Opinion
Civ. No. 03-4191 (RHK/AJB).
September 7, 2004
Donald H. Nichols and Michele R. Fisher, Nichols Kaster Anderson, PLLP, Minneapolis, Minnesota, for Plaintiff.
Thomas E. Marshall and Natalie Wyatt-Brown, Jackson Lewis LLP, Minneapolis, Minnesota, for Defendant.
MEMORANDUM OPINION AND ORDER
Introduction
Plaintiff Sheila Mennis drove a shuttle van and performed housekeeping duties at Defendant Prime Hospitality Corp.'s ("Prime") AmeriSuites Hotel ("AmeriSuites" or "hotel") in Bloomington, Minnesota. During the course of her employment, Mennis alleges that she was subjected to sexual harassment, sexual harassment/constructive discharge, sex discrimination, retaliation, and battery. Prime has moved for summary judgment on each of Mennis's claims. For the reasons set forth below, the Court will grant Prime's Motion in part and deny it in part.
Background
I. The PartiesPrime manages hotel properties across the United States, including the AmeriSuites Hotel in Bloomington, Minnesota. Among its services, AmeriSuites provides shuttle rides to and from the local airport in either a van or a bus. (Mennis Dep. Tr. at 63, 145-46.) Mennis, a petite (4'10" and 100 pounds) 28-year-old woman, worked at AmeriSuites from August 27, 2000 to either December 30, 2002 or January 2, 2003. (Serrano Dep. Tr. at 10; Mennis Dep. Tr. at 177-81; Fisher Aff. Ex. 11.) Her primary responsibility was to drive the shuttle van and to provide transportation for hotel guests and Northwest Airlines employees who stayed at the hotel. (Mennis Dep. Tr. at 55-56, 63-66.) She also washed and vacuumed the van and filled it with gas. (Id. at 66.) While not occupied with her shuttle van duties, Mennis vacuumed the hotel's hallways, took out the garbage, polished luggage carts, and stocked the exercise room with towels and water. (Id. at 66-68.)
II. The AmeriSuites Work Environment
Among Mennis's co-workers at AmeriSuites were Richard Dudley, Michael Mitchell, William Atkins, and Earl Christianson.
A. Richard Dudley
Richard Dudley was a Northwest Airlines employee from Massachusetts who lived at the hotel while he was working in Minnesota. (Mennis Dep. Tr. at 87-90; Mitchell Dep. Tr. at 32.) Dudley also worked part-time at the hotel as a shuttle driver and desk attendant from February 16, 2000 to February 1, 2001 and from August 14, 2001 to either January 16, 2002 or November 2002. (Serrano Decl. ¶ 6; Mennis Dep. Tr. at 86, 102; Mitchell Dep. Tr. at 32.) The parties disagree over when Dudley stopped working at the hotel. Prime contends that Dudley's employment ended in January 2002 (Serrano Decl. ¶ 6; Serrano Second Decl. ¶ 2, Ex. A); while Mennis contends that he left about a month before she did, or approximately November 2002 (Mennis Dep. Tr. at 86).
While working at the hotel, Mennis shuttled Dudley to his job with Northwest Airlines at the airport. (Mitchell Dep. Tr. at 32-33; Mennis Dep. Tr. at 87.) During those shuttle rides, Dudley told Mennis how beautiful she was, asked her to buy condoms for him, said that he wanted to go to bed with her, touched and ran his fingers through her hair, rubbed her neck, and tried to kiss her. (Mennis Dep. Tr. at 87, 95, 195-96.) This conduct recurred approximately three to four times per week. (Id. at 92, 95.) Mennis responded by pushing Dudley away, telling him not to touch her, and informing him that she did not feel comfortable with his conduct. (Id. at 87, 95.) She also told him that she was engaged to be married, did not "mess around," was not interested in him, did not like him touching her, and wanted to be left alone. (Id. at 96.) Dudley told co-worker Michael Mitchell and others that he was having sex with Mennis. (Id. at 100.)
On one occasion when both were working at the hotel, Mennis and Dudley were instructed to retrieve supplies from a storage locker. Once inside, Dudley told Mennis that he wanted to "screw" her and started touching her hair. When Mennis tried to get away, Dudley pushed her up against the storage locker and tried to take her shirt and pants off. When Mennis resisted and tried to yell, Dudley became angry and covered her mouth with his hands. Mennis then slapped his face, kicked him between the legs, and escaped. (Mennis Dep. Tr. at 102-07.)
B. Michael Mitchell
Michael Mitchell began working at AmeriSuites on September 15, 2001 and he has held several positions during Mennis's tenure, including Front Desk Associate, Night Auditor, and Front Office Supervisor. (Mitchell Dep. Tr. at 6-7.) Mennis alleges that Mitchell engaged in the following conduct: First, Mitchell "would always make up excuses" to send her to Dudley's room, such as telling her to bring him a luggage cart, and when she arrived Dudley would ask her to have sex. (Mennis Dep. Tr. at 109-10.) Second, Mitchell would tell others that Mennis was sleeping with Dudley. (Id. at 121-22.) Third, Mitchell asked Mennis to give him back rubs and hugs. (Id. at 124.) He also tried to give her hugs two or three times a week, but Mennis would say "no" and try to push him away. (Id.) Fourth, Mitchell would make comments about Mennis and her husband, who is thirty years older than Mennis, such as, "I bet you can't get any because he's so old" and "he's too old, he can't even get up for you." (Id. at 114, 116.) When Mennis was engaged, Mitchell also told her not to marry her husband and told others that he and Mennis were married. (Id. at 114.) Fifth, Mitchell would punch Mennis in the arms every day, often leaving bruises, and tell her that she "was his punching toy." (Id. at 114, 120.) Mennis asked Mitchell not to hit her, but Mitchell "thought it was funny" and told her that she was "a midget and fun to pick on." (Id. at 120.) Sixth, Mitchell once threw oranges at Mennis's chest. (Id. at 118.) Finally, a few weeks before Mennis left AmeriSuites, Mitchell put his hand around Mennis's throat, pushed her against the wall, and told her that "everybody likes to pick on [her]" and that "it was funny." (Id. at 114, 119.) Mennis asserts that Mitchell did not treat male co-workers in the same way he treated her. (Mennis. Decl. ¶ 3.)
