Johnson v. United Ground Express Inc.

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
William L. Johnson, 	Case No. 23-cv-3079 (PJS/LIB)
Plaintiff,
ORDER AND
v. 	REPORT AND RECOMMENDATION
United Ground Express Inc.,
Defendant.
This 	matter 	comes 	before 	the 	undersigned 	United 	States 	Magistrate 	Judge 	upon
Defendant’s Motion for Sanctions, [Docket No. 78], and Defendant’s Motion for Summary
Judgment, [Docket No. 84], the latter of which was referred to the undersigned United States
Magistrate Judge. (Order of Referral [Docket No. 15]). The Court took Defendant’s Motions
under advisement following a Motions Hearing. (Minutes [Docket No. 102]).
For the reasons discussed herein, Defendant’s Motion for Sanctions, [Docket No. 78], is
GRANTED in part and DENIED in part.
Further, for the reasons discussed herein, the undersigned recommends that Defendant’s
Motion for Summary Judgment, [Docket No. 84], be GRANTED.
I. 	Background
Plaintiff, proceeding pro se,1 initiated the present action alleging, among other things,
that his prior employer, Defendant United Ground Express, Inc., discriminated against him on
1 The pro se moniker indicates that Plaintiff is representing himself in this action rather than proceeding through
legal counsel. The Court is required to liberally construe the filings of pro se parties, such as Plaintiff in the present
case. See Erickson v. Pardus, 551 U.S. 89, 93 (2007). A pro se litigant is, however, “not excused from failing to
comply with substantive and procedural law.” Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984); see Sgromo v.
Target Brands Inc., No. 20-cv-1030 (JRT/LIB), 2020 WL 7626606, at *12–13 (D. Minn. Oct. 7, 2020), report and
recommendation adopted, 2021 WL 632496 (D. Minn. Feb. 18, 2021), aff’d, No. 2021-1702, 2021 WL 4592277
(Fed. Cir. Oct. 6, 2021).
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the basis of his race and disability. (See Amended Compl. [Docket No. 5]).2 The remaining
claims in Plaintiff’s Amended Complaint asserts violations of the Civil Rights Act’s prohibition
on race discrimination (Count 1) and violations of the Americans with Disabilities Act’s
prohibition on discrimination based on a disability (Count 4). Plaintiff also alleges that
Defendant violated the North Dakota Human Rights Act by discriminating against Plaintiff on
the basis of race, failing to accommodate Plaintiff’s disability, and discriminating against
Plaintiff based on a disability (Counts 7, 9, 10, respectively). Plaintiff also alleges that Defendant
violated the prohibition on retaliation under North Dakota law (Count 12).
II. 	Defendant’s Motion for Sanctions. [Docket No. 78].
Defendant seeks sanctions against Plaintiff based Defendant’s assertion that Plaintiff has
continued to fail to engage in the discovery process and failed to comply with this Court’s Orders
regarding Plaintiff’s discovery obligations. (Def.’s Mot. [Docket No. 78]). As for the form of the
requested sanctions, Defendant asks that Plaintiff’s claims be dismissed with prejudice. (Def.’s
Mem. [Docket No. 80]).
Consideration 	of 	Defendant’s 	request 	for 	sanctions 	requires 	a 	discussion 	of 	the
procedural history of this case. The lengthy history of this case is provided in the Court’s
previous Orders. [Docket Nos. 56, 62]. The Court only summarizes that history here to the extent
it is relevant to the present discussion.
A. Relevant Facts
The initial scheduling order in the present case was issued on September 19, 2024.
(Pretrial Scheduling Order [Docket No. 38]). The deadline by which the parties were required to
2 Plaintiff, who states that he is “Black” and “from Liberia,” was employed by Defendant from early 2020, until his
employment there was terminated on January 23, 2023. (Amended Compl. [Docket No. 5] ¶¶ 3, 16–18).
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complete all discovery was April 15, 2025. (Id.). All nondispositive motions were required to be
filed and the hearing thereon completed by May 15, 2025. (Id.).
On February 28, 2025, Defendant served Plaintiff with Defendant’s interrogatories and
requests for production. (See Exhibit A [Docket No. 49-1] at 2–15; Exhibit B [Docket No. 49-1]
17–30). On March 5, 2025, Defendant sent an email to Plaintiff requesting his availability to
schedule his deposition. (Whalen Decl. [Docket No. 49] ¶ 5). On March 11, 2025, and March 25,
2025, Defendant renewed the request for Plaintiff’s availability regarding his deposition, after
Plaintiff failed to respond to the March 5, 2025, email communication. (Id.). Plaintiff did not
respond to Defendant’s communications regarding the scheduling of Plaintiff’s deposition. (Id.).
On March 25, 2025, Plaintiff filed his purported responses to Defendant’s discovery
requests on this Court’s docket. [Docket No. 46]. Plaintiff’s filing was accompanied by a cover
letter which reads as follows:
To Whom It May Concern
I would humbly prefer to provide some information in court simply because it
will make me feel very secure, I prefer not to divulge information yet due to
security concerns. The same reasons also apply to other interrogations [sic] where
I clearly stated I would be responding in the court. Moreover, the court and UGE
have my claim write [sic] out, therefore, I prefer to answer some of the
interrogatory questions in court.
(Letter [Docket No. 46]).
Plaintiff’s desire to respond to discovery only “in court” is reflected throughout his
responses to Defendant’s Interrogatories. (See Plf.’s Responses to Def.’s Interrogatories [Docket
No. 46-4]). For example, in response to fifteen of the twenty-one interrogatories, Plaintiff failed
to provide any substantive response but instead responded with some variation of his assertion
that he would provide the responsive information “in court.” (See Id.) (“For personal reason(s) I
will [sic] prefer to identify the people I communicated with by phone and text message in
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court.”). In response to four of the remaining six interrogatories, Plaintiff provided at least a
somewhat arguable substantive response, but he also included an assertion that he would provide
a full answer “in court.” (See Id.). Of the two remaining interrogatories (Interrogatory Nos. 11
and 20), only Plaintiff’s response to Interrogatory No. 20 was a complete, responsive answer to
the inquiry provided. (See Id.).
Plaintiff’s desire to produce discovery only “in court” also continued throughout his
responses to Defendant’s Request for Production. (See Plf.’s Responses to Def.’s Request for
Prod. [Docket No. 46-1]). In response to twenty-four of Defendant’s twenty-seven requests for
production, Plaintiff failed to provide any substantive response and instead provided some
variation of his assertion that he wished to provide the information only “in court.” (See Id.).3 In
response to a request for production seeking the disclosure of social media posts, Plaintiff simply
wrote, “Not yet.” (Id.). In response to a request for production seeking all documents identified
in Plaintiff’s interrogatory responses, Plaintiff indicated that the documents had been attached to
his 	interrogatory 	responses, 	however, 	there 	were 	no 	documents 	attached 	to 	Plaintiff’s
interrogatory responses. (See Id.; Plf.’s Responses to Def.’s Interrogatories [Docket No. 46-4]).
Indeed, Plaintiff had not produced any documents in the present case at the time of Defendant’s
Motion to Compel. (See Whalen Decl. [Docket No. 49] ¶ 6).
On March 27, 2025, the parties met and conferred via telephone regarding Plaintiff’s
deficient discovery responses and his availability for a deposition. (Id. ¶ 7). Plaintiff declined to
produce supplemental discovery responses, and he “stated that he will not consent to a
deposition.” (Id.).
3 In response to eighteen of the requests for production Plaintiff wrote as follows: “I would humbly prefer to provide
information in court simply because it will make me feel very secure, I prefer not to divulge information yet due to
security concerns. Same reasons also apply to other interrogations [sic] where I clearly stated I would be responding
in the court.” (See Id.). Plaintiff’s responses to seven other requests for production are simply shortened versions of
this same assertion. (See Id.).
