Opinion
Civil No. 02-1711 (PAM/RLE)
December 23, 2003
MEMORANDUM AND ORDER
This matter is before the Court on Defendant Cargill, Incorporated's Motion for Summary Judgment. For the reasons that follow, the Motion is granted in part and denied in part.
BACKGROUND
Plaintiff Susan Veeder was employed at Cargill, Incorporated ("Cargill") from 1982 until October 31, 2000. Veeder alleges six claims in her Complaint against Cargill: (1) gender discrimination in violation of 42 U.S.C. § 2000e-2(a); (2) gender discrimination in violation of MHRA § 363.03 subd. 1(2)(b)-(c); (3) retaliation in violation of 42 U.S.C. § 2000e-3(a); (4) retaliation in violation of MHRA, § 363.03 subd. 7(1); (5) breach of her employment contract; and (6) failure to comply with Minn. Stat. § 181.13. Cargill brings this Motion on all of Veeder's claims.
A. Veeder's Employment at Cargill
Veeder's employment with Cargill spanned almost 18 years. Between 1982 and 1989, Veeder served in various financial positions. In 1989, Veeder became the Director of Accounting and Financial Analysis for a wholly owned subsidiary of Cargill. (Oberdorfer Aff. Ex. 34 at 57 (Veeder Dep.).) In 1994, Veeder accepted the position of Manager of Financial Development and Training in the Corporate Controller's office. (Id. at 57-59.) Her responsibilities included creating and giving training programs for employees in Cargill's financial positions. (Id. at 58-60.) She also had human resource duties, including acting as a support person for the Corporate Controller, Ed Toth, and other senior managers within the Controller's organization. (Id. at 60-66.)
In 1998, Toth retired and was replaced by Galen Johnson, (Id. at 66.) Johnson asked Scott Van Orsdel, a Cargill employee with whom Johnson previously worked within in another division, to become Manager of Organizational Processes. (Oberdorfer Aff. Ex. 36 at 32-33 (Johnson Dep.).) In this position, Van Orsdel became the most senior Human Resource employee in the Corporate Controller's office. (Id.) Even though Van Orsdel became Veeder's direct supervisor, he took over Veeder's administrative and supervisory duties, reducing Veeder's responsibilities to solely her training duties, (Id. Ex. 34 at 69, 70, 97, 99, 101.) Eventually, Veeder's job was eliminated. (Id. at 69, 97-101.)
In May 1999, Veeder was offered and accepted a seemingly comparable position in another business unit at Cargill. (Id. at 107-08.) Just prior the commencement of that job, Veeder was informed that the job's salary was actually lower than the level she expected. (See Glennon Aff. Ex. 2 at 94-96 (Van Orsdel Dep.).) Van Orsdel testified that the pay decrease was "odd" and that he was "dumbfounded" by the change, (Id.) Veeder eventually declined the position. (Oberdorfer Aff Ex. 34 at 124-25.) Veeder later applied for a business unit controller position, but was not selected. See id. Ex. 35 at 43-44 (Van Orsdel Dep.).) In December 1999, Van Orsdel temporarily assigned Veeder to special projects as she looked for new assignments within Cargill. (Id. at 190-92.)
Throughout this period, Veeder acquired significant experience in internal finance, training, and development. (Veeder Aff. ¶ 5.) She performed various leadership roles and received recognition for her service as a leader and partner with various professional organizations. (Id. ¶ 8.) She consistently received positive employment reviews. (Id.) In Veeder's last performance review in August 1998, her evaluation stated that Veeder "is the best auditor . . . Sue has excellent potential. Sue will do an excellent job wherever she is and will progress quickly." (Id. Ex. 8.)
Cargill requests that the Court strike Veeder's 39 page affidavit as a "sham." Cargill is correct that parties cannot use "sham" affidavits to create issues of fact. Marathon Ashland Petroleum, L.L.C. v. Int'l Bros, of Teamsters, 300 F.3d 945, 951 (8th Cir. 2002). Although Cargill contends that Veeder's affidavit is an attempt to circumvent the 35-page limit of Local Rule 7.1, any legal arguments submitted in the affidavit also appear in the Opposition brief. The Court will rely on Veeder's sworn deposition testimony, and when necessary, her affidavit. In the absence of specific instances of contradiction, the Court will not strike Veeder's affidavit.
