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holding that a plaintiff's discrimination claim failed because she produced no "specific factual evidence" that her race or national origin was a motivating factor in her termination
Summary of this case from Pearson v. U.S. Bank Nat'l Ass'nOpinion
Civil No. 02-933 (MJD/JGL)
February 3, 2004
Cynthia Stange, for Plaintiff
Donald M. Lewis and Sandra L. Jezierski, Halleland, Lewis, Nilan, Sipkins Johnson, for Defendant
MEMORANDUM AND ORDER
I. Introduction
This matter is before the Court on Defendant's motion to strike and motion for summary judgment. The Court heard oral arguments on October 10, 2003. For the reasons that follow, the Court denies Defendant's motion to strike and grants Defendant's motion for summary judgment.
II. Background
Plaintiff Patricia Torlowei, a native of Nigeria, worked for Target Financial Services (TFS), a credit operation owned by Defendant Target Corporation ("Target"). TFS hired Torlowei on January 18, 1999. As a collector working for the Late Stage Collections Area of the TFS Collections Department, Torlowei contacted Target customers whose accounts were four to six months delinquent and attempted to negotiate payment agreements with them. The collector's goal is to obtain a promise to pay ("PTP") from the customer for the amount that is past due on the customer's account. A collector's job performance is measured by the number of accounts the collector handles, the number of PTPs secured, the number of dollars the collector retrieves from the customers, and the number of delinquent accounts for which PTPs are successfully realized. To legitimately claim a PTP, the collector must obtain three commitments from the customer: (1) a method of the promised payment, (2) an amount of the promised payment, and (3) a date of promised payment. When a collector enters an initial FTP, or modifies an existing PTP, that collector is credited with securing the PTP, unless and until the customer misses a payment or another collector modifies the arrangement on the system.
Although there are various ways in which a collector comes into contact with a customer, often TFS's computerized system calls customer accounts. Once the customer answers the phone, the system routes the telephone connection to an available collector. When the account is routed to the collector, the computer shows a screen with the customer's name, basic account information, and whether a PTP has already been secured. When a customer makes a PTP, the account is usually removed from the list used by the automatic dialer so that the number will not be called again, unless the customer fails to make a promised payment. Occasionally, however, before the call list has been updated, the dialer dials a customer from whom a PTP has already recently been secured.
Collectors are instructed not to change the FTP field unless a modification occurs. Collectors are only permitted to modify a FTP when the customer requests modification of (1) the date; (2) the amount; or (3) the method of payment from the previous arrangement. It is possible for a collector to take credit for an existing FTP without authorization by overriding the existing PTP without changing one of the three key factors. In order to do this, the collector must type the same information over the existing PTP information for at least one of the three key pieces of information, click PTP "OK," and then click account release "OK." The collector will then be credited for securing the PTP, even though it had been previously secured by another collector. The account history will reveal the unauthorized PTP because it would show the previous PTP and the later PTP, both with the same date, method, and manner of payment, but with different collectors identified as securing the PTP.
On October 23, 2001, the TFS dialer routed a call to Torlowei with a customer who had already provided a PTP earlier that day to Torlowei's co-worker, Jeanna Grieg. When the account appeared on Torlowei's computer screen, she noted that a PTP had already been secured earlier that same day. The customer became angry at receiving a second call that day. In exiting the account screen, Torlowei overrode Grieg's PTP. According to Torlowei, she highlighted the payment amount, "may have" re-entered the same dollar amount, and pressed OK. According to Torlowei, she took this action in order to prevent the dialer from calling the customer again. The computer thus recorded the PTP as belonging to Torlowei instead of to Grieg.
Grieg confronted Torlowei regarding the PTP, and then reported the incident to her supervisor, Robin Davis. Davis, who was also Torlowei's supervisor, confronted Torlowei regarding the wrongly credited PTP. Torlowei admitted that the PTP that had been credited to her should have been credited to Grieg, and stated, "Everybody does it." According to Torlowei, she also told Davis that someone had received credit for two of Torlowei's PTPs.
Davis reported the incident to Kris Moes, Senior Human Resources Representative for TFS. Moes investigated the incident, and spoke to Torlowei. According to Moes, Torlowei stated that she took the payment but that it happens all the time. Moes made the decision to terminate Torlowei for "gross misconduct" on the stated grounds that Torlowei had violated Target policy prohibiting falsification of company documents and prohibiting the input of false information into a customer credit report. TFS terminated Torlowei's employment on November 1, 2001.
