MEMORANDUM OPINION AND ORDER

RICHARD KYLE, District Judge

Introduction

Plaintiff Nancy Hayes ("Hayes") worked for Defendant U.S. Bancorp Piper Jaffray Inc. ("Piper Jaffray") as a trader from June 2000 to April 2003. During that time, Piper Jaffray, due to a downturn in the market, implemented five rounds of layoffs, the last of which affected Hayes. Hayes was discharged on the day she returned to work from taking twelve weeks of maternity leave. She has sued Piper Jaffray under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Minnesota Human Rights Act ("MHRA") alleging she was discriminated against because of her sex. She also alleges that she was discharged in violation of the Family and Medical Leave Act ("FMLA") and the Minnesota Parenting Leave Act ("MPLA"). Piper Jaffray has moved for summary judgment on all claims. For the reasons set forth below, the Court will grant the motion.

Background

I. Hayes's Employment at Piper Jaffray

From least to most senior, traders at Piper Jaffray are given one of the following titles: Associate Trader; Assistant Vice President ("AVP"); Vice President; and Managing Director. (Karos Dep. Tr. at 21-22.) In June 2000, Hayes began working at Piper Jaffray as an Associate Trader with a starting salary of $50,000. (Gillette Aff. Exs. 3-4.) Throughout Hayes's time at Piper Jaffray, Nick Karos ("Karos") was her supervisor and made all decisions regarding her assignments, bonuses, salary, and eventually her discharge. (Karos Decl. ¶¶ 2, 5.) Hayes worked with four different senior traders while at Piper Jaffray. From June 2000 to March 2001, she was assigned to assist Vice President Gordon Sylvester. (Hayes Dep. Tr. at 35-36.) Sylvester left Piper Jaffray in March 2001, and from that time until approximately June 2001, Hayes assisted Vice Presidents Dan Utoft and Todd Wodek. (Karos Decl. ¶ 10.) In June 2001, she was assigned to assist Managing Director Jeff Adamson and she worked with him until her discharge in April 2003. (Hayes Dep. Tr. at 34-35.) Typically, senior traders such as Adamson were assigned one or two junior traders who would work as their assistants; these groupings — of a senior trader with one or two junior traders — were called "Pods." (Karos Decl. ¶ 5.) Hayes and Adamson made up a two-person Pod until just before Hayes took maternity leave, when a third trader was added to their Pod. (Karos Decl. ¶ 12.)

Hayes experienced some advancements at Piper Jaffray. In December 2000, about six months after she started as an Associate Trader, Hayes received a $10,000 raise, bringing her yearly salary to $60,000. (Hayes Dep. Tr. at 133.) In March 2002, while working with Adamson, Hayes was promoted to AVP, and she received a corresponding raise of $10,000 effective in May 2002. (Id.) All of the decisions regarding her raises and promotions were made by Karos.

Karos also awarded those traders whom he supervised discretionary year-end bonuses. When considering bonuses for junior traders, he looked to their "current contribution to Firm revenue, the need to offer a retention incentive, and their potential to ascend to positions of greater responsibility and value to the Firm." (Karos Decl. ¶ 7.) In February 2003, Karos awarded Hayes a $6,500 bonus for 2002; this was the lowest bonus given to an AVP. (Id. at ¶ 14.) At the same time, Karos awarded a female AVP a $25,000 bonus, the highest bonus given out for 2002. (Id.)

Despite her advancements, Hayes was disappointed with her assignment to assist Adamson. (Hayes Dep. Tr. at 540-44.) She testified that "sitting with [Adamson] certainly was not beneficial to my career as a trader and it wasn't conducive to developing my skills as a trader." (Id.) She felt she needed to learn to be aggressive and take risks in order to advance at Piper Jaffray, but also felt unable to learn such skills from Adamson. (Id.) She summed up her feelings this way: "What I mean is that once Gordy [Sylvester] left, I was put with Jeff Adamson, who is not well respected on the desk and in my opinion not a very good trader." (Id.) The basis for Hayes's opinion was that Adamson "considered himself the Rodney Dangerfield of the desk," and made other self-deprecating comments. (Id. at 543-44.) No one else ever told her that Adamson was not respected. (Id.) Hayes's opinion of Adamson differs markedly from that of Karos, who describes Adamson as "a respected senior trader whose over 20 years of trading experience, personal style, list of stocks, and approach to trading made him a good teacher for less experienced traders." (Karos Decl. ¶ 9.)

Hayes's performance was rated by other traders a number of times. Traders would rate their co-workers by giving them a score from one to ten on various criteria, such as communication skills and attitude. (Gillette Aff. Exs. 13-16; Iwan Suppl. Decl. Ex. B.) Hayes had an overall scores above the average overall score given to traders in June 2001 and June 2002. (Id.) Traders were also asked to write comments about the person they were rating. Hayes received both positive and negative comments on the surveys provided to the Court. (Id.) Karos considered these surveys when making employment decisions about traders; he gave more consideration to the comments on the surveys than to the numerical scores. (Karos Dep. Tr. at 71-72.)

