Opinion
Civil No. 03-2444 (JRT/JSM).
August 4, 2004
Eric D. Satre, CONNOR, SATRE, SCHAFF, L.L.P., Minneapolis, MN, for plaintiff.
Susan E. Ellingstad and Martin A. Carlson, LOCKRIDGE GRINDAL NAUEN, Minneapolis, MN, for defendant.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Anitaan Kashimawo-Spikes ("Spikes" or "plaintiff") brought this action against her former employer after she was terminated in September 2001. Plaintiff alleges that defendant U.S. Bancorp ("U.S. Bank") discriminated against her on the basis of her race and disability, when U.S. Bank denied her a promotion, and terminated her employment. Defendant argues that plaintiff was terminated for well-documented poor performance, and defendant is therefore entitled to summary judgment on all of plaintiff's claims. For the reasons discussed below, defendant's motion for summary judgment is granted, and plaintiff's complaint is dismissed with prejudice.
Plaintiff's complaint also states a claim for violation of the Family and Medical Leave Act. Plaintiff is no longer pursuing that claim. Plaintiff's complaint could also be read to state a claim for hostile work environment, however, counsel for plaintiff clarified at oral argument that plaintiff's claim is not one for hostile work environment.
BACKGROUND
Spikes began working for U.S. Bank in Oregon as an accounting specialist in 1988. She was terminated in April 1998 because U.S. Bank decided to close the Oregon office in which she worked. Plaintiff then applied for employment in defendant's St. Paul office. She applied for two positions; defendant employees Susan McKinley and Bernadine Jambor interviewed plaintiff by telephone. Plaintiff was offered the position of "Global Custody Specialist I" in the St. Paul office, and she accepted the job. Her duties in this position included trade inputting and global trade processing. The inputting appears to be data-entry type work. The global trade processing, on the other hand, required processing and monitoring securities trades in the international market.
Plaintiff initially reported to McKinley, and eventually reported to Jambor when Jambor was placed in charge of the Global Custody Department in which plaintiff worked. Jambor was charged with "cleaning up" the department. As part of this process, she met with every employee. She talked with plaintiff, and reviewed plaintiff's attendance records. Plaintiff had several unscheduled absences, and Jambor issued a warning to her on May 10, 2000. Not included in these "unscheduled" absences, were days plaintiff took as short-term disability between April 26 and May 2, 2000. Plaintiff had not contacted defendant's service center for medical leaves and benefits ("U-Connect") or otherwise sought Family Medical Leave Act ("FMLA") certification for the absences included in the warning. The warning also noted that plaintiff had falsified her time sheets.
In July or August 2000 (after the attendance warning) plaintiff told Jambor she suffered from lupus. She also contacted U-Connect and explained she had lupus. She did not, however, complete the required forms to seek FMLA certification until September 2000. The parties give differing accounts of why plaintiff did not fill out the forms. Plaintiff indicates Jambor misled her about how to fill out the forms, and Jambor says that she was trying to help plaintiff obtain the requested leave.
Lupus is primarily a disease of the connective tissues, manifesting itself by way of skin lesions, arthritis, and joint pains. The disease may present symptoms of fatigue, fevers, and weakness. Posey v. E.I. Dupont De Nemours and Co., Inc., 173 F.3d 851 (4th Cir. March 19, 1999) (Table), 1999 WL 150257 (citing STEDMAN'S MEDICAL DICTIONARY 1001 (26th ed. 1995)).
Defendant also gave plaintiff a written warning for challenging a co-worker to a fight in August 2000. Then in September 2000, Jambor again gave plaintiff another "final'" written warning for having more unscheduled absences (11 in one year) and more incidences of tardiness (eight in one year) than allowed by U.S. Bank policy. After plaintiff completed FMLA paperwork, she was allowed to take intermittent leave under the FMLA, and was not again disciplined for excessive absences.
Plaintiff received mixed performance reviews for her work. She was proficient at the inputting trade aspect of her job, but had continual problems with the trade processing aspect. For example, in a November 11, 2000 performance review, Jambor noted that plaintiff did not follow through on trades, and that her knowledge of foreign security process was limited. Plaintiff signed this review on December 11, 2000.
Around this time, the trade inputting work began to be shifted to temporary workers, and plaintiff was expected to focus primarily on trade processing. In February 2000, plaintiff applied for a different position, which she believed would be a promotion. She was informed that she actually had the same title as the job for which she applied. She testified at deposition that she applied for the job because she thought it would involve more trade processing.