Although Mennis testified that Mitchell "ma[de] up excuses," she also testified that it was "Dudley [who] would call to the front desk" asking Mitchell to send Mennis with the luggage cart. (Mennis Dep. Tr. at 110.)
Prime has moved to strike Mennis's declaration on the ground that it contradicts her deposition testimony. (Doc. No. 36; Mem. in Supp. of Def.'s Mot. to Strike at 2-3.) The Court will address this aspect of Prime's Motion below. See infra n. 7.
C. William Atkins
William Atkins was AmeriSuites's Chief Engineer, or Maintenance Manager, during Mennis's time at AmeriSuites. (Mitchell Dep. Tr. at 36.) Atkins would tease Mennis, pick her up, and threaten to throw her into a laundry hamper. (Mennis Dep. Tr. at 132.) On one occasion, about three months before Mennis left AmeriSuites, Atkins threw her into a garbage dumpster. (Id. at 132-34.)
D. Earl Christianson
Earl Christianson was a shuttle driver like Mennis. (Mennis Dep. Tr. at 145.) Mennis felt that Christianson was not required to perform the same duties as was required of her. (Id. at 156-57.) For example, Christianson did not fill the van with gas, failed to vacuum the van, and did not lock up the swimming pool. (Id. at 156.) Although Mennis did not know it, Christianson was disciplined on a number of occasions for failing to do his job. (Mennis Dep. Tr. at 157; Serrano Dep. Tr. at 12-13, 15.)
III. Mennis's Complaints
Mennis complained to several supervisors about how she was being treated at work. First, she complained to Jeff Heath, who was an AmeriSuites General Manager (Serrano Dep. Tr. at 6), about Dudley's and Mitchell's conduct. She told Heath that Dudley made sexual comments, touched her hair, tried to kiss her, and attempted to take her shirt and pants off. (Mennis Dep. Tr. at 85-86, 96.) She also told him that she wanted Dudley's conduct to stop and that she did not want to transport Dudley to the airport. (Id. at 100-101.) She wrote him the following note:
Hi, I had asked that I would not have to bring Rich to [the airport] he plays with my hair trys to kiss me[.] I had asked you to talk to him please I do not feel comfortable around him. Sheila.
(Fisher Aff. Ex. 5.) Heath told Mennis that he was going to conduct an investigation, but he never did. (Mennis Dep. Tr. at 86, 96, 101.) Mennis also complained to Heath about Mitchell punching her, throwing oranges at her, and making comments about her husband (Id. at 86, 126-27.) Heath told her that he would talk to Mitchell and get back to Mennis, but he never did and Mitchell's conduct did not change. (Id. at 127.)
Second, Mennis complained to Jane Serrano, AmeriSuites's current General Manager (Serrano Dep. Tr. at 6), about Mitchell and Christianson. She told Serrano, on three or four occasions, that Mitchell made sexually derogatory comments about her and her husband, told others that Mennis and he were married, and threw her up against a wall. (Mennis Dep. Tr. at 128.) Mennis also complained to Serrano about Christianson not doing his job. (Serrano Dep. Tr. at 12-13, 15-16.) In addition to her verbal complaints, Mennis also wrote Serrano several notes:
Jane, Hi, I got to work today and there was popcorn all over the carpet the pool not locked why is this fair to me[.] I do my job but the males do nothing? Thanks Sheila.
Jane, Can you please talk to Mike about hitting me and saying sexural remarks about me and Clay[.] I am getting tired of getting thrown against the wall or getting made fun of because of our age difference[.] Can you please take care of this[?] Thanks Sheila.
Jane, I am getting tired of writing notes to you[.] I told you about people hitting me and people not doing the[ir] job I come to work to get hit and people make sexural remarks. Come to work with an empty van why I can't take this any more. Please talk to these people because it's not fair to me to keep going through this just because I am the only female driver. Thanks Sheila Pss. Two times now my checks have been shorted[.] Why[?] I need my money to survive please fix this issue thanks.
Serrano denies that Mennis complained to her about Mitchell's alleged harassment. (Serrano Dep. Tr. at 31.)
Mennis has also produced three complaints (pleadings) filed by other plaintiffs in separate sexual harassment lawsuits against Heyde Hospitality. (Fisher Aff. Exs. 18-20.) As far as the record reveals, Heyde Hospitality manages hotel properties, but is unrelated to Prime Hospitality. Two complaints allege that a General Manager named "`Jane' (last name unknown)" ignored the harassment. (Id. Exs. 18, 20.) Mennis uses these complaints to argue that "[s]exual harassment litigation is nothing new to [Jane] Serrano" and that Serrano "failed to properly manage" the harassment allegations at issue in those cases. (Pl.'s Resp. to Def.'s Mot. at 9, 9 n. 73.) Prime has moved to strike these exhibits as inadmissable hearsay. (Doc. No. 36; Mem. in Supp. of Def.'s Mot. to Strike at 1-2.) Because the Court has not considered these exhibits in any way in resolving Prime's summary judgment motion, it will deny Prime's Motion.
