Opinion
Civil No. 02-3089 (JRT/JSM).
August 13, 2004
James H. Kaster and Adam A. Gillette, NICHOLS KASTER ANDERSON, P.L.L.P., Minneapolis, MN, for plaintiff.
Jessica Schwie, JARDINE, LOGAN O'BRIEN, P.L.L.P., Lake Elmo, MN, for defendant.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Laura Plaetzer was employed as a New Car Salesperson by defendant Borton Automotive, Inc. ("Borton") from September 1999 until she was terminated in January 2002. Defendant is a car dealership selling new Volvos and used vehicles. Following her termination, plaintiff brought this action against defendant alleging sexual harassment, discrimination, and retaliation in violation of Title VII and the Minnesota Human Rights Act. Defendant denies the allegations and asserts that plaintiff was terminated for poor job performance. The Court must view the facts presented in a light most favorable to the plaintiff for purposes of this motion and, applying that standard, the Court finds that defendant's motion for summary judgment must be denied.
BACKGROUND
Plaintiff is a married woman with four children, who had long wanted to sell Volvos. In September 1999, defendant hired plaintiff as a new car salesperson at its Minneapolis location. Plaintiff was interviewed and hired by then sales manager Patrick Sutter. During plaintiff's first year and a half, there was significant turnover in the position of sales manager. Sutter was promoted to Vice President and General Manager of the Golden Valley location and was eventually succeeded in Minneapolis by Randy Blomlie. As the new car sales manager, Blomlie's job responsibilities include assisting salespeople in making sales, helping to close new car sales, and appraising trade-in vehicles when the used car sales manager is not available. Blomlie has authority to discipline salespeople and can recommend that an employee be terminated, but cannot by himself terminate an employee.According to plaintiff, Blomlie began exhibiting antagonism towards plaintiff shortly after Blomlie began working at Borton. In May and June of 2001, Blomlie began accusing plaintiff of not working her scheduled hours, and of spending too much time during business hours on activities related to her children. Additionally, Blomlie was not accommodating of plaintiff's need for a set schedule during the summer so that she could make childcare arrangements, and made comments to the effect that his wife did not have childcare issues, that Borton did not have to be family friendly, and that he did not care about plaintiff's difficulties. When he drafted the summer schedule, Blomlie assigned plaintiff only one evening shift, while assigning other male salespersons more than one evening shift.
Blomlie also began keeping notes on plaintiff. These notes eventually totaled thirteen pages documenting plaintiff's "offenses" and Blomlie's difficulties with her, and continued more than two months after plaintiff was terminated. Such note taking does not seem to have been a regular practice at Borton or of Blomlie's — defendant produced only one other page of notes about any other employee during the time plaintiff was employed at Borton.
On July 13, 2001, plaintiff had a regularly scheduled day off from work, and had scheduled a doctor appointment for one of her children. Plaintiff informed Blomlie that she could come in to the dealership after the appointment ended, and did so. When she came in, the General Manager, Rob Stewart, informed plaintiff that Blomlie was angry that she had arrived so late. Stewart commented that he hoped Blomlie would not confront plaintiff, but didn't want to get involved. The next day, Blomlie called plaintiff into his office, and berated her for coming in late on her day off. According to plaintiff, Blomlie told her she should "do the right thing" and stay home with her children, that as a woman with a family she would always be at a disadvantage at Borton, and that if she would not work on her day off he would replace her with someone who would.
Plaintiff became extremely upset by Blomlie's words. Initially she called her mother, who attempted to console her. She then called her HMO and told them that she was frightened and upset, and was having a hard time calming down. The HMO first advised her to go to the emergency room, but then, because plaintiff felt she could not leave work, connected her to a crisis counselor. This incident is noted in Blomlie's notes. Stewart was also aware of the incident and plaintiff's reaction.
After the July incident, plaintiff noticed that Blomlie spent more time encouraging and assisting the male salespersons than he spent with her. Plaintiff alleges that Blomlie held meetings with the male salespeople when plaintiff was not at work, and shared his customer list with two male salespersons that Blomlie had worked with at another dealership, but not with her. Prior to marketing efforts based on Blomlie's list, the two other men were not performing as well as plaintiff. Plaintiff also asserts that Blomlie listed poorer-performing men above her on the sales board, shared his and other departing employees' sales lists only with male salespeople, and ignored plaintiff when she needed help.
