Olinger v. Renville County

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Douglas C. Olinger, File No. 18-cv-00472 (ECT/TNL)

Plaintiff,

v.

Renville County Hospital & Clinics; and OPINION AND ORDER

Nathan Blad, individually and in his

capacity as CEO of Renville County

Hospital & Clinics,

Defendants.

Markus C. Yira, Yira Law Office, Ltd, Hutchinson, MN; and Julie W. Hanjani, Law Office

of Julie Wacker Hanjani, Hutchinson, MN for Plaintiff Douglas C. Olinger.

Patrick J. Larkin and Michael T. Burke, Lind Jensen Sullivan & Peterson, PA, Minneapolis,

MN for Defendants Renville County Hospital & Clinics and Nathan Blad.

Plaintiff Douglas Olinger alleges that Defendants Renville County Hospital &

Clinics and its CEO, Nathan Blad, violated the Family and Medical Leave Act (“FMLA”)

by downgrading the duties of his position after he returned from an FMLA leave and by

later terminating his employment for exercising his right to FMLA leave. Olinger also

alleges that these same adverse actions violated Minnesota’s Whistleblower Act because

they occurred in retaliation for his exercise of reporting rights protected under the Act.

Defendants have moved for summary judgment on all of Olinger’s claims, and that motion

will be granted. Olinger’s FMLA entitlement claim based on the alleged downgrading of

his position fails because, as a matter of law, the duties of his position when he returned

from FMLA leave were not sufficiently different from the duties of the position before his

leave. Even if there were a legally sufficient difference, Defendants have shown that the

changes to Olinger’s duties would have occurred regardless of his FMLA leave. Olinger’s

FMLA discrimination claim based on his termination does not survive because Olinger has

not identified evidence from which a juror reasonably could infer a causal connection

between his exercise of FMLA rights and his termination. Olinger’s claim under

Minnesota’s Whistleblower Act fails because he did not report a violation of the law—i.e.,

he never blew the whistle—as the Act requires.

I1

Olinger began working for Renville County Hospital & Clinics (the “Hospital”) in

November 2000. Burke Decl., Ex. 1 (“Olinger Dep.”) at 19 [ECF No. 38-1]; Compl. ¶ 9

[ECF No. 1]. He was employed initially as a maintenance engineer. Olinger Dep. at 31.

From the day he started until about October 2007, Olinger reported to the Hospital’s

maintenance director, David Lofgren. Id. at 31–33. Lofgren retired at that time, and

Olinger applied unsuccessfully for the director of maintenance position. Id. at 32–33.

Olinger continued working as a maintenance engineer for several years, and in April

2014—with encouragement from the Hospital—Olinger accepted the position of

housekeeping and laundry supervisor. Id. at 33–34. As the housekeeping and laundry

supervisor, Olinger oversaw the staff of the housekeeping and laundry departments and

1 In describing the relevant facts and resolving this motion under Rule 56(a), all of

Olinger’s evidence is believed, and all justifiable inferences are drawn in his favor. See

Tolan v. Cotton, 572 U.S. 650, 651 (2014).

reported to the Hospital’s CFO. Burke Decl., Ex. 2 (“Position Description”) at 1. Olinger’s

duties in this position included supervising staff and performing housekeeping work. See

generally id. at 1–2. Olinger spent about fifty percent of his time on “office” or supervisory

work and about fifty percent on the “floor” personally performing housekeeping duties.

Olinger Dep. at 46–47.

Olinger requested and was granted FMLA leave on multiple occasions during his

employment with the Hospital. In May 2014, shortly after beginning work as the

housekeeping and laundry supervisor, Olinger requested and was granted FMLA leave to

care for his son in connection with a surgery. Id. at 38. Olinger returned from this leave

the following month, in June. Id. Olinger requested and was granted a second FMLA

leave to care for his son beginning August 21, 2014. Id. at 39. He returned from this leave

in mid-September. Id. at 39–40. At some point during October through December 2014,

Olinger took a third FMLA leave to care for his son. Id. at 41–42. Olinger identifies no

complaints with any of these three FMLA leaves. He acknowledges that these leave

requests were approved with no issues and that he encountered no problems on his return

to work from any of these leaves. Id. at 38–42.

