Petition for Writ of Certiorari — Daniel Coleman, Petitioner v. Minneapolis Public Schools

QUntteb States! Court of Appeals

Jfor tlje Cigljdj Circuit

No. 21-2226

Daniel Coleman

Plaintiff- Appellant

v.

Minneapolis Public Schools

Defendant - Appellee

Appeal from United States District Court

for the District of Minnesota

Submitted: February 14, 2022

Filed: February 17,2022

[Unpublished]

Before LOKEN, ERICKSON, and STRAS, Circuit Judges.

PER CURIAM.

In this employment action, Daniel Coleman appeals following the district

court's1 adverse grant of summary judgment and denial of his post-judgment motion

under Federal Rule of Civil Procedure 59.

lThe Honorable David S. Doty, United States District Judge for die District of

Minnesota.

Appellate Case: 21-2226

Page: 1

Date Filed: 02/17/2022 Entry ID: 5128425

We first conclude we lack jurisdiction to review the denial of Coleman’s post­

judgment motion. See Miles v. Gen. Motors Corp., 262 F.3d 720, 722-23 (8th Cir.

2001) (this court lacks jurisdiction to consider challenge to denial of post-judgment

motion for new trial where movant failed to file amended notice of appeal as to that

decision). After careful review of the record and the parties’ arguments on appeal,

we further conclude the adverse grant of summary judgment was proper for the

reasons articulated by the district court. See EEOC v. Prod. Fabricators, Inc., 763

F.3d 963,969 (8th Cir. 2014) (standard of review). Accordingly, we affirm. See 8th

Cir. R. 47B. We also deny Coleman’s pending motion.

*

-2-

Appellate Case: 21 -2226

Page: 2

Date Filed: 02/17/2022 Entry ID: 5128425

No: 21-2226

Daniel Coleman

Plaintiff - Appellant

v.

Minneapolis Public Schools

Defendant - Appellee

Appeal from U.S. District Court for the District of Minnesota

(0:18-cv-02283-DSD)

JUDGMENT

Before LOKEN, ERICKSON, and STRAS, Circuit Judges.

This appeal from the United States District Court was submitted on the record of the

district court and briefs of the parties.

After consideration, it is hereby ordered and adjudged that the judgment of the district

court in this cause is affirmed in accordance with the opinion of this Court.

February 17,2022

Order Entered in Accordance with Opinion:

Clerk, U.S. Court of Appeals, Eighth Circuit.

Isi Michael E. Gans

Appellate Case: 21-2226

Page: 1

Date Filed: 02/17/2022 Entry ID: 5128427

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 21-2226

Daniel Coleman

Appellant

v.

Minneapolis Public Schools

Appellee

Appeal from U.S. District Court for the District of Minnesota

(0:18-cv-02283-DSD)

%

MANDATE

In accordance with the opinion and judgment of02/17/2022, and pursuant to the

provisions of Federal Rule of Appellate Procedure 41(a), the forma! mandate is hereby issued in

the above-styled matter.

March 11,2022

Clerk, U.S. Court of Appeals, Eighth Circuit

CASE 0:18-cv-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 1 of 23

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

CIVIL NO. 18-2283(DSD/ECW)

Daniel Coleman,

Plaintiff,

ORDER

v.

Minneapolis Public Schools,

Defendant.

Daniel Coleman, 4100 Columbus Avenue South, Minneapolis, MN

55407/ plaintiff pro se.

Jonathan P. Norsie, Esq., Jessica L. Kometz, Esq. and Bassford

Remele, PA, 100 South 5th Street, Suite 1500, Minneapolis, MN

55402, counsel for defendant.

This matter is before the court upon the motion for summary

judgment

by

defendant

Minneapolis

Public

Schools

(District).

Based on a review of the file, record, and proceedings herein, and

for the following reasons, the court grants the motion.

BACKGROUND

This

dispute

arises

out

of

plaintiff

Daniel

Coleman's

employment at Bryn Mawr Elementary School, a Minneapolis public

school.