Despite her positive history, efforts, and success at Cargill, Veeder struggled to find another job within Cargill. Veeder claims that Van Orsdel told her that one of the main reasons for her inability to obtain a job was because she did not have a "champion," or a male mentor to support her. (See Oberdorfer Aff. Ex. 34 at 424.) Veeder further maintains that although other employment positions were undergoing restructuring changes, her male counterparts had significant help from other Cargill male executives to help them in their job search. (Veeder Aff. ¶¶ 26-28.)
From December 1999 to August 2000, Veeder performed special project assignments for Van Orsdel. (Oberdorfer Aff. Ex. 34 at 71-72.) Veeder unsuccessfully continued to look for internal jobs within Cargill. Many of the jobs opportunities that Cargill contends Veeder rejected were not even posted on Cargill's intranet, nor were they appropriate positions for Veeder's extensive qualifications. (See id. Ex. 34 at 507-524.) In July 2000, Veeder informationally interviewed with many business unit leaders, but no job opportunities resulted. (Oberdorfer Aff. Ex. 5.) Veeder then discovered that Van Orsdel created a new position for his mentee, Jim Larsen, who was also between jobs. (Veeder Aff. ¶ 29.)
In June 2000, Veeder told Van Orsdel of her upcoming July 2000 wedding. Van Orsdel commented that this would change her flexibility. (Veeder Aff. ¶ 21; Oberdorfer Aff. Ex. 35 at 251-52.) Van Orsdel testified that although her marriage should be celebrated, "people [at Cargill] assume that people get married, they change and they may not be in a position to relocate . . .
[f]ocus groups . . . have indicated that [marriage] has been a barrier." (Oberdorfer Ex. 35 at 254-55.)
Van Orsdel and other Human Resource personnel identified Veeder and two other male employees, Mike Hall and Barry Burnett, as "tweeners." (Veeder Aff. Ex. 12.) All three employees were between jobs at Cargill. Veeder contends that her male supervisors expressed greater concern about finding the male "tweeners" jobs within Cargill, than finding her an internal position. (Id. ¶ 28.) Following Veeder's separation, these two "tweeners" remained employed at Cargill. (Id. at 72.)
On August 22, 2000, Veeder met with Van Orsdel and Human Resource employee Susan Troselius. (Id. Ex. 34 at 287; Ex. 35 at 105.) At this meeting, Cargill presented Veeder with its first separation package offer. (Id. Ex. 34 at 86-89.) Rather than discuss her future career options at Cargill, this separation offer was the only option presented to Veeder at this meeting. (Glennon Aff. Ex. 2 at 272.) This separation package included: (1) one year of salary of $105,000; (2) outplacement services valued at $10,000; (3) six months reimbursement from COBRA; and (4) permission to retain/exercise Cash Performance Options (CPOs) previously awarded to her, as if her position were eliminated in a reduction in force ("RIF"). (Oberdorfer Aff. Ex. 8.) This package required Veeder to sign a full release of all claims against Cargill. (Id. Ex. 34 at 233-34.)
Veeder contends this amount is net after taxes, while Cargill contends that it is gross.
Immediately following this meeting, Veeder contacted Frederick Budde, Cargill's chief employment counsel, and Corporate Controller Galen Johnson, and expressed her displeasure with the separation proposal, (Id. Ex. 9; Veeder Aff. Ex. 16.) Van Orsdel e-mailed Galen Johnson and CFO Robert Lumpkins and told them of the meeting with Veeder. (Veeder Aff. Ex. 17.) Van Orsdel said that three male employees were in "similar situations" to Veeder, although none of them were presented with a separation package. (Id.) In mid-September, Veeder asserts that she met with Johnson and told him that she and other women at Cargill were discriminated against because of their gender, (Id. ¶ 40.) Johnson denies that this meeting took place. (Oberdorfer Aff. Ex. 36 at 199-201.)
