McLain v. Andersen Corp.

• Decision Date: 03 June 2009
• Docket Number: No. 08-2473.,08-2473.
• Parties: Kerry McLAIN, Appellant, v. ANDERSEN CORPORATION, a Minnesota Corporation; Andersen Distribution, Inc., a Delaware Corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

567 F.3d 956

Kerry McLAIN, Appellant, v. ANDERSEN CORPORATION, a Minnesota Corporation; Andersen Distribution, Inc., a Delaware Corporation, Appellees.

No. 08-2473.

United States Court of Appeals, Eighth Circuit.

Submitted: March 12, 2009.

Filed: June 3, 2009.

Charles L. Friedman, Minneapolis, MN, for appellant.

David M. Wilk, St. Paul, MN, for appellee.

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.

MELLOY, Circuit Judge.

Kerry McLain appeals the district court's¹ adverse grant of summary judgment dismissing his state-law claims against Andersen Corporation and Andersen Distribution, Inc. (collectively, "Andersen"). McLain argues that federal subject-matter jurisdiction is absent in this removal action and, alternatively, that summary judgment was inappropriate. We affirm.

I.

A. Factual Background

McLain is a Minnesota citizen. Andersen Corporation is a Minnesota corporation. Andersen Distribution, Inc., is a Delaware corporation.

In 1999, McLain began working for Andersen as a truck driver. Truck drivers at Andersen deliver Andersen products to retail stores, lumberyards, and job sites, which are typically new construction sites for commercial and residential properties. They also make "run-off" deliveries, which are unscheduled, smaller deliveries to retail stores or lumberyards. The truck drivers are responsible for unloading their delivered products.

McLain held a "Class B" driver's license while working at Andersen. The license limited him to driving trucks twenty-six feet long or shorter. From 1999 until approximately April 2006, McLain primarily delivered products to Home Depot stores, but he also occasionally delivered to lumberyards and job sites.

In early 2006, Andersen decided to use its "Class A" trucks, i.e., trucks over twenty-six feet long, to make its regular deliveries to Home Depot stores. This change was part of a nationwide initiative by Andersen, in conjunction with Home Depot, to reduce delivery costs and meet Home Depot's larger delivery demands. Pursuant to this change, McLain's supervisor, John Mathias, informed McLain that his role would be changing and that his primary job as a Class B truck driver would be delivering to job sites and making occasional run-off deliveries when needed. Mathias asked McLain if he would be interested in driving one of the Class A trucks during a night shift instead, which would have required McLain to obtain a Class A license. McLain declined and voiced disagreement with the policy change. He alleges that Mathias swore at him and told him that he could quit if he did not like the change.

Rather than quit, McLain began delivering primarily to job sites. Job-site deliveries typically require truck drivers to unload products on uneven terrain or inclined surfaces. McLain had suffered a knee injury in 1985 that resulted in a three-percent permanent disability in his right knee. No one at Andersen was aware of this injury, and it had not previously affected McLain's ability to work at Andersen. McLain began to suffer pain in his right knee, however, after he began delivering primarily to job sites.

On May 4, 2006, Dr. William D. Fox examined McLain's knee. Dr. Fox restricted McLain from working, lifting, or squatting until an orthopedic doctor examined him. McLain faxed Dr. Fox's report to Brenda Sandwick, a human-resources director at Andersen. He also hand-delivered a copy of the report to Tom Rustad, a plant supervisor. Andersen temporarily stopped McLain from working because he was unable perform his job safely. On May 10, 2006, Dr. Philip Haley, an orthopedic doctor, examined McLain. Dr. Haley concluded that McLain was temporarily disabled from any occupation and restricted McLain from work until May 22, 2006. Dr. Haley stated, however, that McLain would be "able to work without restrictions" after that date. Andersen, therefore, kept McLain on paid leave until May 22 for safety reasons.

When McLain returned to work on May 22, he orally requested that Mathias not assign him job-site deliveries. Mathias, however, continued assigning McLain job-site deliveries, which McLain performed. McLain continued to have knee pain.

On May 25, 2006, Dr. Haley examined McLain again. Dr. Haley restricted McLain from repetitive walking and lifting and from carrying anything over ten-to-twenty pounds for four weeks. McLain faxed Dr. Haley's report to Sandwick, and Andersen placed McLain on leave. Dr. Haley subsequently sent a letter to Andersen stating that McLain would be unable to work until July 10, 2006. Dr. Haley did not indicate that restrictions would be necessary upon McLain's return.

