Opinion
Civil No. 99-1566 RHK/JMM
March 9, 2001
Theresa A. Freeman, Neff Law Firm, Bloomington, Minnesota, for Plaintiff.
James T. Martin, Gislason, Martin Varpness, Edina, Minnesota, for Defendant.
MEMORANDUM OPINION AND ORDER
Introduction
Plaintiff Marlene James ("James"), an African-American, brought this suit against her former employer, Western National Mutual Insurance Company ("Western National"), claiming that Western National discriminated against her based on her race, national origin, and color, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-5, and the Minnesota Human Rights Act, Minn. Stat. § 363.01 et seq. ("MHRA"), created a hostile work environment, and retaliated against her for complaining about the discrimination, in violation of the MHRA. In addition to James's discrimination claims, James alleges the following state-law claims: breach of an employment contract, promissory and equitable estoppel, intentional infliction of emotional distress, and negligent supervision, training, and retention.
Currently before the Court is Western National's Motion for Summary Judgment on all claims. For the reasons set forth below, the Court will grant the motion.
Background
When reviewing a motion for summary judgment under Rule 56, the court views all evidence and the inferences that may be reasonably drawn from it in the light most favorable to the nonmoving party. See Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996).
James began working for Western National in January 1992, as a Word Processor in the Communications Services Department. (Am. Compl. ¶ 9; Answer of Western National ¶ 4.) James worked at Western National until her termination in March 1999. (Latocki Aff. Ex. B (March 1, 1999, Letter from Latocki to James).) James claims that during her tenure at Western National she was "continuously and systematically discriminated against due to the fact that she is African-American." (Am. Compl. ¶ 10.)
I. James's Work History
James, by all accounts, was performing very well as a word processor for Western National. She consistently received "good" and "very good" ratings on her performance appraisals. (See Freeman Aff. Exs. 1A-1I (Performance Appraisals).) Statements such as "Marlene [James] has always been more than willing to take on additional work," "Marlene is very creative and when given a project she really shines!" and James "always does an outstanding job," were commonplace in her appraisals. (Id.) As a result of her proficient work as a word processor, James was promoted from a Word Processor I to a Technical Lead, and received periodic raises of 6% to 7%. (Id.)
James's time at Western National, however, was not without problems. James's performance appraisals indicate that James was having problems with her attitude and her inter-personnel skills. In one such appraisal, under the subheading "Attitude," the reviewer wrote "[o]n occasion, the attitude toward her job, supervisor and co-workers has been less than positive." (Freeman Aff. Ex. 1B (1992 Performance Appraisal).) The reviewer went on to say that James "[s]ometimes reacts to misunderstandings rather than try to communicate and work things thru [sic]. Comments off the top of her head reflects an attitude. Needs to become a little more relaxed and a little softer approach at the switchboard," and "[n]eeds to be less reactive to criticism." (Id.) James responded to this criticism by stating that "[a]t times it may appear that I may be frustrated but in some instances it is my demeanor, my work style and my intensity towards getting my work done." (Id. at Ex. 1C.) In 1994, James's supervisor wrote that "Marlene . . . needs to work on being more diplomatic when dealing with difficult or unpleasant situations," and "Marlene is a good team member, . . . however, she could sharpen her inter-personal skills." (Id. at Ex. 1D (1994 Performance Appraisal).) As a result of the 1994 appraisal, James attended a class on Conflict Management Skills for Women. (Id. at 1E (1995 Performance Appraisal).) In her next appraisal, her supervisor noted that James had gained a lot of insight from this class. (Id.) Since 1995, James's appraisals reflected no further problems with her attitude or interpersonal skills.
Western National submitted affidavits from four of James's co-workers which averred that James continued to have a problem with interpersonal skills after 1995. (See Williams Aff. ¶ 4 (James had "a tendency to blow-up resulting in unnecessary discord and tension within the department and in respect to deficiencies in her inter-actions with co-employees"); Mills Aff. ¶ 4 (James "did have an explosive temper and it was difficult to know how to interact with her"); Willers Aff. ¶ 4 ("The fact is that Ms. James has a volatile temper."); and Latocki Aff. ¶ 4 (James "had been previously advised about deficiencies in her interpersonal skills, and, in fact, had been encouraged to attend a seminar dealing with that subject in February 1999. She declined to do so.").)