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Defendant then filed a Motion to Compel, [Docket No. 47]. The Clerk of Court’s office
mailed copies of Defendant’s Motion to Compel and Defendant’s moving papers to Plaintiff at
the address he provided to the Court.
After Defendant filed its Motion, the Court issued an Order, [Docket No. 53], on April
17, 2025, directing Plaintiff to respond to Defendant’s Motion by no later than April 28, 2025. A
copy of the Court’s April 17, 2025, Order, was mailed to Plaintiff at the address he provided to
the Court. Plaintiff did not respond to Defendant’s Motion to Compel.
The Court held a Motions Hearing with oral arguments on Defendant’s Motion to
Compel on May 2, 2025. (Minutes [Docket No. 54]). Plaintiff did not appear at the Motions
Hearing. Plaintiff likewise did not communicate to the Court that he would not be attending the
Motions Hearing.
At the May 2, 2025, Motion Hearing, the Court also granted Defendant’s oral Motion to
continue the settlement conference in the present case which was then scheduled for May 22,
2025. (Id.). The continuation of that settlement conference was reflected in the Minutes for the
May 2, 2025, Motions Hearing. (See Id.). A copy of the Minutes from that Motions Hearing was
mailed to Plaintiff at the address he previously provided to the Court.
On May 22, 2025, Plaintiff filed a letter on this Court’s docket. (Letter [Docket No. 55]).
In his letter, Plaintiff acknowledged that he received a copy of the Minute entry informing him
that the May 22, 2025, settlement conference was continued. (See Id.). Although Plaintiff’s letter
did not specifically address Defendant’s Motion to Compel or Plaintiff’s unexplained absence
from the May 2, 2025, Motions Hearing, Plaintiff did note that he had a telephone conference
with Defendant’s counsel during which Plaintiff again refused to attend his deposition. (See Id.).
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On June 2, 2025, the Court issued an Order granting Defendant’s Motion to Compel.
(Order [Docket No. 56]). The Court’s Order required Plaintiff to file supplemental responses to
Defendant’s at-issue discovery requests, directed Plaintiff to work in good faith with Defendant’s
counsel to schedule Plaintiff’s deposition, and required Plaintiff’s deposition to be completed by
no later than July 14, 2025. (Id.). The Court informed Plaintiff that he was not permitted to
unilaterally decide whether he was going to participate in discovery, and he was not permitted to
unilaterally decide what information was not relevant to the present action. (See Id.). In the
Order compelling Plaintiff to participate in his deposition, the Court explained to Plaintiff that
Defendant was permitted to notice and conduct his deposition without leave of Court and
Plaintiff was not permitted to decline to participate because he only wanted to be deposed “in
court.” (See Id.).
As the Court noted in its June 2, 2025, Order, Plaintiff’s dilatory conduct during the
discovery process represented good cause to amend the Pretrial Scheduling Order. The Court
issued the Amended Pretrial Scheduling Order on June 2, 2025. [Docket No. 57]. In the
Amended Pretrial Scheduling Order, the deadline by which the parties were required to complete
all discovery was July 31, 2025. (Id.).4
On June 20, 2025, Plaintiff filed documents which appeared to be his supplemental
responses to some but not all of Defendant’s discovery requests. (See Ex. [Docket No. 59];
Responses [Docket Nos. 60, 61]). Although Plaintiff’s supplemental responses appear to provide
additional information that was not included in his original responses, his supplemental
responses continued to imply that the responses therein are only partial responses which do not
include certain information Plaintiff withheld and would only be disclosed at trial or some other
4 On August 28, 2025, the Court issued the operative Second Amended Pretrial Scheduling Order. [Docket No. 77].
The deadline by which the parties were required to complete all discovery remained July 31, 2025. (Id.).
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unspecified date. (See, e.g., Plf.’s Supp. Responses to Req. For Production [Docket No. 60] at
25–56, 31; Plf.’s Supp. Responses to Interrogatories [Docket No. 61] at 27, 31). Plaintiff’s
responses also continued to decline to identify “witnesses” he will utilize in his case. (See, e.g.,
Plf.’s Supp. Responses to Req. For Production [Docket No. 60] at 25–56, 31; Plf.’s Supp.
Responses to Interrogatories [Docket No. 61] at 27, 31). Several of Plaintiff’s supplemental
responses also continue to be nonresponsive.5
On June 27, 2025, Plaintiff filed a “Motion for Preventative Orders,” [Docket No. 63], in
which he renewed his previous request that his discovery deposition be taken “within the court”
and asked the Court to excuse him from appearing at his deposition which Defendant had noticed
for July 3, 2025. On June 30, 2025, the Court denied Plaintiff’s “Motion for Preventative
Orders” and again explained to Plaintiff that he was required to attend his deposition. (Order
[Docket No. 64]).
Plaintiff ultimately sat for his deposition on July 3, 2025. (Depo. Transcript [Docket No.
81] at 50–431). In his deposition, Plaintiff refused, however, to answer questions which he
unilaterally found to “not concern this case.” (See Id. at 60–62 (declining to provide information
regarding a different case in which Plaintiff was deposed, including the case name, the basis for
the claims therein, and whether Plaintiff received any money from that case), 77–78 (declining to
answer whether he had filed “other administrative charges” against a previous employer), 80–81,
99–101, 342–343). Plaintiff also refused to answer other questions regarding his background
instead indicating that he would tell the Court but not Defendant’s counsel. (See Id. at 79, 81–
82). Indeed, Plaintiff repeatedly declined to answer certain questions stating that he would
provide a response to the Court but not Defendant’s counsel, declined to answer questions about
5 Plaintiff’s supplemental responses to the interrogatories again claimed that certain documents were attached, but
there were no documents in fact attached thereto.
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certain evidence stating that he would provide the evidence “in court,” and declined to identify
witness he said would testify regarding the subject matter of the case contained within some of
the questions posed at his deposition. (See, e.g., Id. at 79–80, 210–211, 288–290, 302).
On July 16, 2025, Defendant’s counsel informed Plaintiff that Defendant planned to file a
Motion for Sanctions based on Plaintiff noncompliance with Court’s Orders and the Federal
Rules of Civil Procedure. (Exhibit A [Docket No. 81] at 5–7). On August 28, 2025, Defendant’s
counsel informed Plaintiff that, in addition to the Motion for Sanctions, Defendant also planned
to file a Motion for Summary Judgment on September 30, 2025, the deadline for filing
nondispositive and dispositive motions in this action. (Mistriotti Dec. [Docket No. 81] ¶ 6).
Defendant’s counsel informed Plaintiff that both Motions would be seeking dismissal of the
present action based on Defendant’s belief that Plaintiff had failed to identify and produce
responsive evidence or any evidence in support of his claims. (Id.).6
B. Discussion
Rule 37 controls a party’s request for sanctions when that request is based on another
party’s failure to comply with a Court order compelling discovery. Sentis Group, Inc. v. Shell
Oil Co., 559 F.3d 888, 899 (8th Cir. 2009); see West-Anderson v. Missouri Gaming Co., 594 F.
App’x 320 (8th Cir. 2015). In relevant part, Rule 37 provides that if a party fails to obey an order
to provide discovery, the Court may issue an order:
(i) directing that the matters embraced in the order or other designated facts be
taken as established for purposes of the action, as the prevailing party
claims;
(ii) prohibiting the disobedient party from supporting or opposing designated
claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
6 On September 29, 2025, Plaintiff purported to disclose various documents and files to Defendant’s counsel.
(Mistriotti Dec. [Docket No. 81] ¶ 6). The exact extent of this purported disclosure is not apparent from the record
because neither Plaintiff nor Defendant provided the documents to the Court or summarized the contents therein.
