Tami Conn, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-2112

Tami Conn,
Appellant,

vs.

Bic Graphic USA Manufacturing Co., Inc.,
Respondent.

Filed September 23, 2019
Affirmed
Ross, Judge

Brown County District Court
File No. 08-CV-17-766

Stephen C. Fiebiger, Stephen C. Fiebiger Law Office, Chartered, Burnsville, Minnesota
(for appellant)

David G. Waytz, Fredrikson & Byron, P.A., Minneapolis, Minnesota; and

Jeffrey D. Stemerick (pro hac vice), Taft Stettinius & Hollister LLP, Indianapolis, Indiana
(for respondent)

Considered and decided by Slieter, Presiding Judge; Ross, Judge; and Kalitowski,
Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Bic Graphic USA Manufacturing Co., Inc., terminated Tami Conn’s employment
two years after she suffered a workplace injury that rendered her physically unable to
perform the duties of her job. Conn sued Bic Graphic under the Minnesota Workers’
Compensation Act and the Minnesota Human Rights Act, alleging that Bic discharged her
for retaliatory and discriminatory reasons. The district court granted summary judgment in
Bic’s favor. Because the evidence construed in Conn’s favor does not support any of her
claims, we affirm.
FACTS
The facts as presented here are either undisputed or are disputed but construed in
the light most favorable to Conn’s lawsuit. Conn was working as a machine operator at Bic
Graphic’s calendar-production plant in February 2014. The position required extensive,
repetitive arm movements above the head. Conn hoisted a bundle of calendars onto a
machine that jolted upward, yanking her right arm and pulling it “almost out of the socket.”
Conn reported the incident to her supervisor and sought medical attention.
A Bic employee helped Conn apply for workers’ compensation benefits, which
covered all of Conn’s medical expenses. An orthopedist diagnosed Conn’s injury as a torn
right rotator cuff and torn labrum, requiring surgery and restricting Conn from working
more than four-hour days and from making repetitive movements. Conn worked under
those restrictions for about five months. This meant that she had to serve as a
“miscellaneous assembly operator,” which was a seasonal position that entailed
3
intermittently stuffing envelopes and operating various machinery. Conn had surgery in
September 2014. Recovery kept her home six months, during which period she received
workers’ compensation benefits.
Conn returned to work under a medical, no -machine-operation, and four-hour-
workday restriction. Conn continued to suffer shoulder pain. She sought a second medical
opinion, and her workers’ compensation benefits covered the cost of her examination by
Dr. Jesse Botker. Dr. Botker recommended a second shoulder surgery, which Conn had in
July 2015. She spent the following six months home from work, a period that was again
covered by workers’ compensation benefits.
When Conn returned to work, Bic assigned her to temporarily available,
nonmachinery table work. Conn continued to suffer pain. Dr. Botker concluded in March
2016 that Conn had reached maximum medical improvement. He imposed permanent work
restrictions incompatible with the duties of the “miscellaneous assembly operator”
position. The restrictions prohibited Conn from reaching above her shoulder more than
200 times per day ; some of Bic’s machines required more than 400 repetitions per hour.
Operating the machines was an essential function of Conn’s position. Conn worked solely
on the tables until June 2016. That month, her benefits for total temporary disability
expired. Bic informed Conn that it had no position within her medical restrictions, and it
terminated her employment.
Conn successfully applied for a retail job paying $10 per hour and then another for
$11 per hour, down from her $13.96 hourly wage at Bic.
4
Conn sued Bic, alleging violations of the Minnesota Workers’ Compensation Act
(MWCA) and the Minnesota Human Rights Act (MHRA). The district court granted
summary judgment to Bic. Conn appeals.
D E C I S I O N
Conn argues that the district court erroneously granted summary judgment. We
review summary judgment decisions de novo, determining whether any genuine issues of
material fact preclude summary judgment and whether the district court erred in its
application of the law. McBee v. Team Indus., Inc., 925 N.W.2d 222, 227 (Minn. 2019). A
district court must grant summary judgment when the evidence shows that no genuine issue
of material fact exists and the moving party is entitled to judgment as a matter of law.
Minn. R. Civ. P. 56.01. Conn raises six issues on appeal. She argues that the district court
made two legal errors by holding that her MHRA claims were precluded by the MWCA’s
exclusive-remedy provision and that she was not entitled to an interactive process to
identify a reasonable accommodation under the MHRA. She argues also that the district
court erred by concluding that her evidence did not raise a genuine issue of material fact
that Bic retaliated against her for seeking workers’ compensation benefits, refused to offer
her available employment, failed to provide a reasonable accommodation, and retaliated
