Opinion
No. 03-CV-3270 (JMR/FLN).
January 26, 2005
ORDER
Plaintiff claims her employer discriminated against her on the basis of her gender, within the contemplation of the Minnesota Human Rights Act ("MHRA"). This Court has jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1441. Defendant moves for summary judgment. For the following reasons, defendant's motion is granted.
Plaintiff has voluntarily dismissed her claim of intentional infliction of emotional distress.
I. Background
The facts are viewed in the light most favorable to plaintiff. Defendant is a national multi-occupational career college. Plaintiff began her employment with the college as an admissions representative on June 24, 2002. Admissions representatives solicit and follow-up on leads for potential student enrollment. Plaintiff was interviewed, hired, and supervised by Elizabeth Beseke.
Once plaintiff's employment began, the two women spoke as co-workers do. As occurs in the real world, they occasionally spoke about matters not wholly employment-related. During one conversation, Ms. Beseke told plaintiff she was dating a co-worker, and invited plaintiff on double dates. On four or five other occasions early in plaintiff's employment, Ms. Beseke offered to arrange blind dates for her. Plaintiff declined these invitations, but never indicated these offers and suggestions made her uncomfortable.
Plaintiff and Ms. Beseke maintained a friendly workplace relationship, which included discussions about their personal lives. On November 27, 2002, Ms. Beseke called plaintiff into her office and asked her, "So what's up, do you like guys or girls?" Plaintiff responded, "Why are you asking me that?" Ms. Beseke replied, "You never talk about guys."
Plaintiff stated she preferred to separate her personal and professional lives. Nonetheless, Ms. Beseke continued asking questions such as, "Do you have plans? Do you want to get married? Do you want to have kids? What do you want to do?" According to plaintiff, she felt pressured and compelled to mention her college boyfriend even though she was not dating anyone at the time. Ms. Beseke responded, "It's okay if you're gay. I've got friends that are gay and bisexual. That's fine." (Sundberg Dep. at 91-92).
While plaintiff acknowledges she did not believe this questioning was motivated by a sexual interest, she considered it intrusive and inappropriate. Although plaintiff did not tell Ms. Beseke she was offended, she believed her supervisor "caught the gist" of how she was feeling. (Sundberg Dep. at 93). According to plaintiff, Ms. Beseke's statement that it was "okay" to be gay was neither an apology nor an attempt to placate her. Instead, she considered it to be "needling" her to admit she was gay. (Id.)
The parties dispute the length of this conversation, but the Court will assume it lasted at most 45 minutes as plaintiff claims. The discussion ended with the arrival of Bill Schulte, the coworker Ms. Beseke was dating. According to plaintiff's unsworn notes, Mr. Schulte sat next to plaintiff, took her hand, said he had her home phone number, and asked if they were "going out this weekend." Ms. Beseke said "that's fine." Plaintiff responded, "[you] will need to wait in line," and then left the room. (Sundberg Aff. Ex. 1.)
Several days later, a female co-worker told plaintiff that Mr. Schulte had come by and asked, "Are you jealous that your girl friend is in there with the boss?" (Sundberg Dep. at 99.) Concerned that her supervisor was repeating their conversation, plaintiff met with Ms. Beseke privately on December 3, 2002, and told her she was uncomfortable with their earlier discussion. Ms. Beseke apologized and reiterated that it was all right if plaintiff was gay. Plaintiff said she did not want to discuss her sexuality, and accused Ms. Beseke of telling others about their conversation. When Ms. Beseke denied this, plaintiff told her about Mr. Schulte's alleged comment. Ms. Beseke replied that he "says dumb things all the time." (Sundberg Dep. at 101.)
Plaintiff informed Ms. Beseke that her concerns were serious, and warned that her comments amounted to "a lawyer's dream case." (Sundberg Dep. at 104.) Ms. Beseke then became angry, and the two women agreed they would never again discuss their personal lives. Plaintiff concedes they never did.
After this conversation, plaintiff perceived a change in Ms. Beseke's attitude toward her that she described as a "cold shoulder." (Sundberg Dep. at 120.) Plaintiff claims Ms. Beseke ignored her, avoided her, spoke to her impatiently, and gave short answers to her questions. She contrasts this to Ms. Beseke's relations with other employees to whom the supervisor was more friendly and generous with her time. Plaintiff claims Ms. Beseke also stopped praising her in front of other employees, stole one of her ideas without giving her credit, and rated plaintiff's work merely "good," when plaintiff felt she deserved better. Notwithstanding these issues, there were no further discussions of plaintiff's social relationships.