In March 2001, plaintiff was allowed to re-take a two-week training session on trade processing. After she completed this training, she was given two additional accounts. The record reflects that even with this additional training plaintiff had significant problems processing trades. Over the summer of 2001, plaintiff's performance was not sufficient. She had few accounts, and a relatively low number of trades, but she had a high "fail rate." Defendant points to a particular failed trade, in which Jambor had to intervene. Despite the intervention, the customer cancelled the trade, and plaintiff failed to exchange the currency and return it to the customer's account.
Plaintiff believed that she was being "set-up" by Jambor and Sherry Stevens. Stevens was the work coordinator who had been assigned to help plaintiff improve her proficiency at trade processing. Plaintiff complained to Alice Owens, Jambor's supervisor. Plaintiff says that Owens dismissed her complaints, while Owens recounts that she told plaintiff to focus on improving her performance.
In August 2001, another trade for which plaintiff was responsible failed. Shortly thereafter, another trade failed. Plaintiff's overall trade failure rate was 16% (the department goal fail rate was 5%). Jambor then placed plaintiff on a Performance Improvement Plan ("PIP"). The PIP spelled out plaintiff's difficulties, and set two goals: first, plaintiff was to achieve a lower fail rate; then she was to increase her trade volume. The PIP also specified that plaintiff would receive additional training and specified a contact person to answer questions each day. Plaintiff indicated she did not like her contact person, so Jambor assigned two more senior people.
The additional training and supervision did not help. Plaintiff's fail rate actually increased, and the training logs of the supervising employees reveal that plaintiff could not understand the trade processing aspect of the job. Plaintiff was unaware (or refused to report) that trades were failing. It appears that trades take some time to fail, and it is the employee's responsibility to track and remedy pending failures. Jambor finally recommended that plaintiff be terminated. Owens independently reviewed the documentation of the failed trades, and decided to terminate plaintiff.
There is some dispute regarding whether plaintiff received the proper documentation surrounding her termination. This is immaterial to the summary judgment motion, however, as plaintiff had no independent right to receive particular notification of the termination. In any event, she received the documentation before she was terminated, and she was certainly on notice that her performance was a critical issue. She was also not entitled to severance benefits, because she was terminated for cause — namely, her poor performance.
Plaintiff claims that Jambor falsified all of plaintiff's performance and attendance problems, and also falsified plaintiff's sub-par record. Plaintiff claims that her job did not involve trade processing, only data input. She also suggests that she did not receive any of the training related to trade processing.
ANALYSIS
I. Standard of Review
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Only disputes over facts that might affect the outcome of the suit under the governing substantive law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not appropriate if the dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. Summary judgment is to be granted only where the evidence is such that no reasonable jury could return a verdict for the nonmoving party. Id.
The moving party bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Vette Co. v. Aetna Casualty Surety Co., 612 F.2d 1076, 1077 (8th Cir. 1980). However, the nonmoving party may not merely rest upon allegations or denials in its pleadings, but it must set forth specific facts by affidavits or otherwise showing that there is a genuine issue for trial. Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002).
II. Disparate Treatment
Plaintiff's claim of racial discrimination stems from her belief that she was not considered for a promotion, and that she was eventually terminated on the basis of race. Plaintiff's claim cannot survive summary judgment as that claim relates to a promotion, because plaintiff already held the position she claims she was denied. Although plaintiff believed the job would be a promotion, when plaintiff applied, the jobs had the same title, "Operations Specialist III." An element of plaintiff's prima facie case is that she applied for a promotion to an available position and was rejected. Gentry v. Georgia-Pacific Corp., 250 F.3d 646, 650 (8th Cir. 2001). Because she already held a position identified by the same title, she cannot make out a failure to promote disparate treatment claim. In addition, she testified that she wanted the transfer because she wanted more trade processing. She explained this to Jambor, and the record reflects that Jambor offered her more trade processing opportunities.
Plaintiff also alleges that she was terminated because of race. To meet her burden of establishing a prima facie case, plaintiff must show that she is a member of a protected class, she was qualified, she suffered adverse employment action, and the facts permit an inference of discrimination. Brown v. Westaff (USA), Inc., 301 F. Supp. 2d 1011, 1017-18 (D. Minn. 2004). Plaintiff eventually must show that race was a "motivating factor" in the employment action at issue. Id.; Dare v. Wal-Mart Store, Inc., 267 F. Supp. 2d 987, 991 (D. Minn. 2003).