Olinger twice applied for open maintenance engineer positions during 2015, but he

was not successful on either occasion. In May 2015, Olinger applied and interviewed for

the position, but another individual named Bruce Jacques was hired. Id. at 49–50; 73.

Jacques subsequently was promoted to environmental services director. Id. at 73–74. His

promotion created the second open maintenance engineer position for which Olinger

applied; Olinger was scheduled to be interviewed for the position in September 2015. Id.

at 74–75. Concerns with the Hospital’s hiring process for these positions prompted Olinger

to contact then-Renville County Administrator Sara Folstad prior to this interview. Id. at

77–91. Olinger asked Folstad what could be done “about the hiring process about - - if

they were going to hire - - if they didn’t hire the most qualified person.” Id. at 86. Folstad

told Olinger that he should follow the Hospital’s grievance policy. Id. Olinger asked what

he could do if he didn’t “feel comfortable or if at this time I’m not sure if that’s capable of

going through that chain,” and Folstad repeated that Olinger should follow the Hospital’s

grievance policy. Id. Olinger asked Folstad to keep their conversation confidential and

said “if [he] thought something changed or it didn’t look like it was above board, [he]

would then follow up with her.” Id. Olinger “never did have to call back and talk to her

after that.” Id. Olinger subsequently was interviewed for the open maintenance engineer

position, but another individual was hired. Id. at 74–75.

Olinger requested and was granted a fourth FMLA leave from September 29, 2015

until mid-February 2016 to undergo treatment for a neck condition. Id. at 51–54. Two

events following Olinger’s return from this leave form the basis for his FMLA claims in

this case. First, Olinger says that after he returned from this leave the duties of his position

shifted away from being supervisory and that he “just became a floor worker.” Id. at 54.

Second, Olinger’s employment was terminated on April 4, 2016. Burke Decl., Ex. 8. In a

letter, the Hospital explained that Olinger was “being laid off from [his] position as

Housekeeping Manager effective immediately.” Id., Ex. 7. The letter cited efficiencies

gained from the Hospital’s construction of and move to a “new building and anticipated

future cuts in reimbursements” as justifications for the layoff and described that the layoff

was “indefinite in duration and should be considered permanent.” Id.

II

Summary judgment is warranted “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). A dispute over a fact is “material” only if its resolution might affect

the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is “genuine” only if “the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Id. “The

evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn

in his favor.” Id. at 255.

A

1

Olinger alleges that Defendants engaged in acts prohibited by the FMLA, and

29 U.S.C. § 2615(a) provides the basis for his claims. It reads:

(a) Interference with rights

(1) Exercise of rights

It shall be unlawful for any employer to interfere with,

restrain, or deny the exercise of or the attempt to

exercise, any right provided under this subchapter.

(2) Discrimination

It shall be unlawful for any employer to discharge or in

any other manner discriminate against any individual

for opposing any practice made unlawful by this

subchapter.

29 U.S.C. § 2615(a).

Our Eighth Circuit Court of Appeals “has recognized three types of claims arising

under these two subsections. The first type, arising under § 2615(a)(1), occurs where an

employer refuses to authorize leave under the FMLA or takes other action to avoid

responsibilities under the Act.” Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996,

1005 (8th Cir. 2012). “An employee proceeding on this theory need not show that an

employer acted with discriminatory intent.” Id. Though in several older cases the Eighth

Circuit has described this claim as one for “interference” with FMLA rights, e.g., Stallings

v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006), it more recently declared that

“what we formerly described as ‘interference’ claims henceforth shall be called

‘entitlement’ claims.” Bosley v. Cargill Meat Solutions Corp., 705 F.3d 777, 780 (8th Cir.

2013) (citing Pulczinski, 691 F.3d at 1005). The second type of claim is one for

“retaliation.” Pulczinski, 691 F.3d at 1005–06. A retaliation claim arises under

§ 2615(a)(2) and occurs when an employee opposes any practice made unlawful under the

FMLA. Id. The third type of claim

arises when an employer takes adverse action against an

employee because the employee exercises rights to which he is

entitled under the FMLA. In this scenario, the employer does

not prevent the employee from receiving FMLA benefits.