In April 2002, Torlowei sued Target in state court for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Minnesota Human Rights Act, Minn. Stat. § 363.01 et seq. ("MHRA"), on the grounds that Target discriminated against her based on her race or national origin. The case was then removed to this Court. Target now moves to strike or alternatively disregard the affidavit of Tanisha Stringer, and for summary judgment on all claims.
III. DISCUSSION
A. Target's Motion To Strike Stringer Affidavit
Torlowei served the affidavit of Tanisha Stringer in opposition to Target's motion for summary judgment one week after Target served its reply brief. Target argues that it was harmed by this late submission because it did not have an opportunity to reply to the late affidavit.
Under Federal Rule of Civil Procedure 16, when a party fails to meet the deadlines for disclosure of evidence and the failure to meet the deadline was not harmless or substantially justified, the Court may sanction that party by excluding the evidence. Firefighters' Inst. for Racial Equality v. City of St. Louis, 220 F.3d 898, 902 (8th Cir. 2000). The Court has "wide discretion" when deciding whether to exclude or admit evidence. Bennett v. Hidden Valley Golf and Ski, Inc., 318 F.3d 868, 878 (8th Cir. 2003).
In this case, Target was able to address the Stringer affidavit in its memorandum in support of its motion to strike. Additionally, at oral argument, Target declined any additional opportunity to respond to the Stringer affidavit. Because Target had the opportunity to respond to the Stringer affidavit in its memorandum in support of its motion to strike, and did not desire any additional opportunity to respond to the affidavit, the Court concludes that Torlowei's delay in submitting the affidavit was harmless. Thus, Target's motion to strike is denied.
B. Standard for Summary Judgment
Summary judgment is appropriate if, viewing all facts in the light most 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). The Court must view "the evidence and the inferences which may be reasonably drawn from the evidence in the light most favorable to the nonmoving party." Enter. Bank v. Magna Bank of Mo., 92 F.3d 743, 747 (8th Cir. 1996). The party seeking summary judgment bears the burden of showing that there is no disputed issue of material fact. Celotex, 477 U.S. at 323. The party opposing summary judgment may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial.Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designated 'to secure the just, speedy, and inexpensive determination of every action.'" Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
C. Standards Governing Torlowei's Claims
1. Standard Governing Torlowei's Title VII Claim
Under Title VII, it is unlawful for an employer "to discharge any individual . . . because of such individual's race . . . or national origin." 42 U.S.C. § 2000e-2(a)(1). Traditionally, in Title VII cases in which the plaintiff had no direct evidence of discrimination, as in this case, courts have analyzed the Plaintiff's claim under theMcDonnell Douglas burden-shifting analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1156 (8th Cir. 1999). Under the McDonnell Douglas analysis, the plaintiff must first establish a prima facie case of discrimination.Breeding, 164 F.3d at 1156. In order to establish a prima facie case of discrimination, the plaintiff must show "(1) that she was within the protected class; (2) that she was qualified to perform her job; (3) that she suffered an adverse employment action; and (4) that nonmembers of her class . . . were not treated the same." Id. The burden then shifts to the employer to demonstrate a legitimate, nondiscriminatory reason for terminating the Plaintiff's employment.Id. If the employer articulates such a reason, the plaintiff must then demonstrate that the employer's stated reason is pretextual, and that the real reason for the employer's action was unlawful discrimination. Id. at 1157.
The Supreme Court has recently clarified that, absent a statutory mandate, courts should not differentiate between circumstantial and direct evidence in discrimination cases. Desert Palace. Inc. v. Costa. 539 U.S. —, 123 S.Ct. 2148, 2154 (2003). InDesert Palace, the Supreme Court held that a Title VII plaintiff was entitled to a mixed-motive jury instruction if she presented direct or circumstantial evidence of discrimination.Id. at 2155. The Desert Palace decision is based on the Supreme Court's reasoning that courts have always treated circumstantial and direct evidence alike in civil, and even criminal, cases. Id. at 2154. The Court reasoned that there was no basis for weighing direct evidence more heavily than circumstantial evidence in Title VII cases, absent a statutory command.