On September 21, 2000, Cargill presented Veeder with a Corporate Accounting position, which allegedly entitled her to a $5,000 to $10,000 raise. (Oberdorfer Aff. Ex. 12, Ex. 34 at 128-30, 137; Veeder Aff. Ex. 21.) Denny Walters, head of Corporate Accounting, would supervise Veeder in this position. (Oberdorfer Aff. Ex. 34 at 129-30.) Cargill encouraged Veeder to accept the position. However, Veeder argues that one month before, Walters told her that there were no job openings in his division. Id. at 41-42. Moreover, Veeder argues that the position was neither budgeted for nor posted within Cargill, that it was a project position created to deal with "back burner" items, that the salary and the salary class were undetermined, and that the job itself had no career path nor would Veeder be able to stay in the position permanently. (Veeder Aff. ¶ 46; Glennon Aff. Ex. 1 at 128-36, 144 (Veeder Dep.).) When Veeder met with Walters to discuss the position, Veeder discovered that Walters essentially knew nothing about the position. (Glennon Aff. Ex. 1 at 137-45.) Veeder ultimately declined this position, and the position remained unfilled for nearly two years, (Id. at 152-53; Veeder Aff. Ex. 48.)
On October 2, 2000, Cargill presented Veeder with its formal Release and Settlement Agreement. Veeder contends that this Agreement was materially different from the August 22 Agreement, and for the next three weeks attempted to eliminate the discrepancies. (Veeder Aff Exs. 23-24.) On October 31, 2000, the terms of Cargill's separation offer were: (1) one year's salary, or $105,000 gross; (2) outplacement services valued at $15,000; (3) twelve months of COBRA reimbursement; (4) treating her CPOs as if she separated in a RIF; and (5) six months additional pay if she was still unemployed in one year. (Oberdorfer Aff. Ex. 14.) Veeder signed this agreement, but changed the first condition to $105,000 net after taxes, (Id.) Cargill did not agree to this change, and gave Veeder a new copy of the agreement as submitted to her on October 2. (Id. Ex. 15.) Veeder declined to sign this version of the agreement. Cargill maintains that Veeder's failure to accept either the Corporate Accounting position or the separation agreement constituted a voluntary resignation. Conversely, Veeder maintains that she was involuntarily terminated. Regardless, Cargill paid to Veeder more than $39,000 as "severance" following her October 31, 2000, separation. (Veeder Aff. Ex. 26.)
On Friday, November 3, 2000, Veeder submitted a written demand for payment of earned wages and vacation in accordance with Minnesota Statute § 181.13(a). (Veeder Aff. Ex. 25; Budde Aff. Ex. A.) On Monday, November 6, 2000, Cargill couriered payment to Veeder. (Veeder Aff. Ex. 26; Budde Aff. Ex. B.) This payment also included a "severance" payment of more than $39,000. On November 10, 2000, Veeder's attorney sent Cargill counsel a letter addressing Veeder's discrimination claims. (Id. Ex. 28.) On November 15, 2000, Cargill cancelled Veeder's CPOs. (Oberdorfer Aff. Ex. 30; see id. Ex. 20.)
B. Veeder's Compensation
In 1998 and 1999, Veeder received no annual bonus. (Veeder Aff. Ex. 2.) By contrast, she argues that her male colleagues received their full bonuses. In the summer of 2000, Veeder discovered that she was not receiving a 2000 CPO grant for the first time since 1996. (Id. Ex. 5.) Cargill contends that it decided to reduce the number of CPOs issued in 2000. However, Cargill's records indicate that Cargill increased both the number of CPO recipients and the amount of CPO grants in 2000. (Id.) Veeder was the only employee at her salary level in the finance group who did not receive a 2000 CPO grant. (Id.) Based on Cargill's charts, only 8 out of 161 Accounting division employees did not receive CPO grants in 2000. Three of these employees were women, and six of the eight were a lower salary class than Veeder. (Id.) Veeder also submits expert statistical evidence to support her assertions of compensation disparity between male and female Cargill employees. (See Bardwell Aff.)
