Opinion
Civil No. 00-1138 ADM/SRN
July 30 2001
Sonja Dunnwald Peterson, Esq., Law Offices of Sonja Dunnwald Peterson, Minneapolis, Minnesota, appeared for and on behalf of the Plaintiff.
Gregg M. Corwin, Esq., Gregg M. Corwin Associates, St. Louis Park, Minnesota, appeared for and on behalf of the Defendants.
MEMORANDUM OPINION AND ORDER I. INTRODUCTION
Plaintiff Susan J. Thorn's ("Plaintiff") remaining claim is for reprisal discrimination in violation of the Minnesota Human Rights Act ("MHRA"), Minn. Stat. § 363.01, subd. 7, and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-3(a). On June 19, 2001, the undersigned United States District Judge heard Defendants' Amalgamated Transit Union's (the "ATU") and Amalgamated Transit Union, Local 1005's (the "Local Union") Motion for Summary Judgment [Doc. No. 44]. For the reasons articulated below, the ATU's and the Local Union's Motion is granted.
An Order dated January 12, 2001, dismissed Plaintiff's sex discrimination and intentional infliction of emotional distress claims against Defendants ATU and Local Union. A Stipulation and Order dated March 19, 2001 [Doc. No. 41], dismissed Defendant Metropolitan Council as a party to this action.
II. BACKGROUND
Metropolitan Council ("Metro Transit") has employed Plaintiff as a bus operator from March 1997 to the present. Plaintiff is a member in good standing of the ATU and the Local Union. In early 1999, Plaintiff's work site was the Metro Transit's garage in Brooklyn Center, Minnesota. Sometime in April 1999, Plaintiff's co-workers subjected her to unwelcome sexual advances, requests for sexual favors, and verbal and physical communication of a sexual nature. In June 1999, Plaintiff reported the incidents of sexual harassment to Metro Transit's Office of Diversity and Equal Opportunity ("EEO"), which started an investigation. Contemporaneously, Plaintiff reported the incidents to the ATU and the Local Union. Upon Plaintiff's request, Metro Transit transferred her to a different work site, a garage in Bloomington, Minnesota. The Local Union cooperated in this transfer, waiving the contractual provision, which provided transfers only at the time of a system pick. Plaintiff claims that the Local Union and ATU retaliated against her as a result of her reporting the sexual harassment.
III. DISCUSSION
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue "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." A genuine issue of material fact does not exist "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The movant has the burden of showing that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the movant meets its Rule 56(c) burden, the non-movant "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). When weighing the evidence offered by the parties on a motion for summary judgment, this Court must review the evidence and all inferences drawn from that evidence in the light most favorable to the party opposing the motion. See Matsushita, 475 U.S. at 587. The nonmovant, however, "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586.
Title VII provides that "[i]t shall be an unlawful employment practice for . . . a labor organization to discriminate against any member thereof . . . because he has opposed any practice made an unlawful employment practice by this subchapter . . ." 42 U.S.C. § 2000e-3(a). To establish a prima facie case of reprisal discrimination, Plaintiff must show that she engaged in statutorily protected conduct, she suffered an adverse employment action, and the existence of a causal connection between the adverse action and the protected conduct. Smith v. Ashland, Inc., 250 F.3d 1167, 1173 (8th Cir. 2001); Bogren v. Minnesota, 236 F.3d 399, 407 (8th Cir. 2000); Kiel v. Select Artifacts, Inc., 169 F.3d 1131 (8th Cir. 1999). Although Plaintiff's reporting of the sexual harassment to Metro Transit, the Local Union, and the ATU is statutorily protected conduct, she fails to present sufficient evidence of any adverse employment action she suffered as a result. Absent proof of the requisite adverse employment action, Plaintiff's retaliation claim must fail.
The analysis of retaliation claims under the MHRA, Minn. Stat. § 363.01, subd. 7, is consistent with the ubiquitous McDonnell-Douglas burden shifting framework used under Title VII, 42 U.S.C. § 2000e-3(a). See Hasnudeen v. Onan Corp., 552 N.W.2d 555, 556-57 (Minn. 1996).
An adverse employment action must be demonstrated by a material employment disadvantage, such as a change in salary, benefits, or responsibilities. Bradley v. Widnall, 232 F.3d 626, 632 (8th Cir. 2000). "[N]ot everything that makes an employee unhappy is an actionable adverse action." Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997). A plaintiff must establish a "materially adverse impact" on the terms or conditions of her employment. Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 684 (8th Cir. 2001). Working conditions that cause no materially significant disadvantage to the employee or disappointment with changes in one's employment situation do not rise to legally cognizable adverse employment actions. Id.