(Fisher Aff. Exs. 6-8.)
Third, Mennis complained to Lorin Meskin, who was an AmeriSuites Assistant General Manager (Serrano Decl. ¶ 5), about Dudley and Mitchell. She told Meskin about Dudley's attempt to take her shirt and pants off. (Mennis Dep. Tr. at 103-04.) Meskin talked to Dudley about his conduct, but no disciplinary action was taken. (Id. at 102-04.) Meskin told Mennis to continue working and that Dudley "was just playing with [you], just teasing [you]." (Id. at 103-04.) Mennis later told Meskin that she no longer wanted to drive Dudley to the airport. (Id. at 153-54.) On September 28, 2000, Mennis wrote Meskin the following note:
Lorin, Rich keeps bothering me saying sexural remarks he asked me to go by condoms large ones so me and him can do it. I asked you to talk to him nobody does anything. Why? Sheila
(Fisher Aff. Ex. 4.) Mennis also complained to Meskin about Mitchell hugging her. (Mennis Dep. Tr. at 124-25.) Despite her complaints, Dudley and Mitchell's conduct persisted. (Id. at 161-62.)
Finally, Mennis complained to Matt Vines, who was another AmeriSuites Assistant General Manager, about Mitchell grabbing her by the throat. (Mennis Dep. Tr. at 119-20; Serrano Decl. ¶ 5; Mitchell Dep. Tr. at 10.) Vines also witnessed Mitchell punching Mennis in the arm and remarked, "Gee, Sheila, everybody likes to pick on you." (Mennis Dep. Tr. at 130.) Mennis asked Vines to talk to Serrano about this, but nothing was done. (Id. at 131.)
IV. Mennis's Employment Ends
On either December 30, 2002 or January 2, 2003, Mennis walked off the job and left two notes for Serrano detailing her reasons. (Mennis Dep. Tr. at 177-81; Serrano Dep. Tr. at 10.) The first one read:
Dec. 30, 02 Jane, I am ending my employment[.] I can't take it here anymore. I hit punched[,] people try to throw me in the dumpster[,] people make fun of mine and [my husband's] age difference say sexural remarks. I can't take it anymore. I wrote you letters to these effects. I get yelled at because things aren't done while doesn't the male drivers get written up. I am the only female driver it's not fa[ir]. I have told you and Matt [Vines]. I can't stay and be hit and thrown around my checks being shorted I have been here 2 years[.] I can't ha[n]dle it anymore. I don't want to quit but nobody does anything to help solve the problem. It all goes all the way back to when Rich Dudley wanted to have sex with me in his room I get so mad because you guys let these things go on an[d] wouldn't try to stop them. I have to go now. Sincerely, Sheila Mennis
(Fisher Aff. Ex. 9.) The second one read:
Jane, I am ending my employment due to shorted paychecks[,] forced to come in when my brother passed away[,] nobody does nothing around here[,] nobody cleans the van [or] washes it [or] vacuums[.] I can't stand it anymore. I am sorry. I still have [bereavement] pay comming from when my brother passed away 3 days[.] [Y]ou are a nice lady but I can't take this anymore. Thanks Sheila Mennis
(Id. Ex. 10.) After Mennis left her notes for Serrano, Vines and Mitchell read one of them and Mitchell called Mennis in an attempt to persuade her to return. (Mitchell Dep. Tr. at 17-18.) Mennis agreed to meet with Vines the following day to tell him she would return if the working environment changed. (Id. at 19; Mennis Dep. Tr. at 184-85; Serrano Dep. Tr. at 18-19.) Mennis then talked to Vines and he put her back on the work schedule. (Mitchell Dep. Tr. at 15-16, 20-22.)
In addition to the notes, Mennis also left Serrano several phone messages in which she reiterated that she was tired of being harassed, having oranges thrown at her, being punched, getting thrown into the dumpster, and hearing sexual comments about her and her husband (Mennis Dep. Tr. at 185-86; Serrano Dep. Tr. at 23-24.) She also complained about being the only one who cleaned the van or filled it with gas and that Christianson did not do his job. (Serrano Dep. Tr. at 24.) When Serrano arrived at work, she read Mennis's notes and listened to her phone messages. (Id. at 22-24.) The next day, Serrano left Mennis a phone message stating that she was terminated for walking off the job. (Id. at 19; Mitchell Dep. Tr. at 15-16, 21-22.)
V. Equal Employment and Opportunity Commission Charge and Lawsuit
On February 3, 2003, Mennis filed a Charge of Discrimination with the Equal Employment and Opportunity Commission ("EEOC"). (Mennis Dep. Ex. 25.) In her Charge, she indicated that she was subjected to sex discrimination and retaliation and that it was a continuing violation. (Id.) For the factual basis, she wrote:
During my employment with AmeriSuites/Prime Hospitality Corp., I was subjected to a hostile work environment, harassment and discrimination based on sex, and retaliation for complaining about it.
I was the only female shuttle bus driver for AmeriSuites and was harassed regularly by my male co-workers. Among other things, I was propositioned for sex, subjected to lewd sexual comments, and physically assaulted.
I was also treated differently than the male drivers. If the male drivers and I did not perform additional duties such as cleaning and filling the bus with gas, management reprimanded me but not my male co-workers. In addition, my male co-workers were granted time off upon request more regularly than I was.
I complained to management several times about the harassment and discrimination I experienced, but they took no action. Management even saw the harassment and discrimination, but did nothing to stop it. Instead, they retaliated against me, shorted my checks, and told me I was fired after I submitted my final complaint.