C. Veeder's Outside Job Search
Beginning in early August 2000, Veeder began looking for jobs outside of Cargill. On August 2 and 3, Veeder traveled to Boston to meet with Liberty Mutual Insurance Company ("Liberty Mutual"). (Oberdorfer Aff. Exs. 6, 43.) On August 23 and 24, Veeder and Liberty Mutual exchanged e-mails about a return trip to Boston. (Id. Exs. 10, 44.) Veeder again visited Boston on September 6. (Id. Exs. 11, 45.) Following this visit, Veeder and Liberty Mutual began negotiating the terms of Veeder's potential employment. The offer included an annual salary of $140,000, a $50,000 signing bonus, a cost of living adjustment, eligibility for annual bonus, and a relocation reimbursement. (Id. Ex. 13.) Veeder eventually accepted this position in mid-October after Cargill refused to change the separation agreement. (Id.)
D. Veeder's Equal Employment Opportunity Commission Charge
On November 30, 2000, Veeder filed a Charge of Discrimination claim with the Equal Employment Opportunity Commission ("EEOC"). (Veeder Aff. Ex. 29.) Based on a work-sharing agreement, the EEOC cross-filed with the Minnesota Department of Human Rights ("MDHR"). (Id. Ex. 30.) This charge referenced the alleged unlawful employment discrimination by Cargill against Veeder. (Id. Ex. 29.) Although Veeder only checked the "sex" box, the facts accompanying her charges included claims of retaliation, marital discrimination and gender discrimination. (Id.) These instances included discrimination with respect to her salary, bonus and options, transfer and promotional opportunities, and termination. (Id.) It also included a statement by Veeder that she had reported the discriminatory conduct to Cargill management in September 2000, and thereafter was wrongfully denied the benefits previously agreed to in writing. (Id.) Veeder also claimed that Cargill wrongfully classified her separation as voluntary. (See id.)
The EEOC issued its right-to-sue letter on April 16, 2002. On May 1, 2002, the MDHR wrote a letter informing the parties of its dismissal and advising Veeder that she had 45 days to bring suit. (Oberdorfer Aff. Ex. 16.) Veeder was out of town at this time, and claims she thus did not "receive" this notice until the end of May 2002. Veeder filed this lawsuit on July 11, 2002.
DISCUSSION
A. Standard of Review
Summary judgment is appropriate if no genuine issue of material fact exists, such that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must view the evidence in favor of the nonmoving party and give that party the benefit of all justifiable inferences. Id. at 250. The burden of demonstrating that there are no genuine issues of material fact rests on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must set forth specific facts sufficient to raise a genuine issue of fact for trial. Id. at 324. In employment discrimination cases, the Eighth Circuit has cautioned that summary judgment should be granted sparingly. Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994).
B. Minnesota Statutory Claims
1. Minnesota Human Rights Act
Veeder asserts various violations of the Minnesota Human Rights Act ("MHRA"), § 363.01 et seq. The charging party must bring a civil action "within 45 days after receipt of the dismissal notice" from the MDHR. Minn. Stat. § 363.14, subd. (1). The statute further provides that receipt of this notice is presumed to be five days from the date of mailing. Id. The MDHR issued its right-to-sue letter on May 1, 2002, with receipt presumed on May 6, 2002. Accordingly, Veeder was required to file this suit on June 20, 2002. However, Veeder failed to file until July 11, 2002. Unless the limitations period can be tolled, Veeder's claims under the MHRA must be dismissed. See Ochs v. Streater, Inc., 568 N.W.2d 858, 860 (Minn. Ct App. 1997) (doctrine of equitable tolling applies to § 363.14).
At oral argument, Veeder conceded that her marital discrimination claim was without merit. Therefore, it is dismissed.