Plaintiff also claims that the male salespeople noticed and began to take advantage of Blomlie's attitude towards and treatment of her. This resulted in plaintiff being denied credit for two sales she shared with a male salesperson and being forced to give up half credit for a sale to a male salesperson who rather than participate helpfully in the sale in question had actually treated the customer poorly. Plaintiff further contends that Blomlie refused to allow plaintiff to drive one of the larger cars as her demo vehicle, restricting her to a smaller car that was impractical given the size of her family. In December 2001, plaintiff was informed by another employee that Blomlie had called her a "bitch."
Borton's sexual harassment policy directs employees to report harassment directly to the General Manager, in this case Rob Stewart. Plaintiff asserts that she informed Stewart early on of Blomlie's actions and attitude, but that Stewart refused to get involved because he didn't want to interfere with Blomlie's assigned duties as new car sales manager. After the July 13-14 incident, plaintiff wrote Stewart a letter concerning Blomlie's treatment of her. Several days later, plaintiff and Stewart spoke about plaintiff's complaints and her letter. Plaintiff told Stewart she believed that Blomlie's conduct constituted illegal harassment. She told Stewart that Blomlie treated her differently from the male salespeople. As an example, plaintiff recounted an incident in which Blomlie wrongly listed her sales as lower than those of a male employee on the sales board. Stewart responded that he understood that plaintiff felt that Blomlie discriminated against her and stated that he would be willing to talk to her about any illegal treatment of plaintiff by Blomlie. However, Stewart did not feel that the sales board incident qualified as discriminatory treatment.
Stewart is also the President of Borton Automotives.
Stewart discussed plaintiff's complaints about the July 13-14 incident with Blomlie and with Kjell Bergh, Borton's CEO. Blomlie confirmed that he had suggested to plaintiff that she consider staying at home because of her scheduling conflicts and had commented that maybe the car business was not a good business for her to be in. Stewart told Blomlie to stop discussing employee family concerns at work. Despite the fact that company policy required Stewart to document any incidents of sexual harassment in writing, he did not document this incident. Stewart testified in deposition that he did not consider the situation to be an incident of sexual harassment.
Plaintiff complained on other occasions as well. Plaintiff discussed Blomlie's behavior with the used car sales manager and with Ted Dickey, the finance manager, on numerous occasions. Plaintiff complained again to Stewart about Blomlie's treatment of her in November 2001. She also asked to be transferred to Borton's Golden Valley location so that she would not have to work under Blomlie. Plaintiff's request for a transfer was denied, and her other complaints were not addressed.
Plaintiff also alleges that Stewart began showing a romantic interest in her in early August 2001. According to plaintiff, Stewart asked her if she "would ever go for a guy like [him]," and, at one point, told plaintiff he loved her and that she was the only reason he came to work. According to plaintiff, after telling her that he loved her, Stewart stayed close to her for the rest of that day. When plaintiff tried to confront Stewart about his statements, Stewart asked her to recite to him his earlier words. Plaintiff states that she was too embarrassed to say the words back to him, and simply left his office. Following that incident, plaintiff says she realized that she was in a hopeless position at Borton.
Plaintiff relates that after this encounter, Stewart began asking plaintiff how she felt about him and began making sexually suggestive comments to her. Stewart told her that he was not having regular "whoopee," but that she was, asked if plaintiff could picture Stewart with two women, and commented that plaintiff was giving another of the employees her "sexy look" and trying to kiss him. On one occasion, Stewart made sexually suggestive pelvic thrusts at plaintiff. At another time, Stewart, standing uncomfortably close to plaintiff, stared at her chest, observed that one of her hairs had fallen on her chest, and asked if he could remove it. Plaintiff also asserts that Stewart regularly harassed her with double entendres and veiled comments. For example, when plaintiff e-mailed Stewart to thank him for the Christmas party, he replied that he had done it all for her.
During plaintiff's first full year at Borton (2000), plaintiff earned $35,096, exceeding the $30,000-$35,000 goal set for her by Sutter. In 2001 plaintiff earned $38,734, less than her $50,000 goal. According to plaintiff, her lack of improvement is attributable at least in part to the treatment she was subjected to by Blomlie and Stewart. On January 4, plaintiff was called into Blomlie's office, where she found Sutter and Blomlie waiting for her. Sutter told her that she was being fired for poor performance. A male was subsequently hired to replace her.