I believe I have been discriminated against on the basis of my sex and retaliated against in violation of Title VII of the Civil Rights Act, and the Minnesota Human Rights Act.
(Id.) In June 2003, Mennis filed suit against Prime in state court and Prime removed it to this Court in July 2003. Prime's summary judgment motion followed.
Standard of Review
Summary judgment is proper if, drawing all reasonable inferences favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The moving party bears the burden of showing that the material facts in the case are undisputed. See Celotex, 477 U.S. at 322; Mems v. City of St. Paul, Dep't of Fire Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). The court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the nonmoving party. See Graves v. Arkansas Dep't of Fin. Admin., 229 F.3d 721, 723 (8th Cir. 2000); Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116 (8th Cir. 1997). The nonmoving party may not rest on mere allegations or denials, but must show through the presentation of admissible evidence that specific facts exist creating a genuine issue for trial. See Anderson, 477 U.S. at 256; Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
Analysis
Mennis makes five claims: (1) sexual harassment; (2) sexual harassment/constructive discharge; (3) sex discrimination; (4) retaliation; and (5) battery. (Pl.'s Resp. to Def.'s Mot. at 16, 25, 27, 29; see Am. Compl. ¶¶ 13-36.) The Court will address each claim in turn. I. Sexual Harassment
These five claims are spread out over a six-count Amended Complaint: Count I (Sex Discrimination and Sex Harassment: MHRA); Count II (Reprisal Discrimination: MHRA); Count III (Battery); Count IV (Respondeat Superior); Count V (Sex Discrimination and Sex Harassment in Violation of Title VII); and Count VI (Reprisal Discrimination in Violation of Title VII). (Am. Compl. ¶¶ 13-36.)
Mennis alleges that she suffered from a hostile work environment based upon sexual harassment by co-workers Dudley, Mitchell, and Atkins in violation of Title VII and the MHRA. (Pl.'s Resp. to Def.'s Mot. at 16.) Title VII prohibits "an employer" from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1); see Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1377 (8th Cir. 1996). Discrimination based on sex which has created a hostile working environment violates Title VII.Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986);McCurdy v. Arkansas State Police, 375 F.3d 762, 767 (8th Cir. 2004). Title VII claims must be made within 300 days of the alleged violation. See 42 U.S.C. § 2000e-5(e)(1).
The MHRA prohibits employers from discriminating "against a person with respect to hiring, tenure, compensation . . . or privileges of employment" because of sex. Minn. Stat. § 363A.08, subd. 2(c). Sexual harassment is a form of sex discrimination prohibited under the MHRA. Id. § 363A.03, subd. 13; see Donnelly v. Indep. Sch. Dist. 199, No. A03-1774, 2004 WL 1774734, at *1 (Minn.Ct.App. Aug. 10, 2004) (unpublished). As defined under the MHRA, sexual harassment
includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when . . . that conduct or communication has the purpose or effect of substantially interfering with an individual's employment . . . or creating an intimidating, hostile, or offensive employment . . . environment.
Minn. Stat. § 363A.03, subd. 43. MHRA claims must be made within one year of the alleged violation. See Minn. Stat. § 363A.28, subd. 3.
"To establish a prima facie case on a hostile work environment sexual harassment claim," Mennis must show: (1) that she was a member of a protected group, (2) the occurrence of 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 employment, and (5) that the employer knew or should have known of the harassment and failed to take prompt and effective remedial action. Erenberg v. Methodist Hosp., 357 F.3d 787, 792 (8th Cir. 2004) (citation omitted); see Donnelly, 2004 WL 1774734, at *1 (citing Minn. Stat. § 363A.03, subd. 43; Cummings v. Koehnen, 568 N.W.2d 418, 424 (Minn. 1997)). To be actionable, harassment must be both objectively and subjectively offensive, such that a reasonable person would consider it to be hostile or abusive, and courts make this determination by looking at all the circumstances, including 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. Erenberg, 357 F.3d at 792. "Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Id. (citation and internal quotations omitted).
Prime concedes for present purposes that Dudley's conduct constituted sexual harassment. (Audio Tape: Oral Argument (July 29, 2004); see Def.'s Mem. in Supp. at 9-10.) However, it asserts that Mennis's claim against Dudley is time-barred because his conduct ceased more than one year before she filed her EEOC Charge and that she has failed to establish a prima facie case of sexual harassment against Mitchell or Atkins during the 300 days (for Title VII purposes) or one year (for MHRA purposes) prior to her February 3, 2003 Charge. (Def.'s Mem. in Supp. at 9-13.) Mennis responds that her claims are not time-barred because (1) a fact issue exists as to when Dudley stopped working for AmeriSuites and thereby ceased harassing her, and (2) the continuing violation doctrine makes Dudley's conduct actionable. (Pl.'s Resp. to Mot. at 23-25.)
Mennis's first argument fails because she has not generated a genuine issue of material fact as to when Dudley stopped working for Prime. Prime, by way of Serrano's declarations, has shown that Dudley's employment ended January 16, 2002. (Serrano Decl. ¶ 6; Serrano Second Decl. ¶ 2, Ex. A.) In contrast, Mennis testified that Dudley did not leave AmeriSuites until November 2002: "Q. Do you remember when Rich [Dudley] left the hotel and didn't work there anymore? A. Probably a month maybe before the end of my employment. I'm not really sure." (Mennis Dep. Tr. at 86.) But her testimony on when Dudley stopped working for Prime is too speculative to withstand summary judgment. See Girten v. McRentals, Inc., 337 F.3d 979, 982 (8th Cir. 2003).