against her for requesting reasonable accommodations. Although the district court did
make one legal error, our de novo review leads us to affirm because Conn failed to produce
evidence supporting every element of her claims.
5
I
We agree with Conn’s contention that the district court erred by concluding that her
MHRA claims are precluded by the MWCA’s exclusive -remedy provision. We interpret
the meaning of statutes de novo. J.D. Donovan, Inc. v. Dep’t of Transp., 878 N.W.2d 1, 4
(Minn. 2016). The MWCA provides, “The liability of an emp loyer prescribed by this
chapter is exclusive and in the place of any other liability to such employee . . . .”
Minn. Stat. § 176.031 (2018). The district court construed this language in accordance with
the supreme court’s decision in Karst v. F.C. Hayer Co. Inc., 447 N.W.2d 180 (Minn.
1989), which held that the MWCA’s exclusivity provision precludes an injured employee’s
separate action for disability discrimination under the MHRA. Karst, 447 N.W.2d at 186.
The supreme court has recently overruled Karst, however, holding that the MWCA’s
exclusivity provision does not appl y to MHRA discrimination claims because an MHRA
claim is based not on the employee’s work-related injury but on the employer’s illegal
response to it. Daniel v. City of Minneapolis , 923 N. W.2d 637, 653 (Minn. 2019). The
district court decided summary judgment in this case before the supreme court issued its
opinion in Daniel, and it was of course unaware of the eventual change in the law. But
because the Daniel holding is binding, the district court’s conclusion that Conn’s MHRA
claims were barred cannot stand.
II
Conn argues that she is entitled to a trial on her claim that Bic terminated her
employment to retaliate for seeking worker s’ compensation benefits. See Minn. Stat.
§ 176.82, subd. 1 (2018). The only evidence Conn presented to support this claim is that
6
she was fired after her workers’ compensation benefits expired. The legal problem with
Conn’s argument is that the statute prohibits an employer from retaliating for an
employee’s “seeking workers’ compensation benefits,” not for her exhausting workers’
compensation benefits. Id. (emphasis added). The factual problem with the argument is
that, not only has Conn identified no evidence from which a fact-finder could conclude that
Bic retaliated against her for her effort to obtain benefits, the undisputed evidence indicates
that Bic personnel encouraged Conn to apply for those benefits and then actively
participated in helping her secure them. This corroborates Bic’s argument and undisputed
evidence that it acted in a consistently supportive rather than retaliatory manner in
responding to Conn’s desire to obtain the benefits.
III
Conn argues that Bic violated the MWCA by refusing to offer her continued
employment. “An employer who, with out reasonable cause, refuses to offer continued
employment to its employee when employment is available within the employee’s physical
limitations shall be liable in a civil action for one year’s wages.” Minn. Stat. § 176.82,
subd. 2 (2018). Conn could therefore avoid summary judgment only if she presented
evidence that, among other things, supported a finding that Bic could employ her in a
position that met her physical limitations. She did not. The undisputed evidence
demonstrated that the only employment Bic had available required repetitive movements
that far exceeded Conn’s medical restrictions. Although Conn insisted that she could have
performed the work despite those restrictions, under the Americans with Disabilities Act,
an employer may rely on the work restrictions defined by the employee’s physician.
7
See McBee, 925 N.W.2d at 232. Likewise under the MWCA, professional judgments of
medical professionals are presumptively valid. Smith v. Carver County, 931 N.W.2d 390,
397 (Minn. 2019). The district court properly granted summary judgment because of
Conn’s failure to identify jobs she could perform.
We are not persuaded otherwise by Conn ’s contention that she could have
performed alternative jobs with accommodations or that she could have worked solely on
the tables. The evidence reveals that most of the nonmachinery work that Bic assigned to
Conn was seasonal and not consistently available. It also reveals that, to reduce the burden
of repetitive motion on all its employees, Bic spread that work among multiple employees.
Dedicating a single worker to those duties would therefore have made them unavailable
for other employees. That creates two problems. First, dedicating the work to Conn
exclusively so as to reduce her shoulder strain from repetitive-motion activity would entail
creating an entirely new position for Conn. Second, shifting the burden of repetitive-motion
activity away from Conn would also require Bic to alter the duties of multiple other
workers, increasing their repetitive- motion activity and making their jobs more onerous.
The MWCA does not require employers to create new jobs or alter existing jobs.
IV
Conn’s MHRA disability-discrimination claim fares no better than her MWCA