Coleman worked as an engagement/behavior dean at the

school from August 2016 until. March 2017.

•17; Williams Decl. Ex. H, at 20.

Coleman Dep. at 51^11-

CASE 0:18-cv-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 2 of 23

I.

Coleman's Hiring and Job Description

The District

first hired Coleman in 2012

afterschool programming.

Coleman Dep.

to- assist with

Coleman

at 49:12-50:8.

reported that he was "not disabled" on his new hire paperwork.

Id. Ex. 1.

On August 23, 20T6, the District hired Coleman as an

engagement/behavior dean at Bryn Mawr.

Id. at 51:11-17.

Coleman's

(1) "assist in maintaining student discipline in

duties were to:

the school, on the grounds, and at specific special events;" (2)

"assist administration in communicating with and understanding

students at risk;" and (3)

"maintain student behavior [through]

%

intervention and parent contact."

Being

Ward Decl. Ex. A, at 2.

physically present at work was an essential function of Coleman's

position.

Id. at 1.

During the 2016-2017 school year.

respond

to

student

behavior

issues

in

Coleman was assigned to

"community

II,"

which

consisted of pre-school, kindergarten, and first grade students.

Ward Decl.

%

5.

Coleman worked with school

success program

assistant (SSPA) Nathan Loughran in community II.

Id.

Coleman

and Loughran remained on call to assist staff with student behavior

issues,

and,

when

not

on

including monitoring lunch,

Id.

call,

performed

recess,

The District uses a protocol

functions

and bus arrival/departure.

(1) to classify the severity

.level of student behavior and

(2)

corresponding

staff.

intervention by

support

to appropriately tailor the

See Ward

Decl.

Ex.

B.

CASE 0:18-CV-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 3 of 23

Serious

behaviors

usually

engagement/behavior deans and/or SSPAs.

II.

intervention

involve

by

Ward Decl. SI 6.

Coleman's Performance Issues

On September 12, 2016, Coleman refused to chaperone a student

when

Kryssa

assistance.

Chester,

a

education

Ward Decl. Ex. C, at 1.

did not believe he was

students.

special

Id.

teacher,

requested

Coleman refused because he

certified to handle special education

Coleman thereafter discussed the incident with

Principal Kristiana Ward.

Id. Ex. D.

After the meeting, Coleman

sent an e-mail to Ward, maintaining that he was "not certified to

handle Special Education Students or severe behavioral needs."

Id. Ex. C, at 1.

Ward responded that Coleman's responsibilities

included supporting level one, two, and three behaviors and working

with all students within "community II" of Bryn Mawr, including

special education students.

Id. Ex. D., at 1-2.

A few days later.

however, Coleman refused to assist another student, asserting that

he was not responsible for responding to level-three behaviors.

Id. Ex. F. '

On September 20, Ward met with Coleman and sent him a letter

of expectation.

Id. Ex. G; Coleman Dep.

at 67:21-69:18.

letter summarized the expectation that Coleman:

(1) "will stay in

[his] assigned community and work with students in H5, K,

•1st grades";

The

[and]

(2) "will be able to navigate [the] leadership role

of [dean], make quick decisions in the moment that it happens and

CASE 0:18-cv-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 4 of 23

have the ability to prioritize the needs of [iris'] community and

role of [his] position"; (3) is "aware of how to respond to support

calls when outside [his] community ... [and] will respond if it is

an immediate safety issue, call for support and tag [himself] out

(if safe) when support arrives"; and (4)

with all

students

disability."

"will continue to work

within

[his]

community regardless

Decl.

Ex.

G.

Ward

expectations were reasonable.

Coleman

agreed

of

their

that

the

Coleman Dep. at 69:19-22.

On November 8, Coleman had two conflicts with staff members.

First, Chester directed Coleman to bring a student he was working

%

with to class.

Ward Decl. Ex. H.

When Coleman failed to bring

the student, Chester went to Coleman's office and explained that

the student needed to be in class.

Id.

Coleman refused to listen

to Chester's instructions, maintaining that he was still working

with the student regarding behavioral concerns.