II. Hayes's Maternity Leave

In 2002, Hayes notified Karos that she was pregnant and would be taking maternity leave when the child was born. Hayes did not "have any complaints about the FMLA process in obtaining the leave[.]" (Hayes Dep. Tr. at 117.) Nor did she hear anyone in management or human resources make negative statements about employees taking FMLA leave, or see anyone in management act in a discriminatory way toward employees taking FMLA leave. (Id. at 119, 125-26.) In January 2003 Hayes gave birth, and commenced her pre-approved twelve weeks of FMLA leave. (Id. at 101.) She returned to work on April 7, 2003. (Id.) Upon her arrival at Piper Jaffray, Karos informed her that she was being laid off pursuant to a reduction-in-force. (Id. at 229-30.)

III. Piper Jaffray's Reductions-in-Force

Piper Jaffray implemented five reductions-in-force between February 2001 and April 2003. (Karos Decl. ¶ 10.) Hayes survived the first four rounds of layoffs in which five of her fellow traders were discharged. (Id.) The first four layoffs, together with attrition, reduced the number of traders on the floor by nearly one-third. (Id.) In March 2003, Karos received his fifth directive to reduce headcount, and after considering which traders would "least jeopardize" the profitability of the areas under his supervision, Karos decided to discharge Hayes as well as two male traders. (Id. ¶¶ 15-16.) Karos felt that Hayes's potential for advancement was uncertain, given concerns about her "decisiveness, assertiveness, and presence on the trading floor." (Id. ¶ 16.) Karos had similar concerns about the two male traders laid off at the same time. (Id. ¶ 17.)

IV. "Inappropriate" Behavior on the Trading Floor

Throughout her employment at Piper Jaffray, Hayes's co-workers engaged in conduct, read e-mails, and had conversations that Hayes felt were "inappropriate." For example, Hayes testified about the following conduct of a fellow trader: "The nature of the conversations that he had was almost always of a sexual or inappropriate nature and he usually spoke with a volume that was more than loud enough for me to hear, even though I was in the back row." (Hayes Dep. Tr. at 162.) When asked for specifics regarding this particular co-worker, Hayes stated "I couldn't give you a specific incidence because it was ongoing and I would say on a daily basis. There is no single incident that stands out because it was pretty constant." (Id. at 163.) Hayes then testified about the same co-worker:

Q: Did he ever make any comment to you which you thought was discriminatory toward you?

A: No.

Q: Did he ever make a comment to you that you thought was discriminatory towards women?

A: No.

Q: Did he ever engage in conduct toward you that you thought was discriminatory in any way?

A: Not towards me, no.

(Id.) This testimony is representative of how Hayes described much of the behavior on the trading floor that she found inappropriate. Often, if an "inappropriate" e-mail was sent to a co-worker, she would be prevented from seeing it or a co-worker would say "This isn't for you" or "Nancy, you can't look at this." (Id. at 165.) In reference to Adamson preventing her from seeing something on his computer screen, Hayes testified:

Q: And on how many occasions did he hide something from you?

A: I would say five to ten times.

Q: While you sat next to him?

A: Hm-hmm.

Q: But you don't know what it was that he was looking at?

A: All I know is he made it clear it was inappropriate and I would be offended by it and that they could get in trouble — they were very clear they could get in trouble for having it if I were to see it.

Q: But you don't know what it was?

A: No.

(Id. at 166-67.) She also gave the following testimony about Adamson:

Q: Did Mr. Adamson ever do anything that you thought was discriminatory in any way?

A: I don't think so.

Q: Did he ever author any documents that you thought that were discriminatory in any way?

A: Nothing that I saw directly, no.

Q: Anything you saw indirectly?

A: There were e-mail exchanges that reference was made to, but I don't know the extent to which he participated in any chains of e-mails.

Q: Did you ever see any inappropriate e-mails on [his] screen?

A: I think, you know, I think so. I know that I saw inappropriate e-mails on desks of people sitting directly next to me. It's hard for me to remember exactly who, whose screens they were on.

Q: Let's just start with Mr. Adamson. Did you ever see any inappropriate e-mails on his screen?

A: I don't think so.

Q: Did you ever see any pornographic images on his screen?

A: No.

Q: Did you ever see any nudity or vulgarity on his screen?

A: No.

(Id. at 34-35.) There are, however, some specific instances of conduct by her co-workers that Hayes was able to recall:

• When Hayes worked with Sylvester, "whenever something inappropriate or offensive was said," Sylvester would say, "Oh, that's going in Nancy's book," referring to "some hypothetical book that . . . would keep track of all the offensive comments that were being made. . . ." (Id. at 203.) He would also say, "Remember, I have a female assistant . . . to prevent inappropriate things from being heard by [Hayes]." (Id. 204-05.)