Rather, it is alleged that after the employee exercised his

statutory rights, the employer discriminated against him in the

terms and conditions of employment. An employee making

this type of claim must prove that the employer was motivated

by the employee’s exercise of rights under the FMLA. The

textual basis for such a claim is not well developed in [the

Eighth Circuit’s] cases, but the claim likely arises under the

rule of § 2615(a)(1) that an employer may not “interfere with,

restrain, or deny the exercise of or the attempt to exercise”

rights defined by the FMLA. To distinguish the “entitlement”

claim under § 2615(a)(1), and the “retaliation” claim under

§ 2615(a)(2), we think it helpful to describe this sort of

complaint as a “discrimination” claim.

Pulczinski, 691 F.3d at 1006 (citations omitted); see also Massey-Diez v. Univ. of Iowa

Cmty. Med. Servs., Inc., 826 F.3d 1149, 1157–58 n.5 (8th Cir. 2016) (noting “unresolved

difference of opinion” in the Eighth Circuit as to whether a discrimination claim arises

under § 2615(a)(1) or (a)(2)). FMLA discrimination claims are evaluated “under the

McDonnell Douglas burden-shifting framework that is applied in Title VII cases.”

Pulczinski, 691 F.3d at 1007.

2

Defendants, using the older FMLA nomenclature, argue that Olinger’s claim

challenging the post-leave downgrading of his position should be evaluated as a

“retaliation” claim and not as one for “interference.” See Mem. in Supp. at 13–22 [ECF

No. 37]. Olinger pleads that Defendants violated his FMLA restoration right, and this

aspect of Olinger’s complaint must be analyzed as an entitlement claim under the Eighth

Circuit’s more recent decisions. Olinger alleges that he “was entitled to restoration to his

position as described in the FMLA, 29 U.S.C. § 2614(1),” and that Defendants denied him

this right. Compl. ¶ 26 (emphasis added). The allegations refer explicitly to the restoration

right, cite the statute creating the right (albeit imperfectly—the correct cite is

29 U.S.C. § 2614(a)(1)), and plead facts—namely, that Olinger was denied this right

because Defendants “demoted [him] to a more labor intensive position”—that, if proven,

tend to show a violation of the right. Id. ¶¶ 22, 26. These allegations are sufficient to plead

a claim that Defendants violated Olinger’s restoration right. Defendants argue that this

aspect of Olinger’s FMLA claim “confuses an interference claim with a retaliation claim.”

Reply Mem. at 4 [ECF No. 44]. Adhering to the Eighth Circuit’s more recent and binding

precedent, the question is whether Olinger’s complaints regarding the downgrading of his

position must be analyzed as an “entitlement” claim or a “discrimination” claim. The

Eighth Circuit has made clear that an employee who alleges, as Olinger does here, that an

employer violated his right “to be restored to the position [he] occupied before [he] took

leave” asserts what used to be called an interference claim and what now is called an

entitlement claim. Throneberry v. McGehee Desha Cty. Hosp., 403 F.3d 972, 977 (8th Cir.

2005); see also Brown v. Diversified Distribution Sys., LLC, 801 F.3d 901, 907–08 (8th

Cir. 2015) (“Brown’s claim that Diversified denied her an equivalent position thus fits

within the Pulczinski framework as a § 2615(a)(1) entitlement claim.”). Olinger’s claim

that Defendants failed to restore him to his pre-leave housekeeping and laundry supervisor

position, or its equivalent, must be analyzed as an entitlement claim.

“Upon return from FMLA leave, an employee is entitled to be restored to the same

position held prior to the beginning of the leave, or its equivalent, in terms of benefits, pay

and other terms and conditions.” Bloom v. Metro Heart Grp. of St. Louis, Inc., 440 F.3d

1025, 1029 (8th Cir. 2006) (citing 29 U.S.C. § 2614(a)(1)). “[T]he restoration of salary,

title, and benefits does not necessarily constitute restoration to the same position within the

meaning of section 2614(a)(1)(A) when the job duties and essential functions of the newly

assigned position are materially different from those of the employee’s pre-leave position.”

