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denying plaintiff's motion for summary judgment on retaliation claim
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Civil No. 02-1119 (JRT/FLN)
February 3, 2004
Gerald T. Laurie, LAURIE LAURIE, St. Louis Park, MN, for plaintiff
Andrew Voss, Kathryn A. Mrkonich, LITTLER MENDELSON, Minneapolis, MN, for defendant
Jaycee Rubin Grais, LITTLER MENDELSON, Minneapolis, MN, for defendant
MEMORANDUM OPINION AND ORDER
Plaintiff Robert Hollen, a former employee of defendant USCO Distribution Services, Inc. ("defendant"), has brought this lawsuit alleging hosfile work environment sexual harassment under the Minnesota Human Rights Act ("MHRA"), Minn. Stat. §§ 363.01 et seq. Plaintiff also asserts a retaliation and reprisal claim under the MHRA, as well as common law claims for vicarious liability, and negligent supervision and retention. Both parties have moved for summary judgment. Both parties have also brought motions concerning the affidavit and deposition of witness Lisa Nickerson.
Plaintiff was employed by USCO Logistics Services, Inc. and/or USCO Contract Logistics, LLC. The two entities have been consolidated into USCO Distribution Services, Inc. The parties have stipulated to the dismissal without prejudice of plaintiff's claims against USCO Contract Logistics, LLC and USCO Logistics Services, Inc.
For the reasons discussed below, the Court denies plaintiff's motion for summary judgment. The Court grants defendant's motion for summary judgment on plaintiff's common law claims and on plaintiff's claim for retaliation and reprisal. The Court denies defendant's motion for summary judgment on plaintiff's claim of hosfile work environment discrimination. The Court also grants in part defendant's motions related to witness Nickerson, and denies plaintiff's motion related to Nickerson.
I. BACKGROUND
Plaintiff worked from late 1999 to early 2002 as a first-shift maintenance worker, with duties primarily involving oversight of the servicing of forklifts at defendant's Shakopee distribution center. Plaintiff was terminated after a new distribution center manager outsourced the majority of plaintiff's responsibilities. Plaintiff was offered a position on the second shift, but he turned it down. Plaintiff claims he was terminated in retaliation for complaining about sexual harassment.
Plaintiff alleges that the atmosphere at work was "permeated by cruel and degrading sexual harassment." He alleges that women in the office viewed pornographic Internet sites, and openly discussed those sites. Similarly, plaintiff alleges that female employees printed pornographic pictures and jokes from the Internet, and brought those pictures to work and passed them around. Plaintiff also complains that female and male co-workers openly discussed sexual activities and engaged in sexual activity in the company parking lot and elsewhere on company grounds. One employee sold various adult products, and discussed that side job at work; another employee brought sex toys to work as a gift for a co-worker.
In addition to these allegations of an inappropriate workplace atmosphere, plaintiff notes that particular harassment was directed at him. Plaintiff alleges that a manager or supervisor called him names such as "sheep fucking Baaab," "retarded" and "stupid," and "Crack-head Bob." Plaintiff alleges that managers and co-workers openly discussed that plaintiff's mother was a sheep, and someone pinned a sheep pin on plaintiff's jacket. Plaintiff also alleges he was called "Baaab" on a daily basis by co-workers and managers. In addition, there were two instances of plaintiff's name or likeness being associated with sexually explicit graffiti, one of which involved plaintiff's face drawn on a donkey with large genitals. Plaintiff also alleges that there was graffiti on a picnic table that read, "Bob's a bitch." Plaintiff complains that two co-workers wrote him a letter discussing in explicit sexual terms what they wanted to do to him and that those same co-workers whispered in his ear. A male co-worker put in a work order for plaintiff to fix the zipper on a male co-worker's pants, and a female co-worker repeatedly called plaintiff "pedophile." On one occasion, plaintiff was sitting in a car with a female coworker, a group of people came by and asked plaintiff if he was getting a blowjob.
During plaintiffs employment, defendant had a sexual harassment policy prohibiting sexual harassment. The policy noted that employees must report behavior that the employee considers to be sexually harassing. Employees could report to either their immediate supervisors, or to the Vice President of Human Resources. Plaintiff claims that he reported the harassing behavior to various managers, but that nothing was done to remedy it. He also alleges that his supervisors perpetrated some of the harassment.
II. MOTION(S) TO STRIKE
Lisa Nickerson worked at defendant's Shakopee distribution center at the same time as plaintiff. Nickerson provided an affidavit that plaintiff relies on in his arguments contesting defendant's motion for summary judgment. Defendant suggests that much of the material in the affidavit is inadmissible because the material is vague, consists only of general opinions, or consists of statements regarding matters plainly outside her personal knowledge. Defendant also argues the material is irrelevant and inflammatory.