Based on the record currently before the Court, plaintiff has not presented evidence from which a reasonable fact-finder could conclude that plaintiff's discharge was motivated by race. The record shows a long, consistent pattern of unacceptable performance, and an inability or unwillingness to perform at the level required by U.S. Bank. There is no independent evidence, other than plaintiff's allegations, that defendant fabricated the poor performance review, the training records, and her job responsibilities. See, e.g., Pony Computer v. Equus Computer Sys. of Missouri, Inc., 162 F.3d 991, 997 (8th Cir. 1998) ("Summary judgment is appropriate where there is no independent evidence, other than the petitioner's unsubstantiated allegations.") (quoting Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 945 (8th Cir. 1994)); Hill v. St. Louis Univ., 123 F.3d 1114, 1119 (8th Cir. 1997) (affirming grant of summary judgment to defendant employer and noting that plaintiff's "claims of falsified job performance evaluations are unsupported allegations not competent to defeat summary judgment"); Monroe v. Children's Home Ass'n of Illinois, 128 F.3d 591, 593 (7th Cir. 1997) (explaining that "[t]o get anywhere, [plaintiff] needed either direct evidence of age discrimination or a solid basis for concluding that the evaluation was dishonest in substantial part." He offered neither, and therefore summary judgment was appropriate).
The record reveals that plaintiff's termination was largely based on her inability to do an important part of her job — trade processing. Plaintiff does not argue that she was proficient at trade processing. Instead, she focuses on arguing that her job was not to do trade processing, but rather to do data entry. The record, however, is clear that though her job initially had some data entry, she was expected to take over trade processing duties, and was given training (some of which was repeat training) to be able to take on those responsibilities. Just as an employee's subjective assessment of her performance is insufficient to create a fact issue on summary judgment, Brooks v. Ameren, 345 F.3d 986, 988 (8th Cir. 2002), an employee's assertion of what her job duties entail, absent any supporting evidence of those duties, does not create a dispute of material fact. See also Marquez v. Bridgestone/Firestone, Inc., 353 F.3d 1037, 1038 (8th Cir. 2004) (to survive summary judgment, plaintiff must substantiate allegations with more than speculation, conjecture, or fantasy) (internal quotation omitted). In addition, plaintiff's admission that she asked her supervisor for additional trade processing responsibilities undermines her argument that her job duties did not involve such processing.
Assuming, however, that plaintiff established her prima facia case, she has not pointed to evidence that would allow a fact-finder to conclude that race (even in addition to her poor performance) motivated the discharge. In support of the argument that a jury could find race a motivating factor, plaintiff points to evidence from her now abandoned hostile work environment claim. Specifically, plaintiff has identified a statement by Jambor, made at the end of the initial telephone interview with plaintiff that "we [U.S. Bank] will call you if we need you." Plaintiff suggests that this statement was made in a "racist tone." The next is a comment in a staff meeting memo: "Watch your staple remover. Several have disappeared recently, apparently a hot item on the black market." Plaintiff also complains about a comment in a staff-meeting memo that a particular employee "doesn't seem to be working" and that the employee was "slow and disorganized." The other employee was also a minority. Plaintiff complains that Jambor threw plaintiff's paycheck at her and commented, "Don't spend it all in one place." Plaintiff also claims that Jambor was rude and spoke to her in a loud voice, and complains that she did not receive performance incentive prizes (such as mugs, candy bars, etc.). Plaintiff says that Jambor did not introduce her to new employees, and on one occasion, Jambor, "crunched her eyes, looked over in my direction and walked back to her desk." These isolated and seemingly benign comments and events do not support an inference that race was a motivating factor in the employment decision.
Plaintiff also claims that there was a similarly situated non-minority employee who was actually responsible for the failed trades and who was treated differently. Although plaintiff's argument is somewhat difficult to discern, it appears that plaintiff points to Sherry Stevens as the similarly situated employee. Plaintiff does not dispute, however, that Spikes and Stevens held different job titles. In addition, there is no evidence that Stevens was unable to perform as a trader. Stevens, therefore, is not a similarly situated employee.
Plaintiff suggests that her supervisor and a coworker did not like her and were out to get her. Title VII, however, "do[es] not prohibit employment decisions based upon poor job performance, erroneous evaluations, [or] personal conflicts between employees." Hill, 123 F.3d at 1120. Plaintiff has not met her burden of demonstrating that a trier of fact could find that racial discrimination motivated her termination, and summary judgment is appropriate on her claims of race-based discrimination.
