Lissick v. Andersen Corporation

Background

Andersen Corporation manufactures windows and doors. Thomas Lissick maintained and repaired equipment at one of Andersen’s manufacturing facilities from January 2000 until Andersen terminated him on January 11, 2018.

Andersen said it terminated Lissick because he violated its lockout/tagout, or LOTO, safety procedure three times. That procedure required employees to disable and discharge a machine’s energy sources and lock the machine in the off position before performing maintenance or repair work. Andersen’s enforcement guidelines recommended termination after a second LOTO violation. Lissick had been suspended for two prior violations.

The third alleged violation occurred on January 3, 2018, when Lissick worked on a conveyor connected to a machine called Reciprocator 9. An employee reported that the machine was not properly locked out. Andersen investigated, concluded that Lissick had performed work without properly locking out the machine, suspended him for five days while termination was considered, and then terminated him on January 11.

Lissick asserted four remaining claims: retaliation under the Minnesota Whistleblower Act; sexual discrimination, retaliation, and hostile-work-environment claims under the Minnesota Human Rights Act; retaliation under the Family and Medical Leave Act; and age discrimination under Minnesota law. He had reported inappropriate sexual texts, an offensive nickname, and alleged falsification of eye-wash-station documents. He also had requested intermittent leave to assist his sick father.

Legal standard

The court applied the summary-judgment standard under Federal Rule of Civil Procedure 56. Summary judgment is proper when the evidence shows no genuine dispute about a fact that could affect the outcome and the moving party is entitled to judgment as a matter of law. The court viewed the evidence and reasonable inferences in Lissick’s favor.

Minnesota Whistleblower Act claim

The court held that Lissick did not establish a basic case of retaliation because he did not present enough evidence linking his reports to his termination. The court stated that timing alone—roughly three months after some reports—was rarely enough to establish causation. It also found insufficient evidence that the people who initiated and conducted the termination investigation knew about Lissick’s reports.

The court further held that, even if Lissick could establish the initial elements of retaliation, he did not show that Andersen’s stated reason was a pretext, meaning a false reason used to conceal unlawful retaliation. Andersen had safety policies, trained employees on them, investigated the alleged violation, and reasonably believed that Lissick had committed a third violation. The court concluded that Andersen was entitled to judgment as a matter of law on this claim.

Sexual discrimination, retaliation, and hostile-work-environment claims

The court held that Lissick did not establish a basic retaliation claim under the Minnesota Human Rights Act because the record did not sufficiently connect his sexual-harassment reports to his termination. The court noted that the relevant decision-makers were unaware of those reports and that the termination occurred nearly four months after them. It also rejected Lissick’s theory that a supervisor’s alleged motive could be attributed to Andersen through a “cat’s paw” theory, which concerns an employer using another person as a conduit for an unlawful decision.

The court also held that Lissick did not establish a hostile work environment. He reported sexually explicit texts that he did not personally receive and alleged that coworkers called him “Lipstick.” The court found that Andersen investigated and addressed the conduct, and that the alleged name-calling was not sufficiently severe or pervasive to meet the legal standard.

The court additionally concluded that the evidence did not show Andersen terminated Lissick because of sexual harassment or retaliation rather than because of its reasonable belief that he violated the LOTO procedure.

Family and Medical Leave Act claim

The court held that Lissick did not establish a basic case of retaliation for using leave under the Family and Medical Leave Act, or FMLA. He requested leave in April 2017 and was terminated about nine months later. The court found that this interval did not support a causal connection, particularly in light of the intervening LOTO violations.

The court further held that Lissick did not show that Andersen’s stated reason for termination was a pretext for FMLA retaliation. The court explained that requesting or using FMLA leave does not protect an employee from termination for reasons unrelated to the leave.

Age-discrimination claim

Lissick argued that Andersen violated a Minnesota statute by failing to post a sign stating that the mandatory retirement age was 70. The court found that Andersen had no mandatory retirement age and that it was unclear how the absence of the sign personally harmed Lissick. It therefore held that the age-discrimination claim failed as a matter of law.

Disposition

The court concluded that Lissick failed to establish the required initial showing for any of his claims and did not present enough evidence to create a genuine factual dispute about whether Andersen’s stated reason was a pretext for retaliation or discrimination. Judge Donovan W. Frank granted Andersen’s motion for summary judgment. The order also dismissed Lissick’s complaint with prejudice and directed that judgment be entered.