• When reporter Hugh Johnson was on T.V., traders would make jokes about his name being slang for male genitalia. (Id. at 200-01.)

• A male trader who began sitting next to Hayes in August 2002 discussed and visited the website for BMXXX, a video game featuring computer generated nude women. (Id. at 169-70.)

• Adamson and another trader commented that the "worst [e-mails]" came from Karos. (Id. at 156-57, 166.)

Karos also testified that he heard "inappropriate" jokes of a "sexual nature" during the time Hayes worked at Piper Jaffray. (Karos Dep. Tr. at 98-99.) He was also aware of people receiving "e-mails of a sexual nature" from outside of the company. (Id. (A: "I was aware of people who had received, from the outside, external e-mails." Q: "And how did you become aware of that?" A: "They'd bring it to my attention." Q: "And why were they bringing it to your attention?" A: "Because they know that they're not supposed to have those types of e-mails.").)

Hayes brought the instant suit against Piper Jaffray alleging discrimination based on sex in violation of Title VII and the MHRA, and alleging a violation of her rights under the FMLA and the MPLA. Piper Jaffray has moved for summary judgment alleging Hayes has failed to meet her burden of proof on all claims and thus her claims should be dismissed. Because this Court finds that there are no genuine issues of material fact, and because Hayes has not presented sufficient evidence in support of her claims, it will grant Piper Jaffray's Motion for Summary Judgment.

Standard of Review

Summary judgment is proper if, drawing all reasonable inferences favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The moving party bears the burden of showing that the material facts in the case are undisputed. See Celotex, 477 U.S. at 322; Mems v. City of St. Paul, Dep't of Fire Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). The court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the nonmoving party. See Graves v. Arkansas Dep't of Fin. Admin., 229 F.3d 721, 723 (8th Cir. 2000); Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116 (8th Cir. 1997). The nonmoving party may not rest on mere allegations or denials, but must show through the presentation of admissible evidence that specific facts exist creating a genuine issue for trial. See Anderson, 477 U.S. at 256; Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).

Analysis

I. Title VII and MHRA Claims

Hayes alleges that Piper Jaffray discriminated against her because of her sex in violation of Title VII and the MHRA. Under Title VII, it is unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex. . . ." 42 U.S.C. § 2000e-2(a)(1). The MHRA makes it unlawful for an employer to "discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment" because of sex. Minn. Stat. § 363A.08, subd. 2(c). Hayes identifies three adverse employment actions she suffered, allegedly due to unlawful discrimination: 1) she was discharged; 2) she was paid a smaller bonus for 2002 than any male trader; and 3) Piper Jaffray "curtailed [her] advancement prospects by placing her in a poorly performing pod." (Mem. in Opp'n at 12.)

Having provided no direct evidence of discrimination, Hayes's claims are analyzed under the McDonnell Douglas burden shifting framework, as modified by Desert Palace, 539 U.S. 90 (2003).See Peterson v. Scott County, 2004 WL 1179368, **8-9 (D. Minn. May 27, 2004). First, to establish her prima facie case, Hayes must show that she is a member of a protected class, she was qualified for her position, she suffered an adverse employment action, and a non-member of her class was treated differently. See Peterson, 2004 WL 1179368, at *10. Second, if Hayes is able to show a prima facie case of discrimination, Piper Jaffray must then produce a legitimate nondiscriminatory reason for the adverse employment action. If Piper Jaffray satisfies its burden of production, the third step in the framework, which has been modified by Desert Palace, is triggered. Hayes may satisfy the third step by showing either that the defendant's legitimate nondiscriminatory reason is a pretext for unlawful discrimination, or that her sex was a motivating factor in the employment decision, even if the Piper Jaffray's reason is also true. Id. at *11.

A. Discriminatory Discharge

Hayes claims that she was laid off because of her sex in violation of Title VII and the MHRA. It is undisputed that Hayes's position at Piper Jaffray was eliminated as part of a reduction-in-force. Thus, she cannot show that she was replaced by a male with similar qualifications, and the Eighth Circuit's "pretext-plus" standard applies to her case. Groves v. Cost Planning and Mgmt. Int'l, Inc., 372 F.3d 1008, 1010 (8th Cir. 2004) ("[I]n addition to showing pretext, plaintiffs in reduction of force cases must also show their protected status was a factor in the adverse employment action."); Putman v. Unity Health Sys., 348 F.3d 732, 736 (8th Cir. 2003) ("In reduction-of-force cases, we have always required some additional showing that discrimination was a factor in the termination." (internal quotation omitted)). For the purpose of this Motion, the Court will assume that Hayes has established a prima facie case, and will fully consider her claims of discrimination.