Shortly after being fired, plaintiff interviewed for a sales position at Motorwerks BMW. Plaintiff and the BMW sales manager, Alan Krutsch, agree that the interview went well. Plaintiff was not, however, offered a job at the BMW dealership. After the interview, Krutsch called Grobel, an acquaintance, and asked about plaintiff. Borton's policy is to only give out the dates of a former employee's employment. Plaintiff contends that she was given "a really bad reference" that was "mean spirited" and "very personal." Plaintiff asserts that an acquaintance of hers, who had helped to set up the interview at BMW, told her that someone at Borton really hated plaintiff and that this person's bad reference was the reason plaintiff was not hired by BMW. Plaintiff eventually found a position outside of automotive sales, and then, in July 2003, was hired by Luther Burnsville Volkswagon.
ANALYSIS
I. SUMMARY JUDGMENT
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Only disputes over facts that might affect the outcome of the suit under the governing substantive law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not appropriate if the dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. Summary judgment is to be granted only where the evidence is such that no reasonable jury could return a verdict for the nonmoving party. Id.
The moving party bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Vette Co. v. Aetna Cas. Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980). However, the nonmoving party may not merely rest upon allegations or denials in its pleadings, but it must set forth specific facts by affidavits or otherwise showing that there is a genuine issue for trial. Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002).
II. APPLICATION OF McDONNELL DOUGLAS
Title VII prohibits employment discrimination based on sex and covers a broad spectrum of disparate treatment. 42 U.S.C. § 2000e-2; Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); 29 C.F.R. § 1604.11(a)(3) (2004). Traditionally, claims of sex or gender based employment discrimination have been evaluated under the burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1156 (8th Cir. 1999) (hostile work environment); Simmons v. New Pub. Sch. Dist. No. Eight, 251 F.3d 1210, 1214 (8th Cir. 2001) (disparate treatment); Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997) (retaliation). Under this framework, the plaintiff first must demonstrate a prima facie case of discrimination. Breeding, 164 F.3d at 1156. If the plaintiff makes a prima facie case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its action. Id. at 1157. If the employer successfully demonstrates a nondiscriminatory reason, then the burden shifts back to the plaintiff to show the employer's stated reason was a mere pretext for discrimination. Id. at 1158.
The continued validity of the McDonnell Douglas analysis has been called into question, however, by the Supreme Court's recent decision in Desert Palace v. Costa, 539 U.S. 90 (2003). In Desert Palace, the Court analyzed 42 U.S.C. § 2000e-2(m), part of the 1991 Civil Rights Act, and concluded that a Title VII plaintiff need not present direct evidence of discrimination in order to either obtain a mixed-motive jury instruction or to establish liability in a mixed motive case. Desert Palace, 539 U.S. at ___.
In Brown v. Westaff, 301 F. Supp. 2d 1011 (D. Minn. 2003), this Court determined that Desert Palace requires that the McDonnell Douglas analysis be modified. 301 F. Supp. 2d at 1017; see also Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285 F. Supp. 2d 1180, 1194-96 (N.D. Iowa 2003). More specifically, while the first and second steps in the analysis remain the same, the third step must be altered "so that it is framed in terms of whether the plaintiff can meet his or her ultimate burden to prove intentional discrimination, rather than in terms of whether the plaintiff can prove pretext." Brown v. Westaff, 301 F. Supp. 2d at 1017 ( quoting Dunbar, 285 F. Supp. 2d at 1186). As in Brown v. Westaff, this Court will continue to apply McDonnell Douglas, modified in its third stage to accommodate Desert Palace.
Prior to Desert Palace, courts applied the McDonnell Douglas framework to retaliation claims under Title VII where no direct evidence of discrimination was presented. Buettner v. Arch Coal Sales, Inc., 216 F.3d 707, 713-14 (8th Cir. 2000). As noted above, Desert Palace's elimination of the direct/indirect evidence distinction in discrimination cases necessitates an alteration of McDonnell Douglas in that context. A corresponding alteration is necessary, for the same reasons, in the retaliation context. Cf. Peterson v. Scott County, 2004 WL 1179368, *9 (D. Minn. May 27, 2004). Thus, this Court will apply McDonnell Douglas, modified in its third stage to accommodate Desert Palace, to plaintiff's Title VII retaliation claim.
