The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
REPORT AND RECOMMENDATION
Plaintiffs Michael Meinen and Jessie Meinen, husband and wife, filed this lawsuit, invoking this court's federal question jurisdiction under 28 U.S.C. §§ 451, 1331, 1337, 1343(a)(4), 1345 and 42 U.S.C. § 12117. Plaintiffs bring this action against Godfrey Brake Service & Supply, Inc. ("Godfrey Brake" or "Godfrey"), alleging discrimination and wrongful termination in violation of the Americans with Disabilities Act ("ADA"), intentional infliction of emotional distress, and conversion. See Docket No. 1.
Pending before the court is a motion for partial summary judgment filed by plaintiffs. See Docket No. 28. Also pending before the court is a motion for summary judgment filed by the defendant. See Docket No. 36. The district court, the Honorable Jeffrey L. Viken, referred these motions to this magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). See Docket No. 56.
Godfrey Brake Service & Supply, Inc. is a South Dakota corporation located in Rapid City, South Dakota. See Docket No. 37 at ¶ 3. Dan Godfrey and Bob Godfrey, brothers, each own 50% of Godfrey Brake. See Docket No. 30-1 (B. Godfrey Depo. at 6). Godfrey is engaged in the business of selling parts and servicing trucks and equipment. See Docket No. 37 at ¶ 3.
Godfrey's maintains a written policy prohibiting discrimination. See Docket No. 30-1. However, neither Bob Godfrey nor Dan Godfrey were aware of the written policy nor do they conduct formal training for employees on disability discrimination. See Docket Nos. 30-1 (B. Godfrey Depo. at 9, 11-12); 30-2 (D. Godfrey Depo. at 8). However, Godfrey has continuously posted the required flyers and placards on the premises and Dan Godfrey testified that discrimination is not allowed at Godfrey Brake. See Docket Nos. 40 at ¶ 13; 30-2 (D. Godfrey Depo. at 8). Additionally, employees are provided with and asked to review a copy of the employee handbook when they are hired, which includes Godfrey's written policy prohibiting discrimination. See Docket No. 30-2 (D. Godfrey Depo. at 11-12).
Beginning in 2001, Michael Meinen became employed with Godfrey Brake and held a full-time position in the parts department. See Docket No. 30-4 (Meinen Depo. at 7). Although an occasion employee assigned to other departments within Godfrey would assist at the parts counter, prior to December of 2007, Godfrey did not employ any part-time employees within parts department. See Docket Nos. 49 at ¶ 4, 50 at ¶ 6, and 40 at ¶ 3.
On or about December 29, 2007, Mr. Meinen became ill. See Docket No. 30-4 (Meinen Depo. at 11-12). Mr. Meinen indicated that when he got to work on December 29, 2007, he got dizzy but that he just tried to ignore it. Id. After finishing his shift at Godfrey, Mr. Meinen went home and his condition continued to worsen. Id. As a result, Mr. Meinen ended up in the hospital. Id. Eventually it was determined that Mr. Meinen was suffering from a form of multiple sclerosis ("MS"). See Docket No. 30-2 (D. Godfrey Depo. at 26).
Since getting sick, Mr. Meinen has struggled with his vision and has been taking antidepressants. See Docket No. 30-4 (M. Meinen Depo. at 15-18). Additionally, Mr. Meinen initially participated in physical and vocational rehabilitation. However, he stopped physical rehabilitation in 2008; he participated in vocational rehabilitation for only five or six months. Id. (M. Meinen Depo. at 16-19).