claim. The MHRA prohibits an employer from engaging in adverse employment actions
because an employee is a disabled person. Minn. Stat. § 363A.02, subd. 1(1) (2018). “A
disabled person is any person who (1) has a physical, sensory, or mental impairment which
materially limits one or more major life activities; (2) has a record of such an impairment;
8
or (3) is regarded as having such an impairment.” Minn. Stat. § 363A.03, subd. 12 (2018).
Conn argues that she is disabled because her impairment materially limits her in the major
life activities of lifting, reaching, and working. Her argument fails both on the facts and the
law.
As a matter of law, Conn does not defend her assertion that lifting and reaching are
“major life activities.” See Gee v. Minn. State Colls. & Univs., 700 N.W.2d 548, 553– 54
(Minn. App. 2005) (reciting the federal definition of major life activities as those “of
central importance to daily life” and holding that walking and seeing are major life
activities). Even assuming they are major life activities, as a matter of fact, Conn’s
testimony defeats her argument as to lifting and reaching. A major life activity is materially
limited when it is “greatly impeded.” Sigurdson v. Carl Bolander & Sons Co., 532 N.W.2d
225, 228–29 (Minn. 1995). Conn identifies no evidence of great impediment to her lifting
and reaching, and she identifies no major life activity that her restrictions impede. She
testified instead that her injury does not prevent her from doing any activity that she wants
to do. Her only lifting and reaching restrictions are those defined in her work restrictions.
Those restrictions do not preclude her from pushing and pulling 40-pound objects up to
200 times daily, reaching above her head 200 times daily, lifting 5 pounds overhead 30
times daily, or lifting 20 pounds from the floor to her waist 30 times daily. Although her
physically demanding position at Bic required more onerous activity than these
capabilities, Conn identified no major life activity that requires more.
Conn’s argument that she is materially limited in the major life activity of work also
lacks evidentiary support. A plaintiff’s cap ability to work is materially limited if she is
9
disqualified from a significant number and type of jobs when accounting for the geographic
area to which she has reasonable access, her job expectations, and her training. Hoover v.
Norwest Private Mortg. Banking, 632 N.W.2d 534, 543 (Minn. 2001). Conn presented no
evidence that she is disqualified from any job other than one as a Bic machine worker. She
therefore did not raise a genuine issue of material fact as to whether she is disabled based
on the major life activity of work.
She also failed to identify any evidence that she has a record of a disability or that
Bic perceived her as having one. She points only to Bic’s recognition that her permanent
work restrictions prevented her from performing the repetitive-motion tasks necessary for
her job at Bic. But this falls short of creating a genuine issue of material fact as to whether
Bic viewed her as being materially limited in the much broader category of participating
in a major life activity.
Conn offered insufficient evidence to avoid summary judgment on her disability-
discrimination claim.
V
Conn does not argue convincingly that she was entitled to an interactive process to
determine a reasonable accommodation for her injury . The MHRA does not obligate an
employer to engage in an interactive, accommodation-seeking process. McBee, 925
N.W.2d at 229 (“[A]n interactive process is not . . . an affirmative statutory obligation.”).
And in any event, again, Conn failed to present evidence that she is a disabled person. She
therefore has no factual basis to support a claim on the theory that Bic engaged in an unfair
employment practice by not reasonably accommodating the disability of a qualified
10
disabled person. See Minn. Stat. § 363A.08, subd. 6(a) (2018). She cannot establish that
Bic was obligated to offer her any accommodation. And her suggestion that allowing her
to continue working at the tables constitutes an obligatory, reasonable accommodation also
fails as a matter of law because an employer is not required “to create a new, one-person
job category independent of both the work hours and the job rotation schedule required
of all other production employees.” Helgerson v. Bridon Cordage, Inc., 518 N.W.2d 869,
872 (Minn. App. 1994), review denied (Minn. Aug. 24, 1994). In sum, no reasonable
accommodation was either identified or required.
VI
For these same reasons, we reject Conn ’s argument that the district court
erroneously granted summary judgment on her theory that Bic retaliated against her for
requesting a reasonable ac commodation. An employer must not retaliate against an
employee for seeking accommodations for her disability. Minn. Stat. § 363A.15 (2018).
Conn has not shown that she is disabled. Separately, she also testified that she never
requested an accommodation. Summary judgment on Conn’s reprisal claim is also
appropriate.
Affirmed.