III. SEXUAL HARASSMENT
1. Plaintiff's prima facie case
A. Title VII
Plaintiff contends that defendant created a hostile work environment based on sex in violation of Title VII. To establish a prima facie case for a hostile work environment sexual harassment claim, a plaintiff must prove: (1) that she was a member of a protected group, (2) the occurrence of unwelcome harassment, (3) that the harassment was based on sex, and (4) that the harassment affected a term, condition, or privilege of employment. Henthorn v. Capitol Communications, 359 F.3d 1021, 1026 (8th Cir. 2004). If the harassment was committed by a co-worker, plaintiff must also establish a fifth element — that the defendant employer "knew or should have known of the conduct and failed to take proper remedial action." Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983, 987 (8th Cir. 1999); Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999). This element is not implicated, however, if the harassment was committed by the plaintiff's supervisor. Joens v. John Morrell Co., 354 F.3d 938, 940 (8th Cir. 2004). In such a case, the defendant employer is vicariously liable for the harassment unless it can establish the affirmative defense defined in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998). Id.
The defendant concedes, only for purposes of this motion, that plaintiff meets or has established the first three elements, but disputes her ability to establish the fourth or fifth elements. Under the fourth element, a work environment must have been "both one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Faragher, 524 U.S. at 787-88; Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). The hostile or abusive conduct must be sufficiently severe and pervasive, and "simple teasing, offhand comments, and isolated incidents (unless extremely serious)" will not suffice. Id.
Notwithstanding this concession, defendant argues that plaintiff's claims must fail, at least in part, because discrimination based solely on the status of being a parent is not actionable under Title VII. Further, defendant contends that while a claim alleging sex plus parental status is cognizable, such a claim requires comparative evidence that has not been presented in this case. The Court recognizes that discriminatory treatment based solely on the status of being a parent is not prohibited by sex discrimination laws. Piantanida v. Wyman Ctr., Inc., 116 F.3d 340, 342 (8th Cir. 1997). However, where an employer's objection to an employee's parental duties is actually a veiled assertion that mothers, because they are women, are insufficiently devoted to work, or that work and motherhood are incompatible, such treatment is gender based and is properly addressed under Title VII. See Back v. Hastings, 365 F.3d 107, 121 (2nd Cir. 2003) (§ 1983 claim). "[S]tereotyping about the qualities of mothers is a form of gender discrimination, and . . . can be determined in the absence of evidence about how the employer in question treated fathers." Id. at 113. Indeed, discrimination law has long been directed at eliminating precisely this type of sex stereotyping from employment decisions. "[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for [i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (internal quotation marks omitted); see also Galdieri-Ambrosini v. Nat'l Realty Dev. Corp., 136 F.3d 276, 289-90 (2nd Cir. 1998) (citations omitted) ("In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman" cannot properly have a certain characteristic "has acted on the basis of gender.") The Supreme Court, in a parental leave case, recently reinforced its findings in Price Waterhouse, noting that the "fault line between work and family [is] precisely where sex-based overgeneralization has been and remains strongest." Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 738 (2003). The stereotype that "women's family duties trump those of the workplace" is a "gender stereotype." Id. at 731 n. 5. Thus, although not called on to determine whether prong three is satisfied in this case, the Court would likely find it satisfied.
"There is no bright line between sexual harassment and merely unpleasant conduct." Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir. 1997). Accordingly, the Court looks to the "totality of the circumstances" in determining whether conditions or behavior were "so severe or pervasive as to alter the terms of [the plaintiff's] employment." Klein v. McGowan, 198 F.3d 705, 709 (8th Cir. 1999). Some of the factors the Court considers include the frequency of the behavior, its severity, whether physical threats or humiliating treatment are involved, and whether the behavior interferes with plaintiff's performance on the job. See Harris, 510 U.S. at 21, 23; Eich v. Bd. of Regents for Cent. Missouri St. Univ., 350 F.3d 752, 757-59 (8th Cir. 2004). "Each case must stand on its own circumstances." Eich, 350 F.3d at 760.