Under a mixed-motive analysis, the employee does not bear the burden of proving that the employer's legitimate non-discriminatory reason for taking an adverse employment action is pretextual. Instead, the employee merely needs to show that, even if the employer's non-discriminatory reason is true, the employee's characteristic was also a motivating factor in the employer's decision. Cram v. Lamson Sessions Co., 49 F.3d 466, 471 (8th Cir. 1995). If the employee succeeds in meeting her burden, the burden then shifts to the employer to show that, but for the employee's protected characteristic, it would have taken the same employment action. Id.
Thus, if the employee fails to prove that the employer's reason is pretextual, she may still survive summary judgment if she has offered enough evidence to raise a genuine issue of material fact as to whether her protected characteristic was, at least, a motivating factor in the employer's decision. The question becomes one of mixed motive, regardless of whether the employee's evidence of discrimination is direct or circumstantial. Even if the employer's non-discriminatory reason is true — it is not pretext — the employee's claim can survive if she has presented sufficient evidence to raise a genuine issue of material fact as to whether her protected characteristic was, at least, a motivating factor in the employer's decision. See Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa. Inc., 285 F. Supp.2d 1180, 1198-99 (N.D. Iowa 2003).
Thus, under Title VII, Torlowei does not bear the burden of establishing that Target's legitimate, non-discriminatory reason for terminating Torlowei was pretext. Rather, Torlowei must present sufficient evidence to raise a genuine issue of material fact as to whether Target's reason was a pretext for discrimination, or whether, even if Target's reason is true, Torlowei's protected characteristic was another motivating factor.
2. Standard Governing Torlowei's MHRA Claim
Because the Minnesota Supreme Court has rejected application of the mixed-motive analysis to discrimination claims under the MHRA, discrimination claims under the MHRA are analyzed under the traditionalMcDonnell Douglas analysis. See Erickson v. Farmland Indus., Inc., 271 F.3d 718, 724 n. 2 (8th Cir. 2001); Dare v. Wal-Mart Stores. Inc., 267 F. Supp.2d 987, 992-93 (D. Minn. 2003);Anderson v. Hunter. Keith, Marshall Co., 417 N.W.2d 619, 626-27 (Minn. 1988). The Desert Palace decision has not been adopted by the Minnesota Supreme Court, and does not alter the analysis under the MHRA. Thus, Torlowei's MHRA claim must be analyzed under the traditional McDonnell Douglas framework.
D. Torlowei's Prima Facie Case
As explained earlier in the opinion, in order to establish a prima facie case of discrimination under the MHRA or Title VII, Torlowei must show "(1) that she was within the protected class; (2) that she was qualified to perform her job; (3) that she suffered an adverse employment action; and (4) that nonmembers of her class . . . were not treated the same." Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1156 (8th Cir. 1999). Target does not dispute that Torlowei is a member of a protected class based on national origin and race: Torlowei is a black woman who was born in Nigeria. Target does not dispute that Torlowei was qualified for her position, or that she suffered an adverse employment action. Target contends, however, that Torlowei cannot establish the fourth prong of her prima facie case: she was treated differently than similarly situated employees who were not within the protected class.
Torlowei argues that she has demonstrated that nonmembers of the protected class were not subject to adverse employment actions for taking PTPs. First, Torlowei argues that the taking of PTPs was a common occurrence. Torlowei claims that at least two of her PTPs had been credited to other coworkers, but that she did not complain about the PTPs to her supervisor until she was facing discipline because it was a common occurrence. Torlowei does not state whether the collectors who took her PTPs were members of her protected class. Torlowei also relies on affidavits of multiple coworkers stating generally that the taking of PTPs was common, and that they did not know of any disciplinary action taken against the collectors who took credit for the PTPs. Again, however, Torlowei presents no information regarding whether the collectors who took credit for the PTPs were members of Torlowei's protected class, or whether they were similarly situated to Torlowei. Thus, this evidence fails to show that nonmembers of her class were treated differently than she was.
Torlowei's former worker, Jeanna Grieg, stated that three early stage collection agents had entered PTPs into the system for customers who the collectors had not spoken to and that she "heard they were written up, but not terminated." Grieg does not indicate whether any of the collectors involved in these incidents were members of Torlowei's protected class or not. Additionally, Torlowei fails to explain whether early stage collection agents are similarly situated to late stage collection agents, whether the situations regarding the alleged falsifications were similar, and who made the decision to discipline those agents. In fact, from Grieg's affidavit, it appears that the three early stage collectors were not accused of taking PTPs that should have been credited to another collector, but instead of creating PTPs that did not exist at all.