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(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order
to submit to a physical or mental examination.
Fed. R. Civ. P. 37(b)(2)(A).
The Court has considerable discretion in choosing the appropriate sanction when a party
fails to comply with a Court order regarding discovery. See Chrysler Corp. v. Carey, 186 F.3d
1016, 1022 (8th Cir. 1999); United States v. Big D Enters., 184 F.3d 924, 936 (8th Cir. 1999).
However, the Court’s discretion to issue Rule 37 sanctions “is bounded by the requirement of
Rule 37(b)(2) that the sanction be ‘just’ and relate to the claim at issue in the order to provide
discovery.” Hairston v. Alert Safety Light Products, Inc., 307 F.3d 717, 719 (8th Cir. 2002)
(quoting Avionic Co. v. General Dynamics Corp., 957 F.2d 555, 558 (8th Cir. 1992)).
“To justify a sanction of dismissal, Rule 37 requires: ‘(1) an order compelling discovery,
(2) a willful violation of that order, and (3) prejudice to the other party.’” Sentis Group, Inc., 559
F.3d at 899; Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000). “While the sanction of
dismissal is ‘drastic’ and should therefore be used only in exceptional cases, a district court is not
required to impose the least onerous sanction so long as it considers whether a lesser sanction is
available 	or 	appropriate.” 	Brennan 	v. 	Qwest 	Communications 	Int’l, 	Inc., 	No. 	7-cv-2024
(ADM/JSM), 2009 WL 1586721 at *7 (D. Minn. June 4, 2009) (citations and quotations
omitted).
Pro se litigants are not excused from failing to comply with substantive and procedural
law. Burgs, 745 F.2d at 528; Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980); Stone v.
Harry, 364 F.3d 912, 914 (8th Cir. 2004). “A pro se litigant is bound by the litigation rules as is a
lawyer, particularly here with the fulfilling of simple requirements of discovery.” Lindstedt v.
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City of Granby, 238 F.3d 933, 937 (8th Cir. 2000); see West-Anderson v. Missouri Gaming Co.,
594 F. App’x 320 (8th Cir. 2015).
As noted above, the sanction of dismissal with prejudice under Rule 37 requires three
things: an order compelling discovery, a willful violation of that order, and prejudice to the party
seeking the dismissal. As a threshold matter, it is unrefuted that the Court’s June 2, 2025, Order
compelled 	Plaintiff 	to 	provide 	certain 	discovery 	to 	Defendant 	and 	required 	Plaintiff 	to
meaningfully participate in discovery in compliance with the Federal Rules of Civil Procedure.
The question remains as to whether Plaintiff violated that Order, whether that violation was
willful, and whether Defendant has been prejudiced by that violation.
The Court finds that Plaintiff has failed to comply with the Court’s June 2, 2025, Order,
and thus, Plaintiff has violated that Order. The Court’s June 2, 2025, specifically informed
Plaintiff that he was required to meaningfully participate in discovery, and the Order further
informed him that he was “not permitted to unilaterally decline to respond to said discovery nor
permitted to decide that he will only respond to discovery in the presence of the Court.” (Order
[Docket No. 56] at 7); however, this is exactly what Plaintiff continued to do. Plaintiff failed to
provide any supplemental responses for many of the written discovery requests for which he was
required to provide a supplemental response. And although Plaintiff provided some supplemental
discovery responses on June 20, 2025, those supplemental responses continued to assert that
Plaintiff was withholding certain discoverable information which he would only disclose “in
court,” and he continued to assert that certain witnesses would provide testimony on a topic
while also refusing to identify those witnesses. (See, e.g., Plf.’s Supp. Responses to Req. For
Production [Docket No. 60] at 25–56, 31; Plf.’s Supp. Responses to Interrogatories [Docket No.
61] at 27, 31). Plaintiff’s lack of compliance with his discovery obligations continued at his
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discovery deposition taken by Defense counsel where Plaintiff refused to answer questions he
unilaterally determined were not relevant to the present action, refused to provide certain
responses because he only wanted to provide the response “in court,” and refused to identify
witnesses who Plaintiff specifically noted would be providing testimony at trial on his behalf.
(Depo. Transcript [Docket No. 81] at 60–62, 77–82, 99–101, 210–211, 288–290, 302, 342–343).
Plaintiff’s continued refusal to meaningfully engage in the discovery process is a clear violation
of this Court’s June 2, 2025, Order.
Having determined that Plaintiff violated the Court’s June 2, 2025, Order, the Court must
next determine whether that violation was willful. To find that a plaintiff willfully violated a
discovery order, the Court is not required to find that the plaintiff acted in bad faith. See
Hazelden Betty Ford Found. v. My Way Betty Ford Klinik GmbH, No. 20-cv-409 (JRT/TNL),
2024 WL 3792421, at *3 (D. Minn. May 20, 2024) (citing Hunt v. City of Minneapolis, 203 F.3d
524, 527 (8th Cir. 2000)), report and recommendation adopted, 2024 WL 3163725 (D. Minn.
June 25, 2024); Warren v. Forney, No. 23-cv-70 (JWB/LIB), 2024 WL 5298277, at *5 (D. Minn.
Sept. 30, 2024), report and recommendation adopted, 2024 WL 5135669 (D. Minn. Dec. 17,
2024). Rather, the Court is required to find only that the plaintiff “acted intentionally as opposed
to accidentally or involuntarily.” Hunt, 203 F.3d at 527; Hazelden Betty Ford Found., 2024 WL
3792421, at *3; Warren, 2024 WL 5298277, at *5.
The record now before the Court plainly demonstrates that Plaintiff intentionally refused
to meaningfully participate in the discovery process in violation of the Court’s June 2, 2025,
Order, [Docket No. 56], because he was aware of the June 2, 2025, Order and aware from it that
he was not permitted to unilaterally define his own rules of discovery. The Clerk of Court’s
office mailed Plaintiff a copy of the Court’s June 2, 2025, Order to the address Plaintiff provided
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to the Court, and that 	mailing was not returned as 	undeliverable. 	Moreover, 	Plaintiff’s
subsequent letter, [Docket No. 58], and “Motion for Preventative Order,” [Docket No. 63], both
indicate that Plaintiff received the Court’s June 2, 2025, Order because in those filings Plaintiff
sought relief from the Court’s June 2, 2025, Order.7
The Clerk of Court’s office also mailed to Plaintiff a copy of the Court’s June 25, 2025,
Order, [Docket No. 62], denying the request in Plaintiff’s June 20, 2025, letter, and a copy of the
Court’s June 30, 2025, Order, [Docket No. 64], denying Plaintiff’s Motion for a Preventative
Order. Both of those subsequent Orders also informed Plaintiff of his discovery obligation. In the
June 25, 2025, Order, the Court summarizes the contents of the Court’s June 2, 2025, Order and
references that Order. Similarly, the Court’s June 30, 2025, Order states that the June 2, 2025,
Order “speaks for itself” and cites that Order. Neither of these mailings were returned to the
Court as undeliverable.
Despite receiving those repeated admonitions as to his obligation to meaningfully
participate in discovery as articulated in the Court’s June 2, 2025, Order, Plaintiff failed to do so
and continued to engage in discovery only to the extent it comported with his own unilaterally
created rules. Here again, Plaintiff’s pro se status does not excuse him from complying with the
Federal Rules of Civil Procedure, this Court’s Orders, or his obligation to participate in the
discovery process. See Lindstedt v. City of Granby, 238 F.3d 933, 937 (8th Cir. 2000); Ackra
Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 856 (8th Cir. 1996); West-Anderson v.
