United States District Court, D. Minnesota
M. Sivertson, Esq., Alf E. Sivertson, Esq. counsel for
E. Crippen, Esq., Ashleigh M. Leitch, Esq. counsel for
S. Doty, Judge
matter is before the court upon the motion for summary
judgment by defendant Qwest Corporation, d/b/a CenturyLink
QC. Based on a review of the file, record, and proceedings
herein, the court grants the motion.
employment action arises out of plaintiff Kimberly
Stewart's resignation from Qwest on August 23, 2017.
Stewart began working at Qwest in 2015 as a credit
consultant. Sivertson Aff. Ex. 1. Kevin Barrett supervised
Stewart at all times relevant to this action. Barrett Dep. at
8:14-9:3. Stewart's daily schedules, breaks, absences,
and leave requests were managed by Patricia Farris in
Qwest's resource allocation specialist department (RAS).
Farris Dep. at 6:19-7:8-8:12, 10:19-13:20. Farris was
supervised by Shelley Reinhardt, manager of RAS. Id.
Workers' Compensation Claim
had a latent neck injury when she started work at Qwest.
Stewart Dep. at 32:9-33:6. At some point during her tenure,
Stewart's injury flared up and she began missing work due
to pain and doctors' appointments. Stewart exhausted all
of her Family Medical Leave Act time on October 3, 2016, and
filed a claim for short term disability benefits with
Qwest's benefits administrator, Sedgwick. Leitch Decl.
then filed a workers' compensation claim with Sedgwick on
January 26, 2017. Stewart Dep. at 40:1-4, 140:22-143:5. She
also asked Barrett for a new chair to help alleviate her
pain. Id. at 142:9-17. Sedgwick referred Stewart to
the claims department, which told her that she needed to work
directly with Barrett to file a workers' compensation
claim. Id. at 143:10-144:25. Barrett then told her
that she needed a note from her doctor in order to start the
claims process and to get a new chair. Id. at
145:3-9. Stewart gave Barrett a note from her doctor at the
end of January or early February and Barrett agreed to order
her a new chair, which Stewart received in May. Id. at
145:14-25, 146:18-19. Stewart's workers' compensation
claim was denied, however. Id. at 146:5-17.
also requested stretch breaks to help ease the pain.
Id. at 146:23-147:3. After initially denying the
request, Qwest agreed to allow Stewart to take breaks
throughout the day without pay. Id. at 147:9-11.
Stewart continued to accrue many absences throughout the
spring of 2017 due to her neck pain, despite having no
additional FMLA time left. See Leitch Decl. Exs. E,
F, J, L, & N. She also failed to work mandatory overtime
in March. Id. Ex. I. In April 2017, Stewart met with
Barrett, human resources, and her union representative to
discuss her repeated absences from work. See id.
Exs. E and F. Qwest informed Stewart that additional absences
could result in termination. Id. Ex. E at 3-4;
Barrett Dep. at 19:23-21:5.
Whistle Blower Activity
alleges that in February 2017 she first reported concerns
about Qwest's billing and collection practices to
Barrett. Stewart Dep. at 167:14-168:25. She specifically
noted her concern that Qwest was fraudulently billing for
equipment customers had already returned or never
ordered. Id. at 165:20-166:6, 181:5-25,
190:3-14. Barrett told her to transfer those kinds of calls
to the billing department because the collections department
did not address “mischarged items on a bill.”
Id. at 169:6-13; Barrett Dep. at 48:4-17. Stewart
felt that as a manager Barrett should have handled the calls
himself and that his failure to do so allowed the fraudulent
activity to continue. Id. at 169:6-13. Barrett
recalls Stewart having questions about certain billing
issues, but does not recall that she was concerned that Qwest
was engaged in fraud. Barrett Dep. at 45:19-46:10.
her belief that Qwest was defrauding customers, Stewart did
not file an internal complaint with Qwest. Qwest employees
may make anonymous reports of alleged wrongdoing online or
via telephone through its compliance hotline, Integrity Line.
Id. at 52:12-21. Stewart claims that she wanted to
complain about the fraudulent billing, but was blocked from
Integrity Line's website and did not have time to call
its twenty-four hour toll-free number. Stewart Dep. at
175:21-176:17, 177:4-178:2. Stewart also believed that
reporting the fraud would be futile, but she does not fully
explain why. Id. at 178:3-10. She did not report the
alleged fraud to anyone else at Qwest. Id. at
179:8-11. Stewart's “whistle blowing” was
limited to her instant messages and direct conversations with
Barrett in February and June 2017. Id. at
alleges that she was subject to retaliation by Qwest from
January 2017 until she quit on August 23, 2017, because she
filed a workers' compensation claim and engaged in
whistle blowing as set forth above. The instances of
• Barrett twice hit her desk in April 2017 and joked
that she was being fired after formal discussions about her
repeated absences, Stewart Dep. at 203:7-204:13;
• Farris, Reinhardt, and employees in the human
resources department repeatedly asked her if she was having
surgery for her neck, id. at 205:10-13;
• Barrett's supervisor Nick Boyer told her that she
was crazy on two or three occasions, id. at
205:17-25, 206:12-17, 209:2-3;
• Farris and Reinholdt “sneered” at her and
made fun of her clothing two or three times, id. ...