McLain returned to work on July 10 and again orally requested that Mathias not assign him job-site deliveries. Mathias, however, continued assigning McLain job-site deliveries, which McLain again performed. McLain continued to have knee pain.

On August 3, 2006, McLain met with Steve French, the plant manager, and stated his belief that assigning him job-site deliveries was a mistake. McLain requested that Andersen not assign him job-site deliveries, and he further criticized how French and others were managing the facility. He told French that Mathias had used profanity toward him and that certain employees were violating company policies by punching a time clock for other employees.

On August 4, 2006, McLain met with French again. As support for his previous-day's claim that "job-site deliveries aggravated [his] knee injury," McLain gave French a 1987 medical report stating that an unnamed patient had a three-percent "impairment to the body as a whole." The report, however, contained no information identifying a patient or describing a specific injury, and McLain had not previously revealed this information while working at Andersen. French, therefore, called the report "unacceptable." French also told McLain that he had addressed the time-clock issue, but French did not specify as to what he had done. After this exchange, McLain continued performing job-site deliveries.

On August 10, 2006, Dr. Haley examined McLain's knee again. Dr. Haley submitted an internally inconsistent report in which he stated that McLain was permanently disabled from any occupation but that McLain could work with the permanent restriction that he not perform job-site deliveries. After receiving Dr. Haley's August 10 report, French spoke with Deborah Hauble and James Olson, both of whom worked in Andersen's human-resources department. Based on Dr. Haley's report, they were unsure as to whether McLain could continue to perform his job safely.

Andersen assigned McLain to perform run-off deliveries on August 11, 14, and 15. After McLain returned from making a run-off delivery on August 15, French, Sandwick, and Rustad met with McLain to discuss his injury. French asked to see the 1987 doctor's report again. McLain retrieved the report, and French told McLain not to come to work until Andersen clarified his work restrictions.

On August 15, Hauble sent an "urgent" request to Dr. Haley seeking clarification of McLain's work restrictions. Dr. Haley submitted a "Report of Work Ability" that stated that McLain could drive but could not deliver to new-home sites due to ramps and uneven surfaces. The report stated that, in an eight-hour day, McLain could rarely squat or climb (1-5%), could only occasionally stand or walk (6-33%), and could continuously drive (>66%). Hauble sent Dr. Haley follow-up questions to clarify his statement regarding McLain's inability to deliver to new-home sites. Dr. Haley replied that McLain could not deliver to new-home sites, as opposed to Home Depot stores or lumberyards, because McLain could not tolerate ramp angles. He also stated that McLain could not use a truck ramp during a delivery unless it was "horizontal or nearly so" and that McLain's restrictions from working on uneven surfaces included "uneven loading docks, uneven walkways, uneven stairs, etc."

After receiving Dr. Haley's reports, Andersen concluded that McLain's work restrictions precluded him from performing the essential functions of his job. Andersen placed McLain on leave, and McLain began receiving short-term disability pay from Andersen. Hauble sent McLain an application for long-term disability benefits, stated that she would explore alternative work opportunities for McLain on an ongoing basis, and instructed McLain to contact Mathias regarding other potential deliveries. Mathias, however, told McLain that he had no work available for him.

McLain sent multiple letters to Andersen in August 2006 after Andersen concluded that he could not perform the essential functions of his job. He wrote a letter to Hauble stating that his injury did not preclude him from performing the jobs he had performed before Andersen changed its delivery policies, and he requested that Andersen employ him by assigning him the deliveries he had performed in the past. He also wrote a letter to Olson alleging that Andersen had discriminated against him "on the basis of age, gender, disability, and the failure . . . to accommodate his request to work as a truck driver without being assigned job-site deliveries." He stated that Mathias, French, and others at Andersen had jeopardized his health by assigning him job-site deliveries. He also alleged that Andersen had discriminated against him for requesting an accommodation and complaining about company policy. Hauble responded in a letter that McLain was unable to perform the essential functions of his job and that Andersen did not currently have openings that met Dr. Haley's restrictions. She advised McLain that she would contact him when she found possible job openings.

On September 5, 2006, Dr. Fox examined McLain again. Dr. Fox concluded that "variable grade/variable surface and job sites" caused McLain pain but that McLain had "tolerated more consistent sites[,] i.e.[,] Home Depot, Dealers, Dock Sites." On September 7, 2006, Dr. Haley also reexamined...