Lisdahl v. Mayo Found.

• Decision Date: 28 February 2011
• Docket Number: 10–2038,10–2040.,Nos. 10–1477,s. 10–1477
• Parties: Chad Leroy LISDAHL, Appellant,v.MAYO FOUNDATION, et al., Appellees.Mike Amendola, Appellant,v.Mayo Foundation, et al., Appellees.Roger Swor, Appellant,v.Mayo Foundation, et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

633 F.3d 712

190 L.R.R.M. (BNA) 2325

160 Lab.Cas. P 10,352

Chad Leroy LISDAHL, Appellant,

v.MAYO FOUNDATION, et al., Appellees.Mike Amendola, Appellant,

v.Mayo Foundation, et al., Appellees.Roger Swor, Appellant,

v.Mayo Foundation, et al., Appellees.

Nos. 10–1477

10–2038

10–2040.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 17, 2010.Filed: Feb. 28, 2011.

Thomas G. Jarrard, argued, Spokane, WA, for appellants.Gregory James Griffiths, argued, Rochester, MN, for appellees.Before SMITH, BEAM, and BENTON, Circuit Judges.BENTON, Circuit Judge.

Chad Leroy Lisdahl, a veteran, sued Gold Cross Ambulance, a part of the Mayo Foundation for Medical Education and Research, and David B. Johnson, his supervisor at Gold Cross, alleging workplace discrimination and constructive discharge on the basis of veteran status, in violation of the Uniformed Services Employment and Reemployment Act of 1994, 38 U.S.C. §§ 4301–4335 (“USERRA”). Michael T. Amendola and Roger A. Swor, Gold Cross paramedics, also sued under USERRA alleging retaliation by Gold Cross and Johnson for providing statements in support of Lisdahl's claims. After a bench trial on Lisdahl's claims, the district court ¹ entered judgment for the defendants. See Lisdahl v. Mayo Found. for Medical Educ. and Research, 698 F.Supp.2d 1081 (D.Minn.2010). The district court ² later granted defendants' motion for summary judgment in the retaliation cases of Amendola and Swor. See Amendola v. Mayo Found. for Medical Educ. and Research, Nos. 08–6231, 08–6232, 2010 WL 1286087 (D.Minn. Mar.29, 2010). Having jurisdiction under 28 U.S.C. § 1291 of these consolidated appeals, this court affirms.

I.

Plaintiffs were paramedics employed by Gold Cross, which provides ambulance services in the Duluth, Minnesota, and Superior, Wisconsin, area. Chad Lisdahl, a Gold Cross employee since 1999, joined the Marines in 2002 and served three tours in Iraq before being discharged in 2006. While in the military, Lisdahl had surgery on both knees. Before he entered active duty, Gold Cross advised him to maintain his Minnesota paramedic's license, because maintaining certification with the National Registry of Emergency Medical Technicians would be extremely difficult while on active duty (Gold Cross requires every paramedic to be nationally certified). If Lisdahl maintained his Minnesota licensure, upon returning he would be qualified to take the examinations for recertification by the National Registry. While in Iraq, Lisdahl allowed his National Registry certification to lapse. After he returned, Gold Cross allowed him a year to recertify, but Lisdahl's employment with Gold Cross terminated before the one-year period ended.

Before coming home to Duluth–Superior, Lisdahl arranged with Gold Cross to resume work in September 2006. Rejoining Gold Cross required the same orientation and screening given to any paramedic returning from an extended leave of absence, or transferring to Gold Cross from another employer. Although one orientation was cancelled due to lack of participants, Lisdahl returned to Gold Cross at the same position (assistant captain), seniority, and rate of pay as before he joined the Marines (including intervening pay increases). Upon his return, like all new hires or persons restored from extended leave, Lisdahl was classified as “nonstatus,” which meant he could do all regular paramedic work but had to be in the same truck as a “status” paramedic. Within a few months, and due to delays on Lisdahl's part, he was returned to “status” classification.

Back at work, Lisdahl was supervised by David Johnson, who indisputably has a direct, no-nonsense management style, strictly enforcing Gold Cross's procedures. Before Lisdahl's return, Johnson incorrectly stated at least once to Lisdahl's coworkers that Gold Cross did not have to rehire him, because he voluntarily joined the military. While at Gold Cross, Johnson allegedly made some jokes at the expense of the military: for example, that some Army Reservists did not do anything except play cards, and that National Guard service had to be a joke if a certain co-worker joined, in view of that worker's weight and bearing. Once, Johnson engaged in horseplay with a larger, stronger colleague that left the colleague with a welt and bruise from being tackled to the ground (while Johnson asked to be written up for the incident, his superiors imposed no discipline). On another occasion, Johnson threatened to rip a co-worker's face off if he made another comment that Johnson's wife was having an extramarital affair.