Id.

In an e-mail

exchange following their interaction, Chester told Coleman that

future student concerns should be addressed via formal meetings.

Id.

Second, Coleman criticized another teacher, Anna Collins, for

telling a student to return to class while Coleman was working

with him.

Id. Ex. I, at 1-2.

requested

Coleman's

Collins explained that she had not

assistance,

that

his

assistance

was

not

helpful, and that Coleman failed to formally request to work with

.the student.

Id. at 1.

CASE 0:18-CV-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 5 of 23

Id. Ex. P.

On November 21, Coleman had an issue with Ward.

Coleman had contacted the administration regarding a discrepancy

Id. at 2.

in his time worked and subsequent pay.

The school

responded that Coleman failed to use the school's time verification

system, and he must have Ward approve the additional time in order

to be compensated for the time he claimed to have worked.

2.

Id. at

Coleman sent Ward an e-mail seeking approval of his unverified

time.

Ward

Id.

Before Ward saw Coleman's e-mail, Coleman confronted

in person about

responded by

getting his

time

expressing her

e-mail,

Coleman addressed the issue.

Id.

approved.

dissatisfaction

with

Ward

how

Id. at 1.

Coleman also had conflicts with Loughran.

On November 28,

Coleman brought a student who was involved in a physical fight to

Loughran's office, but did not provide sufficient detail regarding

the incident.

Another staff member then called for

Id. Ex. J.

assistance in dealing with the other student involved in the fight.

Id.

Coleman did not respond to the call and instead stayed in his

office "chilling."

Id.

Loughran found it "very difficult" to

work with Coleman.

Id.

On December 1, Coleman refused to respond

to a call to support a student,

responsibility.

After

stating that it was Loughran's

Id. Ex. K.

receiving

multiple

complaints

about

Coleman,^ Ward

.requested more information from Loughran and Wesley Hill, another

SSPA.

Ward Decl. $ 17; id. Ex. L.

Loughran responded that Coleman:

CASE 0:18-cv-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 6 of 23

(1) did not complete referrals as required by District policy; (2)

was unable cope if a student ignores him; and (3) -consistently

shirked

his

colleagues.

responsibilities

Id. Ex. L, at 1.

by

bringing

Coleman

often

acted

to

his

Loughran also reported that Coleman

refused to do tasks in his job description.

that

students

in

an

Id.

Hill responded

insubordinate

impermissibly combined his lunch and his break.1

Coleman also had attendance issues.

manner,

and

Id. at 2.

Coleman admits that he

was absent on September 14, September 22, November 30, and December

5, and that he did not work full days on several other occasions.

Norrie Decl. Exs. B-C.

an electronic

On October 10, 2016, Bryn Mawr implemented

check in/check out

system.

Ward Decl.

Ex.

N.

Coleman received a memorandum explaining that the system verifies

employe&s'

timecards

and

that

its

use

was

mandatory.

Id.

Employees had to check in and out every day, and employees had to

use. the system if they left the building for any reason.

Id.

Coleman failed to use the system eight times in the first three

weeks it was in use.2

See id. Ex. O.

1 Coleman admitted to combining J^is break with his lunch on

at least one occasion. Coleman Dep. at 79:5-14.

Coleman concedes that he failed to use the electronic

system as required. Coleman Dep. at 83:20-24.

2

CASE 0:18-cv-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 7 of 23

III. Coleman's "Code Red" Allegations

Coleman alleges that on November 23, another employee told

Coleman

him that a student had previously brought a gun to school.

Dep. at 90:5-9.

Coleman does not indicate that the school was

aware of the alleged incident,4 but he nevertheless argues that the

District failed to initiate its "code red" policy in response.

Id.

at

90:5-91:9.

Coleman

reported

the

alleged

failure

institute the "code red" policy to his mother, Lynn Davis.

92:12-93:2.

