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Harrell v. Handi Medical Supply, Inc.

United States District Court, D. Minnesota

September 28, 2017


          Joni M. Thome and Cassie C. Navarro, BAILLON THOME JOZWIAK & WANTA LLP, for plaintiff.

          Lee A. Lastovich and Alyssa M. Toft, JACKSON LEWIS P.C., for defendant.


          JOHN R. TUNHEIM Chief Judge

         Plaintiff Tracy Harrell filed a complaint in Minnesota state court against her former employer Defendant Handi Medical Supply, Inc. (“HMS”) alleging claims under the Family Medical Leave Act (“FMLA”) and Minnesota Human Rights Act (“MHRA”). All of the claims relate to Harrell's termination from HMS on August 11, 2015. HMS removed the case to federal court and, in February 2017, moved for summary judgment on all claims. The Court will grant HMS's motion for summary judgment, finding that HMS has presented sufficient facts to show a legitimate non-retaliatory and non-discriminatory reason for terminating Harrell's employment, namely Harrell's derogatory comments about HMS, and Harrell has not demonstrated sufficient evidence that the reason was in any way a pretext for discrimination.


         I. THE PARTIES

         HMS is a medical equipment and supply company based in St. Paul, Minnesota. (Notice of Removal, Ex. A (“Compl.”) ¶ 4, Mar. 22, 2016, Docket No. 1; Decl. of Alyssa M. Toft (“Toft Decl.”), Ex. E at 30, Feb. 1, 2017, Docket No. 24.) The mission of HMS is “To Enrich Lives, ” (Toft Decl., Ex. E at 32), and this mission is central to the work of HMS employees, (see id., Ex. A (“Harrell Dep.”) at 60:1-22, 86:17-87:3).

         HMS employed Harrell from July 2012 through August 2015. (Id., Ex. U.) Harrell held the role of Lead Customer Service Representative (“Lead CSR”) and managed day-to-day operations of the Customer Service Department. (Id.; see also Harrell Dep. at 63:11-22.) At the time relevant to this case, the management structure of Harrell's team included: Mike Bailey - Chief Executive Officer; Scott Learned - Chief Operating Officer; Julie Peterson - Human Resources Manager; Kerstin Deters - Manager of Customer Service and Harrell's immediate supervisor; Harrell and Michelle Morgan - Lead CSRs; and ten to fifteen individual Customer Service Representatives (“CSRs”). (Harrell Dep. at 61:16-21, 72:4-73:1, 73:9-14, 91:3-8, 133:12-16; Toft Decl., Ex. L.)


         By all accounts Harrell had a successful career performance at HMS. Harrell received numerous “Enrichment Award Nomination[s]” for her work with co-workers and clients. (Decl. of Joni M. Thome (“Thome Decl.”), Ex. A, Feb. 22, 2017, Docket No. 28.) Deters described Harrell as generally respectful in the workplace, (id., Attach. 2, Dep. of Kerstin Deters-Engel (“Deters Dep.”) at 105:3-106:17), and evaluated Harrell as “exceeds expectations” at her last performance review before termination, (id., Ex. B at 20).

         Even so, Harrell did have some incidents of unprofessional conduct during her tenure at HMS. (See Toft Decl., Ex. F at 82; id., Exs. G-I.) And at Harrell's final performance review, Deters indicated that Harrell's “biggest opportunity for growth” was in “[r]espect.” (Thome Decl., Ex. B at 22.) This evaluation was, in part, based on co-workers indicating Harrell only sometimes showed respect in the workplace. (Id. at 26.)