Assuming, arguendo, that Hayes established a prima facie case of discriminatory discharge, it is undisputed that Piper Jaffray has come forward with a legitimate nondiscriminatory reason for her termination. (Hayes Dep. Tr. at 247.) Karos made the decision to discharge Hayes and two other traders (both male) just before April 2003. Piper Jaffray asserts that in making his decision, Karos considered current performance and potential. One weakness he found common to all three laid-off traders was a lack of "decisiveness, assertiveness, and presence on the trading floor." (Karos Decl. ¶ 17.) Piper Jaffray has satisfied its burden of production, and so the burden shifts back to Hayes to show that Piper Jaffray's decision was either pretext for discrimination or that her sex was a motivating factor in the decision.

Hayes, as the nonmoving party, "must demonstrate the existence of specific facts that create a genuine issue for trial; mere allegations or denials are not enough." Lambert v. City of Dumas, 187 F.3d 931, 934-35 (8th Cir. 1999). This is precisely what Hayes is unable to do. She alleges that Piper Jaffray's reason for terminating her is pretext for discrimination and/or that her sex was a motivating factor in the decision. Specifically she directs the Court's attention to three aspects of the record to support her argument, each of which is considered below.

1. Hayes's prior raises and sales trader rankings

First, Hayes makes two arguments having to do with her past evaluations at Piper Jaffray: (1) that she was promoted and given a raise shortly before being terminated; and (2) that she was given favorable reviews, and was "ranked highly" by her fellow traders. (See Mem. in Opp'n at 18-19.) Hayes was promoted in March of 2002, and was given a raise effective May 2002, 13 and 11 months before she was laid off. (Hayes Dep. Tr. at 132-133.) She has also produced documents indicating that twice when she was rated by her fellow traders, she was scored above average. (Gillette Aff. Exs. 13-16; Suppl. Iwan Decl. Ex. B.)

Hayes's promotion and raise do not create an inference that her discharge was discriminatory. That Hayes was a qualified employee is not at issue here; rather, to create a material question of fact from evidence showing she received a promotion and salary increase, Hayes must cast doubt on the specific reasons given for her termination. "[E]ven capable employees are released when an employer is downsizing, and therefore evidence of competence is not particularly probative." Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 779 (8th Cir. 1995). If the Court accepted as creating a genuine issue of material fact evidence that Hayes received a raise and promotion a year prior to an unanticipated reduction-in-force, it would "simply [be] challenging the wisdom of [Piper Jaffray's] decision, which [courts] have consistently refused to review." Anderson v. Stauffer Chem. Co., 965 F.2d 397, 403 (7th Cir. 1992); see Groves, 1008 F.3d at 1010 (holding in a reduction-in-force case that an "allegation that another employee should have been fired instead questions a reasonable business decision by [the employer], a decision courts do not second guess"); Aungst v. Westinghouse Elec. Corp., 937 F.2d 1216, 1223 (7th Cir. 1991) (holding that recent merit pay increase and positive reviews did not respond to the employer's "reasons for terminating [employee] — the need for versatility in the context of a reduction in force"), overruled in part on other grounds, Oxman v. WLS-TV, 12 F.3d 652 (7th Cir. 1993).

Hayes's arguments regarding the sales trader evaluations are similarly without merit. First, the sales surveys were not filled out by Karos (the decisionmaker). Second, Hayes does not dispute that Karos placed more weight on the comments made by her fellow traders than on the numerical rating. (Karos Dep. Tr. at 72.) Third, she does not claim those comments are inaccurate or wrong. (Hayes Dep. Tr. at 225 (Q: "Are there any of these comments that you disagree with that appear in the bottom left side?" A: "I guess not.").) While it is true that Hayes was rated above average on two sales surveys, "[p]retext is not established by virtue of the fact that an employee has received some favorable comments in some categories or has, in the past, received some good evaluations." Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 528 (3d Cir. 1992). The comments on the reviews that she cites corroborate Karos's stated reasons for his decision; there are, among the positive comments, a number of statements that Hayes is "too quiet." (Gillette Aff. Exs. 14, 15; Suppl. Decl. of Iwan Ex. B.) This Court would not presume to tell a company, facing its fifth reduction-in-force in two years, which employee weaknesses should be disregarded and which should not. Rather, "a district court should focus on the qualification the employer found lacking in determining" whether a decision was discriminatory; otherwise, "district courts would be routinely called upon to act as members of an employer's promotion board or committee." Ezold, 983 F.2d at 528. The reviews produced by Hayes do not create genuine issues of material fact as to pretext or a discriminatory motive regarding the employment decision.

Even if the reviews countered to some extent the reasons given by Karos for Hayes's termination, they would not create genuine issues of material fact in the context of a reduction-in-force. As discussed above, there is no question that during downturns in business, competent and capable employees are affected by layoffs. Hutson, 63 F.3d at 779. The fact that Hayes previously survived four rounds of layoffs bolsters this point because "any employee released during the second round [of layoffs] has already survived the first rounds of cuts and is therefore presumptively competent." Hutson, 63 F.3d at 779. The "surveys" presented by Hayes are not probative on the issue of pretext or motive behind Piper Jaffray's decision.