Missouri Gaming Co., 594 F. App’x 320 (8th Cir. 2015); Johnson v. Sullivan, No. 23-cv-2249
(KMM/LIB), 2025 WL 2347109, at *6 (D. Minn. Apr. 3, 2025), report and recommendation
7 Notably, Plaintiff’s response to the present Motion for Sanction does not allege that Plaintiff was unaware of the
Court’s June 2, 2025, Order; the contents of that Order; or his obligation to meaningfully participate in discovery as
explained in the Court’s June 2, 2025, Order. (See Plf.’s Mem. [Docket No. 93]).
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adopted, 2025 WL 2337027 (D. Minn. Aug. 13, 2025). On that basis, the Court finds that
Plaintiff’s violation of the Court’s June 2, 2025, Order was willful.
The Court also concludes that Defendant has suffered prejudice because of Plaintiff’s
continued failure to comply with the Court’s June 2, 2025, Order. Plaintiff’s failure to comply
with this Court’s June 2, 2025, Order has prejudiced Defendant’s ability to prepare for trial by
accurately assessing and investigating Plaintiff’s claims in the present case. See, e.g., Sultana v.
Endeavor Air, No. 21-cv-2364 (JWB/TNL), 2023 WL 5436295, at *12 (D. Minn. May 30,
2023), report and recommendation adopted, 2023 WL 5431437 (D. Minn. Aug. 23, 2023), aff’d
sub nom. Sultana v. Wychor, No. 23-3369, 2024 WL 3839172 (8th Cir. Aug. 16, 2024); Johnson,
2025 WL 2347109, at *7 (citing Sultana).
That Plaintiff’s failure to comply has negatively affected Defendant’s ability to assess
and investigate Plaintiff’s claim is readily evident from the record. At the time discovery ended
on July 31, 2025, the present action had been pending for more than nineteen months, but even
after all that time, Plaintiff continued to refuse to identify the trial witnesses from whom Plaintiff
would solicit testimony despite Plaintiff having known the identities of those individuals since
before he initiated the present action. At the time the discovery period closed, Plaintiff still
continued to withhold admittedly relevant evidence until he could produce it “in court” or at trial,
and he continued to refuse to respond to any discovery request which he unilaterally deemed to
be irrelevant. This prejudice is sufficient to warrant the sanction of dismissal under Rule 37. See
Schubert v. Pfizer, Inc., 459 F. App’x 568, 572 (8th Cir. 2012) (collecting cases).8
8 Defendant has also suffered prejudice in the form of having to expend considerable time and expenses “hounding”
Plaintiff for discovery “rather than being able to focus on completing discovery and beginning trial preparations[.]”
Schoffstall v. Henderson, 223 F.3d 818, 824 (8th Cir. 2000); see Schubert, 459 F. App’x at 572. This prejudice is
also sufficiently prejudicial to support the sanction of dismissal under Rule 37. See Schoffstall, 223 F.3d at 824;
Schubert, 459 F. App’x at 572.
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In summation, the Court’s June 2, 2025, Order compelled Plaintiff to meaningfully
participate in discovery as described in that Order; Plaintiff willfully violated that Order by
continuing to engage in the same dilatory practices that the Court specifically informed Plaintiff
were prohibited; and Plaintiff’s violation has caused some prejudice to Defendant. On that basis
the Court finds that sanctions are appropriate for Plaintiff’s willful violation of the Court’s June
2, 2025, Order. The Court further finds that Plaintiff’s willful violation could be sufficient to
support 	the 	sanction 	of 	dismissal 	with 	prejudice. 	See 	Warren 	v. 	Forney, 	No. 	23-cv-70
(JWB/LIB), 2024 WL 5135669 (D. Minn. Dec. 17, 2024) (adopting recommendation of
dismissal with prejudice based on the plaintiff’s willful failure to participate in the discovery
process); Schubert v. Pfizer, Inc., 459 F. App’x 568, 573 (8th Cir. 2012) (affirming with
prejudice dismissal as a Rule 37 sanction based on the plaintiff’s discovery violations). However,
before a Court may impose dismissal with prejudice as a sanction for violation of a discovery
order, the Court must consider other, alternative sanctions.
The other, alternative sanctions the Court must consider before imposing the sanction of
dismissal with prejudice are varied. For example, under Federal Rules of Civil Procedure
37(b)(2)(A), 	the 	Court 	may 	impose 	a 	sanction 	designating 	certain 	facts 	as 	established,
prohibiting a party from supporting or opposing designated claims or defenses, precluding the
violating party from introducing designated matters into evidence, or striking pleadings in whole
or in part.
Under the specific circumstances of the present case, the Court finds that there are other,
alternative sanctions sufficient to cure Plaintiff’s dilatory conduct and his willful violation of this
Court’s June 2, 2025, Order. The Court finds that the appropriate sanction is to prohibit Plaintiff
from introducing certain evidence in support of his claims; specifically, Plaintiff may not rely
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upon any evidence in support of his claims unless that evidence was disclosed to Defendant
before July 31, 2025, i.e., the date by which the parties were required to complete all discovery
pursuant to the operative pretrial scheduling order.
The Court notes that this sanction is sufficient due to the procedural posture of the
present case. Defendant has already filed its Motion for Summary Judgment, that Motion has
been fully briefed by the parties, and the Court has already heard oral argument on the Motion
for Summary Judgment.
Therefore, Defendant’s Motion for Sanctions, [Docket No. 78], is GRANTED in part
and DENIED in part, as set forth herein. To the extent Defendant’s Motion for Sanctions seeks
the imposition of sanctions against Plaintiff, the Motion is GRANTED as described above. The
only evidence upon which Plaintiff may rely in support of his claims is evidence produced in
discovery before July 31, 2025. To the extent Defendant’s Motion for Sanctions seeks sanctions
in the form of dismissal with prejudice of Plaintiff’s claims, Defendant’s Motion for Sanctions is
DENIED.
III. 	Defendant’s Motion for Summary Judgment. [Docket No. 84].
Defendant moves for the entry of summary judgment in its favor against Plaintiff.
Defendant seeks summary judgment on all of Plaintiff’s remaining claims. Defendant argues that
it is entitled to summary judgment because Plaintiff has failed to raise a genuine issue of material
fact for any of his remaining claims.
A. Summary Judgment Standard
Summary judgment is appropriate when the evidence demonstrates that there is no
genuine issue of material fact such that the moving party is entitled to judgment as a matter of
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law. Fed. R. Civ. P. 56(a); Smutka v. City of Hutchinson, 451 F.3d 522, 526 (8th Cir. 2006). As
the Eighth Circuit Court of Appeals has explained:
Summary judgment should be granted if the evidence, viewed in the light most
favorable to the nonmoving party, indicates that no genuine issue of material fact
exists and that the moving party is entitled to judgment as a matter of law. A party
opposing summary judgment may not rest upon mere allegations or denials
contained in the pleadings, but must, by sworn affidavits and other evidence, set
forth specific facts showing that there is a genuine issue for trial.
Mehrkens v. Blank, 556 F.3d 865, 868–69 (8th Cir. 2009) (citations omitted). The evidence must
be viewed in the light most favorable to the nonmoving party, and the nonmoving party must be
given the benefit of all reasonable inferences to be drawn from the underlying facts in the record.
Mirax Chem. Prods. Corp. v. First Interstate Commercial Corp., 950 F.2d 566, 569 (8th Cir.
1991); Scott v. Harris, 550 U.S. 372, 380 (2007).
Further,
[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
portions of ‘the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party does so, the nonmoving
party must “designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324.