Plaintiff alleges at least nine months of regular comments and harassment implying or stating that she was not qualified for, and could be fired at any time from, her job because she was a woman and because she spent too much time attending to her children. She was denied opportunities to increase her customer list, given unfavorable shifts, refused assistance, and ignored when she complained. Plaintiff also alleges regular incidences of verbal harassment by Stewart over a five-month period, coupled with at least one lewd action. While it is not alleged that Stewart's actions were physically threatening, the multiple sexually suggestive comments, alleged pelvic thrusts, and request to remove a hair from plaintiff's chest go beyond simple teasing or isolated instances.
The harassment and discriminatory treatment experienced by plaintiff clearly affected plaintiff's ability to do her job. Plaintiff was left with no one to turn to for help closing deals, appraising cars, or otherwise conducting and improving on necessary aspects of her job. Blomlie's treatment of plaintiff also affected her mental health and ability to work. On at least one occasion, plaintiff was pushed to the point of suffering a near breakdown requiring professional intervention at work. Further, under the circumstances, the fact that Stewart was her supervisor's supervisor undoubtedly interfered with her ability to perform successfully. Rather than feel like she had an unbiased person to turn to concerning her problems with Blomlie, plaintiff felt that her only recourse was to a man whose advances she was regularly rebuffing and who, in any event, had expressed a disinclination to take plaintiff's complaints seriously. The Court is satisfied that the allegations and evidence presented here, viewed in the light most favorable to the plaintiff, demonstrate sufficiently severe and pervasive harassment to create a hostile work environment at Borton Automotives. Plaintiff has successfully established a prima facie case of hostile work environment sexual harassment.
2. Defendant's legitimate reason
In order to meet its burden, "[t]he defendant must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (internal quotation marks and citation omitted). Defendant has met its burden by asserting that plaintiff was terminated because of poor performance, i.e. lack of sales.
3. Plaintiff's ultimate burden
In this final stage, plaintiff must present sufficient evidence that a reasonable jury could conclude that sex was a motivating factor in the employment action in question. One means of doing so would be to prove that the defendant's asserted legitimate reason for its action was false, or merely a pretext. Thus, evidence sufficient to demonstrate pretext under the traditional McDonnell Douglas analysis will also be sufficient under the modified version.
Plaintiff has presented evidence that her sales were not inferior to those of other employees, that at times her sales figures were among the best in the dealership, and that they dropped significantly under Blomlie's supervision. This evidence could support a conclusion that, in light of plaintiff's demonstrated ability to perform her job when not subject to harassment, plaintiff's lack of sales was not defendant's sole reason for terminating her. Further, the above evidence, particularly when coupled with the evidence discussed in support of plaintiff's prima facie case, is sufficient evidence to allow a jury to conclude that defendant created a hostile work environment based on sex that resulted in plaintiff's termination.
4. Defendant's affirmative defense
Defendant nevertheless argues that it is entitled to summary judgment based on the affirmative defense provided for in the United States Supreme Court cases of Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The Court disagrees. Under these cases, "[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. No affirmative defense is available where the hostile environment harassment results in an adverse employment action. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 808. Stewart and Blomlie were plaintiff's supervisors. Joens v. John Morrell Co., 354 F.3d 938, 940 (8th Cir. 2004) (citations omitted) (accepting definition of "supervisor" as having power (not necessarily exercised) to take tangible employment action against the victim, such as the authority to hire, fire, promote, or reassign to significantly different duties). The Court determined previously that Stewart's and Blomlie's actions were sufficient to establish a hostile work environment. Plaintiff alleges that their discriminatory actions resulted in her termination. The affirmative defense is therefore unavailable to defendant at this stage in the litigation.
Even if the defense were available, however, summary judgment would not be appropriate. Where the alleged harassment does not culminate in a tangible employment action, the defendant employer may assert an affirmative defense to liability or damages. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. "The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Id. Defendant has not submitted sufficient evidence of Borton exercising reasonable care to prevent harassment of plaintiff to permit the Court to conclude, as a matter of law, that defendant is protected from liability.
