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Strand v. CharlesMix County

United States District Court, D. South Dakota, Southern Division

May 5, 2017

TRACY STRAND, Plaintiff,


          Lawrence L. Piersol United States District Judge

         Defendant 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.


         The 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.

         Strand 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.

         During 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.

         According 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 approved.

         In May 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.

         When he 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).

         In 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.

         Strand 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.

         Strand's 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.

         On June 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 Reprimand" states:

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).

         The 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 conversation.

         Kniffen 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.

         In 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 followed.

         In his 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 disability.

         The 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.


         Rule 56 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, 477 257; 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).


         The ADA 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)).

         I. Strand's ...

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