A disputed fact is “material” if it might affect the outcome of the case, and a factual dispute is
“genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
However, “[m]ere allegations, unsupported by specific facts or evidence beyond the
nonmoving party’s own conclusions, are insufficient to withstand a motion for summary
judgment.” Thomas v. Corwin, 483 F.3d 516, 526–27 (8th Cir. 2007). While the burden of
demonstrating the absence of any genuine issue of material fact rests on the moving party, the
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nonmoving party may not rest on mere allegations or denials in their pleadings, but the non-
moving party must set forth specific admissible evidence-based facts showing the existence of a
genuine issue. Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002). “A properly
supported motion for summary judgment is not defeated by self-serving affidavits.” Frevert v.
Ford Motor Co., 614 F.3d 466, 473 (8th Cir. 2010) (quoting Bacon v. Hennepin Cty. Med. Ctr.,
550 F.3d 711, 716 (8th Cir. 2008)). “Rather, the plaintiff must substantiate allegations with
sufficient probative evidence that would permit a finding in the plaintiff’s favor.” Id. at 473–74;
Wilson v. Int’l Bus. Mach. Corp., 62 F.3d 237, 241 (8th Cir. 1995); Smith v. International Paper
Co., 523 F.3d 845, 848 (8th Cir. 2008); Hollie v. Essentia Health Moose Lake Clinic, No. 22-cv-
314 	(KMM/LIB), 	2023 	WL 	9067596, 	at 	*4 	(D. 	Minn. 	July 	27, 	2023), 	report 	and
recommendation adopted, 2023 WL 8868792 (D. Minn. Dec. 22, 2023), aff’d, No. 24-1220,
2024 WL 4179082 (8th Cir. Sept. 13, 2024).
In addition, a movant is entitled to summary judgment where the nonmoving party has
failed “to establish the existence of [any] element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. Under such
circumstances, no genuine issue of fact exists because “a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”
Id. at 323. If the nonmoving party relies on conclusory allegations and fails to present evidence
supporting a necessary essential element of their claim, then that claim cannot survive summary
judgment. Beyer v. Firstar Bank, N.A., 447 F.3d 1106, 1108 (8th Cir. 2006).
As previously observed, while the Court is required to construe the content within
Plaintiff’s pleadings liberally as he is proceeding pro se, Plaintiff is nevertheless bound by all
applicable procedural and substantive law. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
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2004); Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984); Farnsworth v. City of Kansas City,
Mo., 863 F.2d 33, 34 (8th Cir. 1988). The claims of a plaintiff, even a pro se plaintiff, cannot
survive a motion for summary judgment unless the plaintiff has set forth specific admissible facts
demonstrating that there is a genuine issue for trial. See, Quam v. Minnehaha Cty. Jail, 821 F.2d
522, 522 (8th Cir. 1987).
B. Material Facts9
On March 9, 2020, Defendant hired Plaintiff as a customer service agent at the Hector
International Airport in Fargo, North Dakota. (Memishee Dec. [Docket No. 86] ¶ 4). Plaintiff
was initially hired to perform duties “above the wing” which primarily entailed the performance
of “customer-facing duties.” (Id. ¶ 5).
In performing his customer-facing duties, Plaintiff encountered several issues. On
September 26, 2020, Plaintiff received a “final warning” after he issued the wrong boarding
9 Plaintiff failed to submit any substantive response in opposition to Defendant’s Motion for Summary Judgment as
contemplated by Rule 56(c)(1). For example, Plaintiff did not submit any transcripts of deposition testimony,
documents, discovery responses, witness affidavits, or other admissible evidence attempting to demonstrate that
there exists a genuine dispute of material fact which precludes summary judgment being entered in favor of
Defendant. See Fed. R. Civ. P. 56(c)(1)(A). Indeed, Plaintiff failed to offer or highlight any evidence that he had
disclosed to Defendant prior to the discovery deadline. Plaintiff also did not submit any substantive response to
Defendant’s Motion for Summary Judgment attempting to show that the materials cited by Defendant fail to
establish the absence of a genuine dispute. See Fed. R. Civ. P. 56(c)(1)(B). Plaintiff also failed to present any
substantive Rule 56-argument challenging the admissibility of the evidence Defendant submitted in support of its
Motion for Summary Judgment. Although Plaintiff submitted a document he entitled “Pre-discovery Disclosures,”
[Docket No. 92], that document does not provide any substantive or evidentiary response to Defendant’s Motion for
Summary Judgment. Even assuming solely for the sake of argument that Plaintiff’s “Pre-discovery Disclosure” also
included copies of the audio files described in the text of that document when Plaintiff produced the document to
Defendant, Plaintiff did not produce those materials until more than a month after the close of discovery, and
Plaintiff therefore may not rely on those materials in support of his claim or in opposition to Defendant’s Motion for
Summary Judgment. Moreover, even the purported evidence discussed in Plaintiff’s “Pre-discovery Disclosure” is
either (1) immaterial to Defendant’s arguments in its Motion for Summary Judgment, (2) conclusory
recharacterizations of Plaintiff’s allegations, (3) inadmissible evidence, or (4) merely conclusory statements that
certain “[w]itnesses will testify on the subject matter [of the] discrimination against UGE.” (See Plf.’s “Pre-
discovery Disclosure” [Docket No. 92]). Even if the Court were to consider Plaintiff’s memorandum in opposition
to Defendant’s Motion for Sanction as also containing arguments in opposition to Defendant’s Motion for Summary
Judgment, that memorandum does not contain any argument supported by the materials contemplated in Rule
56(c)(1)(A) or any substantive argument that the evidence cited by Defendant fails to establish the absence of a
genuine issue of material fact as contemplated by Rule 56(c)(1)(B). (See Plf.’s Mem. [Docket No. 93]). For that
reason, the facts contained in this section are taken largely from affidavits and documentary evidence submitted by
Defendant.
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passes to multiple passengers and incorrectly tagged their luggage. (Exhibit 2 [Docket No. 86] at
28).10 The final warning was signed by Plaintiff, his supervisors, and his union representative.
(Id.). On June 22, 2021, Plaintiff received a second “final warning” after he again issued the
wrong boarding pass to a passenger. (Exhibit 3 [Docket No. 86] at 30). The June 22, 2021, final
warning was again signed by Plaintiff, his supervisor, and Plaintiff’s union representative. (Id.).
As a result of the June 22, 2021, disciplinary warning, Plaintiff was removed from his customer-
facing position at the ticket counter to a “below the wing” position with minimal customer-facing
duties. (Id.; Meyers Decl. [Docket No. 87] ¶ 6).11 Plaintiff’s pay remained the same in his new
“below the wing” position. (Id.).
During his employment with Defendant, Plaintiff also had issues with attendance.
(Exhibit 3 [Docket No. 86] at 32). Plaintiff “call[ed] out” of work indicating that he would not be
at work for his assigned shift on September 20, 2021; September 29, 2021; October 6, 2021;
October 11, 2021; and October 13, 2021. (Id.). Plaintiff was 85 minutes late on December 30,
2020. 	(Id.). 	Pursuant 	to 	Defendant’s 	policy, 	Plaintiff’s 	attendance issues 	resulted 	in 	his
supervisor issuing to Plaintiff an “Attendance—Final Warning” on December 22, 2021. (Id. at
33). Plaintiff, his supervisor, and Plaintiff’s union representative signed that “Attendance—Final
Warning.” (Id.).
In March of 2022, Plaintiff reported that he had slipped and fallen on ice while he was at
work. (See Exhibit 5 [Docket No. 86] at 35). Plaintiff alleged that the incident occurred on
December 1, 2021. (Id.). As a result of Plaintiff’s injury, a physician purportedly recommended
10 Due to the severity of Plaintiff’s error, Plaintiff appears to have received a “final” warning without first receiving
an initial warning.
