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Oie v. Allied Waste Services of North America LLC

United States District Court, D. Minnesota

February 11, 2015

ERICK OIE, Plaintiff,
v.
ALLIED WASTE SERVICES OF NORTH AMERICA LLC d/b/a Republic Services of The Twin Cities-Inver Grove Heights, Defendant.

Anne Greenwood Brown, SJOBERG & TEBELIUS, PA, 2145 Woodlane Drive, Suite 101, Woodbury, MN 55125, for plaintiff.

Susan K. Fitzke and Sarah Gorajski, LITTLER MENDELSON, PC, 80 South Eighth Street, Suite 1300, Minneapolis, MN 55402-2136, for defendant.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

JOHN R. TUNHEIM, District Judge.

Erick Oie was employed at Allied Waste Services of North America ("AWS") between July 2003 and September 2012. Oie developed occupational asthma while working as a diesel mechanic repairing and maintaining AWS's fleet of hauling vehicles at its Inver Grover Heights facility. Following his diagnosis, Oie took a nine-month leave of absence from AWS, and then resigned from his position at AWS. Oie now brings this discrimination action against AWS. This Court dismissed Oie's negligence claim with prejudice in September 2013. The remaining claims include disability discrimination, failure to accommodate, and retaliation under the Americans with Disabilities Act ("ADA") and the Minnesota Human Rights Act ("MHRA"), retaliation under the Minnesota Occupational Safety and Health Act ("MOSHA"), and constructive discharge. AWS now moves for summary judgment on all remaining claims. For the reasons set forth below, the Court concludes that Oie has not made out a prima facie case for constructive discharge, which is required for each of his remaining claims. The Court will therefore grant Defendant's motion for summary judgment.

BACKGROUND

AWS is a provider of solid waste collection, transfer, recycling, and disposal services. (Decl. of Michael Fritzen ¶ 3, May 30, 2014, Docket No. 22.) Erick Oie worked for AWS from July 2003 to September 2012. (Am. Compl. ¶¶ 4, 24, Jan. 22, 2013, Docket No. 3.) Oie was a diesel mechanic at the Inver Grove Heights facility repairing and maintaining AWS's fleet of hauling vehicles. (Id. ¶ 6.) On December 9, 2011, Oie notified AWS of his diagnosis of occupational asthma. (Fritzen Decl. ¶ 42.) Oie was advised to refrain from working near diesel fumes and took a leave of absence from AWS. (Decl. of Kurt Devitt ¶¶ 9, 11, May 30, 2014, Docket No. 23.) This leave of absence lasted until September 24, 2012, when Oie resigned and began work as a diesel mechanic elsewhere. (Pl.'s Mem. in Resp. to Def.'s Mot. for Summ. J. at 17, June 19, 2014, Docket No. 27.)

Oie alleges he began complaining to his supervisors in 2004 of his difficulty breathing at work due to poor ventilation following the malfunction of a motor that operated ventilation equipment at AWS's Inver Grove Heights Facility. (Gorajski Aff., Ex. A (Dep. of Erick Oie ("Oie Dep.")) at 101:2-103:4.) Oie alleges that between 2006 and 2011 his symptoms grew worse and were obvious to all persons working at AWS's Inver Grove Heights facility. Oie maintains that he continued to make complaints to managers and supervisors throughout this period. (Am. Compl. ¶ 9.) Oie suffered from shortness of breath, wheezing, chest tightness, and occasional vomiting at work which had been increasing in frequency and severity before he was diagnosed on December 8, 2011, with occupational asthma. (Aff. of Sarah J. Gorajski, Ex. B (Dep. of Joseph S. Bijwadia ("Bijwadia Dep.")) at 27:14-17, May 30, 2014, Docket No. 24.) Occupational asthma is a type of asthma that develops or worsens because of exposures at a person's occupation. (Id. at 35:24-36:1.)