Minnesota

to

Id. at

Davis e-mailed Brenda Casellius, commissioner of the

Department

of

Education,

institute code red procedures.

to

report

Id. at 93:3-16.

the

failure

to

Nothing in the

record substantiates the claim that a student had brought a gun to

school at any point.

IV.

Coleman's Suspension; District's Response to Coleman's Asthma

On November 22, Ward told Coleman that she had concerns about

his

performance

resources.

that

required

a

formal

meeting

with

human

Ward scheduled the meeting

Ward Decl. Ex. P, at 1.

for November 30, but Coleman did not attend.

Id. Ex. Q;

id. % 22.

On December 2, Ward informed Coleman that they needed to meet along

with

human

resources

and

his

union

performance issues and other concerns.

steward

to

address

his

Ward Decl. Ex. Q.

On December 6, Ward e-mailed Coleman that he needed to^ be

%

.outside with students during recess.

Ward Decl. J 7.

Coleman

responded that he could hot go outside because of his asthma.

Id.

CASE 0:18-cv-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 8 of 23

Coleman had not previously disclosed that he suffered from asthma.

See Coleman Dep., Ex. 1.

When Ward asked for more information

about his condition, he did not respond.

Ward Decl. Ex. R, at 1.

Ward met with Coleman on December 8 to discuss his schedule given

his newly disclosed asthma.

monitor recess.

Coleman refused to go outside to

Id.

When Ward requested medical documentation,

Id.

Coleman responded that he would not provide information to the

Id.

District unless requested in writing.

The District did not

require Coleman to go outside after this conversation.

Coleman

Dep. at 109:8-11.

Later in the day on December 8, the District placed Coleman

on paid administrative leave due to his performance and attendance

Ward Decl. 11 23.

issues.

steward during the meeting.

On

December

20,

Coleman was represented by his union

Ward Decl. Ex. R.

Coleman

sent

a

reasonable

accommodation

request to the District along with a doctor's note excusing him

from outside duties due to his "chronic medical condition."

Ex.

S.

A couple weeks later,

Id.

the District informed Ward that

Coleman should not be required to perform recess or bus duty during

the colder months.

employees

cover

Ward Decl. 11 26.

Coleman's

outside

Ward agreed to have other

responsibilities.

Id.

On

January 23, 2017, the District formally approved Coleman's request

Ward Decl. Ex. U.

for a reasonable accommodation.

The District

noted that Coleman "requested limited bus and recess duties during

8

CASE 0:18-cv-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 9 of 23

extreme weather" and that Ward agreed to have other employees cover

Id.

those duties between November 15 and March 15.

On January 6, Coleman and his union representation met with

Ward and other District representatives for a due process meeting.

Id.

Ex.

The meeting addressed six different

T.

issues:

(1)

Coleman's attendance issues and failure to use the District's

electronic

timecard

system;3

(2)

Coleman's

(3)

students to speak during lunch;

colleagues;

(5)

Coleman's

potential

data privacy violation.4

ultimately

suspended

warning,

and

Coleman

administratively

position within the school.

for

to

allow

Coleman's unwillingness to

perform essential functions of his job;

with

refusal

(4)

Coleman's conflicts

insubordination;

Id.

seven

at

days,

transferred

The

1.

him

(6)

and

District

issued

to

a

a

a

final

different

Id.; id. Ex. V.

On January 31, Coleman received a written notice of discipline

consistent with what occurred at the January 6 meeting.

Id. Ex.

Coleman then filed two grievances, arguing that

he was

V.

(1)

disciplined for the data privacy violation in retaliation for

reporting the failure to initiate "code red" safety procedures,

and

(2)

there were other attenuating circumstances not raised.

3 Coleman admitted to forgetting his electronic password and

not using the electronic system appropriately in the meeting. Ward

Decl. Ex. T, at 2.

4 Coleman was not disciplined for the alleged data privacy

violation. Ward Decl. Ex. V.

9

CASE 0:18-cv-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 10 of 23

Williams Decl. Exs. C-D.

reiterating that:

(1)

The District denied both grievances.