Mennis's second argument, that Dudley's conduct was part of a continuing violation, presents a different question. In National R.R. Passenger Corp. v. Morgan, the Supreme Court clarified the use of the continuing violation doctrine in Title VII hostile work environment cases. 536 U.S. 101 (2002); see Jensen v. Henderson, 315 F.3d 854, 858 (8th Cir. 2002). InMorgan, the Supreme Court held:
Prime does not argue that Morgan does not apply to MHRA claims. Because the Minnesota Supreme Court often looks to federal cases interpreting Title VII for guidance in interpreting the MHRA, this Court will apply Morgan to Mennis's MHRA claim.See Sigurdson v. Isanti County, 386 N.W.2d 715, 719 (Minn. 1986).
The timely filing provision only requires that a Title VII plaintiff file a charge within a certain number of days after the unlawful practice happened. It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.536 U.S. at 117 (footnote omitted). As such, "[s]ubsequent events . . . may still be part of the one hostile work environment claim and a charge may be filed at a later date and still encompass the whole." Id. Because Title VII "does not separate individual acts that are part of the hostile environment claim from the whole for the purposes of timely filing and liability," discrimination charges are timely if "the employee . . . file[s] a charge within . . . 300 days of any act that is part of the hostile work environment." Id. at 118. As recently noted by the Eighth Circuit:
Morgan holds that liability and damages may be determined based on acts beyond the limitations period, provided those acts contribute to the same actionable hostile work environment. Albeit composed of individual acts, a hostile work environment is but a single unlawful employment practice under Title VII, and it matters not if one or all of the component acts occurred within the limitations period. Rowe v. Hussmann Corp., ___ F.3d ___, 2004 WL 1900299, at *5 (8th Cir. Aug. 26, 2004). Indeed, "[o]nly the smallest portion of that [unlawful employment] practice needs to occur within the limitations period for the claim to be timely." Jensen, 315 F.3d at 859 (citation and internal quotations omitted).
The issue thus presented is whether any part of Mennis's hostile work environment claim existed within the relevant limitations period after Dudley left AmeriSuites in January 2002. Prime contends that Mennis cannot demonstrate a continuing violation because Mitchell's and Atkins's conduct during the relevant timeframe was unrelated to and "substantially different than Dudley's alleged actions." (Def.'s Mem. in Supp. at 9-10.) Specifically, Prime argues that Mennis has not shown that Mitchell's or Atkins's conduct was based upon Mennis's sex or was of a sexual nature. (Id. at 11-12.)
Under Title VII, the "key inquiry" in determining whether the complained-of harassment was based upon sex is "whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed."Quick, 90 F.3d at 1378 (citations and internal quotations omitted). "Evidence that members of one sex were the primary targets of the harassment is sufficient to show that the conduct was gender based for purposes of summary judgment." Id. (citingKopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269-70 (8th Cir. 1993)). Furthermore,
[a] worker need not be propositioned, touched offensively, or harassed by sexual innuendo in order to have been sexually harassed. . . . Intimidation and hostility may occur without explicit sexual advances or acts of an explicitly sexual nature. . . . Moreover, physical aggression, violence, or verbal abuse may amount to sexual harassment.Id. at 1379 (citing Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 964-65 (8th Cir. 1993); Hall v. Gus Constr. Co., Inc., 842 F.2d 1010, 1014 (8th Cir. 1988)) (internal quotations omitted). Under the MHRA, "sexual harassment can include any verbal or physical conduct or communication of a sexual nature that has the effect of substantially interfering with the plaintiff's employment or of creating a hostile work environment." Cummings, 568 N.W.2d at 423 (citation and internal quotations omitted).
There is a genuine issue of material fact as to whether Mitchell's and Atkins's conduct was based on Mennis's sex or was of a sexual nature and whether their acts were "part of the hostile work environment" to which Dudley had contributed. See Morgan, 536 U.S. at 118; Quick, 90 F.3d at 1378-79. When viewed in a light most favorable to Mennis, the evidence reveals that Mitchell (1) made up excuses to send her to Dudley's room (where Dudley would proposition her for sex), (2) told others that she slept with Dudley, (3) asked Mennis for back rubs and hugs and tried to hug her two or three times a week, (4) made derogatory comments about Mennis's and her husband's sexual relations, (5) punched her in the arm every day and told her she "was his punching toy," (6) threw oranges at her chest, and (7) placed his hand around her throat and pushed her against the wall. (Mennis Dep. Tr. at 114-16, 118-120.) The evidence also shows that Atkins threw her into a garbage dumpster. (Id. at 132.) Mitchell and Atkins did not do this to male coworkers. (Mennis Decl. ¶ 3.) From this evidence, a reasonable jury could find that Mitchell's and Atkins's conduct fits into the continuum of harassment that Mennis endured. See Burns, 989 F.2d at 965. "The fact that [Mitchell's and Atkins's] harassment differed from [Dudley's] sexual advancements is immaterial." Id. (citing Hall, 842 F.2d at 1013-15). Given that "[o]nly the smallest portion of [the unlawful employment] practice needs to occur within the limitations period for the claim to be timely," Jensen, 315 F.3d at 859 (citation and internal quotations omitted), a factfinder could reasonably determine that Mitchell's and Atkins's conduct "merely extended the same hostile environment that existed" when Dudley was at AmeriSuites, Burns, 989 F.2d at 965, and constituted acts that were "part of the hostile work environment," Morgan, 536 U.S. at 118.