Finally, Torlowei argues that TFS employee David Ault committed a similar infraction and was not terminated. Torlowei asserts that Ault is a white male collector who took a coworker's PTP in early November 2001, after Torlowei had been terminated. In her deposition, Torlowei asserts that coworkers told her that another coworker, Jayme Turner, stated that Ault took credit for her PTP. Torlowei's assertions of what coworkers told her that Turner said regarding Ault's actions are inadmissible hearsay. Torlowei also presents the affidavit of Tanisha Stringer regarding the Ault incident. Stringer states, "I was present when Jayme complained to her supervisor that David Ault had taken one of her PTPs. Jayme showed me the printout. David Ault was still employed at Target when I left employment at Target." Stringer's statement regarding what Jayme said to her unnamed supervisor is inadmissible hearsay, and thus is insufficient to show that Ault took the PTP and does not defeat Target's motion for summary judgment. Cronquist v. City of Minneapolis, 237 F.3d 920, 927 (8th Cir. 2001); Elayaperumal v. Medtronic. Inc., No. Civ. 02-860, 2003 WL 21402602, at *6, n. 12 (D. Minn. June 17, 2003) ("The Court will not, however, credit assertions made by [the plaintiff] about what co-workers felt, said, or believed, or about what such person might say if called to testify. Such assertions are not admissible evidence.") (citing Fed.R.Evid. 602, 802). Torlowei also submits a printout of a computer screen that allegedly shows that Ault took the payment, but does not explain how the document, which does not appear to mention Ault or that there was more than one FTP, supports that claim. Additionally, Torlowei presents no evidence regarding the circumstances surrounding Ault's alleged falsification, whether he admitted that he falsified the PTP, whether Target investigated Turner's allegations, the results of the investigation, whether Ault was disciplined, and who was responsible for disciplining Ault for the alleged falsification. The evidence in the Stringer affidavit is insufficient to show that Ault was similarly situated to Torlowei.
Torlowei is unable to present admissible evidence showing that nonmembers of her class were treated differently than she was. Thus, Torlowei has not met the fourth prong of the prima facie test. See Clearwater v. Ind. Sch. Dist. No. 166, 231 F.3d 1122, 1127 (8th Cir. 2000) (holding that plaintiff failed to establish fourth prong of prima facie case when she presented only "unsubstantiated allegations" that white coworkers "were equally as failing" as plaintiff). Even assuming that Torlowei had established a prima facie case, Target would still be entitled to summary judgment. Target has proffered a legitimate nondiscriminatory reason for her termination and Torlowei has not established pretext, under the MHRA, nor has she presented sufficient evidence to raise a genuine issue of material fact as to whether her protected characteristic was, at least, a motivating factor in the employer's decision, under Title VII.
E. Target's Legitimate Business Reason
Assuming Torlowei had met her burden of establishing a prima facie case, Target must produce a legitimate, nondiscriminatory reason for terminating Torlowei's employment. Target meets its burden by claiming that Torlowei violated Target policy by taking credit for her coworker's PTP. Target argues that Torlowei admitted to both her supervisor, Davis, and to Moes that she received credit for a PTP initiated by another collector. Torlowei admits that, when confronted by her supervisor, she justified her conduct by stating, "Everybody does it."
Even if Torlowei did not admit that she took credit for Grieg's PTP, Target's computer records demonstrate that a PTP was entered at 1:51p.m. on October 23, 2001, for a $50.00 store payment to be paid on October 24, 2001, with Grieg as the collector. The records then show an identical second PTP, entered at 10:03 p.m. on October 23, 2001, with a $50.00 store payment to be paid on October 24, 2001, with Torlowei noted as the collector. Target asserts that Torlowei's decision to take credit for Grieg's PTP was conscious because Torlowei had to complete more then one step in order to receive credit for the PTP: Torlowei had to re-enter at least one of the PTP terms, click PTP "OK," and then click account release "OK." Target argues that the correct way to exit the screen, without receiving credit for the PTP, would be to (1) reconfirm the PTP with the customer; (2) place a brief note regarding the conversation in the file; (3) under the heading "Account Maintenance," click "Confirm PTP" or "Account Maintenance;" and (4) click the account release "OK" button. Alternatively, a collector could press "Clear," "Reset," "Confirm PTP," and account release "OK."