Coleman was not disciplined for a data

privacy violation and for his "report," and (2) the issues raised

by Coleman were not discussed during the due process meeting and

were not appropriate to discuss at the grievance stage.

Id. Ex.

C, at 2; id. Ex. D, at 3.

V.

Coleman's Issues after Suspension

When Coleman returned from his suspension, he continued to

have

attendance

colleagues.

issues

and

On February 9,

interpersonal

Korbin Kvaas,

conflicts

with

a special education

teacher, reported that Coleman took extended breaks while on duty.

Ward Decl. Ex. w.

On February 16, Coleman e-mailed Ward that he

would be leaving early on two days the following week.

Id. Ex. X,

at 2-3.. Ward declined to approve the time off, explaining that

Coleman already had been absent or left early on several occasions

since his recent return to work.

Id. at 2.

Finally, and most notably, on February 21, 2017, a teacher

reported that Coleman "yanked" and "grabbed" a student.

z.

After a verbal altercation with a student,

Id. Ex.

Coleman became

frustrated and demanded that the student leave class.

Id. Ex. AA.

After entering the hallway, the student tried to return to class.

Id.

Coleman blocked the student, picked them up, an^ forcibly

CASE 0:18-cv-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 11 of 23

"dragg[ed]" them towards the stairwell.

witnessed the event called it "frightening. "5

VI.

The teacher who

Id.

Id.

Coleman's Discharge

The

District placed Coleman on paid administrative

pending an investigating into the February 21 incident.

Williams

On March 6, Coleman participated in a due process

Decl. Ex. E.

meeting to address the incident and other performance issues.

Decl.

Ex.

leave

CC.

Soon thereafter,

Id.

Id.

Coleman's employment.

Ex.

DD.

Ward

the District terminated

Coleman was not fired for

"reporting" that the school failed to initiate code red procedures

Id.; Ward Decl.

after a student allegedly brought a gun to school.

3 35; Williams Decl. 3 9.

VII. This Suit

In August 2017, Coleman filed a charge of discrimination with

the Minneapolis Department of Civil Rights and the Equal Employment

Opportunity Commission.

dismissed.

Id.

Both claims were

On August 3, 2018, Coleman commenced this action

against the District.

amended

Norrie Decl. Exs. D-E.

complaint,

On February 22,

alleging

that

the

2019,

Coleman filed an

District

violated

the

Americans with Disabilities Act (ADA), Minnesota's Whistleblower

5 Although he initially denied touching the student, Coleman

later admitted to holding the student from behind. Ward Decl. Ex.

BB, at 2; Ex. CC, at 2.

11

CASE 0:18-cv-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 14 of 23

The court will therefore disregard Coleman's exhibits and

unsubstantiated statements.6

III. Disability Discrimination Claim

"The

ADA

makes

it

discriminate against any

disability. / //

unlawful

for

a

covered

employer

to

'qualified individual on the basis of

Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013)

(quoting 42 U.S.C. § 12112(a)).

If there is no direct evidence of

discrimination, as here, an employee must satisfy the McDonnell

Douglas burden-shifting analysis.

Inc.,

398

F. 3d 1040,

1044

Kratzer v. Rockwell Collins,

(8th Cir.

2005).

Under McDonnell

Douglas, plaintiff must show that he "(1) is disabled within the

meaning of the ADA,

(2) is a qualified individual under the ADA,

and (3) has suffered an adverse employment action because of [his]

disability."

E.E.O.C. v. Prod. Fabricators, Inc., 763 F.3d 963,

969 (8th Cir. 2014) .

If plaintiff establishes a prima facie case,

then the burden shifts to defendant to "articulate a legitimate

nondiscriminatory reason for the adverse employment action."

Id.

If defendant provides a reason, plaintiff has the burden to show

6 Moreover, only thirty of Coleman's 350 pages of exhibits

were produced in discovery. Coleman offers no justification for

this exclusion, and the court finds that the undisclosed documents

are properly disregarded.

See Edmonds v. Minneapolis Pub. Sch.