2. Hayes's assignment to assist Adamson

Second, Hayes alleges that she "has presented evidence that she was marginalized and excluded at Piper Jaffray" to show that the company's stated reason for terminating her was pretextual and that sex was a motivating factor in its decision. (Mem. in Opp'n at 19.) The Court finds that she has not presented such evidence. She provides no evidence in support of her opinion expressed in her deposition testimony; Hayes's opinion, standing alone, does not withstand summary judgment, as it does nothing to "substantiate [her] allegations with sufficient probative evidence [that] would permit a finding in [her] favor based on more than mere speculation, conjecture, or fantasy." Wilson v. International Bus. Machines Corp., 62 F.3d 237, 241 (8th Cir. 1995) (internal quotation omitted).

3. Inappropriate atmosphere on the trading floor

Finally, Hayes asserts that the environment on Piper Jaffray's trading floor was offensive or inappropriate. Again, her case suffers from a lack of evidence beyond generalized allegations in her deposition testimony. Hayes has not presented "evidence of conduct or statements by persons involved in [Piper Jaffray's] decision-making process reflective of a discriminatory attitude sufficient to allow a reasonable jury to infer that that attitude was a motivating factor in [the company's] decision to fire [Hayes]." Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999) (internal quotation omitted). Thus, the Court must consider whether the evidence she does have is sufficient to show pretext or discriminatory motive.

In the context of a reduction-in-force, where a decision to terminate is difficult to challenge, " some causal relationship is necessary to demonstrate the significance of non-contemporaneous statements, or statements made by persons other than the relevant decision-maker, to the resolution of the ultimate issue of intentional discrimination." Hutson, 63 F.3d 779 (emphasis in original). Hayes cannot show any causal connection between the atmosphere she found inappropriate and the decision to lay her off. Her deposition testimony regarding the offensive working environment is generalized, and not supported by any documentation or by corroborating testimony or affidavits from other employees. Hayes does not present any evidence that Karos, the decisionmaker with regard to her compensation and her termination, acted discriminatorily towards her or other women or ever conducted himself in a way that would suggest that her sex was a factor in his decision to terminate her. (See Hayes Dep. Tr. at 155 (Q: "Did Nick Karos ever say anything to you that you thought was discriminatory toward women?" A: "I can't think of any specific comments." Q: "Do you have any documents that you would look at to refresh your recollection?" A: "No." Q: "Did he ever make any comments that you thought were discriminatory towards you?" A: "No.").) Hayes has not produced evidence from which a reasonable jury could find she was intentionally discriminated against.Wilson, 62 F.3d at 239 (granting summary judgment for employer in reduction-in-force case, where plaintiff "admitted [in his deposition] that he had never heard [his supervisor] make an age-based discriminatory statement," and did not present any other evidence of intentional discrimination).

Hayes also alleges that Karos sent "offensive e-mails" to other workers on the trading floor. (See Hayes Dep. Tr. at 155.) She testified that she does not have any of those e-mails or documents, could not identify a specific date or year in which she saw an e-mail from him, and that no e-mails were ever sent to her. (Hayes Dep. Tr. at 155-56.) Instead, her claims are based on conversations with a co-worker who "would make comments about some of the worst [e-mails] come from Nick [Karos]." (Id. at 156-57.) She also testified that she was not "sure what came from Nick and what didn't," and that she could not "identify any document as authored by Nick Karos." (Id. at 157, 159.) These allegations, even if based on first-hand knowledge, are not sufficient to create an issue of fact as to pretext. See Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1017-18 (8th Cir. 1999) (holding evidence that supervisor "made sexist and sexual comments and that the company was aware of at least some of these," did not establish discriminatory discharge as "[n]one of the statements related either to [the plaintiff] herself or to the abilities of women employees") (emphasis added); cf. Kammueller v. Loomis, Fargo Co., ___ F.3d ___, 2004 WL 1885249, *7 (8th Cir. Aug. 25, 2004) (holding, in reductionof-force case, that material question of fact was established when plaintiff presented evidence "of discriminatory comments and derogatory statements about his disability," along with other facts calling employer's stated reason for termination into question) (emphasis added).

The offensive or inappropriate statements allegedly made by Hayes's co-workers on the trading floor are even less probative of pretext. Hayes's assertions regarding her co-workers' behavior are so vague and conclusory that no reasonable jury could find Karos's stated reasons for terminating her were pretext for discrimination or that her sex was a motivating factor in his decision. These allegations suffer from a more fundamental flaw, however, because they are not related to or directed toward Hayes, nor were any of her co-workers involved in the decision to terminate Hayes. See Krumwiede v. Mercer County Ambulance Service, Inc., 116 F.3d 361, 363-64 (8th Cir. 1997) (granting summary judgment in reduction-of-force case where "reference to [plaintiff] as `granny' was made by a co-worker who had no decision-making authority," and other comments by co-worker were "not made by a decisionmaker and did not even refer to [plaintiff]"). In the context of a reduction-in-force, Hayes must allege that the behavior of her "co-employees was related to [Piper Jaffray's] decisionmaking process." Herrero v. St. Louis University Hospital, 109 F.3d 481, 484 (8th Cir. 1997) (holding summary judgment appropriate on discriminatory discharge claim in reduction-of-force case). She has not done so.

