Opinion
Civil No. 03-5057 (JRT/FLN).
September 3, 2004
John A. Fabian and J. Poage Anderson, NICHOLS KASTER ANDERSON, Minneapolis, MN, for plaintiff.
David J. Duddleston and Natalie Wyatt-Brown, JACKSON LEWIS L.L.P., Minneapolis, MN, for defendant.
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Brenda Caples ("plaintiff") filed this action against Double P Corporation ("defendant"), alleging that defendant violated Title VII of the Civil Rights Act of 1964, as amended, and the Minnesota Human Rights Act ("MHRA"). During plaintiff's employment with defendant, plaintiff complained of sexual harassment. Defendant later terminated plaintiff's employment. Plaintiff contends that the sexual harassment complaint was a motivating factor for the termination in violation of the above-mentioned statutes. Plaintiff moves for summary judgment on her Title VII and MHRA reprisal discrimination claims. For the reasons set forth below, the Court denies plaintiff's Motion for Summary Judgment.
BACKGROUND
On August 23, 2002, plaintiff began her employment with defendant as a shift supervisor at an Edina, Minnesota Auntie Anne's Pretzels store. Defendant promoted plaintiff to store manager on October 28, 2002. Plaintiff contends that in October 2002, she was subjected to sexually harassing behavior from Martin Hernandez ("Hernandez"), a subordinate coworker. Allegedly, Hernandez touched plaintiff's breasts and said, "Brenda, I want the pussy. Let's go in the bathroom." Plaintiff claims that she rebuked Hernandez but lacked the authority to officially discipline him. Shortly thereafter, plaintiff reported Hernandez' behavior to Emma Thielen ("Thielen"), the district manager for Auntie Anne's Pretzels. Thielen maintains that she offered to terminate Hernandez. According to Thielen, plaintiff explained that Hernandez' behavior did not offend her and asked that Thielen not report the conversation. Thielen agreed.
Several months later, plaintiff resumed her complaints about Hernandez. Plaintiff explains that the complaints resumed because of Hernandez' continuing inappropriate conduct and defendant's failure to remedy the problem. On February 10, 2003, plaintiff complained to Fabienne Christian ("Christian"), defendant's human resources director, about the October 2002 Hernandez incident, but plaintiff asked that Christian not terminate Hernandez. Plaintiff stated, "[S]ince he is Mexican or something, he doesn't really speak or understand English good [sic] and didn't probably understand what he was doing." On February 11, 2003, plaintiff made a similar complaint to Phillip Patinkin ("Patinkin"), the defendant's president.
In response to plaintiff's complaints about Hernandez' behavior, Thielen interviewed Mercedes Mitchell ("Mitchell"), one of plaintiff's female coworkers. Mitchell recounted that there was an occasion when she entered the women's bathroom at work and forgot to lock the door. Hernandez accidentally opened the door, immediately shut it, and later apologized to Mitchell. Mitchell denied that Hernandez ever behaved inappropriately toward her or anyone else. Thielen reported this conversation to Christian. Thielen also reminded Hernandez of defendant's sexual harassment policy, and warned him not to violate it in the future.
According to defendant, plaintiff's store management was sub-par. December 2002 store sales at plaintiff's location were extremely low. Thielen gave plaintiff a verbal warning and counseled her about the poor sales. In Thielen's opinion, the poor sales stemmed from the fact that plaintiff spent too much time in the back room talking on her cell phone, instead of assisting her employees with sales. Between February 10, 2003 and March 6, 2003, defendant filed three corrective action warnings against plaintiff. Plaintiff's failure to timely provide a copy of the store's staff schedule to Thielen resulted in two warnings. Plaintiff's failure to keep her store fully staffed resulted in the third warning. On February 19, 2003, Theresa Michaelson ("Michaelson"), one of plaintiff's coworkers, filed a written complaint with defendant. Michaelson asserted that plaintiff threatened her, physically abused her, and called her a "racist and crazy bitch."
Plaintiff was terminated on March 10, 2003. The termination letter stated in pertinent part:
Despite previous verbal and written warnings, you have continued to violate policy and[/]or procedure continuously. You have also demonstrated the inability to solve or resolve problems in your store or produce an environment of harmony. In addition, you have caused or created an environment of tension, discord and racial dissention among your multi-ethnic staff. Other policies you have violated are: [a]buse of the company telephone; [u]sing your personal cell phone while on duty instead of on break; [c]onstantly in the back room on the phone instead of assisting customers; [n]ot submitting/faxing schedules as requested to your district supervisor; [d]isrespecting your co-workers; [d]iscussing problems of your store with employees of the mall; [n]ot providing customers with proper/adequate service; [i]ntimidating employees . . . Instead of constantly using the telephone, staying in the back room, intimidating your staff, discussing your staff with employees of the mall, accusing your staff of sexual harassment and same-sex harassment from your district supervisor, every effort should have been focused and demonstrated in [sic] creating sales by pushing the product with suggestive selling by you, the manager, instead of waiting for your staff to do a function of your duties.