While Mr. Meinen was in the hospital, Dan Godfrey visited Mr. Meinen and told him to concentrate on getting better and not to worry about work at Godfrey Brake. See Docket Nos. 30-2 (D. Godfrey Depo. at 26); 30-4 (M. Meinen Depo. at 13-14). Dan Godfrey testified that he had hoped and believed that Mr. Meinen would eventually recover and would be able to return to Godfrey as a full-time employee. See Docket Nos. 40 at ¶ 6; 30-2 (D. Godfrey Depo. at 33). Dan Godfrey also testified that after Mr. Meinen became ill, two part-time positions were created within Godfrey Brake in order to cover the parts counter and retain a position for Mr. Meinen when he was able to return to work. See Docket Nos. 40 at ¶ 4; 30-2 (D. Godfrey Depo. at 33). Although Dan Godfrey asserts that these part-time positions were never intended to be permanent, Mr. Meinen disputes this fact and indicates that he was never told the position was intended to be temporary. See Docket No. 43 at ¶ 1.
In October of 2008, ten months after Mr. Meinen fell ill, he was able to return to work at Godfrey and filled a part-time position at the parts counter. See Docket No. 30-2 (D. Godfrey Depo. at 18). When he returned to work, Mr. Meinen presented Dan Godfrey with a doctor's opinion that he could work up to two hours per day, three days a week. See Docket No. 40-1. A month later, Mr. Meinen provided Dan Godfrey a slip from his doctor indicated that Mr. Meinen should be allowed to sit while at work.*fn1 See Docket No. 30-4 (M. Meinen Depo. at 27-29). These were the only doctor's opinions that Mr. Meinen provided to Godfrey. Id. (M. Meinen Depo. at 25).
Some time after resuming work at Godfrey, Mr. Meinen met with Dan Godfrey and told him that he could not work more than four hours per day or twenty hours per week.*fn2 Id. (M. Meinen Depo. at 32). Mr. Meinen testified that he became fatigued after working more than four hours. Id. Mr. Meinen also testified that upon returning to work he missed more days than he had prior to getting sick and that Godfrey worked with him on allowing him to either not come in to work or to leave early. Id. (M. Meinen Depo. at 43-44).
While Mr. Meinen was employed in his part-time position and because of his visual impairment, Godfrey initially attempted to install special software on their existing computers to assist Mr. Meinen in the performance of his job. Id.
(M. Meinen Depo. at 38-39). However, the software Godfrey attempted to install would not load properly. Id. As a result, Mr. Meinen obtained a special computer from the State of South Dakota that was designed to assist with visual impairment by enlarging the information on the screen. Id. (M. Meinen Depo. at 37-38). Godfrey purchased a required cable and paid a computer technician to connect Mr. Meinen's computer into their system. See Docket No. 30-2 (D. Godfrey Depo. at 35).
Upon returning to work at Godfrey, Mr. Meinen was supervised by Kevin Vaughn. See Docket No. 30-3 (Vaughn Depo. at 13-14). Mr. Vaughn testified that upon Mr. Meinen's return, Mr. Meinen required a lot of help from other Godfrey employees in seeing parts to determine what they were, in finding parts in parts catalogs, and in locating parts in the building. Id. (Vaughn Depo. at 14). Mr. Vaughn did not believe that Mr. Meinen was able to perform his job 100 percent and discussed this informally with Dan Godfrey. Id.
Mr. Vaughn testified that business-wise, it bothered him that other employees had to help Mr. Meinen because it was taking time away from other things that needed to be done. Id. (Vaughn Depo. at 16). Mr. Vaughn never did a formal performance evaluation on Mr. Meinen or any other employee; Mr. Vaughn testified that he himself never received a formal performance evaluation while employed at Godfrey. Id. (Vaughn Depo. at 14-15).
Mr. Vaughn indicated that Mr. Meinen was pleasant to work with and that he had good interactions with other employees and customers. Id. (Vaughn Depo. at 19-20). Mr. Vaughn also noted that he never had any disciplinary concerns with Mr. Meinen, but testified that Mr. Meinen was not able to perform his job as required. Id.