To determine if the limitations period can be tolled, the Court must examine the prejudice to Cargill, and Veeder's conduct. Id. In Ochs, the court refused to toll the limitations period because the plaintiff failed to present evidence of circumstances beyond his control which prohibited him from serving his complaint within the statutory period. Id. Here, although Veeder claims that she was out of town until the third week in May, she still had ample time to commence her lawsuit. Even though her lawyer was named in the EEOC and MDHR charge, she cannot claim that the limitations period should be tolled because the agencies failed to also send a copy to him See Hill v. John Chezik Imps., 869 F.2d 1122, 1124 (8th Cir. 1989) (refusing to equitably toll a limitations period; plaintiff failed to inform EEOC of her change of address, relied on EEOC to copy her lawyer, and despite her late "reading" of the notice, she still had ample time to file). Because there is no evidence of circumstances beyond Veeder's control, the Court will not toll the limitations period. As a result, the commencement of the suit on July 11, 2002 was untimely, and Veeder's MHRA claims must be dismissed.
Veeder alternatively contends that Minn. Stat. § 363.14 subd. 1(a)(1) does not apply. To the contrary, Minn. Stat. § 363.14 subd. 1(a)(1) is the appropriate limitations period. Veeder originally filed her charge with the EEOC, which cross-filed with the MDHR. When the EEOC issued Veeder her right to sue letter at her request, the MDHR also dismissed any pending claims before it. Therefore, even though Veeder claims that the MDHR did not act, and that subd. 1(a)(3) applies, the dismissal is clearly within the scope of subd. 1(a)(1). McKenzie v. Lunds, 63 F. Supp.2d 986, 1002 (dismissing MHRA claims pursuant to Minn. Stat § 363.14 subd. (1)(a)(1); EEOC issued right to sue letter, and MDHR subsequently issued right to sue letter, and plaintiff failed to commence civil suit within 45 days of MDHR letter). Furthermore, the MDHR letter sent to Veeder specifically enumerated subd. 1(a)(1), and warned Veeder that she had 45 days from receipt of the letter to file her civil action. (Oberdorfer Aff. Ex. 16.) As stated above, the statute specifically enumerates "receipt" to be five days from the date of the letter, and thus both Veeder and her attorney cannot claim that they did not receive the letter until the end of May 2002. See Minn. Stat. § 363.14 subd. 1(a)(1)-(3).
Count Six of Veeder's Complaint alleges that Cargill violated Minnesota wage and penalty statutes. Minnesota law requires that following an employee's discharge, "the wages or commissions actually earned and unpaid at the time of the discharge are immediately due and payable upon demand of the employee." Minn. Stat. § 181.13(a). When the employer fails to timely pay these earned wages within 24 hours of the employee's demand, the employer is in default and statutorily liable to the employee for civil penalties. Id. Veeder argues that demand was made on Friday, November 3, 2000, and payment was not made until Monday, November 6, 2000, in violation of the statute.
Cargill contends that its couriered payment to Veeder on Monday, November 6, was within 24 work-week hours of Veeder's demand. Veeder asserts that the statute strictly means "24 hours," and that failure to send payment on Saturday, November 4 entitles her to damages. Veeder's proposed interpretation exceeds the purpose and intent of the statute, because employers would never be able to comply with the statute if the demand was made on the weekend. The Court agrees with Cargill that the only reasonable construction of the statute is that "24 hours" means 24 hours during the work week. Accordingly, Cargill's couriered payment of wages owed to Veeder on Monday, November 6, 2000, was timely. Although there is dispute between Cargill and Veeder as to the terms of Veeder's separation, Cargill has nonetheless complied with § 181.13, and timely paid wages and vacation that it believed were due and owing at the time of Veeder's separation. Therefore, this claim is dismissed.
B. Title VII Claims
Veeder's Complaint alleges discriminatory employment practices in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2(a)(1) and retaliation in violation of Title VII, 42 U.S.C. § 2000e-3(a). Veeder has pled a mixed-motive case pursuant to Title VII. Pursuant to the U.S. Supreme Court's ruling in Desert Palace, Inc. v. Costa, the burden-shifting pretext analysis of McDonnell Douglas Corporation v. Green does not apply. Desert Palace, ___ U.S. ___, 123 S.Ct. 2148 (2003); see also Dare v. Wal-Mart Stores, Inc., 267 F. Supp.2d 987 (D. Minn. 2003) (Magnuson, J.). To proceed with these claims, Veeder must set forth facts establishing prima facie cases of gender discrimination and retaliation. The burden then shifts to Cargill to prove that it would have made the "same decision" regardless of the improper motive. Desert Palace, 123 S.Ct. at 2154-55; Dare, 267 F. Supp.2d at 992.