III. Disability Discrimination
To establish a prima facie case of discrimination under the Americans with Disabilities Act, a plaintiff must show (1) that she has a disability within the meaning of the ADA, (2) that she is qualified to perform the essential functions of his job, with or without reasonable accommodation, and (3) that she suffered an adverse employment action because of his disability. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999). If plaintiff sets out this prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the termination. Id. 1134-35. If the employer articulates such a reason, "the ultimate question [becomes] whether the plaintiff presents evidence of `conduct or statements by persons involved in [the employer's] decision-making process reflective of a discriminatory attitude sufficient to allow a reasonable jury to infer that that attitude was a motivating factor in [the employer's] decision to fire [the plaintiff].'" Id. at 1135 (quoting Feltmann v. Sieben, 108 F.3d 970, 975 (8th Cir. 1997) (additional citation omitted)).
As this Court has previously discussed, it is the opinion of this Court that this third step has been modified in the wake of Desert Palace: "At step three, a plaintiff need only present sufficient evidence, of any type, for a jury to conclude that the plaintiff's disability was a `motivating factor' for the employment action, even though the defendant's legitimate reason may also be true or have played some role." Ordahl v. Forward Tech. Indus., Inc., 301 F. Supp. 2d 1022, 1027 (D. Minn. 2004). As another district court in this circuit has aptly observed, "[r]egardless of Desert Palace's true impact . . . all ADA plaintiffs must first establish they are disabled under the meaning of the Act. 42 U.S.C. § 12102(2)." Curry v. Hon Co., No. Civ. 4:02-CV-10233, Slip Copy, 2004 WL 691245 *5 (S.D. Iowa, Feb. 26, 2004).
The Eighth Circuit has yet to discuss in any detail the impact of Desert Palace on the summary judgment burden. See Allen v. City of Pocahontas, 340 F.3d 551, 558 n. 5 (8th Cir. 2003) ("Without reaching the issue as to whether the Supreme Court's refocus on the statutory language of the Civil Rights Act of 1991 alters the burden-shifting analysis of McDonnell Douglas, the result in this case remains the same."); see also Raytheon Co. v. Hernandez, 124 S. Ct. 513 (2003) (noting that McDonnell Douglas is properly applied to disparate treatment cases under the ADA); Peebles v. Potter, 2004 WL 35070 (8th Cir. 2004) (same).
"Disability," as defined by the ADA, includes "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual . . ." 42 U.S.C. § 12102(2)(A). Caring for oneself, performing manual tasks, walking, seeing, hearing, breathing, learning, and working all qualify as major life activities. 45 C.F.R. § 84.3(j)(2)(ii). An individual is "substantially limited" by her impairment if the impairment "prevents or severely restricts" her ability to accomplish a major life activity, as compared to the way in which unimpaired individuals normally accomplish the same major life activity. Fenney v. Dakota, Minnesota Eastern R.R. Co., 327 F.3d 707, 714-15 (8th Cir. 2003) (quoting Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002)).
The Minnesota Human Rights Act largely parallels the ADA, Maziarka v. Mills Fleet Farm, Inc. 245 F.3d 675, 678 n. 3 (8th Cir. 2001), with one exception. Under the MHRA, a person is considered disabled if he "(1) has a physical, sensory, or mental impairment which materially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment." Minn. Stat. § 363A.03, subd. 12 (emphasis added). A "material" limitation is different from and less stringent than the "substantial" limitation required by the ADA. Hoover v. Norwest Private Mortg. Banking, 632 N.W.2d 534, 543 (Minn. 2001) (citing Sigurdson v. Carl Bolander Sons, Co., 532 N.W.2d 225, 228 n. 3 (Minn. 1995)).
Plaintiff claims that she is disabled due to lupus. (Spikes depo. at 154-57). When symptoms of lupus substantially limit major life activities, courts have considered lupus a disability under the ADA. See, e.g., Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 599-600 (7th Cir. 1998) (affirming jury verdict in favor of plaintiff-employee who suffered from episodic "flares," which are characteristic of lupus, where medical evidence included doctor's notes that plaintiff suffered from "double vision, blurred vision, damage to the nerves in her brain and difficulties with her memory and her judgment" and plaintiff's eye had swollen shut, her face palsied and "her symptoms had mimicked a stroke"); Willett v. Kansas, 942 F. Supp. 1387 (D. Kan. 1996) (assuming that plaintiff's lupus substantially limited major life activities of walking, grasping, pushing, pulling, going to the bathroom and working, but granting summary judgment because plaintiff rejected the reasonable accommodation offered by her employer, and therefore was not a "qualified individual" with a disability). However, a diagnosis of lupus, without more, is insufficient to establish disability under the ADA. See, e.g., Rodriguez v. Loctite Puerto Rico, Inc., 967 F. Supp. 653, 658 (D. Puerto Rico 1997) (granting employer-defendant's motion for summary judgment, reasoning "with certain impairments, it may be self-evident that the impaired individual is substantially limited in a major life activity — paraplegia, blindness, mental retardation, for example — we cannot say the same thing with respect to Lupus" and further noting that to assume lupus causes substantial limitation on major life activity is contrary to the purposes of the statute).