Cooper v. Olin Corp., 246 F.3d 1083, 1091 (8th Cir. 2001). “An equivalent position is one

that is virtually identical to the employee’s former position in terms of pay, benefits and

working conditions, including privileges, perquisites and status. It must involve the same

or substantially similar duties and responsibilities, which must entail substantially

equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a); see also

29 C.F.R. § 825.215(e) (“An equivalent position must have substantially similar duties,

conditions, responsibilities, privileges and status as the employee’s original position.”).

“The requirement that an employee be restored to the same or equivalent job with the same

or equivalent pay, benefits, and terms and conditions of employment does not extend to de

minimis, intangible, or unmeasurable aspects of the job.” 29 C.F.R. § 825.215(f). In the

District of Minnesota, plaintiffs asserting FMLA restoration-entitlement claims have

shown the existence of a genuine dispute as to a material fact to defeat a summary-

judgment motion by citing evidence showing, for example, that they were assigned

“substantially less” of the available work on return from leave than they had before taking

leave or that the post-leave work is “very low-level” compared to pre-leave duties, Johnson

v. Campbell Mithun, 401 F. Supp. 2d 964, 972 (D. Minn. 2005), or that changes “eliminated

a significant portion of [their] previous job duties” or required performance of duties they

“had not performed in many years,” Haskell v. CentraCare Health Sys., 952 F. Supp. 2d

838, 842 (D. Minn. 2013).

Olinger acknowledges that the position he occupied after returning from his

September 2015-to-February 2016 FMLA leave had the same hours, salary, and benefits

as the position he occupied before the leave. Olinger Dep. at 55–57. Regardless, he says

that “major changes to his position occurred” that made the position he occupied after

returning “materially different” from the position he occupied before the leave. Mem. in

Opp’n at 13–14 [ECF No. 41].2 The housekeeping and laundry supervisor position Olinger

occupied before his leave included supervisory duties (Olinger refers to these as “office”

duties) and housekeeping duties (Olinger calls these “floor” duties). Olinger Dep. at 46.

The supervisory duties included evaluating, planning, organizing, and controlling the

activities and staff for the Hospital’s housekeeping and laundry departments. Position

Description at 1–2. Housekeeping duties “range[d] from cleaning patient rooms, hallways,

exam rooms to the surgery area.” Olinger Dep. at 47. Olinger testified that he split his

time evenly between supervisory and housekeeping duties: “it was 50 percent floor, 50

percent office.” Id. at 46. Olinger testified this split changed when he returned from his

September 2015-to-February 2016 FMLA leave:

Upon return, the duties of the position was different. Wasn’t a

supervisor. I didn’t manage the staff. I didn’t put their

schedules together. I didn’t implement the . . . policies or

treatments or trainings or methods or any of that. I just became

a floor worker.

2 Olinger’s position regarding whether he had the same title after returning from his

leave is imprecise. Olinger testified in his deposition that during a meeting with Lynette

Bernardy, the Hospital’s human resources director, and Jacques “a couple weeks before”

he returned from leave he was assigned a new title, “floor manager.” Olinger Dep. at 54–

55, 59–60, 63. Though an email from Jacques to Olinger dated February 17, 2016 describes

Olinger as a “Floor manager,” it’s not clear whether that is intended to reflect a title. Yira

Decl., Ex. 5 [ECF No. 42-5]. Finally, Olinger references the “floor manager” title in his

opposition brief, Mem. in Opp’n at 4, but he does not seem to rely on a title change in

arguing against summary judgment and, in fact, seems to acknowledge that, so far as the

Hospital was concerned, he held the housekeeping supervisor title “upon his return.” Id.

at 14.

Id. at 54; see also id. at 59 (testifying that, following return from leave, he no longer

scheduled staff, managed timecards, implemented improvements and changes, or

budgeted). Olinger testified that he became a “75 percent or almost a hundred percent floor

person.” Id. at 55.

