United States District Court, D. Minnesota
Clayton D. Halunen and Jacob Frey, Halunen & Associates, and Michelle Dye Neumann, Brian T. Rochel, and Phillip M. Kitzer, Schaefer Law Firm LLC, Counsel for Plaintiff.
George R. Wood, Littler Mendelson, PC, Counsel for Defendant.
MEMORANDUM OF LAW & ORDER
Michael J. Davis, Chief United States District Judge.
This matter is before the Court on Defendant's Motion for Summary Judgment [Docket No. 40] and Plaintiff's Motion to Strike Declaration of Wesley Griffin [Docket No. 48]. The Court heard oral argument on October 4, 2013. Because genuine issues of material fact exist, the Court denies summary judgment on Plaintiff's workers' compensation claim. Because Plaintiff cannot show that he was disabled at the time he was fired, the Court grants summary judgment on Plaintiff's disability discrimination claim. The motion to strike is denied.
A. Factual Background
1. The Parties
In August 2009, Plaintiff Richard Tomlinson began working as a driver for Defendant J.B. Hunt Transport, Inc. (" J.B. Hunt" ), a transportation logistics company incorporated in Georgia and headquartered in Arkansas. (Kitzer Decl., Tomlinson Dep. 20; Griffin Decl. ¶ 2, filed in Johnson v. J.B. Hunt Transport, Inc., Civil File No. 12-2031 (MJD/TNL).) Tomlinson worked as a driver for J.B. Hunt at its Roseville, Minnesota, facility until March 9, 2012. (Tomlinson Dep. 16, 20-21, 127.)
As a driver for J.B. Hunt, Tomlinson delivered and installed appliances in homes and businesses. (Tomlinson Dep. 13-14, 21.) He reported to Account Manager Jeffrey Henning. (Id. 21.) There were also two office managers, Ben Sanders and Dean Willar, who reported to Henning. (Id. 21-22.) When Henning was not available, Tomlinson was directed to contact Sanders or Willar. (Id. 22.)
2. J.B. Hunt's Workers' Compensation Procedures
J.B. Hunt's policy is that when a driver is injured while working, the driver must immediately report the incident to J.B. Hunt's Corporate Claims Department by telephone. (Kitzer Decl., Hill Dep. 18-20; Griffin Decl., Ex. 1, J.B. Hunt 2009 Driver Manual at 71.) The Corporate Claims Department asks the driver whether he or she requires medical treatment and whether he or she would like to file a workers' compensation claim. (Hill Dep. 19-20.) If the employee decides to file a workers' compensation claim, the claim is administered by J.B. Hunt's workers' compensation coverage carrier. (Id. 14.) J.B. Hunt employs three claims examiners who are liaisons between J.B. Hunt and its insurance carrier. (Id. 14-15, 21-22.) The claims examiner responsible for the claims arising out of J.B. Hunt's Roseville location is Christina Hill. (Id. 99.)
3. J.B. Hunt's Leave Policy
According to J.B. Hunt's written leave policy: " If an employee cannot return to work at the end of the FMLA leave because of the employee's incapacity and/or because no reasonable accommodation is available, [J.B. Hunt] may grant the employee a Personal Medical leave of up to 6 weeks." (Wood Decl., Ex. A, Tomlinson Dep., Ex. 2, J.B. Hunt Leave Policy at 7.) According to J.B. Hunt's 2009 Driver Manual, " Personal leave in excess of 6 weeks is not available." (Griffin Decl., Ex. 1, J.B. Hunt 2009 Driver Manual at 24.) Tomlinson received a copy of J.B. Hunt's leave policy and understood that, between FMLA leave and personal leave, he was entitled to a maximum of 18 weeks of medical leave. (Tomlinson Dep. 25-28.) J.B. Hunt Litigation Director, Wesley Griffin, avers that J.B. Hunt's practice is that, if, at the end of the personal medical leave, the employee cannot return to his position within a reasonable period, J.B. Hunt discharges him, unless a position within his restrictions is available. (Griffin Decl. ¶ 8.) Also, " if the employee has presented a doctor's certification indicating that he or she will be able to return to work within a reasonable time period, additional leave time may be granted." (Id.)