While evidence of discriminatory remarks made by nondecisionmakers, or made away from the decision-making process, may be used to show that an employer's stated reason for discharging an employee is pretext for discrimination, the Eighth Circuit has required much more than Hayes has presented in this case. See Fast v. Southern Union Co., 149 F.3d 885, 891 (8th Cir. 1998); Ryther v. Kare 11, 108 F.3d 832, 843 (8th Cir. 1997). The inappropriate atmosphere Hayes complains of is clearly distinguishable from cases in which the Eight Circuit has found statements by nondecisionmakers probative of pretext. Her allegations are generalized and conclusory. She is unable to provide the court with specific examples or documentation to buttress much of her testimony. As to the specific instances of inappropriate conduct she does recall, the behavior was not directed towards her or discriminatory towards her. The Court, while certainly not approving of such conduct, is mindful of the fact that "Title VII is not designed to purge the workplace of vulgarity." Duncan v. General Motors Corp., 300 F.3d 928, 934 (8th Cir. 2002) (internal quotation omitted) (also stating that Title VII standards "are designed to filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing" (internal quotation omitted)).

B. 2002 Bonus

Hayes alleges that her 2002 bonus, the lowest of any junior trader, was the result of her sex. (Mem. in Opp'n at 13.) To show that she was discriminated against with respect to her pay, Hayes must demonstrate that Piper Jaffray "paid different wages to [male] employees . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." Tademe v. Saint Cloud State University, 328 F.3d 982, 989 (8th Cir. 2003) (internal quotations omitted). Hayes does not provide the Court with any information as to the traders who received higher bonuses than she did, does not refute the reasons given by Karos for his bonus decision, and does not address the fact that a female trader received the highest bonus given to an AVP for 2002.

Hayes contends that because "her co-workers gave her higher ratings than the individuals who got larger bonuses than [she did]" she has created a question of material fact regarding the amount of her bonus. (Mem. in Opp'n at 13.) She has not provided the Court with any specific evidence regarding those other traders — for example, she presents no information regarding the rating of any trader that received a higher bonus, or what comments those traders received in their reviews. Further, she fails to show that the five traders who received higher bonuses are the same traders who were included in the surveys on which she received higher than average scores. In sum, Hayes provides no substantive evidence regarding the relevant similarities between herself and any other traders.

Relying upon Burns v. Republic Sav. Bank, 25 F. Supp. 2d 809, 823-23 (N.D. Ohio 1998), Hayes argues that she can show pay discrimination without comparing herself to a similarly situated male employee. (See Mem. in Opp'n at 13.) She may also use "statistical or circumstantial evidence to prove such intentional discrimination occurred." Veeder v. Cargill, Inc., No. Civ. 02-1711 (PAM/RLE), 2003 WL 23018824, *8 (D. Minn. Dec. 23, 2003) (citation omitted). Hayes has failed to do even this. She provides no evidence from which this Court could draw an inference that her bonus was discriminatory, and thus she cannot withstand summary judgment on this claim.

C. Interference with Hayes's Ability to Advance at Piper Jaffray

Finally, Hayes asserts that her placement with Adamson, who was located in the back row of the trading floor, and who "traded in low margin, low volatility stocks," was discrimination in violation of Title VII and the MHRA. (Mem. in Opp'n at 14.) In order to prove a prima facie case, Hayes must show "that she suffered an adverse employment action that affected the terms or conditions of her employment." Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997). Because the Court finds that her placement with Adamson did not constitute an adverse employment action, her claim does not survive summary judgment.

While the Eighth Circuit recognizes that an employee may suffer an adverse employment action even though they have not been discharged, the court has "consistently held a change in non-tangible working conditions, no matter how unpleasant, fails to constitute a `material employment disadvantage' necessary to establish an adverse employment action under . . . Title VII. . . ." Jones v. Fitzgerald, 285 F.3d 705, 714 (8th Cir. 2002) (internal quotation omitted). The court held that the plaintiff in Jones, who had been assigned to a different supervisor, did not establish this as an adverse employment action in part because she "suffered no diminution in title, position, salary, job responsibilities, benefits, hours, or other material terms or conditions." Id.; see Ledergerber, 122 F.3d at 1144.