Defendants argue that they did not violate Olinger’s restoration rights because the

position Olinger occupied on return from leave was not “outside of the core competencies”

of the housekeeping and laundry supervisor position. Reply Mem. at 8. Defendants do not

seem to dispute that Olinger’s duties shifted at least somewhat and that he spent

comparatively more of his time performing housekeeping work and less time on

supervisory work after he returned from leave. However, the Hospital’s human resources

director, Lynette Bernardy, testified that Olinger retained responsibility to manage the

housekeeping and laundry departments, and that this responsibility included conducting

performance evaluations, ensuring compliance with Hospital policies, disciplining

employees, and managing timecards. Burke Decl., Ex. 5 (“Bernardy Decl.”) ¶¶ 5–6.3

3 The housekeeping and laundry supervisor position description says: “This job

description is not intended to be all-inclusive. The employee will also perform other

reasonable related duties as assigned by the supervisor or management. Management

reserves the right to change job responsibilities, duties, and hours as needs prevail.”

Position Description at 4. Relying on these provisions, Defendants argue that Olinger’s

duties were not materially different after he returned from FMLA leave (and perhaps could

not have been regardless of circumstances) because the Hospital “reserve[d] the right” to

change Olinger’s duties as it deemed necessary, and Olinger knew this. Mem. in Supp. at

17–18. This is not correct. An employer cannot bypass its employees’ FMLA restoration

rights by reserving in job descriptions the right to change employees’ duties “as needs

prevail.” If that kind of reservation were sufficient, the Hospital, under its logic, could

have reassigned Olinger to any number of very different positions—parking lot attendant,

greeter, etc.—without consequence. That’s not the law.

As a matter of law, Olinger has not shown that the duties of his housekeeping and

laundry supervisor position were materially different during the not quite two months he

worked after his September 2015-to-February 2016 FMLA leave from before he took this

leave. As noted above, Olinger’s title, hours, salary, and benefits all stayed the same. He

was not required to perform new tasks. Housekeeping or “floor” duties were a significant

part of Olinger’s responsibilities before his leave. This is clear from the housekeeping and

laundry supervisor position description. For example, it identifies the performance of

“cleaning procedures” as a core competency, among others related to housekeeping duties.

Position Description at 1. It lists several housekeeping tasks as “[g]eneral

[r]esponsibilities.” Id. These include, for example, maintaining the “cleanliness” of the

Hospital and “[f]ollow[ing] established safety precautions when performing tasks and

when using equipment and supplies.” Id. The physical demands described for the position

seem primarily to concern housekeeping duties. Id. at 2–4. As presented, the increase in

housekeeping duties Olinger describes is de minimis as a matter of law under

29 C.F.R. § 825.215(f) because it is not the product of a useful measurement and is

indefinite. Neither the position description nor any other document in the record

establishes an expectation that Olinger’s housekeeping (or supervisory) duties would be

capped at fifty percent of his hours. Nothing reflects that Olinger recorded the actual time

he spent performing each of these sets of tasks. Olinger does not say whether the even split

he describes was a yearly average or a daily occurrence, so we do not know whether or

how much the even split Olinger describes fluctuated during the year. Against this

backdrop, Olinger’s description of the position before his leave as involving an even split

between supervisory and housekeeping duties must be understood as an estimate, not a

precise measure, of how he spent his time. If that is correct, then Olinger’s description of

the position after returning from his leave—that he performed housekeeping duties “75-

100% of the time,” Reply Mem. at 13, 14—is quite indefinite. In a 40-hour work week,

Olinger’s “75-100%” estimate represents a 10-hour swing one way or the other. And the

fact that Olinger’s post-leave estimate has a low end of “75%” is significant not only for

its indefiniteness. Consistent with Bernardy’s testimony, the 75 percent floor time in

Olinger’s estimate acknowledges, at least implicitly, that Olinger retained supervisory

duties occupying up to roughly 25 percent of his time at points during the not quite two

months he worked in the position following his return from leave. Especially given that

Olinger’s percentages should be understood as estimates, this reflects a roughly measured,

insubstantial uptick in the amount of time Olinger spent on housekeeping duties. Finally,

Olinger has not identified negative consequences that might follow from this change. He

does not argue, for example, that it affected opportunities for career advancement or held

any other tangible, adverse consequence.