The record is clear that Plaintiff suffered no diminution in her title, salary or benefits. Upon her own request, Metro Transit transferred her, with the Local Union's cooperation, from the Brooklyn Center garage to the Bloomington garage. Plaintiff's request for a transfer did not result in any material change in compensation, job responsibilities or working conditions. This transfer was not an adverse employment action. See Scusa v. Nestle USA Co., Inc., 181 F.3d 958, 969 (8th Cir. 1999). Plaintiff also identifies as adverse employment actions the union representative's refusal to respond to Plaintiff's inquiries unrelated to her sexual harassment reports, including her questions regarding workers compensation and a split shift that Metro Transit forced her to take. After the union representative was specifically instructed to direct all communication through the respective attorneys, the union representative told Plaintiff that he could not speak to her directly and she should contact the union legal counsel. See Abramowicz Dep., at 21-28. Due to the circumstances of this litigation and a request from Plaintiff's counsel, the union legal counsel had advised union officials not to speak with Plaintiff directly and to have her attorney call the union attorney. Id. Nevertheless, the Local Union did not fail to represent Plaintiff's rights adequately. Plaintiff never asked the Local Union to file a grievance regarding workplace issues. A union has no obligation to take further action on a worker's behalf if she has not specifically asked the union to grieve the matter. See Flanigan v. Local 671, Int'l Bhd. of Teamsters, 942 F.2d 824, 829 (2d Cir. 1991); Mechmet v. Four Seasons Hotels, Ltd., 825 F.2d 1173, 1178 (7th Cir. 1987); Stelling v. Local 1547, Int'l Bhd. of Elec. Workers, 587 F.2d 1379, 1391 (9th Cir. 1978); Badlam v. Reynolds Metals Co., 46 F. Supp.2d 187, 201 (N.D.N Y 1999). Plaintiff has not shown a materially significant disadvantage to her employment. Plaintiff also points to President Rossman's comment, "the EEO is on a witch hunt," which he made at the union meeting on June 22, 1999, as evidence of adverse employment action. It is not. The Local Union has a duty of fair representation to ensure due process for all its members during employer investigations of misconduct. Mindful of the union's duty and past experiences with the EEO's investigations, Rossman believed it was necessary to alert all union members that an investigation was proceeding and to advise them to be careful. Rossman Dep., at 72. When the EEO conducted an investigation into sexual harassment complaints in 1995, the Local Union felt its members were harassed and terrorized. See id. at 55-56, 59, 73-74; Sommers Dep., at 84-85. After the 1995 EEO investigation, some union members alleged that the EEO interviewed them and drafted statements purporting to constitute their answers, but the statements misrepresented the truth. Rossman Dep., at 56. Consistent with the union's duty to represent all its members, Rossman cautioned members to have union representation present when interviewed by the EEO and not to sign any summary statement prepared by the EEO. See Corwin Aff. Ex. J, K; Rossman Dep., at 76, 83; Sommers Dep., at 83. Rossman did not mention names or specific allegations involved in the EEO's investigation. The meeting minutes corroborate the context of Rossman's "witch hunt" comment. See Corwin Aff. Ex. J, K.
Plaintiff's counsel had requested that she be present for any communication union officials had with Plaintiff regarding the litigation. See Corwin Aff. Ex. H, I.
Rossman's comment does not demonstrate that Plaintiff suffered any material employment disadvantage. Neither Plaintiff's compensation nor her responsibilities were affected. That Plaintiff was unhappy with Rossman's comment does not make it an actionable adverse action. See Montandon, 116 F.3d at 359.
Finally, Plaintiff has set forth generalized insinuations of shunning by co-workers. Such allegations of ostracism by co-workers cannot be the foundation for a retaliation claim. See Scusa, 181 F.3d at 969; Manning v. Met. Life Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997) (holding that hostility, disrespect, or personal animus are insufficient to constitute a material employment disadvantage). Plaintiff argues that Minnesota law supports her contention that shunning by co-workers may constitute adverse employment action, citing Bradley v. Hubbard Broadcasting, Inc., 471 N.W.2d 670 (Minn.App. 1991). This simply was not the holding of the Bradley decision. The Minnesota Court of Appeals held that the evidence at trial supported the jury's finding of reprisal discrimination. Id. In contrast to the case at hand, Bradley suffered a demotion in job status, loss of a promotion, poor working conditions, and eventually, termination. Id. Here, Plaintiff has failed to demonstrate such adverse acts of reprisal.
IV. CONCLUSION
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS HEREBY ORDERED that the ATU's and the Local Union's Motion for Summary Judgment [Doc. No. 44] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.