United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE
before the Court are a Motion for Summary Judgment (Doc. 31),
Brief in Support (Doc. 29), and Statement of Facts (Doc. 30)
filed by Defendant Maynard, Inc. Plaintiff Susan Larsen has
submitted a Response in Opposition (Doc. 33) and Response to
Statement of Facts (Doc. 32). The Court has also received a
Reply (Doc. 35) by Maynard. The motion for summary judgment
is now ripe for decision and, for the reasons stated herein,
is GRANTED IN PART AND DENIED IN PART.
facts of this case are straightforward and largely
undisputed. However, because the instant motion is one for
summary judgment, the Court will recite the facts in the
light most favorable to Larsen, the non-moving party, and
will limit its discussion only to what is necessary to
provide context for the Court's ruling. Because the
chronology of events is important to the various claims in
this case, the Court recites the following facts
hired Larsen in March of 2014 as a welder. Her job
description included welding and straightening parts. (Doc.
31-1, p. 7). From March 2014 until 2016, Larsen received
numerous raises despite having at least two prior
disciplinary events at Maynard.
events central to the present dispute, however, began in
March of 2016 when Larsen and her husband drove their
motorcycles from Prairie Grove, Arkansas to Daytona, Florida
and back to attend Daytona Bike Week. The following month,
Larsen began a nine-week work absence at Maynard after filing
a worker's compensation claim complaining of shoulder
pain. Shelley Lisenbee, who was Maynard's Business
Operations Manager during Larsen's employment, testified
that she gave Larsen Family and Medical Leave Act
(“FMLA”) paperwork to complete in connection with
her worker's compensation claim. However, no FMLA
paperwork relating to this event appears in the record.
about June 22, 2016, Larsen returned from her medical absence
with no medical or physical restrictions. However, she
alleges that she remained in considerable pain at this point
and could not even lift fifteen pounds at a time. At some
point, Larsen informed an individual at Maynard that she was
unable to lift heavy metal bars because of her shoulder pain,
and Maynard provided her initially with a makeshift table
made out of shipping pallets, and later with an actual table.
days after she returned from her medical absence, Maynard
provided Larsen with FMLA paperwork, as Larsen had discussed
her condition with Evelyn Flynn, Maynard's Primary
Resources Communications (human resources) administrator, and
later mentioned that she desired to visit the Mayo Clinic.
Larsen was instructed to return the medical provider's
certification by July 11, 2016 so that Maynard could
determine whether her leave to attend the Mayo Clinic
qualified under the FMLA. Because Larsen did not have an
appointment at the Mayo Clinic, she failed to submit any
certification for family medical leave by July 11, 2016.
on August 4 or August 5, 2016, Larsen approached her
supervisor, Shad Gilman, inquiring about whether she could
start a welding job that had become available. Gilman told
her that this job was not a top priority and that he needed
her to continue working in deburring. She complained to him about
that and said that it was “bullshit” that she had
to continue deburring. On August 5, 2016, Larsen requested to
take time off for August 16 and 17, in order to go to the
Mayo Clinic for an examination of her shoulder. Gilman
approved the request on the same day. On August 15, 2016,
Randall Lewis, a fellow welder at Maynard, filed a written
complaint against Larsen. He complained that Larsen came up
to him the first day that he returned following his
wife's death and said to him that she (Larsen) had been
told by Lewis' wife at Lewis' wife's funeral to
tell Lewis to “keep [his] shirts [i]roned and to go to
church.” (Doc. 35-14, p. 1). Lewis said that he did not
know how to react but that he became more upset the more he
thought about it. He ultimately reported the event to his
supervisor and filed a written complaint against Larsen on
August 18, 2016. Maynard investigated the complaint.
August 16 and 17, 2016, Larsen attended the Mayo Clinic in
Rochester, Minnesota to have her shoulder evaluated. Before
she left, Larsen was informed by Maynard that her leave would
be retroactively approved as family medical leave if she
returned the proper medical certification when she returned
from the Mayo Clinic. She ended up seeing two different
doctors during her visit to the Mayo Clinic. The first told
her only that she would not need surgery, but the second
diagnosed her with a degenerative shoulder condition and
recommended that she receive guided shots to help manage her
pain. She ultimately received those shots when she returned
to Arkansas. During her time at the Mayo Clinic, she realized
that in order to get a second opinion from this second
physician, she would have to stay an extra day, so she called
Maynard to request time off for August 18 as well. Maynard
approved that request. That same day, the decision was made
to terminate Larsen.
August 19, Larsen returned to Maynard, where she was informed
of her termination. The Termination of Employment sheet
reflects that Larsen was terminated for misconduct and
“other” conduct. (Doc. 31-1, p. 19). The
additional remarks section of that form reports that she was
terminated for “[e]xhibiting negative behavior to
include disrespect to managers and coworkers, creating
dissension among others, and creating a hostile work
environment toward her co-workers.” Id. It
does not appear from the record that Larsen brought her FMLA
certification with her on August 19 when she returned to
Larsen then filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”). On February 7,
2018, Larsen received a right-to-sue letter from the EEOC.