Defendant specifically objects to paragraph 4 of the Nickerson affidavit. That paragraph lists incidents of alleged harassment, however, it is not clear that plaintiff witnessed those incidents. Defendant suggests evidence of these incidents is prejudicial and irrelevant. The Court disagrees. Courts frequently consider evidence regarding the entire workplace in hosfile environment claims, even if it is not established that the plaintiff had specific knowledge of particular events. Therefore, the Court will consider paragraph 4 for the purposes of these motions.
Defendant also specifically objects to what defendant claims is unsupported opinion and hearsay in Nickerson's affidavit. Defendant objects to paragraph 5(e) (regarding hearsay testimony by Nickerson about the sheep pin). Defendant also objects to statements in the Nickerson affidavit regarding why plaintiff was fired, and who was hired as his replacement. Similarly, defendant suggests that Nickerson's statements that plaintiff "would always bring the harassment to [his supervisor's] attention" should be stricken, because there is no foundation for the statement. The Court will not consider paragraph 5(e) in making this summary judgment determination because the paragraph is inadmissible hearsay and lacks foundation. In addition, paragraph 14 lacks foundation, and will not be considered.
Defendant similarly moves to strike the affidavit of Toni Lee; Lee is an associate at the Laurie law firm, and attached to her affidavits are "exhibits" provided by Nickerson. The exhibits at issue are photos that Nickerson stated were passed around the Shakopee distribution center by the office staff. Lee is plainly not competent to establish the foundation for these documents; and to the extent she purports to use Nickerson's knowledge to establish that foundation, the documents are not admissible as hearsay. The Court will not consider those attachments in ruling on this motion. See Stuart v. General Motors Corp., 217 F.3d 621, 635 n. 20 (8th Cir. 2000) ("To be considered on summary judgment, documents must be authenticated by and attached to an affidavit made on personal knowledge setting forth such facts as would be admissible in evidence or a deposition that meets the requirements of Fed.R.Civ.P. 56(e).").
Defendant also brings a motion to compel compliance with a subpoena or, in the alternative, to strike deposition testimony of Nickerson. Plaintiff identified Nickerson as a fact witness, and defendant noticed her deposition. Nickerson appeared for the deposition on August 27, 2003, without counsel. The deposition was contentious from the beginning; and in an effort to complete the deposition, plaintiff's attorney agreed to represent Nickerson solely for the purposes of the deposition. Despite this representation, Nickerson left the deposition before it was completed. Defendant has attempted to complete the deposition, but Nickerson, who has health problems, has made it clear that she will not participate further in the deposition. Plaintiff, for his part, has filed a motion for a protective order, preventing the continued deposition.
Under Federal Rules of Civil Procedure 30(d)(2), defendant is entitled to seven hours of deposition from a fact witness. It appears that only four hours of deposition have been taken and defendant is therefore "entitled" to a few more hours. The same rule of civil procedure, however, empowers the Court to terminate a deposition "upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent." Fed.R.Civ.P. 30(d)(4) (upon such a showing, "the court . . . may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c)."). Federal Rule of Civil Procedure 26(c) provides that the Court may "make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." The Court may order that the disclosure or discovery not be had or that it be had only on specified terms and conditions, including a designation of the time or place. Id. The Court may also order that the information sought be provided by an alternate method of discovery, or the Court may limit the scope of the discovery. Id.
In this instance, plaintiff suggests that the Court should declare that the deposition of Lisa Nickerson is complete, or prohibit defendant from any further discovery from Nickerson. Plaintiff makes this motion on the grounds that Nickerson's deposition was completed on August 27, 2003 and that any further discovery would be detrimental to Nickerson's health.
The Court has reviewed the deposition transcript, and reviewed the transcript of messages left by Nickerson on the voicemail of counsel for defendant indicating that Nickerson does not intend to cooperate with additional discovery. In addition, counsel for plaintiff represented that Nickerson has left similar voice mail messages on his office telephone.
From this review, the Court is not satisfied that the deposition was conducted in bad faith, or was intended to unreasonably annoy, embarrass, or oppress the deponent. It is clear that Nickerson was very upset with the questioning; in particular, Nickerson was upset when asked to describe sexually explicit images. However, the questions were relevant to materials that Nickerson herself had supplied regarding this lawsuit. It is also quite clear that the deposition was not complete. Counsel for defendant was not finished with his questioning, and plaintiff's counsel had not had an opportunity to begin questioning.
The Court reminds the deposing defense counsel that as an officer of the Court he will be held to an exacting standard of conduct, even when faced with a challenging deponent. Carroll v. The Jaques Admiralty Law Firm, P.C., 110 F.3d 290, 293 (5th Cir. 1997) ("[a]n attorney, after being admitted to practice, becomes an officer of the court") (alteration in original) (citation omitted); see also Van Pilsum v. Iowa State University of Science and Technology, 152 F.R.D. 179, 181 (S.D. Iowa 1993) ("Merely because depositions do not take place in the presence of a judge does not mean lawyers can forget their responsibilities as officers of the court.").