Finally, Target notes that its policy, contained in the handbook received by Torlowei, prohibited "stealing or being dishonest" or "[i]nputting information that you know is wrong." Target has met its burden by articulating a legitimate, nondiscriminatory reason for terminating Torlowei's employment.
F. Third Step of Burden Shifting Analysis
Because Target has articulated a legitimate, nondiscriminatory reason for terminating Torlowei's employment, under the MHRA, Torlowei now bears the burden of showing that Target's reason was pretextual and of creating a reasonable inference that Target's decision to terminate Torlowei was motivated by her race or national origin. Under Title VII, Torlowei must present sufficient evidence to raise a genuine issue of material fact as to whether her protected characteristic was a motivating factor in Target's decision to terminate her employment. While "the issue is not whether the reason articulated by the employer warranted the [action], but whether the employer acted for a nondiscriminatory reason,"Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 292 (8th Cir. 1982), "[i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 134 (2000).
1. Evidence of Pretext
Torlowei presents a number of arguments why Target's explanation should be found to be pretext. She argues that she received insufficient training, that Target failed to design its system to prevent calls to customers who had already given PTPs, that other coworkers took PTPs and were not terminated, and that Target's discipline was overly harsh. The Court will address each argument in turn.
a. Lack of Training
Torlowei asserts that she did not receive training on what to do when the computer program dialed a customer who had already given a PTP earlier that day, or that if she did receive instruction on that subject, it was only during "the first onslaught of training." She relies on the affidavits of other TFS employees who state that they were not familiar with the account maintenance button. However, Torlowei admits that she received training regarding the proper procedure for noting a failure to obtain a PTP, and for documenting a hang-up by a guest, or a request by the guest to stop calling. She admits that she knew that she could enter information in the 'Account Outcome' field without altering a pre-existing PTP. Torlowei admits that she knew that TFS policy prohibited collectors from modifying an existing PTP unless the customer requested that the collector change the date, method, or amount of payment. She also acknowledged receiving the Target handbook that stated that employees could lose their jobs for "stealing or being dishonest" or for "[i]nputting information that you know is wrong."
Torlowei also argues that Target did not clearly communicate its policy on not taking PTPs, and did not use graduated steps of discipline. However, even if Torlowei thought that Target's "approach was inappropriate and that more direction would have been preferable, an employer's failure to inform an employee of what is expected of her is not evidence of discriminatory animus." Rose-Matson v. MNE Hosps., Inc., 133 F.3d 1104, 1108 (8th Cir. 1998). Title VII does not prohibit employment decisions based on unsound business practices.Id. at 1109.
b. Design of the Target System
Torlowei also alleges that Target's electronic collection system manipulated Torlowei by setting her up to fail: it was the TFS automatic dialer that called a customer who had already provided a PTP earlier in the day. Torlowei notes a number of ways that Target could address the issue of wrongly credited PTPs other than by terminating her, such as by modifying the automatic dialer or requiring supervisors to review printouts of all customers who had been contacted multiple times in one day. If Target wanted to prevent its agents from changing the PTPs, Torlowei argues that it could have changed the program to preclude any agent from re-keying an entry amount.
The fact that Target could have taken other steps to prevent Torlowei from taking credit for Grieg's PTP does not suffice as evidence that Target was motivated by unlawful discrimination when it terminated her employment. Target's decision to terminate Torlowei may have been unfair, and its dialing system may have been inefficient, but those facts are insufficient to show that Target's decision was motivated by Torlowei's race or national origin. See, e.g., Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995) ("[T]he employment-discrimination laws have not vested in the federal courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination.").
c. Target's Treatment of Other Collectors Who Took PTPs
Torlowei argues that similarly situated individuals were treated differently than she was. In order to show pretext, Torlowei must show "that [s]he and the white employees to whom [s]he is comparing h[er] situation were similarly situated in all relevant respects, including showing that the other employees' offenses were the same or of comparable seriousness." Williams v. Saint Luke's — Shawnee Mission Heath Sys., Inc., 276 F.3d 1057, 1060 (8th Cir. 2002) (citations omitted). The test to determine whether other collectors were similarly situated is "rigorous."Cronquist v. City of Minneapolis, 237 F.3d 920, 928 (8th Cir. 2001).
