) Plaintiff's FMLA retaliation claim fails as a matter of law because she did not establish a prima facie case of retaliation or show that Northwest's proffered reason for her discharge was pretext for discrimination, (id. at 23). Therefore, the magistrate judge recommended that Defendants' Motion for Summary Judgment be granted and that Plaintiff's Complaint be dismissed with prejudice. ( Id. at 24.)

Plaintiff's objections to the R & R were due on September 3, 2013. (See id. at 24.) On that day, Plaintiff filed a motion to extend the deadline [Doc. No. 117]. The Court granted the extension and ordered her objections due on September 11 [Doc. No. 121]. However, the order granting the extension was inadvertently mailed to the wrong address, so the Court granted Plaintiff an additional extension until September 18 [Doc. No. 123].

On September 18, Plaintiff filed her Opposition to Magistrate Judge's Report and Recommendation ("Objections") [Doc. No. 124]. Plaintiff's Objections consist of a 17-page document that is typed in parts (both single-spaced and double-spaced) and handwritten in others. It contains highlighting and many blank spaces where it appears that Plaintiff intended to fill in more information, (see e.g., Pl.'s Obj. at 6-7 [Doc. No. 124]), and roughly ten pages appear to be a direct reproduction of Defendants' Memorandum Supporting Motion for Summary Judgment, (see id. at 6-16). In addition, Plaintiff's Objections refer generally to the "attached emails copy of report recomm" for support. ( Id. at 6.) The first of Plaintiff's three attachments consists of 76 pages of emails and other "exhibits" [Doc. No. 124-1]. The second and third attachments are the first and second halves of the R & R, covered in highlighting, underlining, and handwritten notes (some illegible) in between the lines of type and in the margins [Doc. Nos. 124-2, 124-3]. For example, in the left-hand margin of the R & R's legal analysis section, Miller has handwritten "object" on every page [Doc. No. 124-3 at 3-12].

Local Rule 72.2 governs review of magistrate judge rulings. Pursuant to that Rule, a party objecting to a report and recommendation must make "specific objections." D. Minn. LR 72.2(b)(1). For an unrepresented party, such as Plaintiff, the objections "must be either typewritten and double-spaced or, if handwritten, printed legibly." D. Minn. LR 72.2(b)(2)(B). While pro se litigants' submissions and arguments are to be viewed liberally and with leniency, pro se litigants are not excused from compliance with procedural rules. See Brown v. Frey , 806 F.2d 801, 804 (8th Cir. 1986). Plaintiff's Objections fail to comply with the requirements of Local Rule 72.2 in several respects. As discussed above, Plaintiff's Objections are single-spaced and illegible in parts, ...

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