The Court will not determine that the deposition was completed. Because the Court does not find that the deposition was conducted in bad faith, the Court denies plaintiff's Rule 26(c)(1) motion. For the purposes of this motion, the Court must determine whether it is appropriate for the Court to consider Nickerson's affidavit and partial deposition testimony. In considering defendant's motion for summary judgment, the Court must consider all evidence in the light most favorable to the plaintiff. However, evidentiary materials presented to avoid summary judgment need not be in a form that would be admissible at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (`We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment."); Thaddeus-X v. Blatter, 175 F.3d 378, 400 (6th Cir. 1999). The fact that defendant has not been thus far able to complete its deposition of Nickerson is of no matter to the testimony she has given, because even if conflicting evidence resulted from the deposition, the Court would nonetheless be obliged to view the evidence in the light most favorable to plaintiff. Therefore, the Court will consider, with the exception of those portions addressed above, Nickerson's affidavit and deposition for the purposes of this motion. III. HOSTILE WORK ENVIRONMENT CLAIM
The Court is not prepared to address what, if any, of the disputed affidavit and/or deposition testimony will be available to either party at trial. Although it appears that Nickerson intends not to complete her deposition or testify at trial, Nickerson might change her stance. In addition, even if Nickerson will not testify at trial, her deposition may nonetheless be admissible. See Fed. R Civ. P. 32(3) (discussing circumstances in which a deposition may be used at trial "by any party for any purpose" including if the Court finds "(C) that the witness is unable to attend or testify because of . . . illness [or] infirmity" or "(D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or "(E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used"). 10A C. Wright, A. Miller M. Kane, Federal Practice and Procedure § 2721 (2nd Ed. 1983) (updated by 2003 pocket part) (noting that as a rule, the court may consider on a summary judgment motion only material that would be admissible or usable at trial).
Plaintiff does not bring a Title VII claim; however, the Court discusses both MHRA cases, as well as Title VII hosfile environment cases, since Minnesota courts frequently look to Title VII cases when interpreting the MHRA. Mems v. City of St. Paul, Dept. of Fire and Safety Services, 327 F.3d 771, 785 n. 11 (8th Cir. 2003) (noting that it is proper to analyze MHRA claims under Title VII precedent); Todd v. Ortho Biotech. Inc., 175 F.3d 595, 599 (8th Cir. 1999) (noting that Minnesota courts frequently look to Title VII cases when interpreting the MHRA, but finding that the Supreme Court's holdings in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), are inapplicable to MHRA claims to the extent that these cases recognized vicarious liability against an employer in a hosfile environment sexual harassment claim based on a supervisor's conduct).
Under the MHRA, a plaintiff alleging sexual harassment must establish that the conduct was unwelcome, that the conduct consisted of sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature, and that the conduct was sufficiently pervasive so as to substantially interfere with the plaintiffs employment or to create a hosfile, intimidating or offensive work environment. Minn. Stat. § 363.01, subd. 41; Cummings v. Koehnen, 568 N.W.2d 418, 424 (Minn. 1997). A plaintiff need not, however, establish the motivation for the harassment — that is, there is no requirement that the plaintiff claim that the harassment was motivated by sexual interest in plaintiff. Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp.2d 1081, 1088 (D. Minn. 2000) (noting it makes no difference whether the harassment was motivated by sexual interest or by a desire to humiliate the plaintiff) (citing Cummings, 568 N.W.2d at 423). The MHRA does not require that plaintiff establish motive at all; rather, the Court must consider only whether the alleged conduct falls within a list of specific behaviors included under the MHRA's broad definition of sexual harassment. Id.
Plaintiff asserts that he was subjected to verbal conduct of a sexual nature. The Court agrees. In making this determination, the Court notes that foul language and vulgar behavior do not necessarily rise to the level of sexual harassment. Cummings, 568 N.W.2d 418 at 424. In that vein, defendant strenuously argues that the conduct at issue here may have been juvenile and inappropriate, but it was not sexual and therefore does not meet the statutory definition of sexual harassment. The Court cannot find, given the circumstances of this name calling, that the terms "sheepfucker" and "Baab" were not sexual in nature. See, e.g., Beach v. Yellow Freight Sys., 312 F.3d 391 (8th Cir. 2002) (affirming judgment in favor of employee where plaintiff was subjected to explicit graffiti, such as "[plaintiff] sucks cock" and noting that the phrase "[plaintiff] sucks" could have a sexual connotation, though it was not error for the district court to determine that it was not in this instance); Jones v. Yellow Freight Sys., Inc., 2000 WL 1052167 at *3 (Minn.Ct.App. Aug. 1, 2000) (holding that certain graffiti was sexual in nature).
For example, counsel for defendant suggests that calling someone a "sheepfucker" is no different than calling someone "asshole." The Court disagrees.