Cargill argues that the Court cannot consider evidence prior to January 2000, because of Title VII's 300-day limitations period. 42 U.S.C. § 2000e-5(e)(1). Veeder maintains that she was discriminated against both in her termination and her pay, and alleges that these adverse actions occurred within the limitations period. Moreover, "instances of harassment occurring outside the limitations period may be admissible to provide relevant background to later discriminatory acts." Rorie v. United Parcel Serv., 151 F.3d 757, 761 (8th Cir. 1998). There is no doubt that Veeder's gender discrimination claims stem from alleged ongoing practices, occurring well before the 300-day period. Therefore, the Court will consider evidence prior to this 300-day period.
1. Discriminatory Employment Practices
The statute prohibits discrimination "against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Discriminatory employment practices are established when a party "demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m). Veeder contends that she was "constructively and/or actually" terminated from her employment because she is a woman. (Compl. ¶ 8.) She also contends that she was denied appropriate compensation and other opportunities because of her gender. (Id. ¶ 9.)
A prima facie case of gender discrimination requires Veeder to establish that she: (1) is a member of a protected class; (2) was qualified for her job; and (3) suffered an adverse employment action. The facts must also support an inference of unlawful discrimination. Simmons v. New Pub. Sch. Dist. No. 8, 251 F.3d 1210, 1214 (8th Cir. 2001). The parties dispute whether there was an adverse employment action, and whether the facts support an inference of discrimination.
a. Discriminatory Discharge
Veeder must establish that she was fired, or at least, constructively discharged. Constructive discharge requires the employer to "deliberately create intolerable working conditions with the intention of forcing the employee to quit and the employee must quit." Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1159 (8th Cir. 1999). This intent element is satisfied if Veeder shows that her resignation was a reasonably foreseeable consequence of Cargill's discriminatory actions.Id.; Kriss v. Spring Comm. Co., Ltd. P'ship., 58 F.3d 1276, 1283 (8th Cir. 1995).
Veeder has presented sufficient evidence to create a genuine issue of material fact as to her discharge. Veeder had a lengthy and strong history at Cargill, spanning eighteen years and a variety of financial job positions. Although Veeder had positive performance reviews and continually advanced in her positions, the authority and responsibility associated with her position gradually diminished and transferred to a male, Scott Van Orsdel. Ultimately, her job was eliminated. Despite her qualifications and efforts to find a new job within Cargill, Veeder was unable to find a new position. Cargill contends that Veeder voluntarily separated from the company because she refused an internal job offer in September 2000. Even though Cargill did offer Veeder this job, the evidence suggests that the job was temporary, neither budgeted for nor posted internally, and substantively inappropriate for Veeder's qualifications. Further, Veeder contends that on August 22, 2000, Van Orsdel and Troselius informed her of her "only" employment option: separation from Cargill. In October 2000, Veeder received the formal separation agreement and notice that her termination was effective October 31, 2000. It appears that Veeder was presented with this choice: take the job or be terminated. This suggests that there is a dispute of fact as to whether her separation was voluntary, and whether it was a foreseeable consequence of Cargill's actions. See Glass v. IDS Fin. Servs., Inc., 778 F. Supp. 1029, 1056 (D. Minn. 1991) (Doty, J.) (determining that retire-or-be-fired option for older employees resulted in involuntary termination).