Similar to the plaintiff in Jones, Hayes did not suffer any tangible change in her position. She was not demoted in pay, title, benefits, or any other term or condition of her employment. Adamson was actually a more senior trader than any of the previous three senior traders she had worked with at Piper Jaffray. (Karos Decl. ¶ 9.) Aside from her personal opinion of Adamson, Hayes does not present the Court with any evidence to counter Karos's opinion of Adamson as being "a respected senior trader whose over 20 years of trading experience, personal style, list of stocks, and approach to trading made him a good teacher for less experienced traders." (Id.) Hayes's opinion of Adamson, and her disappointment with being assigned to work with him, does not establish that she suffered an adverse employment action; she is unable to establish a prima facie case of discrimination as to this claim.

II. FMLA and MPLA Claims

Counts III and IV of Hayes's Complaint allege violations of the FMLA and the MPLA. She claims that Piper Jaffray's action in terminating her employment on the day she returned from maternity leave was "in direct violation" of the statutes. (See Compl. ¶¶ 35, 40.) Hayes's claim fails because she does not present any evidence establishing a genuine issue of material fact with respect to the reason for her discharge.

Courts have recognized two types of cognizable claims under the FMLA: "interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act, and retaliation claims, in which an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act." Strickland v. Water Works and Sewer Board of the City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001) (internal citations omitted);see also Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1017 (7th Cir. 2000) (recognizing that FMLA provides a substantive prescriptive right to reinstatement, as well as a proscriptive right barring retaliation). Hayes's claims do not succeed under either type of claim.

A. Hayes's Right to Reinstatement

Under the FMLA, eligible employees are entitled to take leave from work for medical reasons, and just as importantly, "to be restored by the employer to the position of employment held by the employee when the leave commenced." 29 U.S.C. § 2614(a)(1)(A). Hayes relies on this provision of the FMLA in asserting that her FMLA rights have been violated. Specifically, she testified: "I think my understanding was that I was guaranteed my job back after 12 weeks." (Hayes Dep. Tr. at 247.)

Hayes fails to acknowledge the limitations on this right under the statute. The statute also provides that "[n]othing in this section shall be construed to entitle any restored employee to . . . any . . . position of employment other than any . . . position to which the employee would have been entitled had the employee not taken the leave." 29 U.S.C. § 2614(a)(3)(B). It is therefore clear that "[t]he right to reinstatement is . . . not absolute." Kohls v. Beverly Enterprises Wisconsin, Inc., 259 F.3d 799, 804 (7th Cir. 2001); see also Taylor v. Union Institute, 30 Fed. Appx. 443, 452 (6th Cir. 2002) ("the FMLA does not absolutely protect an employee on leave from intervening discharge for other reasons"). The pertinent regulations provide as much: "An employee has no greater right to reinstatement . . . than if the employee had been continuously employed during the FMLA leave period." 29 C.F.R. § 825.216(a). It is clear that Hayes, despite her expectations, was not guaranteed her job after taking leave; she was entitled to what she would have had if she had not taken leave — but no more.

The Circuits have split on the question of whether the regulations place the burden of proof in interference cases on the employer or the employee. Compare Rice, 209 F.3d at 1018 (holding that "the employee must ultimately convince the trier of fact, by a preponderance of the evidence, that . . . the benefit is one that the employee would have received if leave had not been taken") and Pharakhone v. Nissan North America, Inc., 324 F.3d 405, 408 (6th Cir. 2003) ("If the employee cannot show that he was discharged because he took leave . . . he cannot show a violation of the FMLA"); with Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 963 (10th Cir. 2002) (placing burden of proof on employer) and Strickland, 239 F.3d at 1208 (same); see also 29 C.F.R. § 825.216(a)(1) (providing that "[a]n employer [has] the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration."). The Eighth Circuit has not weighed in on this issue.

Regardless of where the regulations place the burden, Hayes's FMLA claim fails. Piper Jaffray does not dispute that Hayes had a right under the FMLA to take her maternity leave, and to return to work after taking that leave. It argues, however, that Hayes was laid off because of reasons completely unrelated to her taking FMLA leave. Piper Jaffray has presented the following uncontroverted evidence to support its position: the company had to reduce headcount through five reductions in force, the fifth of which affected Hayes; in March 2003, while Hayes was on maternity leave, Karos was informed that he would have to implement the fifth unanticipated reduction-in-force; Karos decided to eliminate Hayes's position because her Pod was "among the least profitable at that time," Hayes demonstrated a lack of "decisiveness, assertiveness, and presence on the trading floor," and the loss of Hayes from the trading floor, in comparison to other traders, would not be a significant loss to the firm. (Karos Decl. ¶¶ 10, 15-16; see also Karos Dep. Tr. at 67-76.) Further, two male traders who had not taken FMLA leave were terminated in the same reduction-in-force as Hayes due to similar concerns about their performance and potential. (Id. at ¶ 17.)