11 An employee’s duties “below the wing” involve driving a variety of mechanical equipment as well as loading,
unloading, and transferring luggage and cargo on and off aircrafts. (Meyers Dec. [Docket No. 87] ¶6; Exhibit 18
[Docket No. 86] at 66).
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various work-related restrictions. (See Id.; Exhibit 6 [Docket No. 86] at 31).12 On March 15,
2022, Plaintiff was notified that he was being placed on an occupational leave of absence
effective March 11, 2022, because Defendant was unable to provide a position which complied
with the restrictions recommended by the physician. (Exhibit 6 [Docket No. 86] at 31). Plaintiff
remained on an occupational leave of absence until May 2022. (See Exhibits 7–8 [Docket No.
86] at 39–41; Meyers Dec. [Docket No. 87] ¶ 9).
Plaintiff was again seen by a physician on July 7, 2022, after the symptoms from his
injury persisted. (See Exhibits 7–8 [Docket No. 86] at 39–41; Meyers Dec. [Docket No. 87] ¶ 9).
Following the July 7, 2022, appointment, the examining physician again imposed work-related
restrictions on the weight Plaintiff was permitted to lift and the number of hours Plaintiff was
permitted to work per week. (Exhibit 9 [Docket No. 86] at 43). On July 14, 2022, Defendant sent
Plaintiff another letter informing him that he was being placed on an occupational leave of
absence effective July 13, 2022, because Defendant was unable to provide a position which
complied with the ongoing restrictions recommended by the physician. (Exhibit 10 [Docket No.
86] at 45). That leave of absence continued until November 2022, and Plaintiff returned to work
on December 5, 2022. (Meyers Dec. [Docket No. 87] ¶ 9).
On January 1, 2023, Plaintiff’s supervisors observed that a piece of equipment, a towbar,
had been damaged, and he emailed all employees at Defendant’s Fargo location asking for
information on how the piece of equipment had become damaged. (Id. ¶ 11). After Plaintiff’s
supervisor received information that Brent Loepp, an employee from a different organization at
the airport, witnessed the towbar being damaged, he approached Mr. Loepp and asked him to
submit a written statement. (Id. ¶¶ 9–13). In that written statement, Mr. Loepp wrote that he
observed Plaintiff (1) drive over the towbar with a different piece of equipment, (2) realize he
12 The record does not reflect the specific restrictions imposed at this initial appointment.
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had run over the towbar, (3) look around to see if anyone had witnessed the incident, and (4)
drive away without investigating the damage. (Id.; Exhibits 14–16 [Docket No. 86] at 56–62).
Upon receiving Mr. Loepp’s statement, Plaintiff’s supervisor contacted the human
resources department to begin an investigation into the incident. (Meyers Dec. [Docket No. 87] ¶
14–16). During that investigation, Plaintiff’s supervisors viewed video footage of the incident
which he obtained from airport security. (Id.). That footage showed a man matching Plaintiff’s
physical characteristics driving over the towbar and taking all of the subsequent actions as
described in Mr. Loepp’s statement. (Id.). As part of the investigation, Plaintiff’s supervisor met
with Plaintiff and Plaintiff’s union representative on January 18, 2023, to inform Plaintiff of the
investigation, show him the video footage, and tell him of the contents of Mr. Loepp’s written
statement. (Id.; Exhibit 17 [Docket No. 86] at 64). Plaintiff denied any wrongdoing and denied
damaging the towbar. (Meyers Dec. [Docket No. 87] ¶ 15). Plaintiff was placed on a paid
suspension pending the outcome of the investigation. (Id.).
Based on his investigation, Plaintiff’s supervisor concluded that Plaintiff damaged the
towbar, “failed to freeze the scene, failed to report,” and “lied about it to management and
human resources.” (Id. ¶ 16). Based on those findings and Plaintiff’s “history of performance
issues,” Plaintiff’s supervisor, “in consultation with human resources,” decided that the proper
course of action was to terminate Plaintiff’s employment. (Id.).
Defendant terminated Plaintiff’s employment on January 24, 2023. (Id.; Exhibit 19
[Docket No. 86] at 69).
C. Discussion
As noted above, Defendant asserts that it is entitled to summary judgment on each of
Plaintiff’s remaining claims. In support of its request for summary judgment, Defendant argues
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that Plaintiff has failed to demonstrate the existence of a genuine issue of material fact on any of
his remaining claims and failed to present any evidence in support of those claims.
Plaintiff has six remaining claims. Count 1 of Plaintiff’s Amended Complaint asserts
violations of the Title VII Civil Rights Act’s prohibition on race discrimination. Count 4 of
Plaintiff’s Amended Complaint asserts a claim of disability-based discrimination under the
Americans with Disabilities Act (“ADA”). Plaintiff also alleges that Defendant violated the
North Dakota Human Rights Act (“NDHRA”) by discriminating against Plaintiff on the basis of
race, failing to accommodate Plaintiff’s disability, and discriminating against Plaintiff based on a
disability (Counts 7, 9, 10, respectively). Lastly, Count 12 alleges that Defendant violated North
Dakota state law prohibiting retaliation.
1. 	Disability-Related Claims Under the ADA and the NDHRA
Defendant is entitled to summary judgment on Counts 4, 9, and 10 of Plaintiff’s
Amended Complaint. The claims alleged in Counts 4, 9, and 10 of Plaintiff’s Amended
Complaint are all disability-based. Counts 4 and 10 alleged disability-based discrimination in
violation of the ADA and the NDHRA, respectively. Count 9 alleges a failure to accommodate a
disability in violation of the NDHRA. But Plaintiff has failed to demonstrate that there is a
genuine dispute of a material fact regarding whether he has a disability.
The ADA provides that employers shall not “discriminate against a qualified individual
on the basis of disability in regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a). The ADA defines disability as “(A) a physical
or mental impairment that substantially limits one or more of the major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as having such an
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impairment.” Ristrom v. Asbestos Workers Loc. 34 Joint Apprentice Comm., 370 F.3d 763, 768
(8th Cir. 2004) (quoting 42 U.S.C. § 12102(1)).
Like 	the 	ADA, 	the 	NDHRA 	prohibits 	employers 	from 	discriminating 	against 	an
individual based on a physical or mental disability. See Engel v. Montana Dakota Utilities, 595
N.W.2d 319, 322 (N.D. 1999). Moreover, the North Dakota Human Rights Act makes it “a
discriminatory practice for an employer to fail or refuse to make reasonable accommodations for
an otherwise qualified individual with a physical or mental disability . . . .” N.D. Cent. Code §
14-02.4-03; see Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 905 (8th Cir. 2015);
Engel, 595 N.W.2d at 322 (explaining that the ADA provides guidance in interpreting the
NDHRA and using caselaw interpreting the ADA to evaluate a failure to accommodate claim
under the NDHRA); Zimmerman v. SkyWest Airlines, Inc., No. 22-cv-45, 2022 WL 3682213, at
*3 (D.N.D. Aug. 25, 2022). The North Dakota Human Rights Act’s definition of “disability”
mirrors the ADA’s definition of “disability.” See N.D. Cent. Code § 14-02.4-02(5); Engel, 595
N.W.2d at 322.