It is not enough, however, that plaintiff has pointed to verbal conduct of a sexual nature. To establish the elements of actionable sexual harassment, plaintiff must offer evidence that would allow a reasonable fact-finder to determine that the conduct was severe and pervasive. In making this determination, courts look to the totality of the circumstances. Duncan v. General Motors Corp., 300 F.3d 928, 934 (8th Cir. 2002), cert. denied, 123 S.Ct. 1789 (2003) (Title VII case); Goins v. West Group, 635 N.W.2d 717, 725 (Minn. 2001). The inquiry often includes factors such as "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Goins, 635 N.W.2d at 725 (citing Harris). It is also appropriate for the Court to consider other sexually explicit materials of which plaintiff was aware, including sexually explicit photographs and depictions. Jones v. Yellow Freight Sys., Inc., 2000 WL 1052167 at *3 (Minn.Ct.App. Aug. 1, 2000). The Court also considers "other acts that were not directed at [plaintiff] but that contributed to the hosfile environment because he was aware of them." Id. at *4. Such instances are "relevant in establishing a hosfile work environment." Id. at *4 (quoting Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416 (10th Cir. 1987)).
In determining whether particular conduct is "severe or pervasive" Minnesota courts frequently turn to Title VII hosfile environment cases. See, e.g., Goins v. West Group, 635 N.W.2d 717, 725 (Minn. 2001) (citing Title VII cases including Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Mendoza v. Borden, Inc., 195 F.3d 1238, 1249 (11th Cir. 1999); Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999)).
"`Simple' teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment.'" Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citations omitted); see also Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 573 (8th Cir. 1997) (holding that for sexual harassment to be sufficiently severe or pervasive to create a hosfile working environment, "more than a few isolated incidents are required") (citing Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986)).
In arguing that the conduct at issue cannot meet the "severe and pervasive" standard, defendant urges the Court to compare this case to Duncan v. GMC, 300 F.3d 928 (8th Cir. 2002), in which the Eighth Circuit reversed a jury verdict for an employee because the divided panel found that the conduct at issue was not severe or pervasive. It is appropriate to compare the alleged conduct in this case to the harassing conduct discussed in other cases. Tuggle v. Mangan, 348 F.3d 714, 721-22 (8th Cir. 2003) (comparing conduct at issue to earlier cases, and determining that the conduct at issue did not clear the "high threshold" to qualify as a hosfile work environment, and listing cases in which the court has found, as a matter of law, that particular conduct did not amount to hosfile work environment). However, as the Eighth Circuit recently emphasized "[e]ach case must stand on its own circumstances." Eich v. Board of Regents for Central Missouri State University, 350 F.3d 752, 760 (8th Cir. 2003)
To the extent that Duncan raises the standard of what constitutes sufficient "severity and pervasiveness" to establish a jury question of hosfile environment, it is not certain that Minnesota courts will follow. The Court's research of Minnesota caselaw revealed no Minnesota appellate case citing Duncan.
Considering the totality of the particular circumstances of this case — plaintiff's allegations of persistent pornography in the workplace, the sexually explicit pictures including depictions of his name and likeness, the daily name-calling, and the allegations that two co-workers whispered sexual comments in his ear — plaintiff has raised a jury question on the severe or pervasive element of his hosfile environment claim. See Rogers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (noting that separate incidents of harassment may accumulate, and "the work environment created thereby may exceed the sum of the individual episodes"); see also Moring v. Arkansas Dep't of Corrections, 243 F.3d 452, 456 (8th Cir. 2001) (whether an environment is hosfile is usually a question for the jury).
Defendant's final argument with regard to the hosfile environment claims is that plaintiff did not put defendant on notice that the sexual harassment was occurring. Defendant argues that an individual supervisor's knowledge of harassing conduct cannot be imputed to the company. However, in McNabb v. Cub Foods, a manager's knowledge that a co-employee was harassing the plaintiff was imputed to the employer. 352 N.W.2d 378, 383 (Minn. 1984). Minnesota courts have extended the imputed knowledge concept to cover situations where the supervisor gained knowledge of the harassment by being the actual perpetrator of the harassment. Tretter v. Liquipak Int'l, Inc., 356 N.W.2d 713, 715 (Minn.Ct.App. 1984) (employer liable where it knew or should have known of supervisor's acts of harassment but did not discipline supervisor or improve victim's work environment). There is, however, no bright-line rule on imputation in sexual harassment cases. See Weaver v. Minnesota Valley Labs., Inc., 470 N.W.2d 131, 134-35 (Minn.Ct.App. 1991) (noting the appeal of a "bright-line" test which would "always impute to the employer knowledge of a harassing supervisor," but recognizing that the court is "required to approach the issue on a case-by-case basis.").
Plaintiff avers that he frequently brought the harassment to the attention of manager David Rodkewich, and also avers that various supervisors witnessed much of the harassment. In addition, he claims that one of the supervisors was often a perpetrator of harassing conduct. Viewing the evidence in the light most favorable to the plaintiff, the Court concludes, for the purposes of summary judgment, that defendant was properly on notice of the harassment.
In sum, the Court finds that plaintiff has presented a jury question of hosfile work environment discrimination under the MHRA. Therefore, defendant's motion for summary judgment on this claim is denied.