Mr. Meinen continued to work part-time for Godfrey until February 22, 2010, when he was discharged from Godfrey. See Docket No. 29 at ¶ 41. Dan Godfrey testified that a business decision was made to staff the parts department with a full-time employee, as Godfrey had done prior to Mr. Meinen falling ill, rather than with two part-time employees.*fn3 See Docket No. 30-2 (D. Godfrey Depo. at 54-55). As a result, Godfrey discharged the two part-time employees who were staffing the parts counter, Mr. Meinen and Robert Nelson, and hired one full-time employee to replace them. Id.
Dan Godfrey asked Mr. Vaughn whether Mr. Vaughn believed the part-time positions at the parts counter should be eliminated in favor of hiring a full-time employee. See Docket No. 30-3 (Vaugn Depo. at 20-21). Mr. Vaughn agreed that a full-time employee at the parts counter would be preferable because Mr. Meinen required a lot of help which took away from other employees' time. Id.
Dan Godfrey testified that the decision to discharge the part-time employees and hire a full-time employee was made in part for continuity purposes. See Docket No. 30-2 (D. Godfrey Depo. at 54-55). Dan Godfrey noted that because there was an overlap in the schedules of the part-time employees, on occasion issues would arise where each employee believed the other was handling a particular issue, with the end result being that no one handled it. Id. Dan testified that it was a business decision to hire a full-time employee so that there was only one person to go to when issues arose. Id. (D. Godfrey Depo. at 56-57). Dan Godfrey did not offer the full-time position to either Mr. Meinen or Mr. Nelson, nor did he discuss splitting the full day between the Mr. Meinen's and Mr. Nelson's schedules. Id. (D. Godfrey Depo. at 56-58). Dan Godfrey did testify however, that he had previously spoken with Mr. Meinen regarding the number of hours Meinen was available to work and was told by Mr. Meinen that he could not work more than 20 hours per week. Id. (D. Godfrey Depo. at 72).*fn4
Dan Godfrey also noted in his explanation to the South Dakota Department of Labor, Unemployment Compensation Division, that it would cost him less to have one full-time employee staffing the parts counter than it would two part-time employees.*fn5 Id. (D. Godfrey Depo. at 42-44).
On February 22, 2010, the day Mr. Meinen was discharged from Godfrey, Mr. Meinen had called in sick. See Docket No. 30-4 (M. Meinen Depo. at 44-45). Because he was sick, Mr. Meinen had his wife, plaintiff Jessie Meinen, go to Godfrey to pick up his paycheck. See Docket No. 30-5 (J. Meinen Depo. at 18). Upon arriving at Godfrey, Dan Godfrey asked Mrs. Meinen to come into his office. Id. Dan Godfrey then told Mrs. Meinen that Mr. Meinen was being let go as an employee. See Docket No. 30-2 (D. Godfrey Depo. at 61). Mrs. Meinen asked Dan Godfrey whether Mr. Meinen was aware he was being let go. Dan told her that Mr. Meinen was not yet aware. Dan asked Jessie to let Mr. Meinen know that he was being let go. See Docket No. 30-5 (J. Meinen Depo. at 18).
Mrs. Meinen asked Dan Godfrey whether there was anything else Mr. Meinen could do and testified that Dan Godfrey told her that Mr. Meinen "was too slow and that he couldn't have his other employees wasting their time helping" Mr. Meinen. Id. (J. Meinen Depo. at 18-19). Dan Godfrey testified that he told Mrs. Meinen that it was a business decision and that Godfrey could not afford to employ both the part-time employees and the new full-time employee, nor could he create a job just to continue employing Mr. Meinen See Docket No. 30-2 (D. Godfrey Depo. at 61-62).
Mrs. Meinen testified that upon receiving this news she became too upset to drive and had to call Mr. Meinen's mother to help calm her down. See Docket No. 30-5 (J. Meinen Depo. at 20-21). Mr. Meinen noted that when Mrs. Meinen arrived at home she was bright red, could barely talk, and almost fell down. See Docket No. 30-4 (M. Meinen Depo. at 47). Mrs. Meinen also missed one day of work because she was concerned about how she was going to provide for her family. Id. (M. Meinen Depo. at 72). Mrs. Meinen testified that this experience has caused her emotion distress which continues to this day and that she has good days and bad days. See Docket No. 30-5 (J. Meinen Depo. at 24).