The Court will deny Prime's motion to strike Mennis's declaration. Her declaration states that "I was treated differently than my male co-workers because I was female" and that "Richard Dudley, Mike Mitchell, and Bill Atkins did not sexually harass, hit, or physically assault my male co-workers." (Mennis Decl. ¶ 3.) Although Mennis testified that she might have been subjected to certain conduct because of non-sex-related characteristics (i.e., her short stature), the Court does not find her declaration to directly contradict this testimony.
Citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998), Prime contends that Mitchell's and Atkins's conduct was nothing more than innocuous horseplay that is outside the reach of the anti-discrimination laws. (Def.'s Mem. in Supp. at 11.) When viewed in a light most favorable to Mennis, however, such an interpretation of the evidence does not necessarily follow.
Prime's attempt to completely separate Mitchell's and Atkins's conduct from Dudley's is unavailing. The Eighth Circuit has warned against such compartmentalization: "[T]he district court must look at the totality of circumstances of the entire hostile work environment without dividing the work environment into a series of discrete incidents and then measur[ing] the harm occurring in each episode." Burns, 989 F.2d at 961 (citation and internal quotations omitted). Just as "`[a] play cannot be understood on the basis of some of its scenes but only on its entire performance, . . . a discrimination analysis must concentrate not on individual incidents but on the overall scenario.'" Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559, 564 (8th Cir. 1992) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990)), abrogated on other grounds by Miller v. Woodharbor Molding Millworks, Inc., 174 F.3d 948, 949 (8th Cir. 1999). Contrary to Prime's assertion that for Mitchell's and Atkins's "incidents to constitute a hostile work environment . . . they must meet the elements of sexual harassment" (Def.'s Mem. in Supp. at 10), the Eighth Circuit has squarely held that "incident[s] within the limitations period need not satisfy the definition of sexual harassment under Title VII when viewed in isolation," Van Steenburgh v. Rival Co., 171 F.3d 1155, 1159 (8th Cir. 1999) (citation and internal quotation omitted). Accordingly, the Court will deny Prime's Motion and Mennis may proceed on her hostile work environment sexual harassment claim.
II. Sex Harassment/Constructive Discharge
Mennis next alleges that she was constructively discharged. (Pl.'s Resp. to Def.'s Mot. at 25-26; see Def.'s Mem. in Supp. at 20-21.) "The constructive discharge here at issue stems from, and can be regarded as an aggravated case of, sexual harassment or hostile work environment." Pennsylvania State Police v. Suders, 124 S. Ct. 2342, 2354 (2004). Although Mennis has offered sufficient evidence to proceed on her hostile work environment sexual harassment claim, "[a] hostile-environment constructive discharge claim entails something more: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign."Id. (citing Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1160 (8th Cir. 1999)).
"A constructive discharge occurs when an employer renders the employee's working conditions intolerable, forcing the employee to quit." Breeding, 164 F.3d at 1159 (citation and internal quotations omitted); see Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 932 (8th Cir. 2000). The employer's actions must have been intended to force the employee to quit and the employee can satisfy the intent requirement by showing that her resignation was a reasonably foreseeable consequence of her employer's discriminatory actions. See Breeding, 164 F.3d at 1159;Tatom, 228 F.3d at 932. The employee must also demonstrate "that a reasonable person would find the working conditions intolerable. The intolerability of working conditions is judged by an objective standard, not the employee's subjective feelings; the question is whether working conditions were rendered so objectionable that a reasonable person would have deemed resignation the only plausible alternative." Tatom, 228 F.3d at 932 (citations omitted). "If an employee quits because she reasonably believes there is no chance for fair treatment, there has been a constructive discharge." Kimsey v. Wal-Mart Stores, Inc., 107 F.3d 568, 575 (8th Cir. 1997) (citation and internal quotations omitted).
There is a genuine issue of material fact as to whether Mennis was constructively discharged. While Prime asserts that Mennis resigned solely because her paychecks were shorted, she was asked to work when her "brother" died, and she was the only one forced to clean the shuttle van (Def.'s Mem. in Supp. at 20-21), those were only some of the factors motivating her resignation. When viewed in a light most favorable to Mennis, the evidence reveals that her primary reason for resigning was the continued sexual harassment combined with Prime's apparent apathy towards her complaints. For example, in her resignation letter to Serrano, Mennis states that she was ending her employment because, among other things, she was punched, thrown in the dumpster, and subjected to unwelcome remarks about her sex life. (Fisher Aff. Ex. 9.) Notably, she concludes her letter by saying, "I don't want to quit but nobody does anything to help solve the problem. It all goes all the way back to when Rich Dudley wanted to have sex with me in his room[;] I get so mad because you guys let these things go on an[d] wouldn't try to stop them. I have to go now." (Id.) Given Prime's inaction, this letter indicates that Mennis reasonably believed that there was no chance for fair treatment. Kimsey, 107 F.3d at 575 (finding no error in submitting constructive discharge claim to the jury when the claim "rests on evidence of a hostile work environment and on an unresponsive management"). Accordingly, because "[a] reasonable jury could find that the continuing harassment and management's indifference rendered [Mennis's] working conditions intolerable and forced her to quit," id. at 574-75, the Court will deny Prime's Motion and Mennis may proceed on her sexual harassment/constructive discharge claim.