IV. RETALIATION/REPRISAL
"To survive a motion for summary judgment, a plaintiff claiming unlawful retaliation under Minnesota law must produce evidence sufficient to create a genuine issue of material fact as to whether her protected activity caused the retaliation." Kunferman v. Ford Motor Corp., 112 F.3d 962, 965 (8th Cir. 1997) (citing Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 327 (Minn. 1995)). A prima facie case of retaliatory discharge under Minnesota law consists of: (1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two. Dietrich, 536 N.W.2d at 327.
In support of the causation element, plaintiff points to statements by witness Nickerson that she heard management discuss firing plaintiff if he pursued his lawsuit. Such statements might be admissible. See Shaver v. Indep. Stave Co., 350 F.3d 716, 723 (8th Cir. 2003) (in similar employment dispute, noting that deposition evidence by co-workers who overheard unspecified managers making comments about plaintiff was admissible). Even if the Court considers that evidence, however, plaintiff has not shown that the persons Nickerson allegedly overhead were involve'd in the decision to terminate plaintiff. See, e.g., Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1315-16 (8th Cir. 1996) (holding that the district court properly disregarded alleged remarks by employer's vice-president and a supervisor because the remarks were stale and made by persons not involved in the termination decision).
Plaintiff has put forth no evidence that the individual who made the employment decision, Randy Butler, knew that plaintiff had complained about sexual harassment. Butler had been at that distribution center for only a short time, and for some of that time, plaintiff had been on leave for an unrelated problem. Defendant suggests that plaintiff cannot establish the requisite causal connection. Without Nickerson's statements, plaintiff's "causation" is reduced to the temporal proximity between his complaint and his termination. However, "[t]iming alone cannot establish retaliatory intent." Kunferman, 112 F.3d at 965 (citing Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 445-46 (Minn. 1983)). Plaintiff has failed to establish a prima facie case of retaliation, and therefore summary judgment for defendant is appropriate on this claim.
V. VICARIOUS LIABILITY
In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court articulated a new standard for determining when a supervisor's sexual harassment subjects the employer to hosfile work environment liability under Title VII. The Supreme Court announced that "an employer is subject to vicarious liability to a victimized employee for an actionable hosfile environment created by a supervisor with immediate (or successively higher) authority over the employee." Todd v. Ortho Biotech, Inc., 175 F.3d 595, 598-99 (8th Cir. 1999) (discussing the new standard).
Plaintiff cites Ellerth and Faragher in support of his vicarious liability claims. The analysis in Ellerth and Faragher, however, is not applicable to plaintiffs MHRA claims. As the Eighth Circuit has explained,
Though Minnesota courts often look to Title VII case law in applying the [MHRA], our prior decision granting [defendant employer] judgment as a matter of law on [plaintiff's] state law claim was based upon a Minnesota statute that defines sexual harassment as requiring proof that "the employer knows or should know of the existence of the harassment and fails to take timely and appropriate action." Minn. Stat. § 363.01, subd. 41(3). If presented with this case, we conclude the Minnesota Supreme Court would apply the plain language of that statute, rather than the contrary standard of Ellerth and. Faragher.Todd v. Ortho Biotech, Inc., 175 F.3d 595, 599 (8th Cir. 1999). See also Halvorson v. Conseco. Finance Corp., 2002 WL 31371938 *7 n. 5 (D. Minn. Oct. 21, 2002) (noting that `Vicarious liability under Title VII now diverges from vicarious liability under the MHRA.").
Plaintiff does not plead a violation of Title VII. The Court agrees with defendant's contention that plaintiff must prove MHRA liability in accordance with the provisions of the Act or principles adopted by Minnesota courts. Minnesota courts have not adopted the vicarious liability theory announced in Ellerth and Faragher, therefore the Court dismisses plaintiff's vicarious liability claims.
This is not to say that plaintiff is without a remedy for the alleged harassment he suffered at the hands of supervisors and managers. However, his remedy must be pursued via the MHRA. Continental Can Co., Inc. v. State, 297 N.W.2d 241, 249 n. 5 (Minn. 1980) (superceded by statute on other grounds) (discussing vicarious liability but noting that "It is unnecessary in this case to decide what theory of liability is appropriate when the employer's agents and supervisors are the source of conduct alleged to constitute sexual harassment.").
VI. Tort Claims (Negligent supervision and negligent retention)
Plaintiff also asserts claims of negligent supervision and negligent retention. Minnesota courts have long recognized claims for negligent supervision, which is defined as "`an employer's duty to control his or her employee's physical conduct while on the employer's premises or while using the employer's chattels, even when the employee is acting outside the scope of the employment, in order to prevent intentional or negligent infliction of personal injury.'" Mandy v. Minnesota Mining and Mfg., 940 F. Supp. 1463, 1471 (D. Minn. 1996) (quoting Semrad v. Edina Realty, Inc., 493 N.W.2d 528, 534 (Minn. 1992)); see also LaCanne v. AAF McQuay, Inc., 2001 WL 1344217 *2 (D. Minn. Oct. 30, 2001). Minnesota courts also recognize claims for negligent retention, which occurs when "during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment." Mandy, 940 F. Supp. at 1470.