To withstand this Motion, Veeder must also present evidence of Cargill's discriminatory intent. Veeder must set forth facts such that a reasonable fact finder could infer an improper discriminatory motive. Cargill argues that Veeder cannot meet this burden because she was not replaced by a male. Beginning in 1998, when Johnson gave Van Orsdel his job, most of Veeder's job responsibilities immediately transferred to him. Her job was then eliminated. Van Orsdel made direct comments to Veeder about the change in her employment flexibility because of her marriage. He also commented that she lacked a "champion" to advocate for her employment within Cargill. From 1998 on, Veeder struggled to find a permanent position within Cargill, and constantly moved from temporary position to temporary position. At the same time, her male colleagues received help from male executives to find internal Cargill jobs. Although she was classified as a "tweener" with two other male employees, she was the only tweener presented with the sole option of separation from Cargill. All of these facts support an inference that Veeder's separation may have been discriminatorily motivated.
Moreover, Veeder submits statistical evidence that Cargill's promotion and retention of its female employees have historically been disparate and adverse. (Veeder Aff. Ex. 40; 41.) Some of this statistical data deals with the underutilization of females, while other data deals with overall gender representation at Cargill. (See Bardwell Aff. Exs. 2-3.) Although Cargill is correct in its assertion that general statistics that are too attenuated to an employee's discharge cannot create an inference of discrimination, this evidence coupled with other facts could support an inference of discriminatory intent. See Harper v. Transworld Airlines, Inc., 525 F.2d 409, 412 (8th Cir. 1975) (statistical evidence of a pattern or practice of discrimination is of probative value, but not necessarily determinative of employer's reason for adverse employment action).
b. Discriminatory Pay
Veeder also contends that Cargill denied her appropriate compensation because of her gender. Veeder asserts that her salary, bonuses, and CPO grants were less than those received by her male colleagues. Cargill contends that this claim fails because Veeder cannot show that Cargill pays different wages to similarly situated males, "the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 683 (8th Cir. 2001). However, this is only one way to establish a prima facie case of discrimination in pay. Veeder can also prevail by establishing that her gender was an impermissible motivating factor for the compensation inequality. See Burns v. Republic Sav. Bank, 25 F. Supp.2d 809, 823-24 (N.D. Ohio 1998) (determining that the absence of a similarly situated male receiving higher compensation does not preclude a Title VII action for wage-based discrimination). Veeder may use statistical or circumstantial evidence to prove such intentional discrimination occurred. Id.
Veeder contends that although no other employee had an identical employment position, males in similar positions received greater compensation than she did. Veeder asserts that she was similarly situated to Van Orsdel and Jim Larsen. At the time of her separation, Van Orsdel was Veeder's direct supervisor, so arguably not similarly situated. However, prior to his appointment in the Controller's office and prior to her job elimination, Veeder performed many of the same job duties as Van Orsdel. Veeder and Van Orsdel clearly have comparable employment backgrounds and work experience, but Van Orsdel's compensation is significantly higher than Veeder's. Jim Larsen, Van Orsdel's mentee, occupied a similar position to Veeder. Although he had no finance responsibilities and worked solely in human resource capabilities, Larsen and Veeder presumably worked at the same level and he received higher bonuses and CPO grants than she did. Veeder submits sufficient evidence to create a genuine issue of fact as to the equality of compensation each of them received. Moreover, Veeder submits additional evidence that Van Orsdel discretionarily discounted her 2000 bonus without justification, and that she was the only employee out of Cargill's two hundred finance employees who was denied salary adjustments between October 1998 and October 2000. Cargill's business records for its 2000 CPO grants further support an inference of discrimination, because Veeder was only one of eight accounting employees (three of whom were women) who did not receive 2000 CPO grants. Veeder further submits statistical analysis to support her claim of discrimination in compensation. (See Bardwell Aff.) Van Orsdel's statements about Veeder's marriage, and his testimony of Cargill's corporate mentality regarding females and marriage, also support an inference of discrimination. Therefore, Veeder submits sufficient evidence to create a genuine issue of material fact that disparities in compensation, bonuses, and CPOs, existed between males and females.
Overall, Veeder submits sufficient evidence to permit a reasonable fact finder to conclude that Cargill discriminated in its employment practices against Veeder, particularly in her termination and compensation.
2. Retaliation
Veeder also claims that she was retaliated against for reporting Cargill's alleged discrimination, because her severance package was reduced and her CPOs were cancelled. Cargill maintains that it is entitled to summary judgment because Veeder failed to exhaust her administrative remedies. Alternatively, Cargill argues that Veeder cannot establish a prima facie case of retaliation.