         Harrell became eligible for FMLA leave in July 2013. Harrell applied for intermittent FMLA leave “to assist [her] spouse with serious mental health illness.” (Toft Decl., Ex. K at 31.)[1] HMS granted Harrell's FMLA leave request, (id. at 24), and Harrell remained approved for intermittent FMLA leave until her termination in August 2015, (see Id. at 13-15). When Harrell took FMLA leave, Harrell spoke with either Deters or Peterson. (Harrell Dep. at 97:21-98:3.) Harrell agreed that she did not “experience any resistance” from HMS about taking FMLA leave, (id. at 97:5-9), HMS never denied Harrell FMLA leave, (id. at 98:22-99:6), and - other than the incident at issue in this case - HMS never disciplined Harrell for taking FMLA leave, (id. at 99:14-20).

         IV. THE AUGUST 5, 2015, INCIDENT

         At some point during Harrell's employment, HMS determined it needed to make changes to the Customer Service Department because of poor response time to customer calls. Bailey decided to make certain temporary changes, including Deters “assum[ing] the role of [Lead CSR]” while “retain[ing] the title of Customer Service Manager” and Harrell and Morgan “assum[ing] the role of [CSR] while retaining the title of [Lead CSR].” (Toft Decl., Ex. L.) The move did not result in a change in salary. (Id., Ex. D (“Bailey Dep.”)[2] at 61:9-11.)

         On August 5, 2015, Bailey met with Learned, Peterson, Deters, Morgan, and Harrell to discuss the temporary changes. (Harrell Dep. at 133:5-11). According to Harrell, Bailey complained that Harrell and Morgan were working too few hours and commented that, even though “he knew something was going on in [Harrell's] life, ” Harrell needed to invest more time in HMS. (Id. at 134:7-135:4.) The temporary changes upset Harrell, and Harrell felt the temporary changes were unfair. (Id. at 136:15-17, 137:16-17.)

         After the meeting, Harrell returned to her desk, which was located in an area open to both HMS employees and customers. (Id. at 144:3-14.) Harrell sat near Sabrina Newson, Spencer Wallace, and LaShawnda Demry. (Id. at 145:6-8.) Harrell acted upset while at her desk, (Decl. of Michelle Morgan ¶ 7, Feb. 1, 2017, Docket No. 20), and twenty to thirty minutes later, Harrell emailed her husband stating “I really need to talk to you, I am upset, ” (Harrell Dep. at 147:15-148:1). Harrell borrowed Morgan's cellphone and called her husband. (Id. at 148:2-4.) During the call, Harrell's husband became angry and threatened to go to HMS and talk to Bailey. (Id. at 155:13-15, 158:3-7.) Harrell felt she needed to return home to help her husband. (Id. at 162:21-23.) Harrell told Peterson she needed to take FMLA leave, and Peterson approved the leave. (Id. at 162:12-163:12.)

         After talking with Peterson, Harrell returned to her desk, “took off [her] badge . . . swung it around [her] hand, like [she] usually [did], and threw it in her purse.” (Id. at 164:5-8; see also Toft Decl., Ex. B (“Learned Dep.”)[3] at 30:10-12 (Harrell's co-worker describing Harrell “throwing her items in her bag”).) Then, Newson approached Harrell to ask a work-related question, to which Harrell responded “[y]ou are going to need to talk to [Deters]. I am done. I got to go. I am done right now.” (Harrell Dep. at 164:9-13). Harrell's co-workers contend Harrell actually used profanity in her interaction with Newson. (See Learned Dep. at 30:11-12; Decl. of Mollie King (“King Decl.”) ¶ 3, Feb. 1, 2017, Docket No. 21; Decl. of LaShawnda Demry (“Demry Decl.”) ¶ 3, Feb. 1, 2017, Docket No. 22; Decl. of Sabrina Newson ¶ 2, Feb. 1, 2017, Docket No. 23.)

         Some evidence in the record reflects that customers did not hear Harrell's exchange with Newson. (See Learned Dep. at 77:12-15.) But Harrell's co-workers report that customers did see and hear the exchange. (See King Decl. ¶ 3; Demry Decl. ¶ 3.) Harrell then left the office. (Harrell Dep. at 164:17-18; see King Decl. ¶ 3 (stating Harrell “stormed out of the building”).) Harrell's co-workers believed Harrell had quit. (Learned Dep. at 30:2-6; see also Toft Ex. N.) Harrell asserts she never intended to resign from HMS. (Harrell Dep. at 161:21-162:6.)

