United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER ON MOTION FOR SUMMARY
Lawrence L. Piersol United States District Judge
Charles Mix-County ("County"), filed a motion for
summary judgment in this discrimination action brought by
Plaintiff, Tracy Strand ("Strand"), pursuant to the
Americans with Disabilities Act ("ADA"). (Doc. 20.)
For the following reasons, the motion will be denied.
facts are taken primarily from Plaintiffs Supplemental
Statement of Material Facts in Opposition to Defendant's
Motion for Summary Judgment, Doc. 27, because, on summary
judgment, this Court views the facts in the light most
favorable to the non-movant.
began working for the County as a road grader in its highway
department in 2007. He was primarily responsible for grading
the road east of Platte with a coverage area of approximately
127 miles. Rick Sternberg ("Sternberg") has been
employed with the County since the early 1990s and was
Strand's direct supervisor and foreman at all relevant
times. From 2009 to present, Doug Kniffen
("Kniffen") was the highway superintendent and
Sternberg's supervisor. The County has thirteen employees
in its Highway department including Sternberg and Kniffen.
the spring, summer and fall, the County's grader
operators could have work days up to ten hours long. They
were given two fifteen minute breaks during the day and a
half-hour break for lunch. The County did not have a written
policy on bathroom usage or a policy on whether employees
could drive to the shop to use the bathroom. (The highway
department had shops in Platte, Lake Andes and Wagner.) It
was commonly understood that if the County employees had to
go to the bathroom, they would just go outside wherever they
were. County employees brought toilet paper with them while
working in the event they had to go to the bathroom. There
were times, but not often, that Strand had to urinate outside
while he was working, but he does not recall ever defecating
outside during his work prior to his cancer diagnosis in
2010. Strand observed other employees drive to use a bathroom
and other employees told him that they did so.
to Sternberg, getting leave "isn't a big deal."
There is a calendar hanging on the break room wall and
employees just write down the days they are going to be gone.
It is "common courtesy" for the employee to tell
him what days they have written down to be gone. Likewise, if
an employee is sick, the employee calls Sternberg; when the
employee comes back, he fills out "sick leave" on
his time card and gives the time card to the secretary.
Employees out on sick leave can also decide to use vacation
time too. An employee should call and let Sternberg know that
they will be out for a couple of days. If they can't get
ahold of him, they should call Kniffen or the next channel.
There is no training for employees about how to get leave
2010, Strand was diagnosed with advanced stage colon cancer.
He was off work from May 2010 until the summer of 2011.
During that time he had two surgeries, the second of which
involved removal of a portion of his colon. Chemotherapy and
radiation followed. After completing his cancer treatment,
Strand returned to work as a road grader for the County
part-time for a while and then full-time beginning July 1,
2011. Prior to his cancer diagnosis, Strand did not have
issues with bowel control or frequent waste elimination. As a
result of his colon resection surgery, Strand experienced a
change in his bowel movements. In his deposition, Strand
describes his post-surgery bowel movements as loose, more
frequent and more problematic. It varies from day to day.
Sometimes he has to eliminate waste up to ten times a day. He
would bring his own toilet paper to work, and his wife had to
bring toilet paper to him at work on a couple occasions when
he ran out.
returned to work after his cancer treatments, Strand told
supervisors Sternberg and Kniffen that the effect of the
treatment was more frequent or more problematic bowel issues.
Strand recalls talking to Kniffen twice and Sternberg about a
half dozen times about his bowel elimination needs between
his return to work in 2011 and his termination in 2014.
Kniffen said it was "common sense" that Strand
would have bowel frequency; he thought Strand would just stop
work more often. Sternberg told Strand to defecate in a
field, in a tree belt or to go behind a tire. Strand said
that was unacceptable and indicated that he wanted to be able
to driye to use a toilet to eliminate waste, preferably at
one of the County's shop buildings. Sternberg told Strand
that he could not drive to use an indoor toilet. Strand asked
Kniffen about the possibility of having a port-a-potty at the
County gravel pit or at roadside locations where he worked.
Strand claims that Kniffen's response was to say that
port-a-potties were not necessary. Kniffen denies that
conversation and says he would have accommodated Strand if he
had known Strand needed a place to go to the bathroom.