Even if Olinger had shown the existence of a genuine issue of material fact regarding

whether the duties of the housekeeping and laundry supervisor position were “materially

different from those of the employee’s pre-leave position,” Cooper, 246 F.3d at 1091, the

FMLA “does not impose strict liability on employers for interference [now entitlement]

claims,” Ballato v. Comcast Corp., 676 F.3d 768, 772 (8th Cir. 2012). If the employer can

show that the employee’s restoration rights would have been affected in the same way if

the employee had not taken FMLA leave, then the employer cannot be liable under an

entitlement claim. See id. “An employee has no greater right to reinstatement or to other

benefits and conditions of employment than if the employee had been continuously

employed during the FMLA leave period.” 29 C.F.R. § 825.216(a).

Here, Defendants have shown that the changes Olinger describes to his

housekeeping and laundry supervisor services position would have happened even if

Olinger had not taken his September 2015-to-February 2016 FMLA leave. Scheduling is

one of the primary supervisory or administrative duties Olinger says was not restored to

him following his return from this leave. Olinger Dep. at 54. During Olinger’s leave (or

at least around the same time his leave began), the Hospital moved to a new building.

Bernardy Decl. ¶ 2. As part of the move, the Hospital developed a new “block scheduling

system” that remains in use today. Id. ¶ 3. The system “was implemented beginning on

November 13, 2015,” during Olinger’s leave. Id. With the new scheduling system in place,

“there was no longer a need for Mr. Olinger to work on a four-week rotation to schedule

the housekeeping and laundry departments.” Id. Budgeting is another of the principal

administrative duties Olinger says was not restored following his leave. Olinger Dep. at

59. But Bernardy testified that the Hospital budget was last updated on December 18,

2015, which was the version approved by the board on December 23, 2015. Bernardy

Decl. ¶ 7. Though Olinger does not seem to identify it specifically, managing the

Hospital’s telephone system was another of his pre-leave duties affected by the move. Id.

¶ 2. In its new facility, the Hospital installed a “Cisco phone system” that “was a much

more sophisticated phone system that even [the Hospital’s] IT department struggled with,”

prompting the Hospital to contract with an outside vendor to work with the IT department

to manage the system. Id. Olinger does not respond to this evidence. He does not, for

instance, explain why he would have retained scheduling authority despite the Hospital’s

implementation of the new block-scheduling system. He does not suggest how he would

have retained budgeting responsibilities following his return from leave in February 2016

when the Hospital approved the budget in December 2015. It is true that Olinger identifies

changes in his post-leave responsibilities, Mem. in Opp’n at 13, but even accepting the

truth of those assertions and assuming they worked a material change to the duties of his

position does not address Defendants’ point that the duties of Olinger’s position would

have changed regardless of his FMLA leave. For this reason, the law requires that

summary judgment be entered against Olinger’s FMLA entitlement claim.

3

Olinger alleges an FMLA discrimination claim based on Defendants’ termination

of his employment. To establish a prima facie FMLA discrimination claim, Olinger must

show that Defendants terminated his employment because Olinger exercised FMLA rights.

See Brown v. City of Jacksonville, 711 F.3d 883, 891 (8th Cir. 2013). In the absence of

direct evidence of discriminatory intent, an FMLA discrimination claim is analyzed under

the burden-shifting framework described in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).4 See, e.g., City of Jacksonville, 711 F.3d at 891; Diversified

Distribution Sys., 801 F.3d at 908. Under that framework, Olinger “must show: (1) that he

engaged in activity protected under the Act, (2) that he suffered a materially adverse

4 Olinger does not claim to have direct evidence of discrimination. See generally

Mem. in Opp’n at 15–20.

employment action, and (3) that a causal connection existed between [his] action and the

adverse employment action.” Diversified Distribution Sys., 801 F.3d at 908 (quotation

omitted); see also Pulczinski, 691 F.3d at 1007. The burden of showing a prima facie case

is “minimal.” Logan v. Liberty Healthcare Corp., 416 F.3d 877, 881 (8th Cir. 2005)

(quotation omitted). If Olinger satisfies that minimal hurdle, the burden then shifts to

Defendants “to articulate some legitimate, nondiscriminatory reason” for their actions.

McDonnell Douglas, 411 U.S. at 802. If Defendants meet this burden, then Olinger will

have to demonstrate that Defendants’ purportedly legitimate, nondiscriminatory reason

was pretextual or discriminatory in its application. Id. at 807. Here, there is no dispute

that Olinger engaged in protected activity when he took FMLA leave from September 2015

to February 2016. There also is no dispute that he suffered an adverse employment action

when his employment was terminated.