Special Sch. Dist. 1, 368 F. Supp. 3d 1329, 1338 (D. Minn. 2018)

(quoting Fed. R. Civ. P. 37(c) (1)) ("A party who fails to disclose

or supplement required discovery 'is not allowed to use that

information or witness to supply evidence on a motion, at a

hearing, or at a trial, unless the failure was substantially

justified or is harmless.'").

14

CASE 0:18-cv-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 15 of 23

that "the employer's proffered reason is merely a pretext for

intentional discrimination." Id.

Coleman alleges that the District unlawfully discriminated

against him because of his asthma.

Coleman

has

failed

make

a

prima

The District argues that

facie

case

for

disability

discrimination because he is not a qualified individual, and he

cannot provide a causal link between his disability and any adverse

employment action.7

case,

the

District

Even if Coleman could establish a prima facie

argues

that

it

had

a

legitimate,

non-

discriminatory reason for terminating Coleman and that Coleman is

unable to show that the District's stated reasons for termination

were pretextual.

The court agrees with the District.

As a preliminary matter, Coleman is unable to establish that

he is a "qualified individual."

Coleman

must

show

"his

work

legitimate job expectations."

869, 873

(8th Cir. 1998)

To be a qualified individual,

performance

met

the

employer's

Wilking v. Cty of Ramsey, 153 F.3d

(citations omitted).

The record shows

that Coleman's work performance did not meet the District's clearly

stated expectations.

First, Coleman did not meet basic attendance expectations.

Attendance was essential to Coleman's job, as it is in most jobs.

See Lipp v. Cargill Meat Sols. Corp., 911 F.3d 537, 544 (8th Cir.

7 The District does not dispute that Coleman's asthma is a

disability under the ADA.

15

L

CASE 0:18-cv-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 16 of 23

2018)

("[Rjegular and reliable attendance is a necessary element

Coleman admitted to frequent absences and not

of most jobs.").

working full days numerous times during the relevant period.

Coleman also failed to document his attendance as required.

Starting

October

10,

Coleman

2016,

was

instructed

to

Despite

electronically sign in every day to verify his time.

understanding this expectation, Coleman failed to use the system

eight times in the three weeks after it was implemented.

Even

after his suspension, administrative transfer, and warning about

his attendance expectations, Coleman continued to have attendance

issues.

Given that his attendance issues were continual and did

not improve with discipline, the court cannot conclude that Coleman

was a qualified individual.

Second,

the

record

demonstrates

that

Coleman's

job

performance was sub-par.

The District gave Coleman a list of his

job

when

responsibilities

engagement/behavior dean.

he

began

his

job

as

an

Yet, as explained above, he failed to

do his job time and again.

The District reinforced Coleman's responsibilities by giving

him the list of job expectations again.

to

have

issues

with

his

superiors

He nevertheless continued

and

colleagues,

including

disputes with staff on how to handle students, refusal to follow

appropriate procedures, and insubordination.

Many of Coleman's

actions were in direct conflict with his job expectations, such as

16

r

CASE 0:18-cv-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 17 of 23

ignoring calls to support children, refusing to support students

when instructed, failing to work respectfully with his superiors,

and pushing his responsibilities onto his coworkers.

Coleman's

written discipline notice and termination letter both detailed his

inadequate job performance and attendance.

Coleman has provided

no evidence to undermine the District's well-documented version of

events.

Therefore, for this additional reason, the court finds

that Coleman is not a qualified individual under the ADA.

Even if Coleman were a qualified individual, his claim fails

because there is no causal link between his asthma and any adverse

employment action.

"causes

a

An adverse employment action is an action that

material

change

in

the

terms

or

conditions

of

employment."

Brown v. Cox, 286 F.3d 1040, 1045 (8th Cir. 2002).

Coleman

placed

was

on

paid

administrative

leave

pending

investigation on December 8, 2016; received a seven-day suspension

and was administratively transferred on January 31,

2017;

was

placed on paid administrative leave again on February 21, 2017;

and was terminated on March 7, 2017.

These events are sufficient

to qualify as adverse employment actions.