Johnson did not make any military-related comments to Lisdahl. They had one verbal confrontation, after Lisdahl objected to Johnson's criticism of Roger Swor for repeatedly exceeding the minutes allowed for Gold Cross cell phones. After both men raised their voices, Johnson asked Lisdahl whether that was the approach Lisdahl intended to take in their future relationship. Lisdahl also testified that Johnson treated him dismissively at work.

Based on these scattered comments and incidents, Lisdahl claims he feared Johnson would attack him or find some pretext to fire him. The district court made fact-findings about the Johnson–Lisdahl relationship: “We expressly find that the concentrated effort by Lisdahl, and his attorney, to demonize Johnson was as fictionalized as it was scurrilous,” and that “there is absolutely no credible basis to ascribe any legitimacy to that claimed fear.” The district court found the comments attributable to Johnson were “either severely dated, or they were oblique with reference to anything undesirable about military service.” Lisdahl did not report Johnson's purportedly draconian treatment to any manager at Gold Cross, nor did Lisdahl's coworkers complain about any abuse of Lisdahl by Johnson.

On May 21, 2007, Lisdahl requested time off pursuant to the Family and Medical Leave Act for treatment of his self-reported “serious health condition” of Post–Traumatic Stress Disorder (PTSD). Gold Cross granted the request. During his time off, Lisdahl filed a claim (with sworn statements) for Long Term Disability Benefits with Gold Cross for PTSD. This claim was denied, as his plan did not cover disabilities caused by acts of war. Lisdahl appealed and was evaluated by two doctors, who found little evidence that his military experience adversely impacted his work life. Lisdahl then failed to exhaust his appeals with Gold Cross.

During his medical leave, Lisdahl also applied for disability and unemployability benefits from the United States Department of Veterans Affairs (“VA”), claiming in sworn statements that he was disabled and permanently unemployable due to the combination of his bad knees, chronic depression, and PTSD (resulting from exposure to IED explosions and the death of comrades). Lisdahl's statements described how after returning to Gold Cross, he had difficulty with concentration and memory, greatly impairing his ability to do his job. However, the district court found no evidence to support this claim—none of Lisdahl's co-workers noticed any concentration or memory issues, and his last performance review before medical leave is glowing in its praise of Lisdahl's work.

With respect to his departure from Gold Cross, each of Lisdahl's sworn statements identified his claimed service-related injuries as his reason for leaving; none of the statements mention any discriminatory conduct by Gold Cross or Johnson. Lisdahl attested: “My service connected PTSD along with my bad knees have prevented me from working and forced me to resign from my Paramedic job.” In a filing with the VA, Lisdahl mentioned that “my physicians have stated it would be detrimental for me to return” to Gold Cross, an apparent reference to a VA physician's assistant who Lisdahl claims told him to report that he was diagnosed with PTSD in order to obtain VA benefits. The district court expressly found Lisdahl's testimony unbelievable to the extent he claims he was innocently duped by VA staffers into submitting false reports of disability and unemployability to the VA. While the VA did grant some disability benefits, it denied Lisdahl's claim for increased compensation based upon unemployability.

Lisdahl never returned to Gold Cross from medical leave, formally resigning in June 2008. He brought this suit alleging various adverse employment actions and a constructive discharge due to veteran status. In filing his administrative complaint, Lisdahl sought supportive statements from former co-workers Mike Amendola and Roger Swor about the alleged discriminatory mistreatment by Gold Cross and Johnson. Amendola and Swor later sued Gold Cross and Johnson, claiming retaliation for assisting Lisdahl.

After a bench trial to a magistrate judge, the court found for defendants on Lisdahl's USERRA claims, dismissing his complaint with prejudice. A month later, a district judge granted defendants' motion for summary judgment in the retaliation cases of Amendola and Swor. These appeals followed.

II.

Lisdahl does not appeal the district court's finding that he was promptly restored to employment as required by USERRA. He attacks the district court's ruling that a prima facie constructive discharge claim under USERRA requires evidence that Gold Cross or Johnson intended to force him out. After a bench trial, this court reviews the district court's findings of fact for clear error, and its legal conclusions de novo. Lenz v. Wade, 490 F.3d 991, 994 (8th Cir.2007); see also Fed.R.Civ.P. 52(a). A finding is clearly erroneous when “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).

USERRA protects returning veterans...