In December 2002, Mennis received bereavement leave due to the death of her "brother." (See Mennis Dep. Tr. at 181-83.) As it turns out, however, the deceased was not her brother, but a close friend. (Pl.'s Resp. to Def.'s Mot. at 33.) Prime contends that had it known Mennis lied it would have terminated her employment because its bereavement policy permits leave only for the death of a relative. (Serrano Decl. ¶ 9.) It further contends that Mennis's wrongdoing eliminates her reinstatement or a recovery of front pay (which is an equitable remedy that may be awarded in lieu of reinstatement). (Def.'s Mem. in Supp. at 22-23); see Smith v. World Ins. Co., 38 F.3d 1456, 1466 (8th Cir. 1994) (explaining front pay). "Where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it." McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 362-63 (1995). It is the employer's burden to establish these facts and courts "must look to the employer's actual employment practices and not merely the standards articulated in its employment manuals, for things are often observed in the breach but not in the keeping." Sellers v. Mineta, 358 F.3d 1058, 1064 (8th Cir. 2004) (citation omitted). Without expressing any opinion as to the merits, the Court views this as an issue to be resolved at trial under the circumstances of this case. See infra n. 12.
III. Sex Discrimination
Mennis next contends that she was subjected to unlawful sex discrimination. (Pl.'s Resp. to Def.'s Mot. at 27.) In support of her claim, Mennis asserts that "[m]any of the same arguments made above, relating to [her] hostile work environment claims apply here." (Id.) The Court disagrees. Discrimination based on sex which has created a hostile working environment violates Title VII in its own right. See Meritor, 477 U.S. at 66; Rowe, ___ F.3d ___, 2004 WL 1900299, at *5; Quick, 90 F.3d at 1377. To apply the same facts constituting Mennis's sexual harassment claim under the heading of "sex discrimination" would be unnecessarily duplicative, especially considering that her sexual harassment claim survives. The only new allegation Mennis offers in support of her sex discrimination claim is that Christianson, the male shuttle driver, "failed to perform his job duties without reprimand" (Pl.'s Resp. to Def.'s Mot. at 27.)
To establish a prima facie case of sex discrimination, Mennis must show that (1) she was a member of a protected group; (2) she was meeting the legitimate expectations of her employer; (3) she suffered an adverse employment action; and (4) circumstances exist which give rise to an inference of discrimination. Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 478 (8th Cir. 2004). Focusing on the third element, Prime contends that Mennis has not shown an adverse employment action with respect to how she was treated differently from Christianson. (Def.'s Mem. in Supp. at 13-14.) "An adverse employment action is exhibited by a material employment disadvantage, such as a change in salary, benefits, or responsibilities." Tademe v. Saint Cloud State Univ., 328 F.3d 982, 992 (8th Cir. 2003) (citation and internal quotation omitted) (emphasis in original). "Employment actions which do not result in changes in pay, benefits, seniority, or responsibility are insufficient to sustain a . . . claim."Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707, 715 (8th Cir. 2000) (citation omitted).
Mennis has failed to establish a prima facie case of sex discrimination. First, her allegation that Christianson was not disciplined is unsubstantiated. When asked if she knew if Christianson was ever reprimanded for not performing his job, Mennis testified, "I don't know." (Mennis Dep. Tr. at 157.) In contrast, Serrano testified that she had reprimanded Christianson. (Serrano Dep. Tr. at 12-13, 15-16.) Mennis's speculation in the face of Serrano's uncontroverted testimony fails to generate a genuine factual issue for trial. See Girten, 337 F.3d at 982. Second, and related to the first point, Mennis has not established that the alleged discipline to which she was subjected was an adverse employment action. Other than her bare testimony that she was "disciplin[ed] . . . for how I vacuum, how I pick up stuff," (Mennis. Dep. Tr. at 154), there is nothing from which a jury could find that Mennis suffered "a material employment disadvantage, such as a change in salary, benefits, or responsibilities." Tademe, 328 F.3d at 992. Accordingly, the Court will grant Prime's Motion on Mennis's sex discrimination claim.
IV. Retaliation
Mennis also asserts that Prime violated Title VII and the MHRA by retaliating against her for complaining about sexual harassment and sex discrimination. (Pl.'s Resp. to Def.'s Mot. at 27-29.) Under Title VII and the MHRA, it is unlawful for an employer to intentionally discriminate against an employee because she opposes employment practices made unlawful under the statutes. See 42 U.S.C. § 2000e-3(a); Minn. Stat. § 363A.15. To establish a prima facie case of retaliation under Title VII, Mennis must show: (1) she engaged in statutorily protected activity; (2) she suffered an adverse employment action; and (3) a causal connection between the protected activity and the adverse employment action. Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 693 (8th Cir. 2001). MHRA reprisal claims are analyzed in the same manner. Cross v. Cleaver, 142 F.3d 1059, 1076 (8th Cir. 1998). Focusing on the second element, Prime again argues that Mennis has not shown an adverse employment action. (Def.'s Mem. in Supp. at 15-17.) In response, Mennis asserts two adverse employment actions: (1) she was constructively discharged and (2) she was terminated by Serrano after she resigned. (Pl.'s Resp. to Def.'s Mot. at 28-29.) The Court will begin with Mennis's constructive discharge claim.
Although Prime asserts that "Mennis bases her retaliation claim solely on her allegation that Serrano told her not to come back to work after she quit" (Def.'s Reply Mem. in Supp. at 9), the Court reads Mennis's arguments differently.