The Court rejects Cargill's argument that Veeder's retaliation claims are unrelated to her gender discrimination claim. Even though the "retaliation" box may not have been checked in her EEOC charge, her retaliation claim clearly stems from the facts of her gender discrimination claim. The Complaint clearly claims that her reduced severance package and cancelled CPOs are the direct result of her confrontation with Cargill personnel about its alleged gender discrimination. (Compl. ¶ 15-20.) "A plaintiff will be deemed to have exhausted administrative remedies as to allegations contained in a judicial complaint that are like or reasonably related to the substance of charges timely brought before the EEOC." Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994). Therefore, the Court determines that although retaliation was not specifically stated in the EEOC charge, the claim is reasonably related to the underlying allegations and thus Veeder exhausted her administrative remedies.
To prevail on her retaliation claim, Veeder must present a genuine issue of material fact on each element of her prima facie case: (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is a causal link between the protected activity and the adverse employment action. Sowell, 251 F.3d at 684. Cargill maintains that Veeder cannot sustain this burden on either of her retaliation claims.
Veeder testified that she told Cargill in-house counsel and Controller Galen Johnson about her concerns with Cargill employment practices in September 2000. (Oberdorfer Aff. Ex. 34 at 237-50.) Although she never explicitly mentioned the words "discrimination" or "gender," she used the words "unfair," and allegedly told them that the circumstances of her separation "deserv[ed] [Cargill management's] attention." (Id. at 245-46; 248.) As a result of these confrontations with Cargill legal counsel and management, Veeder contends that Cargill reduced the value of her separation agreement. Veeder testified that during the August 22, 2000, meeting, Cargill presented her with a severance salary option of $105,000 net after taxes. The separation agreement presented to her in October 2000 had changed that term to $105,000 gross, and Cargill refused to accept any subsequent changes to the October proposal. Furthermore, Veeder contends that her September confrontations, coupled with her attorney's confrontations to Cargill in early November 2000, caused Cargill to unlawfully terminate her CPOs. Her attorney sent a letter on November 10 addressing her discrimination claims, and on November 15 Cargill legal counsel ordered her CPO cancellation. Veeder submits sufficient evidence to create a genuine issue of fact on whether Veeder's separation package and CPOs were reduced because she confronted Cargill personnel about Cargill's discriminatory practices.
Although Johnson denies that any conversation took place, the Court must accept Veeder's allegations as true for the purposes of Cargill's summary judgment motion.
C. Breach of Contract
Count Five of Veeder's Complaint asserts that Cargill's wrongful termination of her CPOs was a breach of the employment contract between Veeder and Cargill. Cargill argues that because Veeder refused to accept continuing employment and because she refused to agree to the terms of the October 2000 separation agreement, her separation was voluntary, requiring termination of her CPOs pursuant to its internal CPO plan. Cargill alternatively argues that this determination is unreviewable by this Court because its internal CPO plan grants it full authority to interpret the terms of that plan. Although Cargill is presumably correct in that is has the authority to interpret its own internal contract terms, there clearly remains a genuine issue of material fact as to whether Veeder's separation was in fact voluntary. Therefore, summary judgment is inappropriate on this claim.
CONCLUSION
The record in this case clearly establishes that a genuine issue of material fact exists on whether Plaintiff Susan Veeder was terminated from Cargill based on her gender, received inequal compensation because of her gender, and suffered further consequences because she confronted Cargill about these allegedly discriminatory practices. Furthermore, because there is a genuine issue of material fact as to the circumstances of Veeder's separation from Cargill, her breach of contract claims survives Cargill's Motion for Summary Judgment. However, the law compels the dismissal of her MHRA claims and her state statutory wage claim.
Accordingly, based on all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendant Cargill Inc.'s Motion for Summary Judgment (Clerk Doc. No. 34) is GRANTED on Counts Two, Four and Six of the Complaint;
2. Defendant Cargill Inc.'s Motion for Summary Judgment is DENIED on Counts One, Three and Five of the Complaint.