James's performance appraisals also reflected a reoccurring problem with attendance. (See Freeman Aff. Exs. 1A (1992 appraisal stating James "needs to watch attendance and punctuality so as not to fall into an unacceptable range"); 1F (1995 appraisal stating James's only area for improvement is her attendance); 1H (1997 appraisal stating James's attendance is unacceptable). But see 1D (1994 appraisal stating James's attendance has improved); and 1I (1998 appraisal stating James's attendance is now acceptable).)
II. James Applies for Advancement
James applied for four different advancements while at Western National: (1) Help Desk position in February 1999; (2) Administrative Assistant in the Management Information Services ("MIS") department in 1999; and (3) Personal Lines Underwriting Assistant in 1997. (Martin Supp. Aff. Ex. I (Pl.'s Answer's to Def.'s Interrogs.).) James also asserts in her memorandum that in 1996 she applied for a position as a graphic arts designer in Western National's Marketing Department. (Pl.'s Opp'n Mem. at 8.)
A. Help Desk Position
In January 1999, James applied for a position as a "help desk employee." (Id.) The position was a clerical-level position that required the employee to pass along inquires to people with the appropriate technical skills. (Latocki Aff. ¶ 8(a).) James thought that being in the position, although it would not increase her pay or fully utilize her qualifications, "would have brought [James] and her computer skills to the attention of a greater number of department heads within the company." (Pl.'s Opp'n Mem. at 8.) The Director of Human Resources and manager of James's department, Virginia Latocki ("Latocki"), spoke with James about the position and told her that "she was far overqualified for that job." (Latocki Aff. ¶ 7.) Latocki testified that the position "would have represented a step backward for her" because it required "less demanding job duties and responsibilities and fewer to non-existent opportunities for her to do creative word processing work." (Latocki Aff. ¶ 7.) The position was eventually given to a white woman. (Pl.'s Opp'n Mem. at 8.)
B. Administrative Assistant
James applied for the position of Administrative Assistant to Virginia Leet, Manager of the MIS department, in 1999. (Martin Supp. Aff. Ex. I (Pl.'s Answer's to Def.'s Interrogs.).) The position was eventually given to a white woman, whom James had previously trained. (Id.) Latocki testified that the position would not have represented a promotion for James, and it did not include a raise in compensation. (Latocki Aff. ¶ 8(b).)
C. Personal Lines Underwriting Assistant
In 1997, James applied for a position as an underwriter. (Martin Supp. Aff. Ex. I (Pl.'s Answer's to Def.'s Interrogs.).) She was interviewed for the position but did not receive it because she had not taken an underwriting course. (Id.) A white woman, who had taken the underwriting course, was hired for the position. (Id.)
D. Graphic Arts Position
In 1996, James expressed an interest in a position in Western National's Marketing Department. James informed her supervisor and the Human Resources Department at Western National of her interest. (James Dep. at 52-53.) The Vice President of Marketing, Robert Durose, was responsible for hiring a person for the position, and was not informed of James's interest until after he hired Suzanne Jefferson, a white woman. (Durose Dep. at 7.) Jefferson and Durose had worked together in the past and Durose was familiar with Jefferson's work. (Id.) Jefferson had been at Western National five years longer than James, and had similar "general qualifications" as James. (Pl.'s Opp'n Mem. at 16.)
III. James's Termination
Western National had a policy that required an employee to obtain permission from a department head before the employee could work any overtime. (Latocki Aff. ¶ V.) On Friday, February 26, 1999, James had requested and been denied permission to work overtime on Saturday, February 27, from her department head, Hillary Williams ("Williams"). (Williams Dep. at 54-4.) James then requested permission from the manager of her department, Virginia Latocki ("Latocki"), to work overtime on a different project for John Tollefsrud ("Tollefsrud"), a Western National employee. (Latocki Dep. at 43-44.) Latocki informed James that she would have to speak to Tollefsrud before approving the overtime. (Id.) After speaking with Tollefsrud, Latocki determined that overtime was merited, and left a note on James's desk approving the overtime. (Id.) Meanwhile, however, James had decided not to work overtime on Saturday, and had made other plans. (James Dep. at 135.) James sent an interoffice memorandum to both Latocki and Williams stating that she had changed her mind about working overtime, and would not be working on the Tollefsrud project that Saturday. (Freeman Aff. Ex. 2.)
After Latocki and Williams had left for the day, James received a request from a Western National supervisor, Ken Stover ("Stover"), to work overtime on Saturday to complete an emergency project. (James Dep. at 139-40.) Because James had already made plans for Saturday, she called Williams on Saturday morning around 7:00 a.m. and informed her that Stover had an emergency project and she was not going to be able to come in during the weekend to work on it. (Id. at 143.) Williams responded that she would go into work that day to complete the project. After calling Williams, James went to Western National to pick up a "box of stuff" that she had left there on Friday. (Id. at 142.) While James was at the office, she and Williams had an argument regarding the Stover project.
