Norah C. Oehmke Plaintiff-Appellant
Medtronic, Inc. Defendant-Appellee.
Submitted: October 19, 2016
from United States District Court for the District of
Minnesota - Minneapolis
GRUENDER, BEAM, and SHEPHERD, Circuit Judges.
Oehmke appeals the district court's adverse grant of
summary judgment in her suit against Medtronic, Inc., for
disability discrimination and retaliation under the Americans
with Disabilities Act (ADA) and the Minnesota Human Rights
Act (MHRA). We affirm.
this case comes before us on Medtronic's motion for
summary judgment, we portray the facts in the light most
favorable to Oehmke. Johnson v. Blaukat, 453 F.3d
1108, 1112 (8th Cir. 2006). Oehmke was diagnosed in 1997 with
Hodgkin's lymphoma, for which she received chemotherapy
and radiation treatment and a bone-marrow transplant. The
cancer has been in remission since 1999. Her treatment
resulted in adverse, long-term health effects, including a
suppressed immune system and cardiomyopathy. Medtronic, a
medical device manufacturer, hired Oehmke as a Credit
Representative in 2003. Oehmke informed Medtronic at that
time of her disability as a cancer survivor with long-term
health effects. Oehmke excelled in this position, winning
awards for customer satisfaction and cost efficiency. In 2005
Oehmke took the position of Senior Patient Services
Specialist, in which she answered patient telephone calls and
e-mails concerning implantable devices, warranty claims, or
unreimbursed medical claims. At the time she was hired for
this position, she again communicated her disability to her
direct supervisor in this position was Mavis Klemmensen.
Patient Services was part of the Technical Services and
Patient Services Department, managed by Lyn Stepaniak.
Klemmensen and Oehmke got along well and she consistently
gave Oehmke positive performance evaluations. She allowed
Oehmke to work from home ("telework") on days when
Oehmke was ill. Because of her suppressed immune system,
Oehmke became sick easily and it took her longer than normal
to recover. Medtronic's policy was to limit teleworking
to two days per week, but Klemmensen allowed Oehmke to do so
more often if needed. Throughout this period-roughly 2005 to
2008-Oehmke often took medical leave for medical
applied for a higher position, Operations Lead, in April
2008. Klemmensen talked Oehmke out of applying for the
position, explaining that Oehmke was already slated to be
promoted to Principal Patient Services Specialist that July.
During this conversation, Klemmensen stated that she
perceived Oehmke as desiring power in the workplace, and made
a reference to Nazis or Hitler. Although the parties dispute
the context around and intent behind that reference, Oehmke
understood the reference to be directed at her. Being of
German heritage, she took especial exception to the
statement, and this apparently initiated a deterioration in
Oehmke and Klemmensen's working relationship. Klemmensen
selected another, less qualified candidate for the Operations
Lead position. That candidate also was a cancer survivor.
Several nondisabled members of Oehmke's department were
promoted in May 2008.
management received three customer complaints referencing
calls handled by Oehmke in July, August, and September of
2008. Oehmke disputes the accuracy of these complaints. Two
calls involved upset patients, and although it does not
appear from the record that Oehmke necessarily caused their
agitated state, one of the responsibilities of a Patient
Services Specialist is to use empathy to calm down upset
customers. Another complaint referenced Oehmke's failure
to call the patient back. In regard to one of these calls,
Oehmke had written down in her call notes that the customer
was "rude." This violated Medtronic's policy of
using purely objective language in call notes, which are
discoverable. Additionally, Klemmensen received complaints
from other employees regarding Oehmke's blunt
communication style. In July 2008, Klemmensen told Oehmke
that she would not, in fact, be promoted to Principal Patient
Services Specialist, giving as a reason for her decision one
of the patient complaints.
met with Stepaniak and Klemmensen in September 2008 to
discuss why she was not promoted. Klemmensen discussed the
customer complaints and Oehmke's use of the term
"rude" in her call notes. Klemmensen informed
Oehmke that she would begin enforcing the two-days-a-week
limit on teleworking until Oehmke demonstrated that she was
consistently empathetic in dealing with patient phone calls.
Oehmke requested that she continue to be able to telework as
she needed, and Klemmensen later granted the request on the
condition that Oehmke's calls handled from home be
recorded. Oehmke agreed, although she considered this to be
unfair treatment because other teleworkers were not recorded.