To survive summary judgment on his disability-based discrimination and retaliation
claims under the ADA and the NDHRA Plaintiff must demonstrate that “he has an impairment
that substantially limits a major life activity.” Ristrom, 370 F.3d at 769; Zimmerman, 2022 WL
3682213, at *3 (explaining that ADA claims and NDHRA claims are analyzed the same and
addressing those claims together). The term “substantially limits” means unable to perform a
major life activity that the average person in the general population can perform or significantly
restricted as to the condition, manner or duration under which an individual can perform a
particular major life activity as compared to the condition, manner, or duration under which the
average person in the general population can perform that same major life activity. Ristrom, 370
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F.3d at 769 (cleaned up) (quoting 29 C.F.R. § 1630.2(j)(1)); see Engel, 595 N.W.2d at 322;
Koehler v. Cnty. of Grand Forks, 658 N.W.2d 741, 746 (N.D. 2003). “‘Major life activities’
include ‘caring for oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.’” Epps v. City of Pine Lawn, 353 F.3d 588, 592 (8th Cir. 2003)
(quoting 29 C.F.R. § 1630.2(i)).
In the present case, Plaintiff has failed to proffer evidence demonstrating that he had or
was perceived as having had an impairment that substantially limited a major life activity at the
time of the conduct alleged in his Amended Complaint.13 Plaintiff has thus failed to present
sufficient admissible evidence demonstrating that he had a disability as that term is defined in the
ADA and NDHRA. Because Plaintiff has failed to demonstrate this essential element of these
disability-based discrimination and failure-to-accommodate claims, Plaintiff’s disability-based
discrimination and failure-to-accommodate claims under both the ADA and the NDHRA
necessarily fail. See Celotex Corp., 477 U.S. at 322.
2. 	Retaliation Claim Under North Dakota Law
In Count 12 of his Amended Complaint, Plaintiff asserts that Defendant violated the
North Dakota Human Rights Act by retaliating against Plaintiff. Defendant is entitled to
summary judgment on this claim because Plaintiff has failed to put forth admissible evidence
demonstrating that he opposed an unlawful employment practice during the relevant time period.
The North Dakota Human Rights Act prohibits an employer from engaging “in any form
of threats, retaliation, or discrimination against a person who has opposed any unlawful
discriminatory practice or who, in good faith, has filed a complaint” alleging a violation of the
North Dakota Human Rights Act. N.D. Cent. Code § 14-02.4-18. To establish a prima facie case
13 Indeed, Plaintiff has failed to proffer any medical or expert evidence, admissible or otherwise, in response to
Defendant’s Motion for Summary Judgment.
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of retaliation at the pleading stage, a plaintiff must demonstrate that he (1) opposed or reported
an unlawful employment practice, (2) the employer took adverse employment action against the
plaintiff, and (3) a causal connection exists between the adverse employment action and the
protected activity. See Ewina v. Basic Energy Servs., Inc., No. 14-cv-157, 2016 WL 4717985, at
*9 (D.N.D. Sept. 9, 2016); Dahlberg v. Lutheran Soc. Servs. of N. Dakota, 625 N.W.2d 241, 253
(N.D. 2001).
In the present case, Plaintiff has failed to present evidence demonstrating that he opposed
an unlawful employment practice during the time period concerning the allegations underlying
the present case.14 Plaintiff fails to offer any evidence showing that he made any report regarding
unlawful employment practices to his supervisors or to Defendant in general. Likewise, Plaintiff
fails to offer any admissible evidence demonstrating that Defendant knew or believed Plaintiff
was opposing an unlawful employment practice; indeed, he fails to even offer evidence
demonstrating that he actually opposed an unlawful employment practice during the relevant
time period. Because Plaintiff has failed to demonstrate this essential element of his NDHRA-
retaliation claim, Plaintiff’s NDHRA-retaliation claim necessarily fails. See Celotex Corp., 477
U.S. at 322; Opp v. Source One Mgmt., Inc., 591 N.W.2d 101, 108 (N.D. 1999).15
3. 	Race Discrimination
As observed above, Plaintiff brings a race-discrimination claim under Title VII of the
Civil Rights Act alleging that he was reprimanded, given less-desirable shifts, suspended, and
14 Indeed, as already observed above, Plaintiff has failed to proffer any evidence, admissible or otherwise, on this
topic.
15 Plaintiff’s Amended Complaint asserts that his retaliation claim here is brought under the North Dakota Human
Rights Act, but he also cites to North Dakota’s whistleblower statute codified at N.D. Cent. Code § 31-01-20.
Notwithstanding his citation to North Dakota’s whistleblower statute, Plaintiff does not appear to raise a
whistleblower claim under North Dakota whistleblower statute. Even assuming solely for the sake of argument that
Plaintiff did raise a retaliation claim under North Dakota’s whistleblower statute, that claim would fail for the same
reason Plaintiff’s retaliation claim under the NDHRA fails because a retaliation claim under the NDHRA and a
retaliation claim under North Dakota’s whistleblower statute have the same required elements. See, e.g., Opp, 591
N.W.2d at 108; Dahlberg v. Lutheran Soc. Servs. of N. Dakota, 625 N.W.2d 241, 253–56 (N.D. 2001)
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ultimately terminated on the basis of his race (Count 1). On the basis of those same allegations,
Plaintiff also raises a race-discrimination claim under the North Dakota Human Rights Act
(Count 7).
A race-discrimination claim under Title VII and a claim for race-discrimination under the
North Dakota Human Rights Act are evaluated using the same legal framework and require the
same elements. See, e.g., Ewina, 2016 WL 4717985, at *5–7, 9 (citing Jacob v. Nodak Mut. Ins.
Co., 693 N.W.2d 604, 609 (N.D. 2005)); Engh v. LEAM Drilling Sys., LLC, No. 13-cv-34, 2015
WL 777753, at *7 (D.N.D. Feb. 24, 2015); Spratt v. MDU Res. Grp., Inc., 797 N.W.2d 328,
331–32 (N.D. 2011). The Court therefore simultaneously addresses both the race-discrimination
claim under Title VII and the race-discrimination claim under the North Dakota Human Rights
Act.
Title VII makes it unlawful for an employer “to discharge any individual, or otherwise to
discriminate against any individual with respect to [the individual’s] compensation, terms,
conditions, or privileges of employment, because of such individual’s race . . . .” 42 U.S.C. §
2000e-2(a). Similarly, the North Dakota Human Rights Act makes it unlawful for an employer
“to discharge an employee” or “accord adverse or unequal treatment to an individual or
employee . . . because of race[.]” N.D. Cent. Code § 14-02.4-03.
A plaintiff raising a race-discrimination claim under Title VII or the NDHRA can survive
summary judgment either by offering direct or indirect evidence of discrimination. See Fjelsta v.
Zogg Dermatology, PLC, 488 F.3d 804, 809–10 (8th Cir. 2007); Engh, 2015 WL 777753, at *5,
7 (discussing standard under Title VII and applying that standard to NDHRA-claims). Direct
evidence is “evidence showing a specific link between the alleged discriminatory animus and the
challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate
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criterion actually motivated the adverse employment action.” Fjelsta, 488 F.3d at 809–10
(quoting Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004)).
Viewing the record in the present case in the light most favorable to Plaintiff (the non-
moving party), there is no direct evidence demonstrating that Defendant discriminated against
Plaintiff on the basis of his race. Although Plaintiff alleges he overheard other, unspecified co-
employees having conversation about “how they [themselves] are racist” and that other co-
employees generally knew that Plaintiff’s supervisor was “very racist,” (see, e.g., Plf.’s Depo.
[Docket No. 88] at 103, 165), Plaintiff fails to provide any evidence demonstrating a specific link
between 	these 	two 	assertions 	concerning 	co-workers 	and 	the 	termination 	of 	Plaintiff’s
employment, the assignment of allegedly less-desirable shifts to Plaintiff, or any of the
performance 	reprimands 	given 	to 	Plaintiff 	during 	his 	employment 	by 	his 	supervisor 	or
management. On that basis, the Court finds that Plaintiff has failed to present any direct evidence
demonstrating that Defendant discriminated against Plaintiff on the basis of his race.