James contends that while she was at the office, she started the computer and printer that Williams would need in order to run the necessary programs for the project, knowing that Williams was unfamiliar with them. (James Dep. at 144.) While James was starting the computer, Williams began to yell at her, and James responded by stating "I have to put up with this five days a week and I really don't want to go through it on Saturday, so I'm just going to leave now." (Id.) Williams, on the other hand, testified that when she came to work nothing had been set up for her (James had not turned on the computer or the printer), and when she asked James for assistance James refused to help her. (Williams Dep. at 58-9.) Williams further testified that when she asked James to "at least show [her] how to get into the program" James refused her request and left the building. (Id. at 60.) Because Williams did not know how to run the program, it took her five hours on Saturday to complete it. (Id.)
The following Monday, March 1, 1999, James was terminated for what Williams believed to be insubordination during the Saturday argument. (Latocki Aff. Ex. B (March 1, 1999, Letter from Latocki to James).)
Analysis
I. Standard of Review
Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court views the evidence and the inferences which may be reasonably drawn from it in the light most favorable to the nonmoving party. Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996); Adkinson v. G.D. Searle Co., 971 F.2d 132, 134 (8th Cir. 1992). The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enterprise Bank, 92 F.3d at 747; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party must demonstrate the existence of specific facts that create a genuine issue for trial; mere allegations or denials are not enough. James v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
The court does not weigh facts or evaluate the credibility of affidavits and other evidence on a motion for summary judgment. The nonmovant, however, cannot avoid summary judgment in favor of the movant merely by pointing to some alleged factual dispute between the parties. Instead, any fact alleged to be in dispute must be "outcome determinative under prevailing law," that is, it must be material to an essential element of the specific theory of recovery at issue. See Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992). Essentially, the court performs the threshold inquiry of determining whether there is need for a trial. Liberty Lobby, 477 U.S. at 250.
II. Discrimination Claims
James alleges that during her employment with Western National, Western National (1) discriminated against her on the basis of her race, color, and national origin; (2) subjected her to a racially hostile work environment; and (3) retaliated against her for complaining about the discrimination. (Am. Compl. ¶¶ 20-73; Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 14-25 ("Pl.'s Opp'n Mem.").) James's Complaint asserts a violation of Title VII and the MHRA for her discrimination claim, and a violation of the MHRA for her hostile work environment and retaliation claims. (Am. Compl. ¶¶ 44, 68, 72.) Whether brought under Title VII or the MHRA, however, James's claims are subject to the same legal analysis.
See Sigurdson v. Isanti County, 386 N.W.2d 715, 719 (Minn. 1986) (interpreting legal analysis for MHRA as equivalent to Title VII); see also Hanenburg v. Principal Mut. Life Ins. Co., 118 F.3d 570, 574 (8th Cir. 1997) (applying principles of Title VII to cases under MHRA "because of the substantial similarities between the two statutes"); Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983) (analyzing MHRA retaliation claim under the McDonnell Douglas framework).
A. Race, National Origin, and Color Discrimination Claim
James claims that while at Western National she was continuously and systematically discriminated against because Western National failed to train and promote her. Western National counters that James cannot make out her prima facie case because she has not established that an adverse employment action was taken against her, or provided evidence that would rebut Western National's proffered reason for the adverse employment action. Western National also argues that two of the positions that James cites in support of her failure to promote claim cannot be considered by the Court because James applied for them more than one year before she filed her EEOC Charge. (Def.'s Supp. Mem. at 8-9.)
Claims of racial discrimination under Title VII and the MHRA are governed by the three-step analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, a plaintiff must first establish a prima facie case of discrimination. Christopher v. Adam's Mark Hotels, 137 F.3d 1069, 1071 (8th Cir. 1998). If the plaintiff satisfies this initial burden, a rebuttable presumption of discrimination arises, and the burden shifts to the defendant to rebut the presumption by articulating a legitimate, nondiscriminatory reason for the adverse employment action. Rose-Maston v. NME Hosp., Inc., 133 F.3d 1104, 1107 (8th Cir. 1998). If the defendant advances a nondiscriminatory reason, the presumption disappears and the plaintiff bears the burden of demonstrating that the employer's proffered reason is mere pretext and that intentional discrimination was the real reason. See McCullough v. Real Foods, Inc., 140 F.3d 1123, 1127 (8th Cir. 1998) (citations omitted). However, a plaintiff's prima facie case may permit the trier of fact to conclude that the employer unlawfully discriminated against him if the plaintiff offers sufficient evidence that the employer's asserted justification is false. Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 930-31 (8th Cir. 2000) (citing Reeves v. Sanderson Plumbing Prod., Inc., 120 S.Ct. 2097, 2109 (2000)). The plaintiff bears the burden at all times of proving that the adverse employment action was motivated by intentional discrimination. Rose-Maston, 133 F.3d at 1107-08.