The entire office performed below expectations early in 2003. Defendant's company-wide weekly performance reports, generated in February and March 2003, consistently ranked plaintiff last among the Minneapolis office representatives, and among the last nationwide. (Sokolowski Aff. Ex. B.). Plaintiff admits she was ranked "among the lowest" performing representatives during this time. (Sundberg Dep. at 68.)
Around the same time, Ms. Beseke's log indicated plaintiff was to receive no new leads. Defendant maintains, and plaintiff does not dispute, that she had requested fewer leads so that she might follow up on those she had already received. (Affidavit of Todd Brown at ¶ 2; Beseke Dep. at 155.)
On March 14, 2003, Ms. Beseke gave plaintiff a two-week performance plan under which she was required to develop leads and generate new enrollments more aggressively. The plan called for a 17% return of her leads into enrollments, while the company's performance standards described a 14% return as "fair," and a 16% return as "good." No other employee was put on a performance plan. Plaintiff thereafter sought a meeting with Todd Brown, Ms. Beseke's supervisor.
Defendant presented unrebutted evidence that at the time of the performance plan, the other employees in the office were performing at the 17% level, and that this was how plaintiff's standard was set. (Brown Aff. ¶ 3.)
The meeting between Mr. Brown, Ms. Beseke, and plaintiff was held on March 17, 2003, approximately 3½ months after the discussions of plaintiff's social life. Plaintiff told Mr. Brown her performance problems arose from Ms. Beseke's November inquiry into her sexuality, and then requested to be transferred to the Denver office. This was the first time plaintiff raised any of her concerns to anyone other than Ms. Beseke.
Mr. Brown denied the requested transfer due to plaintiff's poor performance, and directed plaintiff to report directly to him rather than to Ms. Beseke. This change made plaintiff the only admissions representative reporting directly to Mr. Brown. According to defendant, the reassignment was made to assure plaintiff that she did not have to report to Ms. Beseke. Because plaintiff claims she felt intimidated by Mr. Brown, she now claims this reassignment was a reprisal for her complaint. Plaintiff claims she would have preferred to report to Ms. Beseke, but made no such request to Mr. Brown.
During the last few weeks of her employment, plaintiff reported directly to Mr. Brown. She considered him to be critical of her work, and felt he held her to unfairly high standards, unfairly challenging her use of break time, leave time, and vacation time. Plaintiff further felt he was rude, brusque, sarcastic, and impatient without justification. She states in her unsworn notes that, on two occasions, he looked into her office to check on her and "shook his head in disgust" as he walked by. Once, he "sighed and groaned" in connection with her request for overtime. (Sundberg Aff. Ex. 1.) However, plaintiff acknowledges that throughout her employment she was able to take all leave time for which she was eligible, and all of her overtime requests were approved. (Sundberg Dep. at 126-131, 135). Plaintiff further acknowledges she was never disciplined regarding the issues reflected in her March, 2003, performance plan. (Sundberg Dep. at 79.)
While on vacation in early May, 2003, plaintiff decided to resign. She submitted her resignation letter on May 13, 2003. Ten days later, she filed this action in Minnesota's Fourth Judicial District. Defendant timely removed the action to this Court.
II. Analysis
A. Summary Judgment
Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact. Rule 56 of the Federal Rules of Civil Procedure ("Fed.R.Civ.P."); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246 (1986). The party opposing summary judgment may not rest upon the allegations set forth in its pleadings, but must produce significant probative evidence demonstrating a genuine issue for trial. See Anderson, 477 U.S. at 248-49; see also Hartnagel v. Norman, 953 F.2d 394, 395-96 (8th Cir. 1992). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48. If the opposing party fails to carry that burden, or fails to establish the existence of an essential element of its case on which that party will bear the burden of proof at trial, summary judgment should be granted. See Celotex, 477 U.S. at 322.
Here, plaintiff's claim is premised on the MHRA, which prohibits an employer from discriminating on the basis of sex and sexual orientation with respect to termination and "hiring, tenure, compensation, terms, upgrading, conditions, facilities or privileges of employment." Minn. Stat. § 363.03, subd. 1(2)(c) (2002). Reprisal against those who "oppose a practice forbidden" under the Act is likewise prohibited. Minn. Stat. § 363.03, subd. 7 (2002).
The relevant portions of the MHRA were repealed and renumbered in 2003, and now appear at Minn. Stat. § 363A.01 et seq (2004).
