The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
Pending before the court are plaintiffs' motion for partial summary judgment and defendant's motion for summary judgment. (Dockets 28 & 36). The court referred the motions to United States Magistrate Judge Veronica L. Duffy for resolution. (Docket 56). On March 26, 2012, Magistrate Judge Duffy filed a report recommending the court deny plaintiffs' motion for partial summary judgment and grant defendant's motion for summary judgment. (Docket 60). Plaintiffs timely filed objections. (Docket 61). Defendant filed a response to plaintiffs' objections.*fn1
The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1). The court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). For the reasons stated below, plaintiffs' objections are granted in part and denied in part. The report and recommendation of the magistrate judge is adopted in part, modified in part, and rejected in part as explained by this order.
A. MAGISTRATE JUDGE'S FINDINGS OF FACT Plaintiffs' objections to the magistrate judge's findings of fact are summarized as:
1. Whether defendant created a part-time position for Mr. Meinen.
2. Whether the part-time position was a temporary or permanent position.
3. Whether Mr. Meinen's pre-illness position was a full-time parts counter position.
4. Whether Mr. Meinen's job performance was relevant to his termination from employment with defendant.
(Docket 61). Plaintiffs do not object to the majority of the findings of fact which the magistrate judge found to be material and undisputed. The court's resolution of plaintiffs' objections will reference only those facts necessary to provide context. The court adopts all other facts not referenced in this order. The court will address each of plaintiffs' factual objections separately.
1. WHETHER DEFENDANT CREATED A PART-TIME POSITION FOR MR. MEINEN
Plaintiff Michael Meinen began his employment with Godfrey Brake Service & Supply, Inc., ("Godfrey Brake") in 2001. (Docket 60 at p. 2). In December of 2007, Mr. Meinen became ill while at work. Id. at p. 3. After work that day, his condition worsened and he was hospitalized. Id. Mr. Meinen was ultimately diagnosed with a form of multiple sclerosis ("MS"). Id.
Following physical therapy and vocational rehabilitation, Mr. Meinen was able to return to work with Godfrey Brake in October of 2008. Id. at pp. 3-4. Mr. Meinen presented Dan Godfrey*fn2 with a doctor's written orders that Mr. Meinen could work up to two hours per day, three days a week.*fn3
Id. at p. 4. Mr. Meinen filled a part-time position at the parts counter. Id.
Plaintiffs object that "[t]he Report accepts as undisputed fact that Dan Godfrey created two part-time positions at the parts counter to hold open a position for Mike Meinen when he returned to work after his illness."
(Docket 61 at p. 2) (emphasis in original) (citing the report and recommendation at p. 23) ("R&R"). Plaintiffs argue the evidence discloses in March of 2008, Robert Godfrey hired a former employee, Robert Nelson, to work part-time at the parts counter. Id.
The magistrate judge found "Godfrey created and offered the part-time position to Mr. Meinen as a reasonable accommodation." (Docket 60 at p. 23). The court finds this fact is accurate as stated. The undisputed evidence is Godfrey Brake created two part-time positions when Robert Godfrey decided to rehire Mr. Nelson on a part-time basis in March of 2008. The position was previously a full-time position but upon Mr. Nelson taking on a four-hour shift, that left a vacant part-time position--another four-hour shift at the parts counter. This position remained unfilled until Mr. Meinen's return to work in October of 2008. As an accommodation to Mr. Meinen's disability, Godfrey Brake offered him the second part-time position.
Plaintiffs' objection is overruled.
2. WHETHER THE PART-TIME POSITION WAS A TEMPORARY OR PERMANENT POSITION
Plaintiffs object to the magistrate judge's finding Mr. Meinen's position as a part-time employee was only temporary because Godfrey Brake believed he would be able to return to a full-time employment at some point. (Docket 61 at p. 4). Plaintiffs premise their argument on the fact neither Mr. Nelson nor Mr. Meinen were told their positions were temporary. Id. Mr. Meinen's post-deposition affidavit states that "[a]t no point in time did . . . Godfrey Brake . . . ever tell me that the part-time position they gave me was a temporary position." (Docket 43 at ¶ 1). Mr. Nelson's post-deposition affidavit makes the same declaration. "When I was hired by Bob Godfrey to work part-time, I was never told the position was temporary." (Docket 44 at ¶ 8). Plaintiffs argue "[t]he length of time Nelson and Meinen held these positions . . . weighs against any inference these were temporary positions. Nelson worked in the parts-time [sic] position for just short of two years. . . . Meinen worked in his part-time position for eighteen (18) months." (Docket 61 at p. 5).
The court agrees with the magistrate judge's finding "Dan Godfrey never told Mr. Meinen that the position was temporary--or for that matter that it was permanent." (Docket 60 at p. 22). The inference the position was to be temporary is not supported by the evidence. "The burden is on Godfrey [Brake] to demonstrate that the accommodation requested would impose an undue hardship on the operation of the business." (Docket 60 at p. 38) (referencing Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 951 (8th Cir. 1999)). "Godfrey [Brake] has not shown that continued employment of Mr. Meinen on a part-time basis would have resulted in an undue burden on Godfrey [Brake]." Id. "Therefore, this court cannot find that Godfrey [Brake] has established that it would be an undue burden to continue employing Mr. Meinen part-time." Id. The evidence considered in the light most favorable to Mr. Meinen for summary judgment purposes requires the court to find Mr. Meinen's parts counter position was a "permanent" part-time position.
Plaintiffs' objection is sustained and the report and recommendation is modified consistent with this order.
3. WHETHER MR. MEINEN'S PRE-ILLNESS POSITION WAS A FULL-TIME PARTS COUNTER POSITION
The report and recommendation found "[p]rior to Mr. Meinen's illness, he was employed as a full-time employee at Godfrey's parts counter." (Docket 60 at p. 21). Plaintiffs object to this finding arguing "[i]t is undisputed that Meinen was a full-time route driver and parts person prior to his illness. . . . Meinen did not previously work at the parts counter. . . . He was [sic] route driver and parts person prior to his illness." (Docket 61 at p. 6) (emphasis in original).
Mr. Meinen described his job in this fashion:
Q. And what position, then, were you ...