Mr. Meinen testified that as a result of being terminated from Godfrey he has suffered emotionally. See Docket No. 30-4 (M. Meinen Depo. at 79-80). Mr. Meinen testified that he has done a lot of crying and yelling, that he has gone through periods of not eating, and that he has periods when he suffers from insomnia. Id. Mrs. Meinen testified that being terminated from Godfrey has devastated Mr. Meinen.
After learning that he had been terminated from Godfrey, Mr. Meinen asked his mother, Deborah Meinen, to go to Godfrey and retrieve his personal belongings, including his computer. Id. (M. Meinen Depo. at 51-52). Upon arriving at Godfrey, Debora Meinen testified that Mr. Vaughn unplugged Mr. Meinen's computer without powering it off. See Docket No. 30-6 (D. Meinen Depo. at 14-15). However, Mr. Vaughn testified that he believed the computer was powered off when he disconnected it. See Docket No. 30-3 (Vaughn Depo. at 24). Deborah Meinen asserts that Mr. Vaughn took the disconnected computer and placed it on the asphalt next to a snow bank. See Docket No. 30-6 (D. Meinen Depo. at 17). However, Mr. Vaughn testified that he believes he put the computer in the van and does not remember placing it on the ground. See Docket No. 30-3 (Vaughn Depo. at 25).
Mr. Meinen asserts that after the computer was retrieved from Godfrey that it was wet, but that it was dried off before being powered on. See Docket No. 30-4 (M. Meinen Depo. at 64-65). However, Mr. Meinen testified that the computer has not worked since picking it up from Godfrey. Id. Mr. Meinen also testified that he has not had any computer technician examine the computer to determine why it will not function properly. Id. (M. Meinen Depo. at 63-64).
As a result of Mr. Meinen's termination from Godfrey Brake, Mr. and Mrs. Meinen instituted this action alleging employment discrimination and wrongful termination in violation of the Americans with Disabilities Act, intentional infliction of emotional distress, and conversion. See Docket No. 1. Mr. and Mrs. Meinen filed a motion for partial summary judgment asking for summary judgment as to liability on all their claims. See Docket No. 28. Godfrey Brake has also filed a motion for summary judgment and asserts that Mr. and Mrs. Meinen's claims are unsupported by fact and law and asserts that Godfrey is entitled to judgment as a matter of law on all claims. See Docket No. 36.
A. Summary Judgment Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if the movant can "show that there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." In determining whether summary judgment should issue, the court views the facts, and inferences from those facts, in the light most favorable to the nonmoving party. See Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). The burden is placed on the moving party to establish both the absence of any genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a).
Once the movant has met its burden, the nonmoving party may not simply rest on the allegations in the pleadings, but must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); FED. R. CIV. P. 56(e)(each party must properly support its own assertions of fact and properly address the opposing party's assertions of fact, as required by Rule 56(c)). In determining whether a genuine issue of material fact exists, the court views the evidence presented in light of which party has the burden of proof under the underlying substantive law. Id. Summary judgment will not lie if there is a genuine dispute as to a material fact, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.
The substantive law identifies which facts are "material" for purposes of a motion for summary judgment. Anderson, 477 U.S. at 247. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248 (citing 10A C. Wright, A. Miller, & M. Kane, FEDERAL PRACTICE AND PROCEDURE § 2725, pp. 93-95 (1983)). The Supreme Court has further explained that: the issue of material fact required by Rule 56(c) to be present to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.
Anderson, 477 U.S. at 248-49 (quotingFirst National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968)(emphasis added)). Essentially, the availability of summary judgment turns on whether a proper jury question is presented. SeeAdickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970). "The inquiry performed is the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250.