Although James claims in her Complaint that she was discriminated against based on her race, color, and national origin, she argues only race discrimination in her memorandum.
1. Prima Facie Case
James argues that she was discriminated against because Western National failed to train or promote her. (Pl.'s Opp'n Mem. at 14-21.) A prima facie case of failure to promote requires that a plaintiff establish different elements than for a prima facie case of failure to train. Consequently, the Court will address the claims separately.
James does not argue that she was terminated because of her race. As discussed below, James instead argues that she was terminated in retaliation for complaining of discrimination.
i. Failure to Promote
Failing to promote an individual is an adverse employment action within the scope of Title VII. Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995) ("Ultimate employment decisions" include acts "such as hiring, granting leave, discharging, promoting, and compensating."). To state a prima facie case for a failure-to-promote claim, James must demonstrate that: (1) she is a member of a protected group; (2) she was qualified and applied for a promotion to a position for which the employer was seeking applicants; (3) she was not promoted; and (4) similarly situated employees, not part of the protected group, were promoted instead. Austin v. Minnesota Mining and Mfg. Co., 193 F.3d 992, 995 (8th Cir. 1999) (citing Lyoch v. Anheuser-Busch Cos., 139 F.3d 612, 614 (8th Cir. 1998)).
James has identified four positions at Western National that she claims she was qualified for but was not promoted to because of her race. James applied for two positions in 1999, Help Desk and Administrative Assistant in the MIS department; one position in 1997, Personal Lines Underwriting Assistant; and a graphic arts designer position in 1996. (Martin Supp. Aff. Ex. I (Pl.'s Answer's to Def.'s Interrogs.); Pl.'s Opp'n Mem. at 8.) Western National asserts that James cannot rely on two of these positions for her failure to promote claims because they accrued prior to August 1998-causing them to be time-barred. (Def.'s Supp. Mem. 17.) Title VII requires that a plaintiff file an administrative charge with the EEOC within 300 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1). The MHRA requires that the plaintiff file a claim with the Minnesota Department of Human Rights within one year of the alleged discriminatory action. Minn. Stat. § 363, subd. 3. James filed her Charge of Discrimination on August 10, 1999. Consequently, James's claims of failure to promote accruing in 1996, a graphic designer position, and 1997, underwriting assistant position, are time-barred.
James also contends that she was discriminated against by Western National because Hillary Williams was promoted to supervisor and she was not. (Pl.'s Opp'n Mem. at 18.) James, however, does not allege that she ever applied for a position as supervisor. In order to state a prima facie case of failure to promote James must establish, first and foremost, that she applied for the position.
James asserts that the "continuing violation doctrine" applies to any failure to promote claims that are time-barred. This doctrine, however, does not apply to discrete acts of discrimination, such as failure to promote. See High v. Univ. of Minn., 236 F.3d 909, 909 (8th Cir. 2000) ("This court has never applied the continuing violations doctrine to a discrete act, such as failure to promote, and we decline to do so now.") (citing Stolzenberg v. Ford Motor Co., 143 F.3d 402, 405 (8th Cir. 1998), and Zotos v. Lindberg Sch. Dist., 121 F.3d 356, 362 (8th Cir. 1997)).
As for James's remaining claims of failure to promote, the help desk and administrative assistant positions, the Court must determine whether James has satisfied her prima facie case without the benefit of any argument by James. James has failed to argue the merits of either of these positions in her Memorandum. Instead, she concentrates on the 1996 graphic arts designer position, which the Court has found to be untimely. The Court concludes, however, that James has come forth with sufficient evidence to satisfy her prima facie case of discrimination. James is a member of a protected group, the evidence shows that she was more than qualified for both positions that she applied for, and a similarly situated employee, not part of the protected group, was promoted.
Once James has met her prima facie case, a rebuttable presumption of discrimination arises, and the burden shifts to Western National to rebut the presumption by articulating a legitimate, nondiscriminatory reason for failing to promote her. See Rose-Maston, 133 F.3d at 1107. Western National asserts that James was not promoted because James was overqualified for both positions. Latocki, Director of Human Resources, averred that neither position would have increased James's job responsibilities or her pay. (Latocki Aff. ¶ 8.) The "promotion" to the help desk or administrative assistant positions would have actually amounted to a "step backwards." (Id.)