The issue is whether Olinger has shown causality, and the record establishes that he

has not. The Eighth Circuit “has said that an employee must prove that his exercise of

FMLA rights ‘played a part’ in the employer’s decision.” Pulczinski, 691 F.3d at 1007

(citing Marez v. Saint-Gobain Containers, Inc., 688 F.3d 958, 963 n.3 (8th Cir. 2012) and

29 C.F.R. § 825.220(c)). Olinger’s argument on this essential element of his claim is not

clear. He argues that “Defendants [sic] conduct was motivated by retaliatory intent,” Mem.

in Opp’n at 19, but he does not cite particular evidence supporting this assertion. In a

paragraph of his brief that seems intended to address a different issue—whether he suffered

an adverse employment action—Olinger describes the testimony of two former coworkers,

Fred Sorensen and LeeRoy Baumgartner, who say they heard Defendant Blad say that he

intended to “get rid of” Olinger. Id. at 17. Assuming it properly may be considered in

opposition to Defendants’ summary-judgment motion, this evidence does not show

causality. Neither Sorensen nor Baumgartner’s testimony permits an inference that Blad’s

statement was tied to Olinger’s FMLA leave. The statement they describe is not tied

explicitly to Olinger’s exercise of FMLA rights; it does not mention the FMLA. In the

abstract, there are many lawful reasons why an employer might want to “get rid of” an

employee: poor performance, reorganization, budget cuts, adverse budget projections, etc.

The issue is why Blad allegedly wanted to “get rid of” Olinger. In their depositions,

Sorensen and Baumgartner attributed motives to Blad that clearly are not connected to

Olinger’s exercise of FMLA rights. Sorensen testified that he believed Blad’s motive

behind the statement was that “Mr. Olinger was good friends with a female employee” and

“[t]hat was viewed by [Blad] as a problem.” Yira Decl., Ex. 1 at 36–37 (“Sorensen Dep.”)

[ECF No. 42-1]. Baumgartner testified that he did not know why Blad wanted to “get rid

of” Olinger, Yira Decl., Ex. 2 at 35 (“Baumgartner Dep.”) [ECF No. 42-2], but that he

understood from the first day he began working at the Hospital in October 2007 that Blad

wanted to get rid of Olinger, Id. at 13, 43. Baumgartner acknowledged that Olinger

continued to work for several years after Baumgartner began working at the Hospital but

asserted that the Hospital “had no reason to fire him” during that time. Id. at 44. The

timing of Blad’s statement does not allow an inference that Blad’s motivation in

terminating Olinger’s employment was his exercise of FMLA rights. To the extent

Baumgartner testified that he understood from the time he was hired in 2007, Blad had

wanted to get rid of Olinger, that desire predated Olinger’s first FMLA leave by several

years, and his subsequent FMLA leaves by even longer. And insofar as Sorensen and

Baumgartner testified that they heard Blad make this statement in a meeting “on or about

July 17, 2015,” two months before Olinger commenced his September 2015-to-February

2016 FMLA leave, Sorensen Dep. at 27–28; see also Baumgartner Dep. at 41, Olinger cites

no evidence showing that Blad knew in July that Olinger would be taking FMLA leave

beginning in September. Finally, the timing of Olinger’s termination does not permit an

inference of causality. “Generally, more than a temporal connection between the protected

conduct and the adverse employment action is required to present a genuine factual issue

on retaliation.” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en

banc) (citation omitted). Temporal proximity alone may suffice only if it is “very close.”

Hite v. Vermeer Mfg. Co., 446 F.3d 858, 866 (8th Cir. 2006) (citation omitted). In

determining the temporal relationship between the two events, the Eighth Circuit “looks to

the date an employer knew of an employee’s use (or planned use) of FMLA leave, not the

date it ended.” Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012) (citation

omitted). Without “something more,” a gap of more than two months between the date the

employer knew of the employee’s planned use of FMLA leave and the adverse action “is

too long” to show a causal connection between the two. Id. at 901 (citations omitted).

Here, that gap is more than six months.