Kniffen says he even would have allowed Strand to drive to
the shop to use an indoor bathroom. Sternberg recalls Strand
generally asking about having port-a-potties around the
County and in the gravel pit, and he replied that it was the
contractors' responsibility to have port-a-potties, not
his. But Sternberg denies that Strand ever asked for any
accommodation of his bathroom needs. When asked if Strand
would have asked for accommodations, Sternberg testified:
Q. [Ms. Pochop] What would you - what should you have said if
[Strand] would have brought up [his need to go to the
bathroom more frequently after his cancer treatments?]....
What do you imagine your response to that would have been
under your policies?
A. [Mr. Sternberg] I assume that - you know, like I said,
call. It's just common sense. If you got a - anybody sick
or got problems, if you - if you got to go every 5 minutes,
you shouldn't be in a blade. Call me and I'll switch
with you, and you can go home. You know, if you got a medical
condition, you shouldn't be in a blade.
Q. What do you mean, "if you've got a medical
condition, you shouldn't be in a blade?"
A. If you got medical condition, you shouldn't be running
a 230, 000-dollar piece of equipment on a public road where
people can get hurt.
(Sternberg Depo at 61 -62).
April 2014, Strand was driving a gravel dump truck at the
County's gravel pit in Wagner when he needed to use the
bathroom. After Strand dumped the gravel from his truck, he
told a coworker that he would briefly be out of the line of
trucks, and he drove 5 or 6 miles to the County's shop
bathroom in Wagner. When Strand returned to the County's
Platte shop that evening, Sternberg confronted him and asked
why he had left the line that day. Strand told him that he
had to use the restroom in Wagner. Sternberg told Strand that
he should relieve himself behind the gravel pile at the pit.
Strand said he can't do that. Strand had observed other
drivers drive to use a bathroom and other drivers have told
him that they do so.
testified that every time he left work for a doctor's
appointment, Sternberg would follow him out of town.
Sternberg denies this. On one occasion in May 2014, Sternberg
told Strand that he had followed him to see if he went to a
chiropractic appointment from work. Sternberg accused Strand
of going home instead of to his chiropractic appointment
because Strand had not driven to a chiropractic office in
Platte. But Strand has seen a chiropractor in Gregory, South
Dakota since 2007. Sternberg admitted that he disagreed with
Strand taking sick leave instead of vacation time after going
to a chiropractor one day.
wife called Sternberg on May 13, 2014, to inform him that
Strand was sick due to a kidney infection. Strand also missed
work on May 14 and 15, but did not call in. He did not know
that he needed to call in those days. A note from
Strand's doctor releasing him from work on May 13, 14 and
15 was filed in Strand's personnel file by the County
auditor on May 16, 2014. Sternberg admitted that the leave
policy is "very relaxed" and that he does not know
if Strand violated any County policy by not calling in on May
15 and 16. Strand had not been required to call in during his
extended leave for his cancer treatment so this was new to
him. Sternberg did not say anything to Strand about this sick
leave when Strand returned to work after May 15 until his
termination on June 12.
10, 2014, Sternberg expressed disagreement with how Strand
was blading the road and asked him to do it differently.
Sternberg talked to Kniffen about reprimanding Strand.
Kniffen talked to the County Commissioners. On June 12, 2014,
Sternberg called Strand into his office and gave him two
reprimands. The first sheet titled "Tracy Strand 1st
Was told by Forman [sic] to pick windrow up when Blading on
Tues. June 10 Thursday June 12th was told Again and Was
Snippy about it when I told him to do it Right. Was told By
Myself and other froman [sic] on How to Law Graven and
continuously does it different way.
(Doc. 27, Tab 4.) Sternberg first told Strand that he was
reprimanding Strand for not blading properly. (Strand Depo at
89). Strand replied that he had been blading for the County
for seven years without any prior complaints. (Id.).
Sternberg told Strand that he should go home and think about
whether he could do the job the way Sternberg wanted it done.
(Strand Depo at 90).
second sheet, titled "Tracy Strand 2nd Reprimand, "
states: "Called In Sick Tues. May 13th gone 14th 15th No
Call Either Day." (Doc. 27, Tab 5.) When Strand saw that
he was also being reprimanded because he had allegedly failed
to call about his sick leave on May 13, 14 and 15, Strand
advised Sternberg that his wife had called in for him and
that Strand had also provided a doctor's note to be
excused from work for those dates. (Sternberg was not aware
of the doctor's note until after he reprimanded Strand.)