Western National has advanced a nondiscriminatory reason for failing to "promote" James into these positions. Accordingly, the presumption of discrimination disappears and James bears the burden of demonstrating that Western National's proffered reason is mere pretext and that intentional discrimination was the real reason James was not promoted. See McCullough, 140 F.3d at 1127. In response to Western National's proffered reason, James stated in her affidavit:
Review of the HELP DESK position job description, for which Western National has stated I was overqualified, might be helpful as I do not believe I was overqualified. Moreover, that is not the reason I was given. In fact, I was not even contacted at all. No acknowledgment was even made of my application.
I have recently learned that Miriam has promised to hire Julie Simonson for the Help Desk position. That the position will be strictly a training position and Julie will be allowed to train on the job. . . . These were merely some of the types of opportunities I had hoped for.
James does not provide the Court with the reason that she was initially given by Western National for its decision not to "promote" her to the help desk position.
(James Aff. ¶¶ 54-5.) This statement does not create a genuine issue of material fact that Western National's proffered reason for failing to promote James was a pretext for its unlawful discrimination.
ii. Failure to Train
James also argues that Western National discriminated against her by failing to offer her any training opportunities or mentorship. (Pl.'s Opp'n Mem. at 14.) To make out a prima facie case of discriminatory failure to train James must demonstrate that: (1) she is a member of a protected group; (2) Western National provided training to its employees; (3) she was eligible for training; and (4) she was denied training given to other similarly situated employees who were not members of the protected group. See Pafford v. Herman, 148 F.3d 658, 667 (7th Cir. 1998); Lopez v. Metropolitan Life Ins. Co., 930 F.2d 157, 161 (2d Cir. 1991); see also Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 326 (Minn. 1995) (recognizing that a failure to train claim is a cognizable claim under the MHRA)).
James points to two examples where a white employee was given the opportunity for training and she was not. The first example occurred in 1992. James claims that another white employee, Jennifer Young, started at the same time as James, but was given more opportunities for training than James. (Pl.'s Opp'n Mem. at 15.) According to James, Young was given advice and recommendations regarding her career enhancement, and was allowed to advance within the company, while James remained in her entry-level position. (Id.) James also contends that a supervisor in another department, Mary Manley ("Manley"), had the practice of offering or encouraging her employees to advance, while James's supervisor did not offer such encouragement. (Id.)
The Court concludes that James's claim of failure to train is without merit. The first incident, involving Jennifer Young, is time-barred because it occurred six years before James filed her EEOC Charge. Even if the claim was not time-barred, however, James has not come forth with any evidence that would support her assertion that she requested similar training and was denied, or that she was equally eligible for training as Jennifer Young. As for her second allegation, that Manley offered encouragement to her employees and James's supervisor did not, James has failed to allege that a similarly situated employee received training and she did not. See Pafford, 148 F.3d at 667 (a prima facie case of failure to train requires that the plaintiff demonstrate that she was denied training given to other similarly situated employees who were not members of the protected group). Manley is the head of Western National's Research and Development department; she supervises actuary professionals, not word processors such as James. (Manley Dep. at 8.) The employees that Manley supervised, therefore, were not similarly situated to James.
Manley testified that she sends her actuaries to classes in the Casualty Actuary Society because there are nine exams that an actuary must pass before they can become certified actuaries. (Manley Dep. at 44-5.)
James, moreover, has not provided any evidence that she was denied training. To the contrary, James has put into evidence the many certificates she received from training courses she attended while at Western National. (Freeman Aff. Ex. 3 (certificates for Harvard Graphics training, conflict management training, Word 6.0 training, two-day training course in Living Disaster Recovery Planning Systems software, Word Perfect training, Lotus training, 123 v4.0 Macros training, 123 v.5.0 Macros training, and Mastering Adobe Photoshop training).)
Accordingly, the Court concludes that James has failed to offer evidence from which a reasonable fact finder could infer that Western National failed to train or promote James because of her race. The Court will, therefore, grant summary judgment on this claim.
