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Nekich v. Wisconsin Central Ltd.

United States District Court, D. Minnesota

November 17, 2017

James Nekich, Plaintiff,
Wisconsin Central Limited, a Delaware corporation, Defendant.



         Plaintiff 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 part.

         I. BACKGROUND

         Nekich 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.

         Nekich 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.

         On 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.

         Shortly 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.

         The 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.

         Wisconsin 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.


         Summary 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.


         Nekich's 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.

         A. Plaintiff's FMLA Claims

         The 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 theories.[1]

         1. Entitlement Claim

         “An 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 ...

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