Coleman fails to establish a causal connection between those

actions and his asthma, however.

Coleman first reported his asthma

to the District on December 6, 2016, two months after amassing

numerous performance complaints.

Once he informed the District of

his condition, it readily agreed to accommodate his asthma-related

17

CASE 0:18-cv-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 18 of 23

See, e.g., Prod. Fabricators, Inc,, 763 at 970

work restrictions.

(finding that

employee's

employer's

disability

accommodation soon after

undercuts

learning of

Moreover,

causation).

District consistently communicated and maintained its

the

concerns

regarding Coleman's job performance before and after learning of

his condition.

Under these circumstances,

the record does not

evince a causal link between Coleman's asthma and the adverse

employment actions.

Coleman

adverse

argues

employment

that

the

actions

establishes causation.

temporal

and

his

connection between

disclosure

of

his

the

asthma

Even if a temporal connection were enough

to establish the prima facie element of causation, it is not enough

to establish evidence of pretext.

Inc.,

302

(explaining

F. 3d

that

827,

it

834

(8th

requires

Smith v. Allen Health Sys.,

Cir.

more

2002)

(citation

substantial

omitted)

evidence

than

temporal proximity to prove pretext in light of an employer's

justification).

The District made clear that it was disciplining

Coleman due to his work performance, not his medical condition.

There is no evidence in the record that any adverse actions taken

against Coleman were related to his asthma.

Coleman only offers

temporal proximity for evidence of pretext, which is insufficient

given

his

well-documented

job

performance

issues.

See,

Bernard v. St. Jude Med. S.C., Inc., 398 F. Supp. 3d 439, 465-66

(D. Minn. 2019) (finding that plaintiff failed to establish pretext

18

CASE 0:18-cv-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 19 of 23

based on temporal connection when there were genuine and welldocumented job performance concerns) .

Because the court finds that Coleman fails to establish the

required elements of his prima facie case and evidence of pretext,

the District is entitled to summary judgment.

III. Retaliation Claim

To establish a retaliation claim, a "plaintiff must show that

(1)

[he]

(2)

engaged in a statutorily protected activity.

the

employer took an adverse action against [him], and (3) there was

a causal connection between the adverse action and the protected

activity."

Prod.

omitted).

The

Fabricators,

District does

Inc.,

763 F.3d at 972

(citation

not dispute that that Coleman's

requested accommodation was a statutorily protected activity and

that

his

suspension

and

termination

that

the

were

adverse

employment

unlawfully

retaliated

actions.

Coleman

alleges

District

against him for requesting a reasonable accommodation for his

asthma.

The District argues that Coleman has failed to establish

a causal link between his reasonable accommodation request and his

suspension,

transfer,

and

termination.

As

discussed

above,

Coleman's sub-par job performance began well before he disclosed

his asthma.

The

District

repeatedly reminded Coleman of

its

expectations, and Coleman's issues nevertheless continued during

and after his accommodation request and approval.

19

See Hervey v.

CASE 0:18-cv-02283-DSD-ECW Doc. 94 Filed 04/22/21 Page 20 of 23

Cty of Koochiching, 527 F.3d 711, 724

omitted)

("Where

timing

is

the

{8th Cir. 2008)

only

basis

for

a

(citation

claim

of

retaliation, and gradual adverse job actions began well before the

plaintiff had ever engaged in any protected activity, an inference

As a

of retaliation does not arise.").

result,

there

is no

connection between Coleman's accommodation request and the adverse

employment actions.

IV.

MWA

Coleman also alleges that the District terminated him because

he

reported

procedures,

the

District's

in violation of

failure

to

the MWA.

institute

"code

red"

The MWA "prohibits

an

employer from terminating an employee in retaliation for reporting

a violation of the law."

423 F. Supp. 3d 680,

Olinqer v. Renville Cty. Hosp. & Clinics,

691

181.932, subdiv. 1(1)).

(D. Minn. 2019)

(citing Minn. Stat. §

The court applies the McDonnell Douglas

framework to analyze Coleman's whistleblower claim.