When Strand said that there had been a call in and a
doctor's note for his May absences, Sternberg replied,
"You're fired." That was the end of the
has not terminated or reprimanded any County employees.
(Kniffen Depo at 39). Sternberg has not disciplined any other
employees besides Strand. (Sternberg Depo at 3 6). He is not
aware of anybody else who has ever received a written
reprimand. (Id. at 45.) Sternberg could think of
only one other County employee who has ever been fired other
than Strand. One County Commissioner testified that an
employee who was accused of sexual harassment was only talked
to and told to quit the harassing behavior.
December 2014, Strand filed a Charge of Discrimination with
the Equal Employment Opportunity Commission
("EEOC"). On or about December 28, 2015, Strand
received a Notice of Suit Rights from the EEOC. This action
Complaint, Strand alleges that the County violated the ADA by
refusing to provide reasonable accommodations for
Strand's disability, subjecting him to disciplinary
actions and terminating his employment because of his
County asserts that it is entitled to summary judgment
because Strand fails to establish he has a disability and,
even if he has a disability, he fails to show that his
employment was terminated because of his disability.
STANDARD FOR SUMMARY JUDGMENT
of the Federal Rules of Civil Procedure provides that summary
judgment shall be granted "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."
FED.R.CIV.P. 56(a). In ruling on a motion for summary
judgment, the Court is required to view the facts in the
light most favorable to the non-moving party and must give
that party the benefit of all reasonable inferences to be
drawn from the underlying facts. AgriStgr Leasing v.
Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving
party bears the burden of showing both the absence of a
genuine issue of material fact and its entitlement to
judgment as a matter of law. FED.R.CIV.P. 56(a); Anderson
v. Liberty Lobby, Inc., 477 US. 242, 257 (1986). Once
the moving party has met its burden, the non-moving party may
not rest on the allegations of its pleadings but must set
forth specific facts, by affidavit or other evidence, showing
that a genuine issue of material fact exists. FED.R.CIV.P.
56(c); Anderson, 477 U.S.at 257; City of Mt.
Pleasant v. Associated Elec. Coop., Inc., 838 F.2d 268,
273-74 (8th Cir. 1988). All facts presented to the district
court by the non-moving party are accepted as true if
properly supported by the record. See Beck v. Skon,
253 F.3d 330, 332-33 (8th Cir. 2001). Employment
discrimination cases are not immune from summary judgment,
and there is no separate summary judgment standard that
applies to these cases. See Fercello v. Cty. of
Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010).
provides that "[n]o covered entity shall discriminate
against a qualified individual on the basis of disability in
regard to job application procedures, the hiring,
advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment." 42 U.S.C. § 12112(a). In
employment discrimination cases, the plaintiff bears the
initial burden of establishing a prima facie case to survive
summary judgment. Miners v. Cargill Commc 'ns,
Inc., 113 F.3d 820, 823 (8th Cir. 1997). "To
establish a prima facie case under the ADA, a plaintiff must
show [(1)] that she was a disabled person within the meaning
of the ADA, [(2)] that she was qualified to perform the
essential functions of the job, and [(3)] that she suffered
an adverse employment action under circumstances giving rise
to an inference of unlawful discrimination."
Id. (citing Price v. S-B Power Tool, 75
F.3d 362, 365 (8th Cir. 1996)). Once the plaintiff
demonstrates a prima facie case, "the burden of
production shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its actions." Id.
(citing McDonnell Douglas Corp. v. Green, 411 U.S
792, 802 (1973)). Finally, after the employer produces its
nondiscriminatory reasons for its actions, "the burden
of production then shifts back to the plaintiff to
demonstrate that the employer's proffered reason is a
pretext for unlawful discrimination." Id.
(citing St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 507-08 (1993)). The evidence produced by the plaintiff
to demonstrate the prima facie case "and the
'inferences drawn therefrom may be considered by the
trier of fact on the issue of whether the [employer's]
explanation is pretextual.'" Id. (quoting
Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 255 n.10 (1981)). Moreover, "[t]he proof
necessary for discrimination cases is flexible and varies
with the specific facts of each case." Id.
(citing Young v. Warner-Jenkinson Co., 152 F.3d
1018, 1022 (8th Cir. 1998)).