United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
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.
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.
following facts are undisputed unless otherwise noted.
McCann hired as a lab technician
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.
2013 performance review
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
” “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
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.
Change in management
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.
Performance concerns in 2014
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.
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.
2014 performance review
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
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.
Merger with Badger Mining
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.
Batch mixing duties
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
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.
summer of 2015, Grant and Breid began discussing the
possibility of bringing in another lab technician to take on
batch mixing responsibilities.
McCann develops hand and wrist pain
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.
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.
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.
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 ...