B

Minnesota’s Whistleblower Act prohibits an employer from terminating an

employee in retaliation for reporting a violation of the law. Minn. Stat. § 181.932,

subd. 1(1). Absent any direct evidence of retaliation, courts apply the McDonnell Douglas

burden-shifting framework to analyze retaliation claims under the Whistleblower Act. Hilt

v. St. Jude Med. S.C., Inc., 687 F.3d 375, 378 (8th Cir. 2012) (citing Cokley v. City of

Otsego, 623 N.W.2d 625, 630 (Minn. Ct. App. 2001)). Thus, to make out a prima facie

case for retaliation, Olinger must demonstrate first that he engaged in conduct protected by

the Whistleblower Act, that is, he reported in good faith a violation or suspected violation

of law. See id.; Pedersen v. Bio-Med. Applications of Minn., 992 F. Supp. 2d 934, 939

(D. Minn. 2014), aff’d, 775 F.3d 1049 (8th Cir. 2015).

Olinger did not engage in conduct protected by the Minnesota Whistleblower Act

because he did not “report[] a violation, suspected violation, or planned violation of any

federal or state law or common law or rule adopted pursuant to law.” Minn. Stat. § 181.932,

subd. 1(1). The “report” on which Olinger grounds this claim occurred during his

September 2015 telephone call with Renville County Administrator Folstad. To recap,

during this call, Olinger asked Folstad what could be done “about the hiring process about

- - if they were going to hire - - if they didn’t hire the most qualified person.” Olinger Dep.

at 86. Folstad told Olinger that he should follow the Hospital’s grievance policy. Id.

Olinger asked what he could do if he didn’t “feel comfortable or if at this time I’m not sure

if that’s capable of going through that chain,” and Folstad repeated that Olinger should

follow the Hospital’s grievance policy. Id. Olinger admits he reported no violation or

suspected violation of state or federal law during the call. Id. at 88. Olinger reported only

his concern that the Hospital might not be hiring the most qualified person and that the

Hospital might not hire him “for some other reason,” though he admitted not knowing what

that “other reason” might be. Id. at 86, 113–14. Olinger argues that his Whistleblower Act

claim warrants a trial because he reported a violation of the Hospital’s hiring policies that,

if true, would amount to a “common law breach-of-contract and/or breach-of-fiduciary

duty,” Mem. in Opp’n at 22. This argument lacks factual support. Olinger admitted in his

deposition that he did not report to Folstad “that the [H]ospital was not following the stated

employment procedure for their hiring process.” Id. at 114. Even if Olinger said something

like that to Folstad, this argument would lack legal support. Reporting the violation of an

employer’s internal policy generally is not sufficient to state a Whistleblower Act claim;

to implicate a violation of law as required by the Whistleblower Act, the internal policy

must have been adopted pursuant to law. See Pedersen, 992 F. Supp. 2d at 941; Weigman

v. Everest Inst., 957 F. Supp. 2d 1102, 1106 (D. Minn. 2013) (“Nor is it enough that such

actions violated [the defendant’s] internal policies.” (citing Kratzer v. Welsh Cos.,

771 N.W.2d 14, 22 (Minn. 2009))); Salgy-Knapp v. Cirrus Design Corp., No. A03-654,

2004 WL 193140, at *3 (Minn. Ct. App. Feb. 3, 2004) (“[Plaintiff’s] report did not

implicate a violation of law, but rather merely implicated a violation of [the defendant’s]

internal policy . . . . Therefore, [plaintiff] has failed to establish an essential element of her

whistleblower claim.”) Here, Olinger does not explain how the Hospital’s asserted failure

to follow its hiring policies in a way that leads to the hiring of someone who is not “most

qualified” breaches a contract or fiduciary duty. Olinger identifies no contract; he

identifies no source of a fiduciary duty. And he identifies no law pursuant to which this

aspect of the Hospital’s hiring policies and practices were adopted.

ORDER

Based on the foregoing, and all of the files, records, and proceedings herein, IT IS

ORDERED THAT:

1. Defendants’ motion for summary judgment [ECF No. 29] is GRANTED;

2. This action is DISMISSED WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: November 12, 2019 s/ Eric C. Tostrud

Eric C. Tostrud

United States District Court