Plaintiff filed suit against defendant, alleging reprisal discrimination. Plaintiff now moves for summary judgment on these claims.
ANALYSIS
I. STANDARD OF REVIEW
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." Fed.R.Civ.P. 56(c). Courts grant summary judgment only if the evidence is such that no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, disputes over facts that might affect the outcome of the suit under the governing substantive law will preclude entry of summary judgment. Id. In making its determination, this Court construes the underlying facts in the light most favorable to the nonmoving party. See Vette Co. v. Aetna Cas. Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Importantly, the nonmoving party may not simply rely upon allegations or denials in its pleadings, but must set forth specific facts showing that there is a genuine issue for trial. See Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002).
II. TITLE VII
A. McDonnell Douglas Modification
Title VII of the Civil Rights Act of 1964, as amended, provides that it is unlawful "for an employer to discriminate against [an employee] . . . because [s]he has opposed any practice made an unlawful employment practice by this subchapter, or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). See West v. Marion Merrell Dow, Inc., 54 F.3d 493 (8th Cir. 1995). Sexually harassing conduct from a coworker constitutes an unlawful employment practice under Title VII when an employer knows of the conduct, yet fails to take remedial action. See 42 U.S.C. § 2000e-2(a)(1); Harris v. Forklift Sys., 510 U.S. 17, 21 (1993); Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983, 987 (8th Cir. 1999). Thus, a Title VII violation occurs when an employer terminates an employee because the employee complained of sexual harassment.
Traditionally, claims of 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. Montandon, 116 F.3d at 359. If the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its action. Id. If the employer successfully demonstrates a non-discriminatory reason, then the burden shifts back to the plaintiff to show the employer's stated reason was a mere pretext for discrimination. Id.
The continued validity of the McDonnell Douglas analysis has been called into question, however, by the Supreme Court's 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 101-02.
In Brown v. Westaff, this Court addressed a claim of race discrimination and determined that Desert Palace requires that the McDonnell Douglas analysis be modified. 301 F. Supp. 2d 1011, 1017 (D. Minn. 2003); 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, 301 F. Supp. 2d at 1017 (quoting Dunbar, 285 F. Supp. 2d at 1186).
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). Just as Desert Palace's elimination of the direct/indirect evidence distinction in discrimination cases necessitates an alteration of McDonnell Douglas in the direct discrimination context, a corresponding alteration is necessary, for the same reasons, in the retaliation context. Cf. Gonzalez v. City of Minneapolis, 267 F. Supp. 2d 1004, 1010-11 (D. Minn. 2003) (applying similar analyses to discrimination and retaliation claims in the "interests of uniformity"); but cf. Peterson v. Scott County, 2004 WL 1179368, *9 (D. Minn. May 27, 2004) (applying modified analysis to discrimination claim, but retaining unmodified McDonnell Douglas framework with respect to retaliation claim). This Court will apply McDonnell Douglas, modified in its third stage to accommodate Desert Palace, to plaintiff's Title VII retaliation claim. In the third stage, the Court now inquires whether the sexual harassment complaint was a motivating factor in defendant's termination.
B. Application of Modified McDonnell Douglas
1. Plaintiff's prima facie case
To establish a prima facie case of Title VII reprisal discrimination, plaintiff must demonstrate that she engaged in an activity protected by Title VII, that an adverse employment action occurred, and that a causal connection linked the two. Krough v. Cessford Constr. Co., 336 F.3d 710, 712 (8th Cir. 2003).
A complaint constitutes a protected activity only when the complaint is reasonable. See Curby v. Solutia, Inc., 351 F.3d 868, 871 (8th Cir. 2003). Under Title VII, an action qualifies as sexual harassment if it is both objectively and subjectively offensive. See Breeding, 164 F.3d at 1158 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)). According to Thielen, plaintiff was not offended by Hernandez' single remark. In her conversation with Christian, plaintiff explicitly denied that Hernandez continued to harass her or make unwanted sexual advances. When Christian asked plaintiff what her purpose was in reporting Hernandez' remark, plaintiff replied, "None I guess." Taking these facts in the light most favorable to defendant, plaintiff was not offended by Hernandez' comment and may not have believed that Hernandez' remark constituted sexual harassment. Consequently, the Court finds that, in the context of this motion, plaintiff has not established that she engaged in a protected activity.
The Court's determination that plaintiff has not met the first prong of her prima facie case is sufficient basis to deny plaintiff's motion for summary judgment. However, in the interests of thoroughness, the Court will examine the remaining prongs of plaintiff's prima facie case and the remaining steps in the burden shifting analysis.
Termination is clearly an adverse employment action. Nonetheless, plaintiff cannot establish that her complaint actually caused the termination. Plaintiff relies on a portion of her termination letter stating, "Instead of . . . accusing your staff of sexual harassment . . . every effort should have been focused and demonstrated in [sic] creating sales." The Court notes, however, that the letter first explains that plaintiff violated company policy when she disrespected coworkers, intimidated employees, and failed to submit requested schedules. The evidence in the record also indicates that defendant took plaintiff's complaints seriously and even offered to terminate Hernandez. These facts, taken in the light most favorable to defendant, barely permits the inference of a causal connection between plaintiff's complaint and her termination.
