Pulczinski v. Trinity Structural Towers, Inc.

Decision Date31 August 2012
Docket NumberNo. 11–2585.,11–2585.
Citation26 A.D. Cases 1293,45 NDLR P 219,691 F.3d 996,19 Wage & Hour Cas.2d (BNA) 1017
PartiesJoe PULCZINSKI, Plaintiff–Appellant, v. TRINITY STRUCTURAL TOWERS, INC., Defendant–Appellee.
CourtU.S. Court of Appeals — Eighth Circuit


Paige Fiedler, argued, Emily E. McCarty, on the brief, Urbandale, IA, for Appellant.

David Lawrence Schenberg, argued, St. Louis, MO, Trina LeRiche, Sara B. Anthony, on the brief, Kansas City, MO, for Appellee.

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

COLLOTON, Circuit Judge.

Joe Pulczinski sued his employer, Trinity Structural Towers, Inc. (Trinity), alleging that Trinity discriminated against him on the basis of his son's disabilities, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. He also alleged a violation of his rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. The district court 1 granted summary judgment in favor of Trinity, and we affirm.


In this review of a summary judgment, we describe the facts in the light most favorable to Pulczinski. Pulczinski worked as a lead painter for Trinity at its facility in Newton, Iowa, from November 2008 until his termination on March 5, 2010. In this capacity, he provided guidance and work direction in the paint department.

Pulczinski's son, Anthony, suffers from cerebral palsy and severe asthma. On November 11, 2009, Pulczinski spoke to Amy Roussin, Human Resources Manager at the Newton plant, about taking occasional FMLA leave to care for Anthony. Trinity sent Pulczinski a “Notice of Eligibility and Rights & Responsibilities” that required him to justify his request for leave by November 26. Pulczinski did not submit the paperwork until December 17.

On November 14, Pulczinski missed work to care for Anthony. Trinity classified this as a “personal unexcused” absence. On December 4 and 5, Pulczinski again missed work to care for his son, and he accrued “attendance points” for these absences. Because the number of attendance points assessed against Pulczinski justified termination under company policy, Trinity suspended Pulczinski with pay in order to investigate his absence. On December 22, however, the company retroactively designated the early-December absences as permissible leave under the FMLA, reduced Pulczinski's attendance points, and allowed him to return to work having determined that he was absent to take care of his son on those dates because he was sick or incapacitated. Pulczinski later requested and received FMLA leave for February 1 and 2, 2010.

During the course of Pulczinski's employment, Trinity sometimes asked its employees to work voluntary overtime. When the company's workload required weekend work, one of Trinity's supervisory employees, David Thornton, sought volunteers. Because Pulczinski was the only lead painter on his shift, he was required to work overtime whenever someone in his department volunteered.

On Friday, February 19, Thornton informed Pulczinski that several of his coworkers had volunteered for overtime work on Saturday, February 20, and that he would be required to work as well. Both Thornton and Galen Bientema, a coworker of Pulczinski, testified that they spoke later that day. Bientema told Thornton that he believed Pulczinski was planning a trip to a casino on Saturday, and that he would not appear for work. Bientema also told Thornton that Pulczinski had invited Bientema to go to the casino.

On February 20, Pulczinski's son experienced an adverse reaction to his asthma medication. Pulczinski's wife was unavailable to care for Anthony, and Pulczinski believed that he might have to take his son to the hospital. He informed Trinity, by calling both the company's “call-in” line and Thornton, that he would not come to work that evening. Thornton testified that because of what Bientema had told him about Pulczinski's planned visit to a casino, he was not surprised when he received Pulczinski's call.

Trinity conducted a formal investigation into Pulczinski's absence. The investigation was led by Larry Freeman, manager of the Newton plant, and Roussin. On February 26, Freeman informed Pulczinski that he was suspended pending the outcome of the investigation. During the investigation, Trinity obtained a written statement from Bientema. Bientema averred that Pulczinski said on February 18, he was not coming to work on February 20 and encouraged Bientema not to come to work either. The company also interviewed Brian Fisher, another of Pulczinski's coworkers. Fisher told Trinity that Pulczinski became upset when employees on his shift volunteered to work overtime. Fisher informed investigators that no one from his department wanted to volunteer for weekend overtime, because they would “hear it from” Pulczinski.