Defendant argues that plaintiff's claims are preempted by the Workers' Compensation Act ("WCA") and/or the MHRA. Alternatively, defendant argues that the claims fail on their merits. The Court addresses each of defendant's contentions in turn.
A. MHRA
The MHRA is the exclusive remedy for "acts declared unfair by section 363.03." Minn. Stat. § 363.11. The Minnesota Supreme Court specifically holds that the MHRA preempts later-enacted general remedial statutes; in particular, the MHRA controls over the Minnesota Whistleblowers' Act. Williams v. St. Paul Ramsey Med. Ctr., Inc., 551 N.W.2d 483, 485 (Minn. 1996); see also Klaahsen v. APCOA/Standard Parking, Inc., 2002 WL 1397041 *7-8 (D. Minn. June 26, 2002) (discussing Williams). In Williams, the Minnesota Supreme Court examined the Whistleblower statute, and found no clear indication that the legislature intended the general remedial provision of that statute to take precedence over the exclusivity of remedies provision of the MHRA. The court in Williams therefore held that the MHRA bars the maintenance of a separate claim under the Whistleblowers' Act. Williams, 551 N.W.2d at 486 (Minn. 1996). The court reasoned that the legislature certainly would not have "contemplated that employees seeking redress for allegedly discriminatory employment action could simultaneously maintain an action relating to the same discriminatory practice and predicated on identical factual statements and alleging the same injury or damages." Id. at 485.
In seeming contrast, in Vaughn v. Northwest Airlines, Inc., 558 N.W.2d 736 (Minn. 1997), the Minnesota Supreme Court permitted a plaintiff to maintain parallel MHRA and tort claims against the defendant airline. The court reiterated its decision of Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, in which the court held that the MHRA's prohibition against workplace sexual harassment did not preempt a factually parallel common-law battery claim. In so doing, the court "emphasized that statutory abrogation of common-law claims must be accomplished by express wording or necessary implication" and also noted that that "the MHRA serves a legislative purpose distinct from common-law battery." Vaughn, 558 N.W.2d at 744-45 (citing Wirig, 461 N.W.2d at 377-79). The Wirig decision, as reiterated in Vaughn, precludes "double recovery when the same conduct forms the basis for both an MHRA claim and a tort claim, but . . . expressly reject[s] the notion that factually parallel causes of action are mutually exclusive." See Wirig, 461 N.W.2d at 379; Vaughn, 558 N.W.2d at 745.
Several courts in this District have been called on to apply the exclusivity provision of the MHRA, and as recently noted, "decisions of this Court on the issue of MHRA preemption are not consistent." Klaahsen, 2002 WL 1397041 *7-8. In Moss v. Advance Circuits, Inc., 981 F. Supp. 1239, 1252 (D. Minn. 1997), the Court held that because "plaintiff has not identified any duty owed her separate from the duty created by the MHRA, the negligence claims [for negligent supervision and retention] are preempted." See Pierce v. Rainbow Foods Group, Inc., 158 F. Supp.2d 969, 975-76 (D. Minn. 2001) (setting out the following standard for MHRA preemption: the MHRA preempts a common law cause of action if (1) the factual basis and injuries supporting the common law claim also would establish a violation of the MHRA, and (2) the obligations the defendant owes to the plaintiff, as a practical matter, are the same under both the common law and the MHRA); LaCanne v. AAF McQuay, Inc., 2001 WL 1344217 *3 (D. Minn. Oct. 30, 2001) (citing Pierce and finding Plaintiff's claims of negligent supervision and negligent retention preempted by the MHRA).
The Court in Klaahsen reasoned that "the analysis in Williams should be confined to cases raising the issue of whether another Minnesota statute controls over the exclusivity provision of the MHRA. [Defendant's] argument . . . — that [Plaintiff's] common-law claims are preempted because she has based them on the same set of facts as those underlying the MHRA claim — is unavailing under controlling Minnesota Supreme Court precedent." Klaahsen, 2002 WL 1397041 *8 (emphasis added).
In Klaahsen, the plaintiff alleged several common law tort claims, including assault and battery. Such claims have an independent basis in common law. In contrast, in this case, there is no doubt that the plaintiff's claims arise from the same duty as his harassment claim under the MHRA. Plaintiff's negligent retention and supervision claims are based on the defendant's alleged breach of duty to protect plaintiff from a hosfile work environment. Plaintiff does not cite to any Minnesota case establishing a duty to prevent hosfile environment; such a duty is only imposed by the MHRA. In that respect, this case is indistinguishable from Moss. 981 F. Supp. at 1252 ("Unlike Vaughn and Wirig, therefore, there is no distinction in duties owed between the MHRA and common law claims."). Since plaintiff has not identified any duty owed him separate from the duty created by the MHRA, his claims are preempted and summary judgment on these claims is granted.