According to Defendant's 2009 Driver Manual, when a driver is out of work due to an injury, that employee cannot drive again until the Corporate Claims Department has received a release from the treating doctor that the driver can drive, load, and unload with no restrictions. (J.B. Hunt 2009 Driver Manual at 71.) Hill testified that claims specialists' practice is that, if a driver has restrictions that prevent him from performing the essential functions of a driver job, the claims specialist
contacts the driver's supervisor and asks if the supervisor has any modified duty work at his location that may be performed by the driver within his restrictions. (Hill Dep. 23-28.) Hill testified that the decision of whether or not there is light duty work available for a restricted employee is left up entirely to the supervisor. (Id. 26.) She further testified that, under J.B. Hunt policy, light duty assignments may not exceed six months per injury. (Id. 33-34.)
The supervisor does not follow any particular criteria in deciding if light duty work is available but is directed to " use the employee's restrictions as a guide." (Id. 27-28; see also Henning Dep. 15, 21 (testifying that, if someone from the workers' compensation department asks him if he has light duty work available for an injured employee, he had discretion to determine whether light duty work is available to be given to an employee, but that he is not aware of any objective criteria to guide his determination).) Henning testified that he had never attempted to find light duty work for an employee when asked by the employee, as opposed to the workers' compensation department, nor has he ever advocated for light duty for an employee. (Henning Dep. 16, 22, 82-83. But see Henning Dep. 83-85; Kitzer Decl., Ex. 4, Feb. 26, 2010 Email from Henning to Hill (" Do you know anything about getting Richard Tomlinson in for light duty? This guy really wants to stay here and recover so that he can get back to normal duty. We can certainly find work for him within his restrictions. Any help you can offer is greatly appreciated!" ).)
4. Tomlinson's First Injury
On Thursday, October 29, 2009, while Tomlinson was unloading appliances, he was hit in the right elbow by a portable truck ramp. (Tomlinson Dep. 29, 37-38.) After Tomlinson finished unloading the appliances, he contacted Henning to report the injury to his elbow and shoulder. (Id. 38-39.) Henning told him to keep working and let him know how it felt as the day went on. (Id. 39.) Tomlinson then continued working and his elbow swelled up and his shoulder became sore. (Id. 40.) He called the office and told Willar that " everything was going okay, people were helping [him], customers were helping [him] if [he] needed it." (Id. 41.)
On October 30, Tomlinson showed Sanders his swollen elbow. (Tomlinson Dep. 43.) Sanders told Tomlinson that, if it were up to Sanders he would send Tomlinson to a doctor, but ultimately it was up to Henning. (Id. 43.) Tomlinson showed his elbow to Henning, which had a golf-ball-sized abscess. (Id. 43-44.) Henning told Tomlinson to go to work because there was no one else to cover the route and, hopefully, it would get better over the weekend. (Id. 43-44.)
Tomlinson reported his injury to J.B. Hunt's safety department on October 29 or October 30. (Tomlinson Dep. 48.) He told J.B. Hunt that he thought he would need medical attention. (Id. 49.) By November 2, he had filed a first report of injury seeking workers' compensation benefits. (Id. 30; Kitzer Decl., Ex. 2.)
On Monday, November 2, Tomlinson went into work and showed Henning his elbow; Henning sent him to an urgent care clinic to see the doctor. (Tomlinson Dep. 53-55, 59.) Henning was upset that Tomlinson was not going to be doing his route that day. (Id. 55.)
The doctor at the clinic diagnosed Tomlinson with a broken bursa sac in his right elbow. (Tomlinson Dep. 59-60.) The doctor drained the bursa sac and gave Tomlinson a cortisone shot. (Id.) The doctor directed Tomlinson to take two weeks off from work. (Id. 61.)
Tomlinson returned to the office and showed Henning the form from the doctor requesting two weeks off from work. (Tomlinson Dep. 62.) Henning was upset that Tomlinson would miss work and stated that he could not afford to have Tomlinson out. (Id. 62.) Henning called his manager, Justin Thomas. (Id. 62-63.) Henning told Thomas that Tomlinson needed two weeks off work and that Henning could not afford to have Tomlinson off. (Id. 63.) He also told Thomas that the cortisone shot should make Tomlinson feel better and that he should go back to the clinic and request that the doctor say that he was able to work. (Id.) After that conversation, Henning told Tomlinson that " you will make way less money if you're out on workmen's comp, we can't afford to be without you, so we want you to go back to see Dr. Wolfe." (Id. 64.)