2. Defendant's legitimate reasons
Defendant has satisfied the second-prong of McDonnell Douglas. Defendant's letter outlines numerous reasons for terminating plaintiff. These reasons include intimidating employees, disrespecting coworkers, and failing to provide weekly schedules to Thielen. The letter expressly states that the infractions violate company policy and procedure. The allegations are also supported by corrective action warnings and written complaints. Taking these facts in the light most favorable to defendant, defendant has presented multiple legitimate, nondiscriminatory reasons for terminating plaintiff.
3. Plaintiff's ultimate burden
Finally, in order to grant summary judgment to plaintiff, the evidence must be such that no reasonable jury could fail to conclude that plaintiff's complaint was a motivating factor in her termination. See generally Hollen v. USCO Distribution Servs., Inc., 2004 WL 234408 (D. Minn. Feb. 3, 2004) (denying plaintiff's motion for summary judgment on retaliation claim). The first portion of the termination letter includes a list of criticisms supported by written complaints and warnings. Defendant did not mention the sexual harassment claim in this section. Defendant briefly mentions the claim near the end of the termination letter as part of a laundry list of alleged inappropriate and deficient behavior on plaintiff's part. As discussed under prong one, plaintiff's response to Hernandez' comment suggests that she was not offended by the remark. Additionally, plaintiff repeatedly complained to defendant yet asked that defendant not take action. Nevertheless, defendant investigated plaintiff's complaints and took corrective action. Construing this evidence in defendant's favor, a reasonable jury could find that the language referencing the harassment complaint ("accusing your staff of sexual harassment") merely expressed defendant's opinion that plaintiff was not sufficiently focused on her store's performance or expressed defendant's frustration that plaintiff had approached defendant with meritless complaints. Plaintiff thus fails to carry her burden of demonstrating that no reasonable jury could fail to find that plaintiff's complaint was a motivating factor in her termination.
In light of plaintiff's failure to either establish her prima facie case or meet her ultimate burden, plaintiff's motion for summary judgment on her Title VII retaliation claim is denied.
III. MHRA
Under the MHRA, it is an unlawful "discriminatory practice for any . . . employer . . . to intentionally engage in any reprisal against [an employee] because that person . . . [o]pposed a practice forbidden under this chapter or has filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." Minn. Stat. § 363A.15; see Hubbard v. United Press Intern, Inc., 330 N.W.2d 428, 444 (Minn. 1983). Sexual harassment is forbidden under MHRA. See Minn. Stat. § 363A.03; Miles v. DDF, Inc., 2004 WL 1049286, at *3 (Minn.Ct.App. May 11, 2004). Thus, as under Title VII, it is unlawful for an employer to take any action in reprisal against an employee for having complained of sexual harassment.
When adjudicating MHRA claims, this Court applies the traditional McDonnell Douglas three-step burden-shifting framework. Brown, 301 F. Supp. 2d at 1020 (explaining that until the Minnesota state courts address Desert Palace, MHRA cases continue to be analyzed under the unmodified McDonnell Douglas framework). First, plaintiff must establish a prima facie case of reprisal discrimination. See McDonnell Douglas Corp., 411 U.S. at 802. To do so, plaintiff must demonstrate that she engaged in statutorily protected conduct, that an adverse employment action occurred, and that a causal connection linked the two. Dietrich v. Canadian Pac., Ltd., 536 N.W.2d 319, 327 (Minn. 1995). Second, defendant must assert a legitimate reason for plaintiff's termination. See McDonnell Douglas Corp., 411 U.S. at 802. Third, plaintiff must establish that the asserted legitimate reason is merely a pretext for a discriminatory action. See id. at 804.
The Court incorporates its preceding Title VII analysis with respect to prongs one and two. The only remaining issue is whether defendant's legitimate reasons for terminating plaintiff are pretexts for a discriminatory action.
Evidence relevant to a finding of pretext might include that non-complaining employees with similar performance records were treated differently, defendant's treatment of plaintiff during her employment, or defendant's general policy and practice regarding sexual harassment. See Brown, 301 F. Supp. 2d at 1019. Plaintiff provides no evidence that non-complaining managers at similar performance levels received different treatment. Additionally, there is no indication that defendant ever rebuked plaintiff for making the complaints during her employment. Defendant's Harassment and Non-Discrimination Policy encourages harassment victims to file either informal or formal complaints, and plaintiff's complaints were investigated and taken seriously by defendant. Moreover, defendant's asserted reasons for terminating plaintiff are supported by corrective action warnings and a written complaint from plaintiff's coworker. Taking these facts in the light most favorable to defendant, a reasonable jury could credit defendant's asserted reasons rather than label them insincere post-hoc justifications. Plaintiff's motion for summary judgment on the MHRA reprisal claim is denied.