She then timely filed suit within 90 days of her receipt of
Complaint (Doc. 3) alleges that she was discharged because of
her gender and discriminated and retaliated against because
she took time off of work to obtain diagnosis and treatment
for her shoulder injury. As such, the Complaint alleges
claims under Title VII, the Americans with Disabilities Act
(“ADA”), the FMLA, and related state law claims
under the Arkansas Civil Rights Act (“ACRA”).
LEGAL STANDARD FOR SUMMARY JUDGMENT
standard for summary judgment is well established. Under
Federal Rule of Civil Procedure 56(a), “[t]he court
shall grant summary judgment 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.” The Court
must review the facts in the light most favorable to the
opposing party and give that party the benefit of any
inferences that can be drawn from those facts. Canada v.
Union Elec. Co., 135 F.3d 1211, 1212-13 (8th Cir. 1997).
The moving party bears the burden of proving the absence of a
genuine dispute of material fact and that it is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(c); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986); Nat'l. Bank
of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165
F.3d 602 (8th Cir. 1999).
the moving party has met its burden, the non-moving party
must “come forward with ‘specific facts showing
that there is a genuine issue for trial.'”
Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P.
56(c)). However, “the mere existence of a scintilla of
evidence in support of the plaintiff's position will be
insufficient” to survive summary judgment. Anderson
v. Durham D&M, L.L.C., 606 F.3d 513, 518 (8th Cir.
2010) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986)). Rather, in order for there to be a
genuine issue of material fact that would preclude summary
judgment, the non-moving party must produce evidence
“such that a reasonable jury could return a verdict for
the nonmoving party.” Allison v. Flexway Trucking,
Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). To meet its burden, “[t]he nonmoving party
must do more than rely on allegations or denials in the
pleadings, and the court should grant summary judgment if any
essential element of the prima facie case is not supported by
specific facts sufficient to raise a genuine issue for
trial.” Register v. Honeywell Fed. Mfg. &
Techs., LLC, 397 F.3d 1130, 1136 (8th Cir. 2005) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
has asserted nine different causes of action against Maynard.
These range from Title VII claims to violations of the ADA
and ACRA. Because of the sheer number of claims against
Maynard and for organizational clarity, the Court will divide
this section into two sub-sections: one focusing on the
claims that are subject to the familiar McDonnell
Douglas burden-shifting framework and one focusing on
the remaining, analytically distinct claims that are analyzed
according to different standards.
McDonnell Douglas Claims
the elements required to establish prima facie cases
for each of the causes of action Larsen asserts are different
(and therefore discussed below when evaluating each cause of
action), certain of her causes of action are analyzed using a
now familiar burden-shifting framework. Indeed, Larsen's
ADA disparate treatment (discrimination) and retaliation,
gender discrimination and retaliation, and FMLA
discrimination and retaliation claims are analyzed through
nearly identical processes.
plaintiff may establish a discrimination or retaliation claim
through either direct or indirect evidence. See King v.
United States, 553 F.3d 1156, 1160 (8th Cir. 2009). In
the absence of direct evidence, “the court analyzes [a
plaintiff's] claim under the burden-shifting framework
set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973).” Tusing 639 F.3d at 515
(citing King v. United States, 553 F.3d at 1160).
Under that framework, a plaintiff bears the initial burden of
establishing a prima facie case. Id.
(citing King, 553 F.3d at 1162). Once the
plaintiff does so, “the burden of production then
shifts to the employer to articulate a legitimate
non-discriminatory reason for its employment action.”
Id. (citing King, 553 F.3d at 1160). If the
defendant can meet that burden of production, then the burden
shifts back to the plaintiff “to demonstrate by a
preponderance of the evidence that the stated
non-discriminatory rationale was a mere pretext for
discrimination.” Id. (quotation and citation
for Larsen's various discrimination and retaliation
claims, the Court will first evaluate whether she has
presented direct evidence showing discrimination. If so, then
the claim is entitled to go to the jury. If not, the Court
will follow the burden-shifting framework outlined above to
determine whether summary judgment is proper.
Discrimination (Disparate Treatment) Claim
ADA makes it unlawful for a covered employer to discriminate
against any “qualified individual on the basis of
disability.” 42 U.S.C. § 12112(a); Hill v.
Walker, 737 F.3d 1209, 1216 (8th Cir. 2013).
Discrimination under the ADA includes, in relevant part,
“not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability.” 42 U.S.C. §
12112(b)(5). And, the ADA prevents employers from retaliating
against persons who invoke the Act's protections. 42
U.S.C. § 12203(a). A plaintiff thus can bring claims
under the ADA for failure to accommodate, retaliation, and
other forms of disparate treatment. It is clear from the
record that Larsen asserts three distinct ADA claims: a
disparate treatment claim (alleging that she suffered an
adverse employment action because of her disability), a
retaliation claim, and a reasonable accommodation (failure to