So, November 3, Tomlinson returned to the doctor and asked to be released to work. (Tomlinson Dep. 66.) The doctor told him that the cortisone shot made him feel good but that did not mean that it was healed; reluctantly, the doctor released him for work. (Id.)
Tomlinson returned to work as a driver. Each morning he would tell the managers that his injury felt good in the morning, and at the end of the day he would tell them that it was pretty sore. (Tomlinson Dep. 68.) On November 18, he complained to Willar that his elbow and shoulder hurt too much and he needed a helper to keep working. (Id. 69.) J.B. Hunt gave him a helper so that he did not have to do any unloading. (Id. 69-70.)
On November 23, 2009, Tomlinson returned to the doctor because his elbow was worse. (Tomlinson Dep. 71.) The doctor drained his elbow, gave him another cortisone shot, told him that he should have taken the two weeks off before, ordered him to see a surgeon, and told him not to return to work until he had seen the surgeon. (Id. 72.) Tomlinson told Henning that he could not work, and Henning stated that J.B. Hunt could not be without Tomlinson. (Id.) Tomlinson replied that he simply could not do the job. (Id.)
On November 23, 2009, Tomlinson went on leave. (Tomlinson Dep. 73.) On November 30, Tomlinson saw an orthopedic surgeon, and his surgery was scheduled for December 16, 2009. (Id. 75, 77.) Tomlinson underwent elbow surgery on December 16, 2009 and was on FMLA leave until March 1, 2010. (Id. 78, 89.)
On February 26, 2010, Henning contacted Hill and wrote:
Do you know anything about getting Richard Tomlinson in for light duty? This guy really wants to stay here and recover so that he can get back to normal duty. We can certainly find work for him within his restrictions.
Any help you can offer is greatly appreciated.
(Kitzer Decl., Ex. 4.)
Starting March 1, 2010, Tomlinson was given light duty work, primarily assisting with dispatching, and then was permitted to exceed the six-month cap for light duty. (Henning Dep. 92; Tomlinson Dep. 89-90, 93-94; Kitzer Decl., Ex. 3.) He worked in the light duty position until the end of January 2011, with a short medical absence for surgery on his wrist and shoulder from March 17, 2010 through mid-April 2010. (Tomlinson Dep. 85-94.) J.B. Hunt asserts that it was due to a clerical error that Tomlinson was permitted to stay in the light duty position for approximately ten months. (Hill Dep. 37.) On January 28, 2011, when Henning told Tomlinson that he had not realized that he was not supposed to still be on light duty, Tomlinson was put back on medical leave. (Tomlinson Dep. 94-95.)
On March 21, 2011, Henning wrote to Thomas again seeking to find a light duty position for Tomlinson at J.B. Hunt:
Gary [Tomlinson] is coming up on the date that he needs to be employed or he loses his unemployment. The date is 4/2. He has received a couple of offers from outside the company, but really doesn't want to leave. Is there any chance that we get that position through before 4/2? I'd be the first one to tell you that we don't need the B.S. immediately, but we will, and I don't want to lose Gary in the mean time. Can you think of any alternatives? Any where else we could put him in the mean time? Would he perhaps be able to drive for dray?
I know this is a tough spot, but Gary has taken care of this location and J.B. Hunt as a company in the past. He's not milking his WC. He wants back to work in a bad way and he wants to be productive, too. He doesn't want to continue to leach off the company.
(Kitzer Decl., Ex. 5.)
Tomlinson returned to his driving position on April 15, 2011, subject to a 60-pound overhead lifting restriction. (Tomlinson Dep. 95-99; Kitzer Decl., Ex. 8.) He worked full time from April 13, 2011 through January 17, 2012. (Tomlinson Dep. 106-09.)
Although Hill knew of Tomlinson's 60-pound overhead lifting restriction, in April 2011, she told Henning that Tomlinson did not have any restrictions because, with both hands, he was still able to lift 60 pounds overhead and that was within J.B. Hunt's guidelines. (Hill Dep. 47-48; Kitzer Decl., Ex. 8; Tomlinson Dep. 97.) In Henning's opinion, a 60-pound overhead ...