In November 2006, Nancy Grandt, a nurse practitioner and part of Oie's medical team, wrote a letter to AWS explaining that Oie had chronic variant asthma and that she had concerns regarding the conditions at Oie's workplace. (Aff. of Anne Brown ("Brown Aff."), Ex. B, June 19, 2014, Docket No. 28; Oie Dep. at 66:18-67:5.) AWS alleges that it never received this letter from Grandt. (Supplemental Aff. of Sarah J. Gorajski., ("Supplemental Gorajski Aff."), ¶ 2, Ex. A (Def.'s Ans. to Pl.'s Interrog. No. 4 - set 3), July 2, 2014, Docket No. 32.)

Oie allegedly complained again in 2010 to his supervisors about his breathing. (Id. ¶ 9.) Oie contends that at least one of his managers, Bob Verstaete, was aware that Oie was diagnosed with a respiratory impairment - sleep apnea. (Oie Dep. at 126:17-127:6.) AWS maintains that during this time period they were not aware that Oie had any respiratory conditions. (Fritzen Decl. ¶ 43.) Oie had an annual Department of Transportation examination during which Oie represented to AWS that he had no respiratory issues. (Oie Dep. at 91:10-21.)

At the Inver Grove Heights facility, trucks are parked in the shop, where they are worked on when motors are running or when shut down. AWS employees are instructed to attach venting hoses to the exhaust stacks of trucks if an engine is running in the shop. (Fritzen Decl. ¶ 14.) For newer model Mack Trucks, AWS's policy does not require venting hoses to be used when these trucks are serviced in the shop. (Id. ¶ 15.) Oie alleges that he first made safety complaints in 2004 about the lack of ventilation when diesel trucks were running or when employees were spraying paint and that he continue to complain throughout his employment at AWS. (Oie Dep. at 101:2-103:4.) Oie asserts that mechanics did not attach the hoses when they were running trucks and that sometimes there were not enough hoses. (Id. at 123:8-124:11.) Oie alleges further that an electronic mechanism that would vent air to the outside was broken and Oie made a manual lever to open these vents. (Id. at 73:18-24.) AWS purchased an additional hose at some time following Oie's complaints, but there remained an issue that in a facility designed to hold five trucks, there were at most three hoses. (Id. at 114:18-115:19.) Oie further alleges that the hoses did not reach or fit the exhaust systems. (Id. at 75:3-7.)

Oie alleges that he made a request to Michael Fritzen, the manager, in September 2011 that AWS fix the broken ventilation system and address his respiratory concerns. (Oie Dep. at 159-160:9.) After this complaint, Fritzen gave Oie a mid-year review and for the first time during his employment at AWS, Oie received a "below expectation" in four of the nine categories evaluated. (Brown Aff., Ex. D.) Oie asserts that Fritzen did not take him seriously and told Oie to stop complaining about others' safety infractions. (Oie Dep. at 168, 245, 250.) This allegation is reflected in the mid-year review which states that he "need[s] to worry about his job not everyone else, " and that "everyone else is.... doing wrong but is that over all good for the team?" (Oie Dep. at 168:13-15, 245:1-19; Brown Aff., Ex. D.)

On October 22, 2011, Oie called the AWARE Line at AWS to report an incident when an employee became so upset he threw a heavy drilling tool when angry. (Oie Dep. at 183:5-184:13.) Though at the time he reported the event anonymously, Oie alleges that he told several people he reported it, including a commercial driver manager, Tom Polanski. (Id. at 179:3-4.)

On November 29, 2011, Oie was told by Fritzen and General Manager James Rauschnot that he was being moved from the first to the third shift. (Fritzen Decl. ¶ 32.) There are three shifts, and while Oie moved two degrees from first to third, management reassigned other mechanics by only one degree. (Fritzen Decl. ¶ 28.) Oie alleges that Rauschnot told him, "I don't blame you if you quit." (Oie Dep. at 186:15-19.) Fritzen explained that Oie had the least seniority and was the weakest mechanic. (Fritzen Decl. ¶ 31.) Oie asserts that because AWS's Inver Grove Heights location is not a union shop, seniority is not a required factor in these types of decisions. In addition, Oie points out that the difference in seniority between Oie and the other first shift technician was negligible as they started within months of each other, Oie was a class A mechanic while the other employee was a class B mechanic, and Oie had experience as a lead technician that the other employee did not. (Pl.'s Mem. in Resp. to Def.'s Mot. for Summ. J. at 7; Brown Aff., Ex. A; Oie Dep. at 49.)