Hayes's lack of support for her claim is highlighted in her deposition testimony. When asked why she thought her termination was related to her leave, she responded: "I feel that my position was eliminated because I went on FMLA leave." (Hayes Dep. Tr. at 244.) She contends that, because a third person was added to her Pod shortly before she went on leave, she was no longer needed at the company, and her position was eliminated. This argument is unpersuasive because Karos did not know of the impending reduction-in-force at the time he added a third trader to Hayes's Pod. (Karos Decl. ¶ 12.) Hayes does not contest the fact that her Pod was one of the least profitable, nor does she dispute that she was lacking in "decisiveness, assertiveness, and presence on the trading floor." (See Hayes Dep. Tr. at 234 (when asked whether she has reason to dispute that her Pod was performing poorly when compared with others, she responded "no"); 234-35 (Q: "[D]o you know how your performance . . . in the eyes of Piper management compared to that of other traders?" A: "I do not know."); 224 ("Gordy said I was too quiet sometimes."); 247 (Q: "You're not contesting the fact that Piper needed to do a reduction in force in April 2003 . . .?" A: ". . . I guess I'm not contesting that fact." Q: "And was there someone you thought should have gone instead of you?" A: "I don't know.").) Hayes does not dispute that Karos thought she was too quiet. (Karos Dep. Tr. at 72; Hayes Dep. Tr. 225, 233, 542.) Piper Jaffray has presented sufficient uncontroverted evidence that Hayes's termination was not impermissible interference with her right to reinstatement under the FMLA or MPLA.

B. Hayes's Claim of Retaliation in Violation of the FMLA and the MPLA

Next, Hayes claims that she was laid off in retaliation for her decision to take leave under the FMLA and the MPLA. She does not have any direct evidence to support her assertion, so her retaliation claim is analyzed using the McDonnell Douglas burden-shifting system of proof. See Smith v. Allen Heath Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002). To establish a prima facie case, Hayes must show that "she exercised rights afforded by the Act, she suffered an adverse employment action, and that there was a causal connection between her exercise of rights and the adverse employment action." Id. The Court will assume, arguendo, that Hayes has established a prima facie case of retaliation.

"However, the McDonnell Douglas battle is only begun with the prima facie case." Smith, 302 F.3d at 833. Piper Jaffray has come forward with a legitimate, nondiscriminatory reason for its decision to layoff Hayes, which shifts the burden back to Hayes to produce "some evidence that [Piper Jaffray's] proffered reason is pretextual." Id. Piper Jaffray contends that Hayes was laid off for business reasons unrelated to her leave, and that after considering her performance and potential, and faced with a compelled reduction-in-force, her termination would not pose a comparatively significant loss to the firm. This unquestionably satisfies Piper Jaffray's burden to come forward with a legitimate, nondiscriminatory reason. See Groves, 372 F.3d at 1010 (holding that company's consideration of "several factors, including productivity, project load, flexibility and seniority" in deciding which employees would be affected by a reduction-in-force satisfied employer's burden).

As a result, Hayes must present evidence creating a genuine issue of material fact as to whether Piper Jaffray's explanation for terminating her is not worthy of credence, and she must create "a reasonable inference that [Piper Jaffray] acted in retaliation." Smith, 302 F.3d at 833. Hayes has not done so. The time between the date she started her FMLA leave, and the date of her discharge (over two months), while arguably sufficient to establish a prima facie case, is not enough "to show that [Piper Jaffray's] proffered reason was pretextual."Id. at 834 (holding that temporal proximity of two weeks established prima facie case, but without more, did not establish pretext "because unlike evidence establishing the prima facie case, evidence of pretext and discrimination is viewed in light of the employer's justification" (internal quotation omitted)). The only additional evidence Hayes presents is, as discussed above, the fact that she was given favorable ratings by her fellow traders. While favorable reviews may create an inference of retaliation in some situations, they do not do so here.

Hayes presents the Court with no evidence tending to show that her leave was a factor in Piper Jaffray's decision (see Hayes Dep. Tr. at 125-26 (Q: "Did you ever see anyone in management engage in any conduct that was discriminatory towards people who took FMLA leave?" A: "No."), and she must do so to create a genuine issue of material fact sufficient to survive summary judgment. See e.g., Kiel, 169 F.3d at 1136 (holding summary judgment was proper in retaliation case where plaintiff did not allege that he was treated differently than others, "[n]or did [plaintiff] show a history of discrimination at [the company] that would present a genuine factual issue on retaliatory intent"); cf. EEOC v. Kohler, 335 F.3d 766, 774-75 (holding that evidence of temporal proximity, testimony that allegation of discrimination "upset" supervisor, and showing of employer's "lax enforcement of company policy and disciplinary procedures," created "a basis upon which a jury could have determined that [plaintiff's] complaint of discrimination was a contributing factor to his termination"). Thus, her claims do not survive summary judgment.

Conclusion

LET JUDGMENT BE ENTERED ACCORDINGLY.