Borton had a sexual harassment policy. However, "[s]imply forcing all new employees to sign a policy does not constitute `reasonable care.' The employer must take reasonable steps in preventing, correcting and enforcing the policy." Lancaster v. Sheffler Enters., 19 F. Supp. 2d 1000, 1003 (W.D. Mo. 1998) (citing Ellerth, 524 U.S. at 765.) Plaintiff complained of both Blomlie's and Stewart's behavior to several members of Borton's management. Her complaints were only rarely addressed, and arguably were never appropriately addressed under Borton's policy. On at least one occasion Stewart, who was also Blomlie's supervisor, stated his unwillingness to "interfere" with Blomlie's management duties. On another occasion, Stewart simply declined to address some of plaintiff's complaints about Blomlie because Stewart did not consider them indicative of harassment. Although Stewart discussed some of plaintiff's complaints with his superiors, no record of the complaints or their resolution was made despite the requirement in the policy that records be kept. Defendant thus cannot establish the first of the necessary elements of the affirmative defense. See Faragher, 524 U.S. at 809 (holding that defendants' practice of not keeping track of the conduct of supervisors was, as a matter of law, unreasonable, and therefore disqualifying the defendants from raising the defense). Summary judgment will not be granted on plaintiff's claim of hostile work environment sexual discrimination.
Additionally, plaintiff made her complaints known to several members of Borton's management, thus making it difficult, if not impossible, for defendant to establish the second element.
B. MHRA
Minnesota applies the McDonnell Douglas burden shifting analysis to claims under the Minnesota Human Rights Act. Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn. 2001) (applying the McDonnell Douglas analysis to civil rights claims under the Minnesota Human Rights Act); Bersie v. Zycad Corp., 417 N.W.2d 288, 290 (Minn.Ct.App. 1987) (identifying hostile work environment claim under MHRA and applying McDonnell Douglas). Based on the above discussion, the Court finds that plaintiff has established her prima facie case, defendant has presented a facially legitimate reason for plaintiff's termination, and plaintiff has presented sufficient evidence from which a jury could conclude that defendant's asserted reason for her termination is merely pretextual. Thus, summary judgment will not be granted on this claim.
Minnesota courts have not addressed the impact of Desert Palace on the McDonnell Douglas analysis, and the Court therefore applies McDonnell Douglas without the alteration discussed above.
IV. SEX DISCRIMINATION AND DISPARATE TREATMENT
The Court will apply the McDonnell Douglass burden shifting analysis, as modified to accommodate Desert Palace, to plaintiff's Title VII sex discrimination and disparate treatment claim. The unmodified McDonnell Douglas framework will be applied to plaintiff's sex discrimination and disparate treatment claim under the Minnesota Human Rights Act. See Analysis Part II and note 5, supra; see also Ray v. Miller Meester Advertising, Inc., 664 N.W.2d 355, 367 (Minn.Ct.App. 2003) ( citing Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983)).
To make out a prima facie case of sex discrimination, a plaintiff is required to show 1) she is a member of a protected class, 2) she was otherwise qualified for her job or to receive the benefit in question, 3) despite her qualifications she was discharged, denied that benefit, or otherwise suffered an adverse employment action, and 4) some evidence giving rise to an inference of sex discrimination. Simmons v. New Pub. Sch. Dist. No. Eight, 251 F.3d 1210, 1214 (8th Cir. 2001); Ruby v. Springfield R-12 Pub. Sch. Dist., 76 F.3d 909, 911 (8th Cir. 1996). Defendants concede that plaintiff is a member of a protected class, but dispute that she was otherwise qualified, or that any alleged adverse employment actions were discriminatorily motivated.
Plaintiff has presented evidence that she successfully sold cars prior to and following her employment at Borton. Plaintiff has also demonstrated that her performance at Borton was initially very good, and only decreased when Blomlie became her supervisor and she began suffering harassment at work. The Court concludes that plaintiff has presented sufficient evidence that she was qualified for the position at Borton.