"Constructive discharge, like any other discharge, is an adverse employment action that will support an action for unlawful retaliation." West v. Marion Merrell Dow, Inc., 54 F.3d 493, 497 (8th Cir. 1995). The Court has previously determined that Mennis has offered sufficient evidence of a constructive discharge to withstand summary judgment. See supra Analysis Part II. Mennis's second claimed retaliatory adverse employment action (that she was terminated after she resigned), however, fails as a matter of law. "An employee cannot submit a resignation and then claim the employer's acceptance of the resignation is an adverse employment action." Curby v. Solutia, Inc., 351 F.3d 868, 872 (8th Cir. 2003); see Briggs v. Anderson, 796 F.2d 1009, 1021 (8th Cir. 1986) (holding employees who had voluntarily resigned were not entitled to make employment discrimination claims under Title VII). Accordingly, the Court will deny Prime's Motion and Mennis may proceed on her retaliation claim, but based only upon her constructive discharge. V. Battery
Finally, Mennis asserts that Dudley's, Mitchell's, and Atkins's conduct constitutes common law battery. (Pl.'s Resp. to Def.'s Mot. at 29-30.) Prime asserts that her battery claims are preempted by Minnesota's Workers' Compensation Act ("WCA" or "Act"). (Def.'s Mem. in Supp. at 17-19.) The WCA provides that "[e]very employer . . . is liable to pay compensation in every case of personal injury or death of an employee arising out of and in the course of employment without regard to the question of negligence." Minn. Stat. § 176.021, subd. 1; see Meintsma v. Loram Maintenance of Way, Inc., 684 N.W.2d 434, 438 (Minn. 2004). The WCA is the exclusive remedy for an employee who suffers a "personal injury," Minn. Stat. § 176.031, and where the WCA provides the employee's exclusive remedy, the courts have no jurisdiction, McGowan v. Our Savior's Lutheran Church, 527 N.W.2d 830, 833 (Minn. 1995).
Mennis asserts that her injuries are not preempted by the WCA because her battery claim falls within the "assault exception." (Pl.'s Resp. to Def.'s Mot. at 29.) The "assault exception" excludes from the WCA injuries "caused by the act of 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; see Meintsma, 684 N.W.2d at 439; McGowan, 527 N.W.2d at 833-34. Cases involving the assault exception usually fall into one of three categories:
(1) those that are noncompensable under the Act because the assailant was motivated by personal animosity toward his victim, arising from circumstances wholly unconnected with the employment; (2) those that are compensable under the Act because the provocation or motivation for the assault arises solely out of the activity of the victim as an employee; and (3) those that are compensable under the Act because they are neither directed against the victim as an employee nor for reasons personal to the employee.Meintsma, 684 N.W.2d at 439 (citing McGowan, 527 N.W.2d at 834). The assault exception is narrowly construed. Id.
To Mennis's battery claim, the Court applies the standard articulated in Meintsma and McGowan — an injury is noncompensable under the "assault exception" to the WCA only if the assailant was motivated by reasons arising from circumstances wholly unconnected with her employment. See Meintsma, 684 N.W.2d at 439; McGowan, 527 N.W.2d at 834. Under this standard, Mennis's battery claim does not fit within the "assault exception" because no reasonable jury could find that Dudley's, Mitchell's, and Atkins's conduct arose from circumstances unconnected to her employment. See Meintsma, 684 N.W.2d at 439;McGowan, 527 N.W.2d at 834; Klaahsen v. APCOA/Standard Parking, Inc., Civ. No. 02-620 (RHK/AJB), 2002 WL 1397041, at *5-6 (D. Minn. June 26, 2002). All of the alleged conduct occurred during working hours in the workplace and she had no meaningful contact with these co-workers outside of work. See Meintsma, 684 N.W.2d at 439. Accordingly, the Court will grant Prime's motion on this claim.
Mennis relies heavily upon Fernandez v. Ramsey County, 495 N.W.2d 859 (Minn.Ct.App. 1993) and argues that, underFernandez, the question of whether a battery is personally motivated or the product of the employment is a jury question in this case. (Pl.'s Resp. to Def.'s Mot. at 29-31.) The Court disagrees for two reasons. First, Fernandez is not a complete statement of Minnesota law on WCA preemption in that it fails to address the standard set out in Meintsma and McGowan for determining whether an assault is compensable under the WCA. Second, nothing in Fernandez alters the question of whether Mennis has offered sufficient evidence that would permit a reasonable jury to conclude that Dudley, Mitchell, and/or Atkins were motivated by personal reasons arising from circumstances wholly unconnected to Mennis's employment. See Klaahsen, 2002 WL 1397041, at *6 n. 4.
Conclusion
Based on the foregoing, and all of the files, records, and proceedings herein, IT IS ORDERED that:
1. Defendant Prime Hospitality Corp., d/b/a AmeriSuites's Motion for Summary Judgment (Doc. No. 26) is GRANTED IN PART and DENIED IN PART as follows:
a. Count I (Sex Discrimination and Sex Harassment: MHRA) and Count V (Sex Discrimination and Sex Harassment in Violation of Title VII) are DISMISSED WITH PREJUDICE only to the extent each alleges sex discrimination;
b. Count III (Battery) is DISMISSED WITH PREJUDICE;
c. Count IV (Respondeat Superior) is DISMISSED WITH PREJUDICE;
d. The following claims remain for trial:
i. Count I (Sex Discrimination and Sex Harassment: MHRA) and Count V (Sex Discrimination and Sex Harassment in Violation of Title VII) to the extent each alleges hostile work environment sexual harassment and sexual harassment/constructive discharge; and
ii. Count II (Reprisal Discrimination: MHRA) and Count VI (Reprisal Discrimination in Violation of Title VII) to the extent each alleges retaliatory constructive discharge.
2. Prime's Motion to Strike (Doc. No. 36) is DENIED.
On a variety of grounds, Prime argues that Mennis has suffered no damages or limited damages. (Def.'s Mem. in Supp. at 21-23; Def.'s Reply in Supp. at 4-6); see also supra n. 9. In the Court's view, these issues should be resolved at trial.