Torlowei relies on the general statements in the affidavits of former coworkers that other collectors were treated differently for similar infractions. However, as noted earlier in the opinion, Torlowei offers no evidence regarding the race or national origin of the other similarly situated coworkers, or the relevant circumstances surrounding the other incidents. Thus, Torlowei fails to meet the "rigorous" test of showing that the other collectors were similarly situated.
Torlowei also argues that David Ault was treated differently than she was. However, as explained earlier in this opinion, Torlowei has provided insufficient evidence to show that Ault was similarly situated to Torlowei. The Court notes that it is Torlowei's "burden to produce specific, tangible evidence showing a disparity in the treatment of similarly situated employees." Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1109 n. 4 (8th Cir. 1998).
d. Harshness of Discipline
Torlowei argues that Target concluded that she had "intentionally stolen" the PTP without providing any convincing evidence. As noted in section III(E), Torlowei does not dispute that she incorrectly received credit for Grieg's PTP, and the computer records corroborate that version of events. Torlowei does not dispute that in order to receive credit for Grieg's PTP she had to enter re-enter one of the three main pieces of information regarding Grieg's FTP (method, amount, or timing of payment), click PTP "OK," and then click a second "OK" to exit the account.
Torlowei argues that although she did incorrectly receive credit for Grieg's PTP, she did so in order to remove the guest from the dialer list or because she lacked adequate training. She also notes that she had consistently received "excellent" review, and thus, had no need to steal the PTP. Target disputes that Torlowei's past reviews were uniformly positive, but more importantly, the fact that Torlowei had a history of positive evaluations is insufficient to defeat Target's motion for summary judgment. Rose-Matson, 133 F.3d at 1109. Additionally, in order to survive summary judgment, it is not enough for Torlowei to raise an issue of material fact regarding whether she intended to steal the PTP. Rather, Torlowei must raise the possibility that Target was not actually motivated to terminate her employment due to its belief that Torlowei had stolen the PTP. The Court notes that "[e]ven if [Target] was wrong or even unfair in its conclusion that [Torlowei] engaged in the behaviors she was accused of, that is not proof that [Target's] reason for terminating her employment was pretextual. [Torlowei] cannot establish pretext simply by disputing, justifying or explaining her conduct." Erenberg v. Methodist Hospital, 240 F. Supp.2d 1022, 1033-34 (D. Minn. 2003) (citations omitted).
Finally, Torlowei herself notes that she "can only speculate why Plaintiff's supervisor treated her differently than she treated other similarly situated coworkers." Plaintiff's Memorandum in Response to Defendant's Motion for Summary Judgment at 11-12. Mere speculation is not sufficient to survive summary judgment. Putman v. Unity Health Sys., 348 F.3d 732, 733-34 (8th Cir. 2003) ("To survive a motion for summary judgment, the nonmoving party must 'substantiate [her] allegations with sufficient probative evidence [that] would permit a finding in [her] favor based on more than mere speculation, conjecture, or fantasy.'") (citations omitted).
Torlowei must at least show some evidence, direct or circumstantial, that tends to show that race or national origin was a motivating factor in Target's decision to terminate her employment. Torlowei has failed to meet this burden. Thus, under the MHRA, Torlowei fails to show that Target's proffered reason for terminating her employment was pretextual. Target's motion for summary judgment on Torlowei's MHRA claim is granted.
2. Title VII Claim
For the same reasons that Torlowei has failed to show pretext, she has failed to raise a genuine issue of material fact regarding whether her protected characteristic was, at least, a motivating factor in Target's decision to terminate her employment. Torlowei cannot show specific evidence of disparate treatment of similarly situated employees who are nonmembers of the protected classes. She produces no specific factual evidence that race or national origin was a motivating factor in Target's decision to terminate her employment. Thus, Target's motion for summary judgment on Torlowei's Title VII claim is granted.
IV. CONCLUSION
Based upon the files, records, and proceedings herein, IT IS HEREBY ORDERED that
1) Defendant's Motion to Strike or Alternatively Disregard Stringer Affidavit [Docket No. 30] is DENIED; and
2) Defendant's Motion for Summary Judgment [Docket No. 13] is GRANTED.