B. Hostile Work Environment Claim
James also alleges that she was subject to a racially hostile work environment while working for Western National, in violation of the MHRA. James alleges that she was subjected to a hostile work environment because (1) Western National ignored her complaints of discrimination, (2) co-workers told her that another co-worker, Suzanne Jefferson, "talked black," and (3) co-workers asked her a lot of questions about Suzanne Jefferson being married to an African-American man. (Pl.'s Opp'n Mem. at 24.) Western National argues, inter alia, that James has failed to establish the elements of a prima facie case because the alleged harassment was not sufficiently severe or pervasive. (Def.'s Supp. Mem. at 13.) The Court agrees.
In order to meet her prima facie case of hostile work environment, James must show: (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) a causal nexus between the harassment and her membership in the protected group; (4) that the harassment affected a term, condition, or privilege of her employment; and (5) that Western National knew or should have known of the harassment in question and failed to take prompt and effective remedial action. Mems v. City of St. Paul, 224 F.3d 735, 738 (8th Cir. 2000) (citing Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999), and Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998)).
To establish that the harassment affected a term, condition, or privilege of her employment, James must show that the harassment was "so severe or pervasive as to alter the conditions of [her] employment and create a hostile working environment." Carter, 173 F.3d at 700 (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). "A workplace permeated with discriminatory intimidation, ridicule, and insult is sufficiently severe to establish a hostile work environment." Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 573 (8th Cir. 1997) (citations and internal quotation marks omitted). "Sporadic or casual comments," however, "are unlikely to support a hostile environment claim." Carter, 173 F.3d at 702 (citing Cram v. Lamson Sessions Co., 49 F.3d 466, 474 (8th Cir. 1995), and Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981)). In making this determination, a court considers factors such as "the frequency and severity of the discriminatory conduct, whether it is physically threatening or humiliating, or only an offensive utterance, [and] whether it unreasonably interferes with an employee's work performance." Carter, 173 F.3d at 702 (citations omitted).
Taking all these factors into consideration, the Court concludes that James has failed to allege a course of conduct on the part of Western National, or its employees, that was sufficiently severe or pervasive as to alter the conditions of James's employment. James's allegation that Western National ignored her complaints of discrimination, thereby creating a hostile work environment, is not substantiated by any evidence of discriminatory conduct (i.e., physically threatening or humiliating comments, or offensive utterances) by Western National. James's remaining allegations regarding comments from co-workers about inter-racial marriages, and whether another employee "talked black," do not assert that Western National knew or should have known about these comments, or that it failed to take prompt and effective remedial action. Even if Western National knew that these comments had been made, the comments were not so severe as to alter the conditions of James's employment. Accordingly, the Court will grant summary judgment on James's hostile work environment claim.
C. Reprisal Claim
Like James's claim of race discrimination, her claim for reprisals is governed by the three-step McDonnell Douglas analysis. Flannery v. Trans World Airlines, Inc., 160 F.3d 425, 427-28 (8th Cir. 1998). To establish a prima facie case of retaliation, James must introduce evidence that: (1) she engaged in protected activity; (2) Western National took adverse employment action against her; and (3) a causal connection existed between the adverse employment action and the protected activity. Id. at 428. Western National argues that James has failed to establish a prima facie case because she cannot show that she engaged in any protected activity.
James argues that she was terminated "because of [her] refusal to submit to discrimination and her resistance of discrimination and harassment." (Am. Compl. ¶ 72.) To support her claim that she engaged in protected activity, James points the Court to two exhibits in the record. The first exhibit is a six-month performance appraisal that James wrote on her own behalf, which James claims establishes that, from the beginning of her employment at Western National, she was complaining of discrimination. (Freeman Aff. Ex. 1B; Pl.'s Opp'n Mem. at 26.) The Court has carefully reviewed this exhibit and cannot find any evidence to support James's contention that she complained of discrimination. The second exhibit that James offers is an attachment to a performance appraisal from 1993. (Freeman Aff. Ex. 1C.) The attachment, written by James, stated: "I would like to thank management for the effort that has been made to accept me as a part of the team and to be more accepting of diversity." (Id.) In addition to the foregoing, the Court has reviewed the record and found additional evidence of complaints by James. A 1997 performance appraisal of James, which has an attachment written by James, stated:
I had been afraid to voice my concerns about this and other subtle and overt acts of what I believe to be racism that have been done against me. . . . I have tried to speak with HR in regard to affirmative action representatives and no one has listened constructively. . . . I am truly sorry that those who needed to see were not able to see an employee who is good, loyal, committed and eager to [do] good work. Who learns very quickly and is very capable and competent to do any task given. I am wondering if the issue may not be about my capabilities but rather about my race.