As noted above, however, this does not end the Court’s analysis. Instead, the Court must
now analyze Plaintiff’s claims for indirect evidence of race-discrimination under McDonnell
Douglas’s burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004); Burchett v. Target
Corp., 340 F.3d 510, 516–17 (8th Cir. 2003); Martinez-Medina v. Rollins, 144 F.4th 1091, 1096
(8th Cir. 2025); Tealeh v. Ward Cnty., No. 17-cv-105, 2020 WL 13699552, at *3 (D.N.D. Feb.
3, 2020), report and recommendation adopted, 2020 WL 13699549 (D.N.D. Feb. 25, 2020),
aff’d, 839 F. App’x 30 (8th Cir. 2021).
The McDonnell Douglas framework provides that the employee bears the initial burden
of establishing a prima facie case of discrimination, after which the burden shifts to the employer
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to articulate a legitimate, non-discriminatory reason for its action. McGinnis v. Union Pac. R.R.,
496 F.3d 868, 873 (8th Cir. 2007). To establish a prima facie case of race discrimination, a
plaintiff must show: (1) he is a member of a protected class; (2) he was meeting Defendant’s
legitimate expectations of employment; and (3) he suffered an adverse employment action under
circumstances that give rise to an inference of unlawful discrimination. Box v. Principi, 442 F.3d
692, 696 (8th Cir. 2006) (citing Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003)); Muor
v. U.S. Bank Nat. Ass’n, 10-cv-3786 (JRT/JJK), 2012 WL 2449925, at *6 (D. Minn. June 27,
2012) (citing Anderson v. Durham D&M, LLC, 606 F.3d513, 520 (8th Cir. 2010)); Ewina, 2016
WL 4717985, at *5–6. “Once this prima facie case is established, the burden shifts to the
employer to provide a legitimate reason for the adverse employment action. Then, the burden
shifts back to the employee to demonstrate that the reason articulated by the employer was a
pretext.” Gilmore, 319 F.3d at 1046 (citations omitted); see Ewina, 2016 WL 4717985, at *5–6.
There is no dispute in the present case that Plaintiff is a member of a protected class.
Plaintiff specifically asserts that he is “black,” and Courts generally do not require evidence of an
individual’s race at the summary judgment stage when the question of membership in a protected
class is not at issue.
The second factor of the McDonnell Douglas framework requires Plaintiff to demonstrate
he was performing his job at a level that met his employer’s legitimate expectations. Judge v.
Susee, 5-cv-214 (PAM/JSM), 2006 WL 463534, at *5 (D. Minn. Feb. 24, 2006) (citing Erenberg
v. Methodist Hosp., 357 F. 3d 787, 793 (8th Cir. 2004); Richmond v. Bd. of Regents of Univ. of
Minn., 957 F.2d 595, 598 (8th Cir. 1992)); Ewina, 2016 WL 4717985, at *5–6.
Viewing the record in the present case in the light most favorable to Plaintiff (the non-
moving party), there is no evidence demonstrating that Plaintiff was meeting Defendant’s
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legitimate expectation of employment.16 Instead, the evidence in the present record indicates that
Plaintiff was not meeting Defendant’s legitimate expectations of employment. The unrefuted
evidence in the record demonstrates that Plaintiff twice received a “final warning” after he issued
the wrong boarding passes to multiple passengers and incorrectly tagged their luggage. The
record also contains unrefuted evidence demonstrating that Plaintiff had significant issues with
attendance which 	led 	to 	him 	receiving 	an 	“Attendance—Final 	Warning.” Moreover, 	the
unrefuted evidence in the record indicates that Defendant’s investigation into the damage of a
towbar concluded in a finding that Plaintiff damaged the towbar, violated company policy by
failing to report that he damaged the towbar, and declined to take responsibility for the damaging
action when presented with the evidence collected in the investigation which included an
eyewitness account of the incident and video footage of an individual matching Plaintiff’s
physical characteristics damaging the towbar. These incidents represent sufficient specific
evidence that Plaintiff was not meeting Defendant’s legitimate expectations of employment, and
although it is not Defendant’s burden to prove Plaintiff was performing below Defendant’s
legitimate expectations, the unrefuted nature of the described evidence demonstrates that
Plaintiff has failed to meet his burden of showing that he was meeting Defendant’s legitimate
expectations. See, e.g., Green v. City of Hughes, No. 16-cv-58 (JLH), 2017 WL 2177966, at *6
(E.D. Ark. May 17, 2017).
Even viewing the record in the light most favorable to Plaintiff, there is no reasonable
basis upon which this Court could conclude that Plaintiff has demonstrated he was meeting
Defendant’s legitimate expectations of employment. Plaintiff has offered no admissible evidence
16 Indeed, Plaintiff does not even specifically allege that he was meeting Defendant’s legitimate expectations of
employment. Plaintiff’s closest allegation on this point is that he “was eager and able to work in his position as a
baggage handler, with or without accommodation.” (Amended Compl. [Docket No. 5] ¶ 76). But again, allegations
unsupported by evidence are insufficient to survive summary judgment.
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to raise a reasonable dispute of material fact as to the movant’s evidence on Plaintiff’s
employment performance issues submitted in support of its Motion for Summary Judgement.
Plaintiff’s failure to make this showing is fatal to his race-discrimination claim under Title VII
and his race-discrimination claim under the North Dakota Human Rights Act. See, e.g., Miner v.
Bi-State Dev. Agency, 943 F.2d 912, 914 (8th Cir. 1991); 	Green, 2017 WL 2177966, at *6;
Shanklin v. Fitzgerald, 397 F.3d 596, 603 (8th Cir. 2005); Carlson v. Coop. Power Ass’n, 230
F.3d 1362 (8th Cir. 2000); Ingram v. Arkansas Dep’t of Correction, 91 F.4th 924, 928 (8th Cir.
2024); Gibson v. Concrete Equip. Co., Inc., 960 F.3d 1057, 1063 (8th Cir. 2020). Thus, both of
Plaintiff’s race-discrimination claims necessarily fail. See Celotex, 477 U.S. at 322.
IV. 	Conclusion
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1. 	Defendant’s Motion for Sanctions, [Docket No. 78], is GRANTED in part and
DENIED in part, as set forth herein;
2. 	To the extent Defendant’s Motion for Sanctions, [Docket No. 78], seeks the
imposition of sanctions against Plaintiff, the Motion is GRANTED, as set forth
herein;
a. 	As sanctions, Plaintiff may not rely upon any evidence in support of his
claims unless that evidence was disclosed in discovery before the close of the
discovery period on July 31, 2025; and
3. 	Defendant’s Motion for Sanctions, [Docket No. 78], is DENIED in all other
respects.
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Further, based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY RECOMMENDED THAT:
1. 	Defendant’s Motion for Summary Judgment, [Docket No. 84], be GRANTED, as set
forth herein; and
2. 	Plaintiff’s remaining claims (Counts 1, 4, 7, 9, 10, and 12) be DISMISSED with
prejudice.
Dated: February 3, 2026 	s/Leo I. Brisbois
Hon. Leo I. Brisbois
United States Magistrate Judge
N O T I C E
Filing Objections: This Report and Recommendation is not an order or judgment of the District
Court and is therefore not appealable directly to the Eighth Circuit Court of Appeals.
Under Local Rule 72.2(b)(1), “A party may file and serve specific written objections to a
magistrate judge’s proposed findings and recommendations within 14 days after being served
with a copy of the recommended disposition[.]” A party may respond to those objections within
14 days after being served a copy of the objections. LR 72.2(b)(2). All objections and responses
must comply with the word or line limits set forth in LR 72.2(c).
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