This case is also distinguishable from Klaahsen, in that the Klaahsen court addressed MHRA preemption in the context of claims brought against individuals, not the company (the plaintiff's claims against the company were dismissed as preempted by the WCA).
B. Merits of Negligent Retention and Supervision
Even if Plaintiff's claims were not preempted by the MHRA, defendant would nonetheless be entitled to summary judgment. Under a negligent supervision or retention theory, an employer may be held directly liable for "an employee's intentional tort, an action almost invariably outside the scope of employment, when the employer knew or should have known that the employee was violent or aggressive and might engage in injurious conduct." Yunker v. Honeywell, Inc., 496 N.W.2d 419, 422 (Minn.Ct.App. 1993). See also Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 911 (Minn. 1983) (recognizing claim for negligent hiring and acknowledging Minnesota has already recognized claim for negligent retention). Courts applying Minnesota law have recognized that employment-based sexual harassment may form the basis for a claim of negligent retention. See Mandy v. Minnesota Mining Mfg., 940 F. Supp. 1463, 1470-72 (D. Minn. 1996); Thompson v. Campbell, 845 F. Supp. 665, 676 (D. Minn. 1994); Kresko v. Rulli, 432 N.W.2d 764, 769-70 (Minn. Q. App. 1988). General harassment, however, is not enough. See Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 442-43 (Minn.Ct.App. 1996). To be actionable, the employee's conduct must rise to the level of an intentional tort. See id. See also Thompson v. Olsten Kimberly Qualitycare, Inc., 980 F. Supp. 1035, 1041-41 (D. Minn. 1997) (dismissing claims of negligent supervision because plaintiff failed to allege that she suffered either physical injury or was placed under the apprehension of such injury).
Plaintiff alleges significant teasing and inappropriate comments, which, as the Court determined above, amount to verbal conduct of a sexual nature. He does allege that one employee grabbed his leg, but does not allege that the leg grabbing resulted in physical harm, or put him in fear of physical harm. In short, he does not allege the type of intentional (usually completed physical injury) tort that courts have recognized creates actionable negligent hiring claims. Physical contact does not necessarily amount to physical injury or even the threat of physical injury.
In addition, the plaintiff cannot have it both ways. Plaintiff argues that the WCA does not apply because he did not suffer physical injuries, but only emotional distress. He cannot also be heard to argue that, for the purposes of negligent retention and supervision, he suffered physical injury. Such an argument takes "pleading in the alternative" to a new, and unjustified, level.
Plaintiff suggests that two employees talked about performing sexual acts with him, and that such comments amount to threats of physical injury. Plaintiff testifies only that "Lisa Nickerson told me that Lou Ann and Tina said . . . they could use a strap-on for me." This hearsay does not establish a threat of physical injury.
C. Workers' Compensation Act
Because the Court finds that Plaintiff's claims are preempted by the MHRA and would be unlikely to succeed on the merits even if they were not, the Court will only briefly address defendant's argument that the Court lacks subject matter jurisdiction over Plaintiff's common law claims because those claims are preempted by the WCA.
The WCA provides that "[e]very employer . . . is liable to pay compensation in every case of personal injury . . . of an employee arising out of and in the course of employment without regard to the question of negligence." Minn. Stat. § 176.021 (emphasis added). The WCA defines "personal injury" as an
injury arising out of and in the course of employment . . . but does not cover an employee except while engaged in, on, or about the premises where the employee's services require the employee's presence as a part of that service at the time of the injury and during the hours of that service. . . . Personal injury does not include an injury caused by the act of a third person or fellow employee intended to injure the employee because of personal reasons, and not directed against the employee as an employee, or because of the employment.
Minn. Stat. § 176.011, subd. 16. The WCA is the exclusive remedy for an employee who suffers a "personal injury;" and where the WCA provides the employee's exclusive remedy, this Court has no jurisdiction. Minn. Stat. § 176.031; McGowan v. Our Savior's Lutheran Church, 527 N.W.2d 830, 833 (Minn. 1995) (citing Hukn v. Foley Bros., 22 N.W.2d 3 (1946)).
To be compensable under the WCA, the injury must "arise out of employment. Minn. Stat. § 176.011, subd. 16. The Minnesota courts have broadly interpreted this language. See, e.g., Foley v. Honeywell, Inc., 488 N.W.2d 268, 272 (Minn. 1992) (holding that assault and murder of Honeywell employee by a stranger in employer's parking ramp also open to the public arose out of her employment); Meinstma v. Loram Maint. Way, Inc., 672 N.W.2d 224 (Minn.Ct.App. 2003) (holding that injuries arose out of employment where plaintiff admitted that had he not been employed at defendant company, the injury would not have occurred, and reasoning that Plaintiff's employment exposed him to different and greater hazard of injury from assault than if he had been pursuing ordinary personal affairs) (citation omitted). But see Johnson v. Ramsey County, 424 N.W.2d 800, 805 (Minn.Ct.App. 1988) (court employee's battery claim, arising out of judge's kiss, was not barred by WCA; though kiss occurred at work, it had no association with job, and thus was not an injury arising out of and in course of employment).
