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Oehmke v. Medtronic, Inc.

United States Court of Appeals, Eighth Circuit

December 22, 2016

Norah C. Oehmke Plaintiff-Appellant
v.
Medtronic, Inc. Defendant-Appellee.

          Submitted: October 19, 2016

         Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before GRUENDER, BEAM, and SHEPHERD, Circuit Judges.

          BEAM, Circuit Judge.

         Norah Oehmke appeals the district court's[1] 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.

         I. BACKGROUND

         Because 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.[2] 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 hiring supervisor.

         Oehmke's 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 appointments.

         Oehmke 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.

         Medtronic 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.

         Oehmke 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.

         Oehmke 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%.

         Because 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.

         In 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.

         In 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 ...


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