Plaintiff also claims that she suffers from hypertension. It is not clear how that impacts her ability to do day-to-day activities. Like the rulings concerning lupus, courts consistently hold that hypertension, absent some showing of limitation in a major life activity, does not render a plaintiff disabled under the ADA. Sheehan v. City of Gloucester, 321 F.3d 21, 25 (1st Cir. 2003) (holding that plaintiff-employee with hypertension was not disabled under ADA, absent showing he was substantially limited in claimed major life activity of working, and he failed to demonstrate that his physical impairment rendered him incapable of performing a broad class of jobs); Hein v. All America Plywood Co., Inc., 232 F.3d 482, 487 (6th Cir. 2000) (holding hypertension not disability); Williams v. Stark County Bd. of County Comm'rs, 2001 WL 302035, *446 (6th Cir. March 23, 2001) (holding that employee's hypertension did not substantially limit major life activity where it was controlled by medication after one serious episode). See also Weber v. Strippit, Inc., 186 F.3d 907, 912-15 (8th Cir. 1999) (affirming judgment as a matter of law on plaintiff's disability claim and noting that heart disease (including hypertension) was not a disability because it did not substantially limit a major life activity); Ennis v. National Ass'n of Bus. Educ. Radio, Inc., 53 F.3d 55, 60 (4th Cir. 1995) (HIV and other sicknesses are not per se disabilities; courts must rely on specific evidence showing how the disease affected the plaintiff's daily activities).
In this case, plaintiff has presented no medical evidence that would allow a fact-finder to conclude that her periodic lupus is a "disability" as that term is defined by the ADA. She has not indicated, by medical evidence, or personal affidavit, that she is materially or substantially limited in any major life activity. Plaintiff indicates that she works a full-time job without restrictions, cleans the house, and runs errands. She indicates that she gets tired and has to slow down and also reports swollen ankles on occasion, and sporadic body ache. In opposing summary judgment, plaintiff argues "she could not even bathe since she lacks the strength to pull herself out of tubs." (Plaintiff memorandum at 24; Spikes depo. at 159 "I take showers that — I'm kind of scared to get in the tub because it's hard for me to get — to raise my self because the — the stiffness and soreness in the joints."). She also claims that she has to go home and lie down after working from 8:00 a.m. to 4:30 p.m. Finally, she indicates that she cannot exercise as much as she formerly did. (Spikes depo. at 158).
Plaintiff has not established that she is disabled, as that term is defined by the ADA or by the less demanding MHRA definition. A diagnosis of lupus or hypertension is not itself enough to show disability. As the Supreme Court recently elucidated, "It is insufficient for individuals attempting to prove disability status . . . to merely submit evidence of a medical diagnosis of an impairment. Instead, the ADA requires those claiming the Act's protection . . . to prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience . . . is substantial." Toyota Motor, 534 U.S. 184, 198 (quoting Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 567, (1999)) (alterations provided by Toyota Motor Court); see also Barnes v. Northwest Iowa Health Ctr., 238 F. Supp. 2d 1053, 1069-70 (N.D. Iowa 2002) (noting that "the onus is on [the plaintiff] to come forward with the major life activities affected by the effects of her rheumatoid arthritis and to demonstrate that those effects substantially limit her identified major life activities"). The fact that she is limited in her house cleaning abilities and her energy level is lower is also not enough to meet either standard. Barnes, 238 F. Supp. 2d at 1074 (granting summary judgment where plaintiff claimed disability but record indicated "[s]he walks for exercise, performs household chores, works 32 hours/week, cares for herself, and drives. Her conclusory statement that she does not perform certain activities `to the same extent' as she did before her diagnosis of rheumatoid arthritis simply fails to generate a genuine issue of material fact as to whether she is substantially limited in these activities."); Mont-Ros v. City of West Miami, 111 F. Supp. 2d 1338, 1352 (S.D. Fla. 2000) (granting summary judgment to employer where plaintiff stated his sleep apnea made him tired during the day, but did not indicate how his sleep apnea limits his major life activities of breathing and working). It also appears that plaintiff's lupus will occasionally flare up, but the record indicates that it is not often, and when her lupus is symptomatic, there is no indication that the limitations she suffers are material or substantial.
Plaintiff has not established a prima facie case of discrimination based on disability under either the Minnesota Human Rights Act or the Americans with Disabilities Act. Therefore, defendant's motion for summary judgment is granted.