The "arising out of language is limited by the so-called "assault exception" that excludes injuries caused by the act of a third person or by a fellow employee intended to injure the employee because of personal reasons, and not directed against the employee as an employee, or because of the employment. Minn. Stat. § 176.011, subd. 16. In contrast to the broad reading given to the "arising out of language, "assault exception" is read quite narrowly. See Hanson v. Robitshek-Schneider Co., 209 Minn. 596, 600, 297 N.W. 19, 21-22 (1941) (describing three general categories of compensation cases arising from assault, and noting that injuries are compensable under the WCA if the "assault was directed against the victim, neither `as an employee' nor for `reasons personal to him.'"). For example, in McGowan v. Our Savior's Lutheran Church, 527 N.W.2d 830, 834 (Minn. 1995), a director of a homeless shelter was raped by a shelter client. The Minnesota Supreme Court held that the assault exception did not apply, reasoning that her employment "was a causal factor contributing to her being raped." Id. at 834. Compare Yunker v. Honeywell, Inc., 496 N.W.2d 419, 424 (Minn.Ct.App. 1993) (holding violent murder by known assailant at victim's home and not at workplace was within the assault exception).
Plaintiff argues that his claims are not preempted because the WCA addresses only "personal injury or death" and plaintiff complains only of emotional distress, not physical injury. The Court agrees. Workers' compensation claims involving mental injuries are divided into three categories: (1) cases in which mental stimulus produces physical injury; (2) cases in which physical stimulus produces mental injury; and (3) cases in which mental stimulus produces mental injury. Johnson v. Paul's Auto Truck Sales, Inc., 409 N.W.2d 506, 508 (Minn. 1987) (citation omitted). In Minnesota, coverage is extended to the first two categories, but not the third. Egeland v. City of Minneapolis, 344 N.W.2d 597, 604 (Minn. 1984); see also Middleton v. Northwest Airlines, 600 N.W.2d 707, 709 (Minn. 1999) (noting that "we leave undisturbed our holding in Lockwood") (citing Lockwood v. Indep. Sch. Dist. No. 877, 312 N.W.2d 924, 927 (Minn. 1981) (holding that in the absence of some indication from the legislature, the WCA did not cover employees who were mentally disabled by employment-related stress)). This Court similarly cannot infer that the Minnesota legislature intended the WCA to cover mental stresses resulting in mental injuries. Therefore, in the absence of modification by either the Minnesota courts or the Minnesota legislature, the WCA is not applicable to mental injuries caused by mental stressors, and therefore does not preempt plaintiff's common-law tort claims.
The Court notes that plaintiff's Amended Complaint references "Damages for mental anguish and emotional and/or physical injury as a result of Defendant USCO's actions." See Amended Complaint at ¶ 20. However, it is clear from a review of the entire record, including plaintiff's deposition testimony, his affidavit, and the report of his treating psychologist, that plaintiff has not suffered physical injury.
Defendant cites Meils v. Northwestern Bell Co., 355 N.W.2d 710 (Minn. 1984), for the proposition that the aggravation of mental injuries "may" be compensable by the WCA. Def. Reply Brief at 10 n. 13. This argument is misleading, at best and the Court is disturbed by the failure to cite to any of the Minnesota Supreme Court cases directly addressing this issue. See Minnesota Rule of Professional Conduct 3.3(a)(3).
ORDER
Based upon the foregoing, the submissions of the parties, the arguments of counsel and the entire file and proceedings herein, IT IS HEREBY ORDERED that:1. Defendant's motion for summary judgment [Docket No. 11] is GRANTED in part and DENIED in part as follows:
a. Defendant's motion is GRANTED as to Counts II (retaliation and reprisal), III (vicarious liability), IV (negligent supervision), and V (negligent retention) of plaintiff's complaint [Exhibit A to Docket No. 1].
b. Counts II, III, IV, and V of plaintiff's complaint are DISMISSED WITH PREJUDICE.
c. Defendant's motion is DENIED in all other respects.
2. Plaintiff's motion for summary judgment [Docket No. 15] is DENIED.
3. Defendant's motion to strike the affidavit of Lisa Nickerson and exhibits attached to the affidavit of Toni Lee [Docket No. 22] is GRANTED in part and DENIED in part;
a. Paragraphs 5(e) and 14 of the affidavit of Lisa Nickerson shall be STRICKEN,
b. The exhibits described in paragraph 2 of the Affidavit of Toni Lee and attached to that affidavit are STRICKEN.
4. Defendant's motion to compel compliance with subpoena or in the alternative to strike deposition transcript of Lisa Nickerson [Docket No. 31] is DENIED;
5. Plaintiff's motion for an order declaring the deposition of Lisa Nickerson completed and that further discovery from Lisa Nickerson not be had [Docket No. 34] is DENIED.