(Freeman Aff. Ex. 1H.) Latocki also stated in her affidavit that she had conversations with James on more than one occasion about James's complaints of discrimination, but that James "never came to [her] with a specific allegations [sic] of any specific individual who had said or done anything to her with racist connotations." (Latocki Aff. ¶ 6.) Based on these statements, there is sufficient evidence to create a genuine issue of material fact that James engaged in protected activity by complaining about the discrimination.
In order to meet her prima facie case, however, James must show that there is a causal connection between the adverse employment action and the protected activity. James has failed to show such a connection. James's only evidence of a specific complaint of discrimination occurred in a 1997 performance appraisal-yet James was not terminated until March 1, 1999. A two-year period between the protected activity and adverse employment action is too long of a period to create a causal connection. Further, any adverse employment action that occurred in 1997, that could possibly establish a causal connection with James's complaint of discrimination, would be time-barred. The Court concludes, therefore, that James has failed to establish a causal connection between her complaint of discrimination and any adverse employment action that was taken against her. Accordingly, the Court will grant Western National's motion with regard to James's reprisal claim.
III. Additional State-Law Claims
James alleges four additional state-law claims: (1) breach of an employment contract, (2) promissory and equitable estoppel, (3) intentional infliction of emotional distress, and (4) negligent training, supervision, and retention. (Am. Compl. ¶¶ 74-112; Pl.'s Opp'n Mem. at 27-32.)
A. Breach of Employment Contract Claim
James claims that Western National "circulated an anti-discrimination policy to Marlene James," and "promised to honor its anti-discrimination policy." (Am. Compl. ¶ 75.) James also claims that Western National "promised [her] that it honored family values, to treat her fairly and to enhance her career." (Id.) These promises were breached, according to James, when Western National failed to follow its policy of anti-discrimination. (Id. ¶ 78.) Western National argues that no contract was formed between the parties because the alleged promises were general statements of policy, which do not abrogate the "at will" doctrine. The Court agrees, but would add that this contract also lacked consideration because Western National was already legally obligated to honor a policy of anti-discrimination.
Although the Court need not reach the question of whether Western National breached its policy of anti-discrimination, thereby breaching its contract with James, the Court notes that, having found no evidence of race discrimination, it would likewise find no evidence of a breach.
The "at will" doctrine states that the employer can summarily dismiss the employee for any reason or no reason. See Knudsen v. Northwest Airlines, 450 N.W.2d 131, 133 n. 1 (Minn. 1990).
Under Minnesota law, employees, with some exceptions, are considered at-will employees who can be terminated at any time, with or without cause. Pine River State Bank v. Mettille, 333 N.W.2d 622, 627 (Minn. 1982). In some circumstances, an employer's policy statements, such as those found in employee handbooks, can alter the at-will status of an employee to create a binding, unilateral contract between the employer and the employee. Id. at 626. To establish such a contract, however, James must demonstrate: (1) that Western National communicated an offer that was definite in form to her; (2) that she accepted the offer; and (3) there was consideration. Id. at 626-27.
The Court finds that, as a matter of law, Western National's statements that it would honor its anti-discrimination policy and that it honors family values, did not create a binding contract between the parties; and therefore, Western National cannot be liable for breaching these policies. A contract, moreover, must be supported by consideration. Deli v. Hasselmo, 542 N.W.2d 649, 656 (Minn.Ct.App. 1996). "A promise to do something that one is already legally obligated to do does not constitute consideration." Id. In the instant case, Title VII legally obligated Western National not to discriminate against employees based on race, national origin, or color. 42 U.S.C. § 2000e-5. Thus, any promise Western National made to James to honor its anti-discrimination policy and not discriminate against her was made without consideration. The Court, therefore, will grant Western National's motion with regard to James's claim for breach of contract.
B. Promissory and Equitable Estoppel Claim
James also argues that Western National promised to "treat Plaintiff fairly and not to allow her to be discriminated against . . ., (Am. Compl. ¶ 89,) and "although [James's supervisors] held themselves out as being concerned with [James's] advancement within the company, they did nothing to promote or otherwise assist [James] in setting career goals. . . ." (Pl.'s Opp'n Mem. at 29.) James also asserts that she relied on this promise, and "this reliance caused her to lose out." (Id.) "Promissory estoppel is an equitable doctrine that 'impl[ies] a contract in law where none exists in fact.'" Martens v. Minnesota Min. Mfg. Co., 616 N.W.2d 732, 746 (Minn. 2000) (citations omitted). Under Minnesota law, to prevail on a claim for promissory estoppel, James must establish that an enforceable promise had been made to her by Western National. Martens, 616 N.W.2d at 746. General statements of policy by an employer do not create an enforceable promise. See Pine River, 333 N.W.2d at 626. The Court concludes that there is no genuine issue for trial with regard to this claim because James has failed to provide evidence that an enforceable promise was made by Western National that amounted to more than a general statement of policy. The Court will, therefore, grant Western National's motion on this claim.