With regards to discrimination claims, the Eight Circuit recently noted, en banc, that notwithstanding statements in prior decisions that summary judgment should be seldom used in discrimination cases, summary judgment is not disfavored and is designed for "every action." See Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc). Furthermore, the court noted that "[t]here is no 'discrimination case exception' to the application of summary judgment, which is a useful pretrial tool to determine whether any case, including one alleging discrimination, merits a trial." Id. (citing Fercello v. County of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010)).
B. Analysis of Mr. Meinen's ADA Claim
Under the ADA, employers are barred from discriminating "against a qualified individual because of the disability of such individual." 42 U.S.C. § 12112(a). To establish a claim under the ADA, a plaintiff must show the following: (1) that he was a disabled person within the meaning of the ADA; (2) that he was qualified to perform the essential functions of the job either with or without accommodation; and (3) that he suffered an adverse employment action under circumstances giving rise to an inference of unlawful discrimination. Fjellestad v. Pizza Hut of America, Inc., 118 F.3d 944, 948 (8th Cir. 1999) (citations omitted); see also Rask v. Fresenius Medical Care North Amer., 509 F.3d 466, 469 (8th Cir. 2007); Wallin v. Minnesota Dept. of Corrections, 153 F.3d 681, 686 (8th Cir. 1998).
If the employee satisfies this prima facie showing, the burden then shifts to the employer to show that a "legitimate, nondiscriminatory reason for the adverse employment action." Dovenmuehler v. St. Cloud Hosp., 509 F.3d 435, 439 (8th Cir. 2007) (citing McDonnell Douglas Corp. V. Green, 411 U.S. 792, 802-03 (2003)). Finally, to prevail, the employee must "show that the defendant's proffered reason was a pretext for discrimination." Dovenmuehler, 509 F.3d at 439 (citing McDonnell, 411 U.S. at 802-03).
1. Whether Mr. Meinen is a Disabled Person Under the ADA The ADA defines a person disabled under the Act as follows: (A) physical or mental impairment that substantially limits one or more major life activities;
(B) a record of having such impairment; or (C) being regarded as having such an impairment. See 42 U.S.C. § 12102(1).
Mr. Meinen was diagnosed with a form a multiple sclerosis ("MS"). Godfrey does not dispute that Mr. Meinen suffers from MS nor does Godfrey dispute that MS is a disability which is recognized by the ADA. See Docket No. 34 at 2. Additionally, Mr. Meinen asserts that MS substantially limits him in major life activities because he has some vision difficulties, has some difficulty performing manual tasks, standing, and working. See Docket No. 31 at 6. Godfrey does not dispute that Mr. Meinen has some physical limitations as a result of his MS. Therefore, Mr. Meinen has satisfied the first element under the ADA.
2. Whether Mr. Meinen was Qualified to Perform the Essential Functions of the Job with or without Reasonable Accommodation
It is the plaintiff's burden to demonstrate two factors in order to show that he is qualified. First, the plaintiff must show that he satisfies "the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc." Weiler v. Household Finance Corp., 101 F.3d 519, 524 (7th Cir. 1996) (quoting 29 C.F.R. app. § 1630.2(m)). This factor is undisputed by the parties. Second, the plaintiff must show that he was able to "perform the essential functions of the position held or desired, with or without reasonable accommodation." Id. (quoting 29 C.F.R. app. § 1630.2(m)). This factor is disputed.
Mr. Meinen asserts that he was not terminated as a result of failing to perform his job duties. See Docket No. 31 at 7. Rather, Mr. Meinen asserts that he was able to perform the essential functions of his part-time position with the accommodations provided by Godfrey, including working only four hours per day, connecting his computer into Godfrey's computer system to aid his vision, and by having a stool for him to sit on while at work. Id.
Mr. Meinen asserts that this shows he was able to perform the essential functions of his job with ...