United States District Court, D. Minnesota
N. ERICKSEN UNITED STATES DISTRICT JUDGE
James Nekich (“Nekich”) asserted violations of
the Family Medical Leave Act (“FMLA”), the
Americans with Disabilities Act (“ADA”), and the
Age Discrimination in Employment Act (“ADEA”)
against his former employer, Defendant Wisconsin Central
Limited (“Wisconsin Central”). Defendant moved
for summary judgment on all three claims. For the reasons set
forth below, the motion is granted in part and denied in
began working for Wisconsin Central as a Rail Traffic
Controller (“RTC”) in June 1999. RTCs oversee the
safe and efficient movement of trains and railway personnel.
They also track train crew hours to ensure that they do not
exceed statutory maximum amounts. If a crew is approaching
the end of its permitted hours, the RTC notifies his or her
chief dispatcher, and the dispatcher then works with other
supervisors to coordinate a “recrewing.” The RTC
then radios those recrewing instructions to the crews.
was approved for intermittent FMLA leave for anxiety in
October 2013 and again in November 2014. On December 17,
2014, Nekich had a flare-up of his anxiety and notified his
supervisor of his intent to use FMLA leave. The request was
approved and Nekich was not disciplined for missing time.
Nekich had also used FMLA for other conditions in previous
years without incident. See Def.'s Mem. Supp.
Summ. J. 4.
January 1, 2015, Nekich arrived at work for his morning
shift. By that time, there was already significant congestion
involving the trains under his control. Morehouse Dep. 116.
One of the trains under his watch, the “343”
train, was approaching a required recrewing time. Yusef
Clements, the Chief Dispatcher, allegedly instructed Nekich
to stop the 343 at Ericksburg Road in order to facilitate
recrewing. Morehouse Dep. 91. According to Nekich, however,
he received no such instruction. Nekich Dep. 158. The 343
train passed by Ericksburg Road without recrewing, and then
had to stop at a remote location when its crew's hours
expired. ECF 59-4 at 16. This caused delays down the line.
Nekich Dep. 181-82.
after the Ericksburg Road incident, Dennis Anderson, one of
Nekich's supervisors, and other Wisconsin Central
employees congregated around Nekich's desk, causing him
to feel anxious. Nekich Dep. 202, 205. At that point, he went
to the lunchroom to “[take] a timeout” and
attempt to calm down. Nekich Dep. 205, 213. Nekich then went
to the office of Anne Morehouse, the Wisconsin Central
Superintendent, and told her that he was “upset”
and could not dispatch trains any more that day. Nekich Dep.
219. Nekich acknowledges that he did not “get into
details” about his anxiety or FMLA during this exchange
with Morehouse. Nekich Dep. 218. He contends that Morehouse
told him that if he left work, things would “go
badly” for him. Nekich Dep. 220. Morehouse took Nekich
out of service and told him that she would let him know when
he could come back to work. Nekich Dep. 221. Roughly an hour
later, Morehouse sent an email to the company's labor
relations office stating that “Nekich was sent home
today after refusing to do his job. We will be setting him up
for three investigations.” ECF No. 59-4 at 24. After
leaving work, Nekich went home, took his blood pressure and
found that it was high, took medicine, and fell asleep.
Nekich Dep. 247-48. Upon waking up a few hours later, he went
to the emergency room, where he was given medication for
panic attacks. Nekich Dep. 251.
next day, Nekich contacted Wisconsin Central's Attendance
Management Center (“AMC”) to request FMLA leave.
Nekich Dep. 253. Shortly thereafter, Morehouse notified the
AMC team by email that Nekich was not eligible for FMLA
because he was out of service pending an investigation. ECF
No. 59-4 at 26. Morehouse also indicated by email that she
thought Nekich was “going to try to get paid for being
off, when he is not eligible too [sic].” ECF No. 59-4
at 26. Later that morning, Senior Chief Thomas Duncan called
Nekich to tell him that he was out of service pending
multiple investigations. ECF No. 59-4 at 28.
Central held three investigatory hearings on January 15, 2015
to determine whether Nekich had violated any rules during the
January 1 incident. ECF No. 59. Testimony was taken from
Nekich, Morehouse, Anderson, and other Wisconsin Central
personnel. As the most senior manager not involved in the
incident, Duncan was responsible for making the decision in
Nekich's case. Duncan Dep. 28. He issued his decisions on
January 23, 2015. Nekich received a 15-day actual suspension
and a 15-day deferred suspension for failing to direct the
343 train to meet its relief crew, a 30-day actual suspension
and 30-day deferred suspension for refusing to perform his
duties after the Ericksburg Road incident without specific
instructions from his supervisors, and a dismissal from
service for insubordination and deserting his desk. Nekich
appealed the 15/15 decision and the dismissal decision to the
Public Law Board through his union. On October 9, 2016, the
Board overruled the 15/15 penalty on the grounds that
Clements did not testify during the hearing. The Board also
reduced the dismissal to a one-year unpaid suspension on the
grounds that Nekich was guilty of insubordination but not of
deserting his desk. The one-year suspension ran from January
2, 2015 through January 1, 2016. Nekich retired on March 1,
2016 and receives a full pension from the Railroad Retirement
Board based on his age and years of service.
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A genuine dispute exists “if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). To support an assertion
that a fact cannot be or is genuinely disputed, a party must
cite “to particular parts of materials in the record,
” show “that the materials cited do not establish
the absence or presence of a genuine dispute, ” or show
“that an adverse party cannot produce admissible
evidence to support the fact.” Fed.R.Civ.P.
56(c)(1)(A)-(B). “The court need consider only the
cited materials, but it may consider other materials in the
record.” Fed.R.Civ.P. 56(c)(3). In determining whether
summary judgment is appropriate, a court views the record and
all justifiable inferences in favor of the non-moving party.
Liberty Lobby, 477 U.S. at 255.
complaint asserts claims under the FMLA, the ADA, and the
ADEA. Plaintiff elected not to contest Defendant's motion
for summary judgment on the ADEA claim. Pl.'s Mem. 1,
n.1. The FMLA and ADA claims are discussed below.
Plaintiff's FMLA Claims
FMLA entitles eligible and qualified employees to twelve
weeks of leave from work during any twelve-month period. 29
U.S.C. § 2612(a)(1). Employers are limited in their
ability to undermine an employee's leave by two FMLA
subsections. Under Section 2615(a)(1), an employer may not
“interfere with, restrain, or deny the exercise of or
the attempt to exercise” rights provided under the
FMLA. Section 2615(a)(2) prohibits an employer from
“discharg[ing] or in any other manner discriminat[ing]
against any individual for opposing any practice made
unlawful” by the FMLA. The Eighth Circuit recognizes
three FMLA claims flowing from these subsections: (1)
entitlement, (2) retaliation, and (3) discrimination.
Pulczinski v. Trinity Structural Towers, Inc., 691
F.3d 996, 1005-06 (8th Cir. 2012). Nekich alleges FMLA claims
under the entitlement and discrimination
FMLA entitlement claim arises when an employer denies or
interferes with an employee's substantive FMLA
rights.” Hager v. Ark. Dep't of Health,
735 F.3d 1009, 1015 (8th Cir. 2013). Crucially, for this
family of claims, “the employer's intent is
immaterial.” Ballato v. Comcast Corp., 676
F.3d 768, 772 (8th Cir. 2012). Unlike most other employment
claims, therefore, entitlement or interference claims are not
analyzed under the McDonnell Douglas burden-shifting
framework. Instead, an employee's burden for entitlement
claims is to “‘show only that he or she was
entitled to the ...