A. Harassment
Not every workplace sexual comment becomes actionable sexual harassment. Cummings v. Koehnen, 568 N.W.2d 418, 424 (Minn. 1997). To establish employer MHRA liability, an employee must prove that the conduct she experienced (1) was unwelcome; (2) consisted of "sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature"; was (3) "sufficiently pervasive so as to substantially interfere with the plaintiff's employment or to create a hostile, intimidating or offensive work environment"; and (4) was known or should have been known to the employer, who failed to take "timely and appropriate action." Id.; Minn. Stat. § 363.01, subd. 41 (2002).
The Court finds plaintiff has failed to present a genuine issue of fact to be presented to a jury on the third element. As a result, her harassment claim must be dismissed. All parties acknowledge that a conversation occurred between plaintiff and Ms. Beseke in late November, 2002. It is also a fact that, from the moment plaintiff told Ms. Beseke she did not want to discuss her sexuality or social life, Ms. Beseke never referred to it again. While the behavior of Ms. Beseke and Mr. Schulte may have been clumsy and insensitive, no reasonable jury could find on this evidence that it rose to a level which constituted a "hostile, intimidating or offensive" workplace.
Neither the law, nor logic, demands that an employer maintain a "pristine working environment." Klink v. Ramsey County, 397 N.W.2d 894, 900 (Minn.Ct.App. 1986), review denied (Minn. 1987), abrogated in part on other grounds in Cummings, 568 N.W.2d 420, n. 8. "Carelessness and insensitivity [are] not tantamount to purposeful sexual harassment."Klink, 397 N.W.2d at 902. Actionable conduct must be so "severe or pervasive" that it alters the conditions of plaintiff's employment, id. at 901, and be both subjectively and objectively offensive. Goins v. West Group, 635 N.W.2d 717, 725 (Minn. 2001); Johns v. Harborage I, Ltd., 585 N.W.2d 853, 861 (Minn.Ct.App. 1998). In making this determination, a court must consider the conduct's "nature, frequency, intensity, location, context, duration, and object or target[.]" Klink, 397 N.W.2d at 901.
Beseke's and Schulte's behavior may well have offended plaintiff. Yet this alone cannot sustain a claim under the MHRA. See Bilal v. Northwest Airlines, Inc., 537 N.W.2d 614, 619 (Minn. 1995); see also Soukup v. Graco, Inc., 2003 WL 21058572, *4 (Minn.Ct.App. 2003) (plaintiff's subjective perception that sexual harassment occurred, without more, does not establish an issue of fact). Plaintiff has entirely failed to show that after a brief unpleasantness, a reasonable person would have found the workplace so altered they would have found further service impossible.
The MHRA cases upon which plaintiff relies provide little support for her argument. Each involves conduct far more frequent and egregious.See, e.g., Cummings, 568 N.W.2d at 420 (harasser pinched plaintiff's buttocks and inner thigh, grabbed plaintiff's hips to simulate anal sex, and repeatedly subjected plaintiff to sexually explicit and derogatory taunts); Costilla v. Minnesota, 571 N.W.2d 587, 589-90 (Minn.Ct.App. 1997) (a longer-than-two year period when harasser touched, grabbed, propositioned, and threatened plaintiff, and made offensive phone calls to her at home); Bersie v. Zycad Corp., 399 N.W.2d 141, 142-43 (Minn.Ct.App. 1987) (harassers compared plaintiff to a prostitute, massaged her neck and shoulders, and intimidated her physically by blocking her path and invading her personal space). Plaintiff correctly notes that a single severe incident may be actionable under the MHRA, but she alleges nothing rising to this level. See Johns, 585 N.W.2d at 861 (co-worker who had previously harassed other women, lured plaintiff into storeroom, exposed himself to her, and pulled down her shorts).
When the Court compares the relatively banal circumstances of this case with the pervasive and obtrusive situations in the cited cases, the weakness of plaintiff's case is clear. Plaintiff's supervisor may have offended her, but the supervisor used no derogatory, abusive, or judgmental language; indeed, she repeatedly assured plaintiff there would be no employment consequence regardless of plaintiff's sexual orientation. Nor does the perhaps unseemly conduct of Mr. Schulte elevate her claim. Even accepting plaintiff's claim that his actions were offensive, it remains an isolated incident. As a matter of law, these incidents are neither severe nor pervasive; they cannot sustain a claim of sex or sexual orientation harassment as contemplated by the MHRA. Accordingly, these claims are dismissed.
