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McCann v. Badger Mining Corp.

United States District Court, W.D. Wisconsin

June 28, 2019

RAE McCANN, Plaintiff,



         This is an employment discrimination case brought under the Americans with Disabilities Act and the Age Discrimination in Employment Act. Plaintiff Rae McCann worked as a laboratory technician for Badger Mining Corporation until her position was eliminated as part of a company-wide reduction in force in October 2015. McCann alleges that Badger Mining included her in the reduction in force because of a disability related to hand and wrist pain and because she was 62 years old at the time of the layoff.

         Badger Mining seeks summary judgment on all of McCann's claims. Dkt. 32. The court concludes that McCann has failed to adduce evidence sufficient to permit a reasonable jury to infer that Badger Mining included McCann in the reduction in force because of her hand condition or her age. Rather, the record demonstrates that Badger Mining management had concerns about McCann's ability to self-direct and troubleshoot, adapt to changes in the workplace, and work collaboratively with her teammates. Because McCann has not adduced evidence from which a reasonable jury could infer that Badger Mining's reasons are a pretext for discrimination, the court will grant Badger Mining's motion for summary judgment.


         The following facts are undisputed unless otherwise noted.

         A. McCann hired as a lab technician

         Atlas Resin Proppants was a Wisconsin-based company that produced coated sand products for use in the natural gas industry and various other industrial applications. In 2010, Atlas hired plaintiff Rae McCann, then 56 years old, as a laboratory technician in the company's production department. In early 2013, McCann, then 59, applied for and was selected to fill a vacant laboratory technician position on Atlas's research and development (R&D) team. As an R&D laboratory technician, McCann was responsible for assisting in the company's product development and optimization efforts. McCann reported to Cathleen Hegge, the Vice President of R&D.

         B. 2013 performance review

         Hegge prepared McCann's 2013 performance evaluation. McCann's overall rating for the year was “right on track, ” which was the second highest of four possible ratings. The evaluation rated her across nine “competencies”: “safety/environmental, ” “quality, ” “team player, ” “ethics and respect, ” “communication, ” “problem solving & decision making, ” “continuous improvement, ” “skills and knowledge, ” and “initiative/drive.” She received the highest of four possible ratings for “safety/environmental, ” “quality, ” “team player, ” and “initiative/drive, ” and the second highest rating for the other five categories.

         Hegge included the following comments in the evaluation:

• [S]he often asks for further direction and specifications on the work she is doing.
• Rae can be very kind and uses humor to relate to others. She does fine until someone upsets her and then she doesn't do well with conflict. This cause[s] problems for her and others working with her.
• Rae communicates well most of the time. If a conflict occurs, she avoids the situation, but continues to be upset by it. (EX: Lab location recently) It takes her a long time to speak up.
• Rae understands the duties of a lab tech and does them well. Some new things are alarming to Rae, (changes in documentation and routine) but she does get there. She does seek to understand others jobs and challenges, but as stated before, if an initial interaction does not go well on solving a conflict between the two, Rae often gives up and resorts to talking it up to others.

Dkt. 42-3, at 2-3.

         C. Change in management

         In May 2014, Atlas terminated Hegge over performance concerns. Erica Grant, an operations leader, assumed oversight of the R&D department. At the time of this transition, the R&D department comprised five individuals: two laboratory technicians-McCann and Penny Higley; one research analyst-Kimberly Breid; a conductivity and calibration technician-Kory Kowahl; and an engineer-Weston Lewis. Breid became Grant's second in command and assumed responsibility for directly supervising McCann.

         D. Performance concerns in 2014

         Breid believed that McCann had “issues with teamwork, temperament, [and] getting along with people”-specifically Kowahl and Higley. Dkt. 26 (Breid Dep. 17:18-19). Other members of Atlas's leadership team shared similar concerns about McCann's perceived negativity. For example, on June 3, 2014, Grant emailed Atlas's leadership team to say that it was becoming apparent that there may not be a need for a full-time R&D laboratory technician in McCann's role, and proposing the creation of a “floating position” that would fill in for missing laboratory technicians and do R&D testing as needed. Dkt. 37-1, at 2. Joe Knutson, a “plant coach” in the production department where McCann had formerly worked, responded:

Does anyone have concerns about Rae's negativity possibly spreading if she were to be in a floating position and seeing more people? I know this is being coached but the potential may increase. I don't want this email to come off negatively. Rae does [] well with the technical part of her job. We have a unique opportunity to utilize her talents in the best way possible for Atlas. I just had a few concerns to get off my chest.

Id. at 1.

         Similarly, on June 15, 2014, Julie Casperson, Atlas's human resource manager, emailed Grant and Knutson about negative feedback she had received about McCann from Tammy Getter, a lab coach and McCann's former supervisor in the production department. See Dkt. 37-2, at 1 (“Tammy shared that she does not want Rae on her team as she is nothing but gossip and negative attitude.”). A few days later, Grant received additional negative feedback about McCann from an outside HR consultant, Amy Biersteker. In an email update about a team-building exercise she had conducted with the R&D team, Biersteker wrote that there had been “a tense moment when Rae and Penny [Higley] really went at each other” and that Biersteker had given them “both feedback privately on the inappropriateness of their interactions and the need to address issues not attack the person.” Dkt. 37-3, at 1.

         E. 2014 performance review

         In March of 2015, Breid and Grant provided McCann a written performance appraisal of her work during the 2014 calendar year. McCann received the highest possible ratings in “safety/environmental” and “quality, ” and the second highest rating in “team player, ” “problem solving & decision making, ” “continuous improvement, ” “skills and knowledge, ” and “initiative/drive.” But she received the second lowest rating in “ethics and respect” and “communication, ” indicating that she only “sometimes” demonstrated mastery in those areas.