         Harrell's co-workers reported the incident to Learned, who investigated and reported the eyewitness accounts to Peterson. (Learned Dep. at 32:9-40:10.) Ultimately, HMS decided to give Harrell a corrective action for her unprofessional conduct on August 5th. (See Id. at 46:6-23; Toft Decl., Ex. M.)

         V. AUGUST 6, 2015

         On August 6, 2015, Harrell met with Peterson regarding the changes to the Customer Service Department and told Peterson she felt Deters was “being set up to fail.” (Harrell Dep. at 175:10-176:17; Toft Decl., Ex. C (“Peterson Dep.”) at 161:15-23.) Peterson asked if Harrell had voiced her concerns to Bailey; Harrell responded that she had not and that Bailey made her uncomfortable. (Harrell Dep. at 176:14-17.) Harrell was upset about the temporary changes. (Peterson Dep. at 163:20-24.) Harrell made no mention of problems with her FMLA leave, discrimination, or retaliation. (See Harrell Dep. at 176:18-19.) On the same day, Harrell requested FMLA leave for August 7, 2015, which Peterson approved. (Toft Decl., Ex. O.)


         On August 11, 2015, Learned asked Harrell to come to Bailey's office. (Harrell Dep. at 179:10-13.) When Harrell arrived, Learned and Bailey presented her with a corrective action for “using profanity [and] angry, upset, [and] unprofessional conduct” on August 5th. (Harrell Dep. at 179:14-18; Toft Decl., Ex. M.) Learned and Bailey explained that three CSRs thought Harrell quit, used profanity, and made a scene in the showroom. (Harrell Dep. at 180:7-13; see also Toft Decl., Ex. M.) Bailey warned that “[t]his type of behavior and conduct [would] not be tolerated in the future. Failure to observe these set of rules [would] result in further disciplinary action including termination.” (Harrell Dep. at 181:6-13; Toft Decl., Ex. M.) Harrell denied the allegations in the corrective action and began to tell her side of the story. (Harrell Dep. at 183:20-185:9; Learned Dep. at 51:11-21.)

         According to Learned and Bailey, Harrell was dismissive of her co-workers' reports and attempted to shift the focus to short staffing in the Customer Service Department. (Learned Dep. at 51:11-21; see also Bailey Dep. at 153:19-22 (indicating Harrell said “she didn't like [Bailey's] decisions on how the department should be run”).) Bailey allegedly responded to Harrell: “there seems like there's an excuse for everything with you.” (Learned Dep. at 52:6-12.) Harrell responded “[t]here always is an excuse.” (Id. at 52:11-12.) Bailey allegedly responded: “[n]o, there isn't. Sometimes you just have to take responsibility.” (Id. at 52:13-15.) Harrell then brought up that she actually went home to take care of her husband's disability. (Id. at 57:15-19.) And, at some point in the conversation, Harrell exclaimed that HMS was trying to use her husband's disability against her. (Id. at 54:23-55:5.) And Harrell became tearful, upset, and said she was uncomfortable. (Bailey Dep. at 141:13-19, 144:12-14.)

         In contrast, Harrell asserts that she immediately explained that her co-workers mistakenly interpreted her conduct on August 5th. (Harrell Dep. at 184:11-185:9.) Harrell allegedly explained that she “was upset and panicked and worried for [her] husband and that [she] needed to go home to take care of him, and that the team members were misinterpreting the situation.” (Id. at 184:11-16.) Harrell stated that she explained “the truth [was] that [she] was leaving because [her] husband upset [her] and he” was going to react poorly and, perhaps, come into HMS if Harrell did not leave immediately. (Id. at 184:25-185:9.) According to Harrell, Bailey and Learned said “they didn't believe [her]” and Bailey said “he [didn't] understand why [Harrell] would have told [her] husband [about the temporary department changes] if [she] knew it would upset him.” (Id. at 187:1-8; see also Learned Dep. at 58:19-23.) Harrell further attests that Bailey became visibly angry when Harrell accused him of using Harrell's husband's disability against her. (Harrell Dep. at 190:8-18.) The situation made Harrell uncomfortable. (Id. at 187:11.)