C. Reprisal
Under the MHRA, reprisal consists of "any form of intimidation, retaliation or harassment." Minn. Stat. § 363.03, subd. 7. (2002). Minnesota analyzes MHRA reprisal claims under the burden-shifting formula used in federal Title VII actions. Fletcher v. St. Paul Pioneer-Press, 589 N.W.2d 96, 101 (Minn. 1999),citing Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983) and McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As a result, plaintiff must first establish a prima facie case of retaliation, defined as (1) statutorily-protected conduct; (2) adverse employment action; and (3) a causal connection between the two.Fletcher, 589 N.W.2d at 102. The employer must then articulate a legitimate, nonretaliatory reason for its action. Id. If the employer does so, the burden shifts back to plaintiff to demonstrate that the employer's reasons are not the real reasons, but instead, a pretext for retaliation. Id.
Here, the Court will assume plaintiff has established the first element. Two complaints were made regarding what plaintiff perceived to be harassment: once informally to Ms. Beseke, her immediate supervisor in December, 2002, when she described their earlier conversation as a "lawyer's dream case"; and later, in March, 2003, when plaintiff directly complained to Mr. Brown and requested a transfer. There is no suggestion that her complaints were made in bad faith.
The second element is more problematic. "Not everything that makes an employee unhappy is an actionable adverse employment action." LaCroix v. Sears, Roebuck Co., 240 F.3d 688, 691 (8th Cir. 2001). Instead, the Court considers whether plaintiff experienced a "material employment disadvantage, such as a change in salary, benefits, or responsibilities." Id.; see also Minneapolis Police Dep't v. Minneapolis Comm'n on Civil Rights, 425 N.W.2d 235, 240 (Minn. 1988) (reassignment to different shift not adverse action where wages, benefits, workload, and duties remained the same).
Plaintiff asks the Court to conclude that the MHRA's language prohibiting "any form" of "intimidation, retaliation or harassment" encompasses the "cold shoulder" she claims she experienced. But plaintiff cites, and the Court finds, no case affording the MHRA such a broad reading. Rather, Minnesota requires plaintiff to establish an adverse employment action. See Minneapolis Police Dep't, 425 N.W.2d at 240. A supervisor's failure to be nice, even in Minnesota, will not suffice.See Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997) (supervisors' "hostility and personal animus" not adverse employment action under Title VII).
Plaintiff next claims she received fewer leads in early 2003 and was placed on probation. Her co-workers were not similarly treated. She claims she was required to meet higher standards than outlined in the company's performance standards reports. Her request for a transfer was denied, and instead, she was reassigned to a different supervisor. The Court does not consider these incidents to be adverse employment actions under the MHRA, for they resulted in no difference in compensation, benefits, workload, or duties. See Minneapolis Police Dep't, 425 N.W.2d at 240. Plaintiff was not denied any benefit to which she was entitled. Nor was she fired or disciplined as a result of failing to meet the higher standards.
Even if the Court concluded these incidents amounted to adverse employment actions, plaintiff has failed to show discriminatory or retaliatory animus. Defendant has responded to these claims by offering legitimate, nonretaliatory reasons for each action. Plaintiff received fewer leads because she requested fewer leads. Her probation and the denial of her request for a transfer arose out her objective failure to produce and close on lead prospects. Her workplace performance was not only the worst in her home office, she was among the very lowest producers in the company on a national scale. She was asked to meet the enrollment level the rest of the office was meeting, and even though she failed to do so, she was not fired. In light of her failure as a productive worker, the Court cannot find a retaliation case to be presented to a jury on these facts.
It is hardly surprising that a non-productive worker such as plaintiff would be given a performance plan and denied a transfer to another similar position in another office. Rather than transferring her to another office, defendant tried to address her concerns by arranging for her to report to a different supervisor. This is a reasonable action in light of her former unpleasant experiences.
Plaintiff has failed to demonstrate that management's proffered reasons are pretextual. "The proper scope of inquiry on the issue of pretext is limited to whether the employer gave an honest explanation of its behavior." Cierzan v. Hamline Univ., 2002 WL 31553931, *3 (Minn.Ct.App. 2002) (unpublished). Plaintiff does not deny that she, herself, requested fewer leads; in fact, she acknowledges her weak performance. Plaintiff claims she out-performed other representatives, but this conclusion rests on her own definitions of good performance, not the company's. This cannot create a fact issue on pretext. Contrast Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 546 (Minn. 2001) (en banc) (plaintiff created fact issue on pretext by introducing evidence of prior outstanding performance as well as evidence that co-workers who made similar mistakes were not disciplined or terminated). Plaintiff has failed to meet her burden of showing that the employer's actions were motivated by a desire to retaliate.
Accordingly, plaintiff's reprisal claim cannot survive summary judgment.
III. Conclusion
For the reasons set forth above, plaintiff's complaint is dismissed in its entirety.
IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.