Plaintiff alleges three primary adverse employment actions: 1) termination, 2) disparate treatment regarding sharing customer lists, and 3) disparate treatment in scheduling. An adverse employment action is one that results in "a material employment disadvantage, such as a change in salary, benefits, or responsibilities." Bradley v. Widnall, 232 F.3d 626, 632 (8th Cir. 2000). Termination is clearly an adverse employment action. Sharing customer lists with male employees, but not with plaintiff, and assigning plaintiff less desirable shifts also constitute adverse employment actions. According to plaintiff, the male salespeople who received Blomlie's customer list were able to noticeably increase their sales by targeting those customers in an advertising campaign. As compensation is based in part on number of sales, not receiving part of the list effectively decreased plaintiff's salary and benefits. Evening shifts are more lucrative than daytime shifts, because potential customers are not at work and are able to come in to the dealership. Thus, by assigning plaintiff one evening shift rather than two, plaintiff's earning potential was limited. Each of these actions was thus "more disruptive than a mere inconvenience or an alteration of job responsibilities or changes in duties or working conditions that cause no materially significant disadvantage," and constitutes an adverse employment action for which defendant may be liable. Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997) (internal quotation omitted).
Finally, as discussed in more detail above, Blomlie's and Stewart's comments and actions, coupled with plaintiff's apparent ability to do her job in a non-hostile environment, permit inference of a discriminatory animus underlying these adverse actions. The Court is persuaded that this evidence would provide an adequate basis for a jury to conclude that plaintiff was terminated and received disparate treatment because of her sex rather than or in addition to her allegedly poor performance. Summary judgment is thus inappropriate for defendant on plaintiff's sex discrimination claims.
V. RETALIATION
The modified McDonnell Douglas analysis also applies to claims of retaliation. See Analysis Part II, supra. Plaintiff must initially establish a prima facie case. Rheineck v. Hutchinson Tech., Inc., 261 F.3d 751, 757 (8th Cir. 2001). If plaintiff establishes her prima facie case, the burden shifts to defendant to produce a legitimate, non-retaliatory reason for the adverse action. Id. ( citing Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997)). If defendant provides a legitimate, non-retaliatory reason for the action, the burden shifts back to plaintiff to demonstrate that defendant intentionally retaliated against her. Rheineck, 261 F.3d at 757.
The unmodified McDonnell Douglas analysis remains applicable to retaliation claims under the MHRA. Snesrud v. Instant Web, Inc., 484 N.W.2d 423, 427 (Minn.Ct.App. 1992) ( citing Graham v. Special Sch. Dist. No. 1, 472 N.W.2d 114, 119 n. 7 (Minn. 1991) (citation omitted)). Thus, the third step requires plaintiff to demonstrate that defendant's articulated reason is pretextual. Id.
To establish a prima facie case of retaliation, the plaintiff has the burden to show that she engaged in protected activity, that the defendant took adverse action against her, and that there was a causal connection between those two actions. Montandon, 116 F.3d at 359. Each action claimed to be retaliatory must be sufficiently adverse to have created a material change in the employment, "such as a change in salary, benefits, or responsibilities." LaCroix v. Sears, Roebuck, Co., 240 F.3d 688, 691 (8th Cir. 2001). The retaliatory action may take place after termination of employment. Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997) (citation omitted).
Shortly after leaving Borton, plaintiff interviewed for a sales position at a BMW dealership. The interview went very well, but plaintiff was not hired. Plaintiff alleges that she was denied employment at the BMW dealership because someone at Borton gave the BMW manager a very negative reference. If proven, this allegation clearly makes out a retaliation claim. Plaintiff complained on multiple occasions to a number of members of Borton's management that she was being treated differently because of her sex. According to plaintiff, a Borton employee subsequently gave a potential new employer a very negative, very personal report about plaintiff. This negative reference resulted in plaintiff not being offered employment. In light of Borton's policy to only supply dates of employment, a jury could reasonably conclude that defendant gave plaintiff a poor reference because of plaintiff's complaints. These allegations adequately establish plaintiff's prima facie case.
Defendant denies having given plaintiff any reference whatsoever, other than acknowledging that plaintiff was no longer employed at Borton. In addition to the allegations discussed above, plaintiff has provided evidence that defendant had a general policy of providing only very limited information about former employees, that plaintiff's performance record was, at least at time, very good, and that defendant did not respond adequately to plaintiff's complaints. Taken together, this evidence would permit the conclusion that defendant gave plaintiff a negative reference, beyond either what was called for by Borton's policy or an accurate description of plaintiff's performance, because of plaintiff's previous complaints. Summary judgment is therefore not appropriate either under Title VII or the MHRA.
This case will be placed on the Court's next available trial calendar.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, IT IS HEREBY ORDERED that defendant's Motion for Summary Judgment [Docket No. 39] is DENIED.