Following the investigation, Roussin and Freeman prepared a report that summarized their findings and recommended that Trinity terminate Pulczinski for attempting to cause a slowdown in work by discouraging others from working overtime. The report was submitted to Quynh Dien, Trinity's Divisional Human Resources Manager. Kerry Cole, Trinity's President, had the ultimate authority to terminate employees for major infractions, which included an attempt to slow production. Cole averred that the normal course of business at Trinity was for Dien to communicate recommended adverse employment actions to Cole, and for Cole to approve them if he concurred. Cole did not specifically remember terminating Pulczinski, but testified that he very well could have been involved.” On March 5, Roussin called Pulczinski to inform him that he was terminated.

Pulczinski claims that Trinity's decision to terminate him was motivated by his relationship with his disabled son, in violation of the ADA, 42 U.S.C. § 12112(b)(4). He also claims that Trinity violated his rights under the FMLA, 29 U.S.C. § 2601 et seq., by denying him benefits to which he was entitled and discriminating against him for taking FMLA leave. We review the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to Pulczinski, the nonmoving party. See McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 860 (8th Cir.2009). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).


We first consider Pulczinski's claim under the ADA. Pulczinski claims that Trinity terminated him because of his son's disability. The ADA makes it unlawful to deny equal jobs or benefits to a qualified individual “because of the known disability of an individual with whom the qualified individual is known to have a relationship.” 42 U.S.C. § 12112(b)(4). Prior to Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), this court seemed to construe “because of” in the ADA to mean that disability must be a “motivating factor” in the employer's decision. See Chalfant v. Titan Distribution, Inc., 475 F.3d 982, 991 (8th Cir.2007). The parties have not addressed whether such a “motivating factor” standard can survive the textual analysis of Gross, which interpreted “because of” to mean “but for” causation in the Age Discrimination in Employment Act. 557 U.S. at 176, 129 S.Ct. 2343. We have our doubts about the vitality of the pre-Gross precedent, see Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 317–21 (6th Cir.2012) (en banc), but as the issue has not been joined by the parties, it is sufficient to conclude that the district court's judgment should be affirmed even under the more generous “motivating factor” standard. We can reserve a decision on the meaning of “because of” in the ADA for a case in which the issue is briefed.

The district court analyzed Pulczinski's claim under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Norman v. Union Pac. R.R. Co., 606 F.3d 455, 459 (8th Cir.2010). After determining that Trinity had proffered a legitimate, nondiscriminatory reason for terminating Pulczinski—that Trinity believed he was attempting to incite a work slowdown—the district court concluded that Pulczinski failed to present sufficient evidence that this reason was a pretext for unlawful discrimination. Pulczinski argued that he was not attempting to cause a work slowdown, but the district court ruled that a plaintiff cannot show that an employer's reason is pretextual merely by showing that the employer acted based on an erroneous belief. Rather, the court explained, an employee must show that the employer did not honestly believe the legitimate reason that it proffered in support of the adverse action. The court also found Pulczinski's other arguments unconvincing.


Our precedent establishes that the “critical inquiry in discrimination cases like this one is not whether the employee actually engaged in the conduct for which he was terminated, but whether the employer in good faith believed that the employee was guilty of the conduct justifying discharge.” McCullough, 559 F.3d at 861–62;see also Twymon v. Wells Fargo & Co., 462 F.3d 925, 935–36 (8th Cir.2006); Scroggins v. Univ. of Minn., 221 F.3d 1042, 1045 (8th Cir.2000). Pulczinski argues that this so-called “honest belief rule” should be abandoned. He contends that summary judgment is per se inappropriate when an employee presents evidence that an employer's proffered reason for termination is false. Citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), Pulczinski asserts that it is “black letter law” that proof that an employer's proffered reason is false is sufficient to support a finding of discrimination.

The “honest belief rule” is sound when...

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