In March 2009, Medtronic began recording all patient-services
calls. Later in September 2008, another meeting occurred
between Oehmke and Klemmensen at which Stepaniak was present.
Stepaniak claimed that during this meeting Oehmke leaned
forward toward Klemmensen in a physically intimidating
manner, causing Stepaniak to be concerned that Oehmke might
assault Klemmensen. Oehmke disputes this but admitted she
understood that Stepaniak and Klemmensen felt physically
intimidated by and fearful of her. An employee from the
human-resources department was brought in at Oehmke's
request for the remainder of the meeting.
took a three-week leave of absence for illness in October
2008. Oehmke stated she had whooping cough, although this is
not corroborated by medical evidence. In November 2008,
Oehmke was rear ended in a car accident, causing injury to
her rotator cuff and a herniated disk. In January 2009,
Oehmke had a meeting with Klemmensen and an employee from
human resources, Kim Durkee. During that meeting Klemmensen
presented Oehmke with a spreadsheet documenting what
Klemmensen said was a high absenteeism rate of 6.3% of
available time to work over the previous year. Oehmke points
out that this spreadsheet counted days missed for medical
leave under the Family and Medical Leave Act (FMLA), which do
not count as absences under Medtronic's absenteeism
policy. Stepaniak agreed in her deposition that the
spreadsheet was inaccurate; Oehmke's actual absenteeism
rate was 4.75%. Under Medtronic's policy, absenteeism in
excess of 2% of available time to work over a twelve-month
period is considered "excessive, " and
Stepaniak's policy regarding her department was to
discuss with any employee absenteeism approaching 4%.
of Oehmke's injuries from her car accident and an
unrelated and unspecified medical issue not related to her
disability, she took a leave of absence from late February
2009 to mid-June 2009. While Oehmke was on leave, Klemmensen
retired and was replaced by Patti Peltier. When Oehmke
returned from leave, she made an informal request for
accommodations based on her doctor's recommendation.
Oehmke was told that she needed to put in a formal request.
In the past, Oehmke had always been granted accommodations
without going through the formal request process. After
Oehmke returned from leave, Peltier changed Oehmke's old
7:00 a.m. to 4:00 p.m. schedule to 8:00 a.m. to 5:00 p.m.
Oehmke claims other employees who returned from leave were
allowed to keep their old schedules.
August 2009, Oehmke received a negative performance
evaluation. The evaluation contained comments from Stepaniak,
who performed the review because of Klemmensen's
retirement. Stepaniak, as the department manager, did not
directly supervise Oehmke and so did not have the same degree
of familiarity with Oehmke's work performance as
Klemmensen. Oehmke disputed the accuracy of that evaluation
and Durkee, in the presence of Oehmke and Stepaniak, stated
that the evaluation was too hard on Oehmke. Stepaniak revised
the evaluation. The revised evaluation removed some positive
comments and was more negative than the first. The evaluation
cited a greater than 8% absenteeism rate, but the spreadsheet
on which that figure was based showed only a 6.3% rate. This
was, presumably, the same inaccurate 6.3% absenteeism rate
discussed above. The evaluation stated Oehmke violated the
sick-leave call-in policy during her leave for whooping cough
in October 2008, but Oehmke stated she had covered her shifts
by communicating via e-mail, which was consistent with past
practice. Finally, the evaluation stated Oehmke had violated
the telework policy, but Oehmke claims this was only due to
the rescission of the past accommodation of her need to
telework often. When questioned about the evaluation in a
deposition, Oehmke admitted that she "sometimes"
attempted to undermine leadership in her workplace.
September 2009 Oehmke gave incorrect information to a
patient's wife concerning the minimum safe distance
between a fork lift and a pacemaker. The correct distance is
two feet; Oehmke told the patient's wife it was six
inches. Oehmke admits she gave incorrect information. While
on vacation in Ireland later that month, Oehmke contracted an
unidentified lung illness, for which she took medical leave
from late September 2009 to early November 2009. During this
absence, Oehmke exhausted her leave under the FMLA. On
October 22, 2009, Stepaniak notified Oehmke that because her
FMLA leave was exhausted, her position was no longer being
held but that if a same or similar position was available
when Oehmke was ready to return, it would be offered to her.
Medtronic cites the business need to promptly fill the
position due to a high volume of customer calls. On October
23 Stepaniak began conducting interviews for the position. On
October 28 ...