See id. at

691-92 (citing Hilt v. St. Jude Med. S.C., Inc., 687 F.3d 375, 378

(8th Cir. 2012)) .

...

"To establish a prima face case of retaliation

[the plaintiff is] required to show that []he had engaged in

statutorily protected conduct, that [the employer] took an adverse

employment action against

[him],

and that a causal connection

existed between the protected conduct and adverse action."

v. Extendicare Health Servs., Inc.,

2008) .

20

515 F.3d 836, 840

Skare

(8th Cir.

CASE 0:18-cv-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 21 of 23

The District argues that Coleman's claim fails because he did

not engage in statutorily protected activity,

and there is no

causal connection between the report and Coleman's termination.

The court agrees.

First,

activity.

Coleman

did

not

engage

in

statutorily

protected

There is no evidence in the record that the school even

knew about the alleged gun incident.

Even if the school knew about

the incident, a violation of internal policy is not sufficient for

a claim under the MWA.

Olinger, 423 F. Supp. 3d at 692.

" [T] o

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

the internal policy must have been adopted pursuant to law."

Id.

Coleman, through his mother, "reported" that Bryn Mawr failed to

follow

the

District's

code

red safety policies

based on a

colleague's unsubstantiated assertion that a student had brought

a gun to school.

Coleman argues that the District violated Minn.

Stat. §§ 121A.05, 121A.06, and 121A.035 by not issuing a code red.

These statutes, however, require school boards to adopt various

crisis management and reporting policies.

They do not impose

liability for failing to follow already adopted safety procedures,

and the court is unaware of any cases that impose such liability

under these statutes.

Under these circumstances, Coleman has not

established that his conduct was statutorily protected.

Even

if

Coleman's

"report"

to

his

mother

was

protected

activity, he cannot establish a causal link between it and his

21

CASE 0:18-cv-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 22 of 23

termination.

"[TJhe presence of intervening events can undermine

any inference raised by temporal proximity."

Scarborough v. Fed.

Coleman

Mut. Ins. Comp., 379 F. Supp. 3d 772, 781 (D. Minn. 2019) .

told his mother about the alleged incident in late November 2016

two months after numerous documented job performance issues.

Throughout

Coleman's

suspension

and

grievance

process,

the

District made clear that he was not being suspended because of his

"report."

More than three months after Coleman told his mother

about

alleged

the

employment.

continued

incident,

the

District

During

that

three-month

period,

have

serious

concerns

about

to

performance.

gun

terminated

the

his

District

Coleman's

job

The overwhelming evidence shows that Coleman was

terminated for poor performance over an extended period of time

and not because of his "report."

As a result, Coleman has not

established a claim under the MWA.

V.

PELRA Claim

Coleman also argues that the District violated PELRA, which

protects his right "to express or communicate a view, grievance,

complaint, or opinion on any matter related to the conditions or

compensation of public employment or their betterment."

Educ.

Minn. Lakeville v. Indep. Sch. Dist. No. 194, 341 F. Supp. 2d 1070,

1078 (D. Minn. 2004)

(quoting Minn. Stat. § 179A.06, subdiv. 1).

The Minnesota Supreme Court "declined to

'read this section as

conferring any additional right on public employees but rather as

22

CASE 0:18-cv-02283-DSD-ECW Doc.94 Filed 04/22/21 Page 23 of 23

a taking note of the existence of rights outside the PELRA which

the legislature in no way intended to limit by the creation of new

rights in the Act. / //

Id. at 1078-79 (quoting Finch v. Wemlinger,

310 N.W.2d 66, 68 (Minn. 1981)).

As a result, § 179A.06 does not

confer any additional rights to Coleman and fails as a matter of

law.

CONCLUSION

Accordingly, based on the above, IT IS HEREBY ORDERED that:

1.

The motion for summary judgment [ECF No. 81] is granted;

2.

The case is dismissed with prejudice.

and

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: April 22, 2021

s/David S. Doty

David S. Doty, Judge

United States District Court

23