C. Intentional Infliction of Emotional Distress
To state a claim for intentional infliction of emotional distress, James must allege conduct that: (1) is extreme and outrageous; (2) is intentional or reckless; (3) causes emotional distress; and (4) the distress caused must be severe. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428 (Minn. 1983). Moreover, "[t]he actor must intend to cause severe emotional distress or proceed with the knowledge that it is substantially certain, or at least reasonably probable, that severe emotional distress will occur." K.A.C. v. Benson, 527 N.W.2d 553, 560 (Minn. 1995) (citing Dornfeld v. Oberg, 503 N.W.2d 115, 119 (Minn. 1993)). Finally, the conduct at issue must be "so atrocious that it passes the boundaries of decency and is utterly intolerable in a civilized community," and a remedy in tort is "sharply limited to those cases involving particularly egregious facts." Hubbard, 330 N.W.2d at 439. James contends that during her seven years at Western National she was "subjected to intentional, abusive, severe, pervasive, continuous and outrageous discrimination and harassment by [Western National]." (Am. Compl. ¶ 95; see also Pl.s Opp'n Mem. at 31 (stating that James endured "seven years of such hostile and abusive an environment").) The record is completely devoid of any evidence that would support these allegations. James has not pointed the Court to even one act on the part of Western National that was "so atrocious that it passes the boundaries of decency." Hubbard, 330 N.W.2d at 439. The Court will also grant Western National's motion with regard to this claim.
D. Negligent Supervision and Retention Claim
James also argues that Western National negligently trained its employees. Minnesota courts, however, do not recognize a cause of action for negligent training. M.L. v. Magnuson, 531 N.W.2d 849, 856 (Minn.Ct.App. 1995).
"Negligent retention occurs when the employer becomes aware or should have become aware of problems with an employee that indicated her unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment." Yunker v. Honeywell, Inc., 496 N.W.2d 419, 423 (Minn.Ct.App. 1993). Negligent supervision requires "an employer to exercise ordinary care in supervising the employment relationship so as to prevent the foreseeable misconduct of an employee from causing harm to other employees or third persons." Cook v. Greyhound Lines, Inc., 847 F. Supp. 725, 732 (D.Minn. 1994).
Western National argues that James's negligent supervision and retention claims are preempted by the MHRA. (Def.'s Supp. Mem. at 19 (citing Sullivan v. Spotweld, 560 N.W.2d 712 (Minn.Ct.App. 1997).) Western National is only partly right, however. The Sullivan court in fact held that the basis of a MHRA claim cannot also form the basis of a negligent supervision claim. Sullivan, 560 N.W.2d at 717. James contends that Western National negligently retained and supervised a "known dangerous employee, Nancy Willers." (Pl.'s Opp'n Mem. at 32.) This allegation is not part of James's MHRA claim but arises from an incident that occurred in late 1998, in which Willers allegedly shoved James as she walked between James and another employee. (James Dep. at 71.) In order for a claim of negligent supervision and retention to stand, however, James must allege a physical injury. See Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 443 (Minn.Ct.App. 1996) ("Because the record contains no evidence that appellant suffered from personal [physical] injury, her claims for negligent retention and supervision fail as a matter of law"). James alleges in her Complaint that she suffered "serious and severe injury, lost wages and benefits, suffered a loss of reputation, lost employment opportunities . . .," these mere allegations are not supported by any evidence in the record, and bare allegations do not create a genuine issue of material fact. Accordingly, the Court will grant Western National's motion with regard to James's claims of negligent supervision, training, and retention.
Conclusion
James's counsel filed a 30 page, 114 paragraph, Complaint with this Court, the substance of which would, at most, have filled five pages. The Complaint, however, was 30 pages because it contained broad, and mostly unsupported, allegations of discrimination and repeated these allegations throughout each statement of her seven claims. Rule 8 of the Federal Rules of Civil Procedure, provides: "A pleading which sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (emphasis added).
For the foregoing reasons, and based upon all of the files, records, and proceedings herein, IT IS ORDERED that Western National's Motion for Summary Judgment (Doc. No. 12) is GRANTED, and Marlene James's Complaint is DISMISSED WITH PREJUDICE. LET JUDGMENT BE ENTERED ACCORDINGLY.