         Breid included the following comments in the evaluation:

• Can be abrasive to team members she feels have wronged her without discussing issue with team member. Has let bad rapport with different team members affect rapport with other teams. I.E. When Penny and Rae were having problems pulled other R & D Team members into problem plus lab techs.
• Rae can come off a bit blunt at times. While some people find it refreshing, others can be a bit put off. Her heart is in the right place, but Rae does need to understand that some people take a gentler approach when pointing out a fault or mistake. When there are disagreements or arguments, they ought to be resolved with the other party and/or the appropriate coach(es), with effort put in to ensuring no one else becomes aware/part of the problem. Along the same lines of bringing up concerns to the right people Rae also needs to stay out of other people[']s issues. If the conflict does not involve her she needs to show respect and stay out of the problem not try to bring more people into the conflict. That being said folks have expressed that Rae has gotten better throughout the year and has been less confrontational and less of a pot stirrer.
• Keeps excellent records and follow instructions exactly. Whenever a particular test produces an unexpected result, she contacts the sample owner promptly for instruction and makes any required changes. That said, Rae seems to struggle with [] listening and understanding when other people communicate with her. I have been a witness to a conversation between Kory [Kowahl] and Rae where Kory told her exactly what he was going to do, and Rae advised that wouldn't work and a half hour later they decided on the action that Kory had originally said. If a communication is not how Rae was expecting it she has trouble understanding. I feel that if everything isn't written down in the exact right order Rae will have questions and not proceed until they are answered.

Dkt. 42-4, at 2.

         F. Merger with Badger Mining

         In late 2014, oil prices fell dramatically, triggering a drop in the demand and price for Atlas's sand-coated products. As a result, Atlas merged with its sister company, defendant Badger Mining Corporation, in April 2015. McCann retained the same position at Badger Mining.

         G. Batch mixing duties

         Following the merger, Breid and Lewis, the R&D engineer, were shouldering multiple responsibilities, including “batch mixing, ” the time-consuming process of mixing new lab-batches of resin-coated products. To provide some relief to Breid and Lewis, Grant decided that someone else should be trained to handle batch mixing. So in July 2015, Breid trained McCann on the batch-mixing process, demonstrating the mixing steps and providing McCann an opportunity to mix under her supervision and ask questions as they came up. After that training session, McCann was asked to perform the task on her own.

         The parties dispute how McCann handled the batch mixing. Badger Mining contends that McCann could not competently perform the batch-mixing responsibilities. Breid testified that McCann was tasked with mixing two or three recipes during an overnight shift, but that she was only able to complete one of them because she had numerous questions regarding the timing, amounts, and chemicals used. See Dkt. 26 (Breid Dep. 14:7-15:12). McCann says that she was only ever asked to mix one batch, that she found it to be easy, and that she did not ask Breid any questions during the process. Dkt. 68, ¶¶ 9, 10. She later asked Breid whether she wanted her to mix additional batches, and Breid told her that she should focus on running ISO test crushes, which was another priority project in R&D.

         In the summer of 2015, Grant and Breid began discussing the possibility of bringing in another lab technician to take on batch mixing responsibilities.

         H. McCann develops hand and wrist pain

         Throughout 2015, McCann experienced issues with her hands and wrists. Specifically, her fingers would cramp up, and she would experience numbness in her fingertips upon waking and achiness by the time she got off work. Dkt. 89, ¶ 36. As a result of her pain, McCann was no longer able to crochet, knit, and paint. She also had to start taking breaks when writing, driving, and mowing her lawn to ease her symptoms. For example, when McCann would drive for more than 35-40 minutes at a time her hands would hurt and become numb, and she would have to stop driving for 15-20 minutes to rest her hands. Id. ¶ 38. But the pain did not interfere with McCann's ability to do her job at Badger Mining. Dkt. 92, ¶ 72.

         After her symptoms began worsening in September 2015, McCann sought medical treatment. Her providers noted that her x-rays showed signs of arthritis and degenerative changes, and they suggested that McCann may have carpal tunnel. They prescribed her medications and provided cortisone injections, but did not provide any work restrictions for her.

         On September 21, McCann emailed Breid, Grant, and Casperson, stating that she had “Carpal Tunnel in both hands, Arthritis in most all the joints in both hands, and Deterioration of the cartilage, in both thumbs and one finger.” Dkt. 42-11, at 1. She informed them that she would likely need time off for at least two surgeries and multiple doctors' appointments. The next day, Casperson replied: “Thanks for the updates. Sorry to hear you have been having so much pain with your hands. I am copying Greta on this response as you should probably get some paperwork started for FMLA and short term disability. Greta will follow up with you on what is needed.” Dkt. 69-5, at 1. Casperson copied Greta Gearing, the Badger Mining employee who handled FMLA and benefits-related issues. But McCann didn't receive any FMLA or short- term disability paperwork from Gearing or anyone else. On September 25, Breid responded to McCann's September 21 email, assuring her that they would “make the schedule work so you can take the time off you need.” Dkt. 42-12, at 1.

         In the days following McCann's disclosure of her hand condition, Casperson made efforts to determine whether McCann's condition was related to her job duties. On September 22, she emailed Breid to ask whether McCann had “at any time said [that] this is work related?” Dkt. 69-11, at 1. Breid replied: “She has stated that it seems to be worse after doing the crush testing. This test requires hand strength. When she was first talking about her hands she thought it could be from doing that test.” Id. Casperson then ...

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