         At this point, Deters and Peterson were asked to join the meeting. (Id. at 187:9-11; Bailey Dep. at 141:9-10.) Bailey “fill[ed] in [Deters] and [Peterson], ” and then moved his chair near Harrell, shook his finger at Harrell, and stated “[y]ou are sitting here telling me that I am using your husband's disability. That's grossly offensive to me.” (Harrell Dep. at 192:18-193:10.) Harrell alleges Bailey spit on her face while he was talking to her. (Id. at 193:5.) Learned and Peterson then explained to Harrell that the “behavior [Harrell] exhibited while [she] left” on August 5th was the basis for the corrective action - not the fact that she left. (Learned Dep. at 65:3-11; see also Peterson Dep. at 138:2-139:8, 143:12-17.) Learned, Peterson, and Bailey assert that they knew Harrell's accusation was false and an attempt to derail the disciplinary action. (Learned Dep. at 69:9-12; Bailey Dep. at 76:8-17; Peterson Dep. at 151:3-7.)

         The conversation finally culminated in Bailey stating that HMS and Harrell should consider an “exit strategy.” (Bailey Dep. at 147:3-8; Harrell Dep. at 198:11-19.) There was no agreement that an “exit strategy” would actually happen or that HMS would ultimately terminate Harrell. (Peterson Dep. at 115:6-116:10, 155:4-5; Bailey Dep. at 146:17-147:8; Harrell Dep. at 198:11-199:12, 201:6-13.) Harrell was then dismissed from the meeting and, on the way out, uttered the phrase “[e]nriching lives” - HMS's mission statement - in a disparaging way. (Harrell Dep. at 198:2-199:18; Learned Dep. at 67:8-12.) Harrell admitted that she knew everyone at HMS took the mission of HMS seriously. (Harrell Dep. at 199:16-25.) Learned, Peterson, and Bailey understood that Harrell was mocking the mission of HMS, and after Harrell left the room, concurred that this conduct required immediate termination. (Peterson Dep. at 155:20-158:5; Learned Dep. at 67:11-18.)

         Harrell walked back to her desk. (Harrell Dep. at 200:12-14.) Peterson found Harrell, asked her to return to Bailey's office, and Bailey terminated Harrell. (Id. at 200:16-201:1.) HMS replaced Harrell with Demry - an employee on intermittent FMLA leave.[4] (Demry Decl. ¶ 6.)


         Harrell filed the Complaint in Minnesota state court in March 2016. (Notice of Removal ¶¶ 1-2.) The Complaint alleged the following claims: (1) reprisal under the MHRA for reporting discrimination and retaliation; (2) reprisal under the MHRA for associating with a disabled person; (3) marital status discrimination under the MHRA; and (4) violation of the FMLA when HMS “discharged Harrell for exercising her right to take FMLA leave.” (Compl. ¶¶ 42-60.) HMS removed the case to federal court. In February 2017, HMS moved for summary judgment on all claims.



         Summary judgment is appropriate when there are no genuine issues of material fact and the moving party can demonstrate 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 lawsuit, and a dispute is genuine if the evidence 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 summary judgment motion 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, 587-88 (1986). Summary judgment is appropriate if the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “To defeat a motion for summary judgment, a party may not rest upon allegations, but must produce probative evidence sufficient to demonstrate a genuine issue [of material fact] for trial.” Davenport v. Univ. of Ark. Bd. of Trs., 553 F.3d 1110, 1113 (8th Cir. 2009) (citing Anderson, 477 U.S. at 247-49).

         II. ...

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