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McConnell v. Anixter, Inc.

United States District Court, D. Nebraska

September 17, 2018

ANIXTER, INC., Defendant.



         The plaintiff, David McConnell, is a veteran of the United States Armed Forces. Filing 1 at 1. McConnell is suing Anixter, Inc., his former employer, for failing to accommodate his service-related disabilities, retaliating against him after he requested such accommodations, and using his service-related disabilities as a motivating factor in its decision to terminate his employment in violation of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301, et seq. (USERRA).

         The Court has already dismissed McConnell's failure to accommodate claims--styled as Counts 1 and 2 of the complaint. See filing 19. Anixter now moves for summary judgment on McConnell's remaining claims, styled as Counts 3, 4, and 5, which generally allege that McConnell's service-related disabilities were a motivating factor in Anixter's decision to terminate McConnell, and that Anixter also retaliated against McConnell when he sought an accommodation of those disabilities. Filing 1 at 2. For the following reasons, the Court will grant Anixter's motion for summary judgment.


         McConnell was on active duty in the United States Armed Forces from March 14, 1999 until April 30, 2008. Filing 39 at 2; see also filing 44 at 2. Nearly four years after McConnell left the military, he applied to the "Service Center Manager" position at Anixter's Grand Island, Nebraska work site. Filing 39 at 3; see filing 44 at 2. During the initial interview process, McConnell disclosed that he suffered a back injury while deployed oversees and, as a result, is unable to lift more than forty pounds. Filing 39 at 4; see filing 44 at 2. He also said that he suffered from post-traumatic stress disorder ("PTSD") requiring him, at times, to take to take five- to ten- minute breaks to manage stress. Filing 39 at 4; see filing 44 at 2. Anixter informed McConnell that neither his lifting restriction nor his need for breaks "would [] be a problem." Filing 40 at 11. So, McConnell began working as Anixter's Service Center Manager on November 26, 2012. Filing 39 at 3; see filing 44 at 2.

         In his position as Service Center Manager, McConnell primarily worked to ensure that daily orders were processed in a timely fashion. Filing 40 at 10. He also had significant responsibility in cross-training warehouse employees (i.e., making sure that every employee was able to perform the tasks of any position at the warehouse), and managing the scheduling and overtime hours of employees reporting directly to him. Filing 39 at 5; see filing 44 at 2.

         McConnell, however, had difficulties communicating with some of his subordinates--specifically, Stephanie Wissing and Jackie Anderson. On one occasion in May 2013, McConnell told Wissing to "get the fuck out of [his] facility" and fired her.[1] See filing 40 at 18. And in August 2013, McConnell "raised [his] voice" during a disagreement with Anderson such that those outside his office could hear the conversation. See filing 40 at 45.

         Following the second incident, McConnell was given a written warning demanding that he "clean up [his] language" and "control [his] temper." Filing 40 at 45. After receiving the written warning, McConnell appeared to conduct himself in a more appropriate manner. But on December 8, 2014 he had another "disagreement" with his HR supervisor, Deric Singleton, over staffing issues. Filing 40 at 34. During that argument, McConnell asked for a break for his PTSD. Filing 40 at 26. Singleton told McConnell to "just go ahead and go home, and [he'd] let [McConnell] know when [he] can come back."[2] Filing 40 at 26. McConnell was never informed he could return to Anixter, and on December 12, his employment was terminated. Filing 40 at 29; 39.

         McConnell claims he was terminated for seeking reasonable accommodation of his service-related disabilities (i.e., his PTSD, lifting restrictions, and request for a service animal). As such, McConnell filed an employment discrimination charge with the Nebraska Equal Opportunity Commission and the federal Equal Employment Opportunity Commission, which dismissed his charge. Filing 40 at 51. McConnell did not sue Anixter in the ninety-day time limit required by the EEOC, so instead, McConnell filed this suit asserting claims under USERRA, 38 U.S.C. § 4301 et seq.


         Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the initial responsibility of informing the Court of the basis for the motion, and must identify those portions of the record which the movant believes demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id.

         On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Id. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id. But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Id. In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying facts that might affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751 (8th Cir. 2011). The mere existence of a scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.


         Generally speaking, McConnell alleges that Anixter violated two provisions of USERRA, §§ 4311(b) and (c), when it terminated McConnell's employment. The first provision, § 4311(b), prohibits an employer from discriminating in employment or taking "any adverse employment action" against any person because the person:

(1) has taken an action to enforce a protection afforded any person under this chapter, (2) has testified or otherwise made a statement in or in connection with any proceeding under this chapter, (3) has assisted or otherwise participated in an investigation under this ...

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