In early December 2011, Oie filed a formal complaint with OSHA alleging safety violations related to air quality at the work site and retaliation. (Am. Compl. ¶ 16.) On December 5, 2011, Oie returned to work after being out ill and was allegedly once again told by the manager Rauschnot "I don't blame you if you quit." (Oie Dep. at 214:13-23.) On December 6, OSHA made a surprise visit and AWS was told it was based on an anonymous call. (Fritzen Decl. ¶¶ 38, 39.) Violations were found but the violations were not related to the air quality standards. (Fritzen Decl. ¶ 41.)

On December 8, 2011, Oie received his diagnose of occupational asthma. (Bijwadia Dep. 35:21-22.) On December 9, Oie informed AWS of his diagnosis, applied for FMLA benefits, and allegedly requested the repair of the ventilation in the shop. (Fritzen Decl. ¶ 42; Pl's Mem. in Resp. to Def.'s Mot. for Summ. J. at 8.) At this time Oie began his leave of absence from AWS.

AWS offered Oie the use of a respirator. (Oie Dep. at 30:18-23.) Oie's doctor concluded a respirator would be insufficient because of the severity of his symptoms and because it would be difficult and unrealistic to work underneath trucks with a mask on. (Id. at 30:24-32:18.) In addition, AWS offered an alternative position as a route auditor, but the job would continue to subject Oie to a risk of exposure to diesel exhaust. (Id. at 32:19-33:24.) Oie also discussed the possibility of another mechanic position at a recyclery with the manager Kurt Devitt, but the position was not offered to Oie because both of them agreed that the exhaust fumes associated with that position would aggravate Oie's respiratory symptoms. (Id. at 33:25-34:23.)

Oie asserts that a fixed ventilation system at AWS's Inver Grove Heights location would have allowed him to return. (Id. at 29:7-13.) AWS counters that given the nature of AWS's business there were no open positions at the company that would avoid all exposure to diesel fumes. (Devitt Decl. ¶ 14.) Oie resigned on September 21, 2012 and began a job as a diesel mechanic with another employer where he works outdoors. (Oie Dep. at 17:3-18:19.)

PROCEDURAL HISTORY

In December 2012, Oie commenced this action against AWS in Dakota County District Court. In January 2013, AWS properly removed the case to this Court. (Notice of Removal, Jan. 14, 2013, Docket No. 1.) In September 2013, this Court dismissed Oie's negligence claim with prejudice. (Dismissal Order, Sept. 11, 2013, Docket No. 15.) In May 2014, AWS filed this motion for summary judgment. (Def.'s Mot. for Summ. J., May 30, 2014, Docket No. 19.)

ANALYSIS

I. STANDARD OF REVIEW

Summary judgment is appropriate where there are no genuine issues of material fact and the moving party can demonstrate that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A fact is material if it might affect the outcome of the case, and a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court considering a motion for summary judgment must view the facts in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II. AWS'S SUMMARY JUDGMENT MOTION

A. DISABILITY DISCRIMINATION

The ADA and the MHRA make it unlawful for an employer to discriminate against any qualified individual based on disability status. 42 U.S.C. § 12112(a); Minn. Stat. § 363A.08, subd. 2. Oie's claims for disability discrimination under the ADA and MHRA must be analyzed under the three-step framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Oie must show that he "(1) is disabled within the meaning of the ADA, (2) is a qualified individual under the ADA, and (3) has suffered an adverse employment action because of [his] disability." Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013); Philip v. Ford Motor Co., 328 F.3d 1020, 1023 & n.3 (8th Cir. 2003) ("Claims arising under the MHRA are analyzed using the same standard applied to ADA claims."). With the establishment of a prima facie case, there is a presumption of discrimination. A defendant may rebut this by showing a ...


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