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striking two letters in opposition to summary judgment, the first because the letter was unsigned and there was no evidence authenticating it, and the second as inadmissible hearsay
Summary of this case from Anchor Wall Systems, Inc. v. Rockwood Retaining Walls, Inc.Opinion
Civ. No. 02-4260 (JNE/JGL)
January 5, 2004
Michael John Dougherty, Esq., appeared for Plaintiff Peter Townsend
Julie Fleming-Wolfe, Esq., appeared for Defendants American Express Financial Corporation, American Express Financial Advisors, Inc., and Nick Hermes
ORDER
Peter Townsend brought this action in state court against his former employers, American Express Financial Advisors and American Express Financial Corporation (collectively, AEFA), and his former supervisor, Nick Hermes, asserting claims of race discrimination and retaliation in violation of federal and state laws. Townsend also alleges claims of sexual orientation discrimination, negligent retention, and negligent supervision. AEFA and Hermes (collectively, Defendants) removed the case to this Court and now move for summary judgment. For the reasons set forth below, the Court grants the motion in part.
Also before the Court is a motion by Plaintiff to strike Defendants' reply brief for exceeding the 35-page limitation imposed by D. Minn. R. 7.1(c). The Court denies this motion and grants Defendants permission to exceed the limitation.
I. BACKGROUND
On March 1, 1999, AEFA hired Townsend, an African-American, homosexual male, for a staff associate position in its Service Establishment Department (service establishment). Service establishment operated as the supply center for AEFA product distribution. As a staff associate, Townsend's responsibilities included receiving orders, filling the orders from AEFA's Minnesota warehouse, and directing the shipment of those orders to customers across the country.
In January 2000, AEFA hired Hermes to create a Customer Service Department (customer service) and gave him a work cubicle near Townsend. According to Towns end, he and Hermes had problems from the beginning. For example, Townsend asserts that Hermes said that he "had worked with black people before and had some black friends," that Hermes tried to tell him a joke about the entertainer, Ru Paul, and that Hermes commented, "well, Townsend, I can't outrun you, I guess I'll have to kick your ass." Hermes disputes much of these allegations.
On April 13, 2000, Townsend told his supervisor, Tom Evans, about Hermes' behavior. Evans contacted Hermes and Hermes' supervisor, Jack Sudyk, to discuss Townsend's concerns. As a result of the meeting, Hermes attended AEFA's Valuing Diversity Workshop. In the year following Townsend's report to Evans, Townsend and Hermes had very little interaction.
Between April 2000 and April 2001, AEFA redesigned their product distribution system. Customer service created and controlled the new system, effectively eliminating service establishment. Product distribution shifted from the Minnesota warehouse to five hubs spread across the country. To control distribution, AEFA developed a new computer system that enabled customer service representatives to use their computers to track and redirect orders between hubs and customers.
Coextensive with the dismantling of service establishment, AEFA transferred Townsend into customer service where his job responsibilities shifted to accommodate the new distribution process. Instead of physically filling orders and directing shipping, Townsend now facilitated the fulfillment of orders from the hubs to customers via computer. Townsend's management structure also changed to include Hermes as his ultimate supervisor and a Lead Service Associate directing his work assignments.
Shortly after his transfer, Townsend experienced behavioral problems. On May 3, 2001, a co-worker overheard Townsend make an offensive remark to another employee and lodged a formal complaint against Townsend with Hermes. Townsend admitted making the remark, and Hermes gave him a verbal warning. Later that month, Maria Defrank, a hub manager, phoned Townsend to review a computer error he had made on a customer's order. During the phone call, Townsend's angry outbursts disrupted the office. He ended the conversation by stating "good-bye and good riddance." Jerry Weidner, an AEFA manager, escorted Townsend outside to calm him down. Based on this incident and other performance problems, Townsend received a written warning that required him to conduct himself professionally and refrain from swearing in the office. The warning advised Townsend that he would be terminated if his problems continued. AEFA also assigned Townsend a coach to help him with his performance issues and established periodic meetings to monitor Townsend's performance. Townsend continued to experience difficulties interacting with customers and co-workers and performing computer applications. AEFA terminated Townsend on August 8, 2001.
II. DISCUSSION
Summary judgment is proper "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." Fed.R.Civ.P. 56(c). The moving party "bears the initial responsibility of informing the district court of the basis for its motion," and must identify "those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, Rule 56(e) requires the nonmoving party to respond by submitting evidentiary materials that designate "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A. Race discrimination claims
Defendants contend that they are entitled to summary judgment on Townsend's claims of race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (2000), and under the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363.03 subd. 1(2)(b) (2002). The parties agree that the three-step burden-shifting analysis set forth in McDonnell Douglas, Corp. v. Green, 411 U.S. 792 (1973), governs the Title VII and MHRA claims. The first step in the McDonnell Douglas analysis is for the plaintiff to demonstrate a prima facie case of discrimination. Id. at 802. If the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to provide a legitimate, nondiscriminatory reason for the adverse employment action. Id. If the defendant meets this burden, the final step is for the plaintiff to show that the proffered nondiscriminatory reason is pretextual. Id. at 804-05.
To establish a prima facie case of racial discrimination under Title VII and the MHRA, Townsend must show that: (1) he belongs to a protected class; (2) he was qualified for the job from which he was discharged; (3) he was discharged; and (4) the employer sought people with his qualifications to fill the job. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Mclntire v. State, 458 N.W.2d 714, 719 (Minn.Ct.App. 1990). Defendants assert that they are entitled to summary judgment because Townsend was not qualified for the job from which he was discharged. "The standard for assessing [whether a plaintiff's performance demonstrates that he is qualified for a job] is not that of the ideal employee, but rather what the employer could legitimately expect. The fact that an employee meets some expectations, however, does not mean that [he] meets the standard if [he] does not meet other significant expectations." Calder v. TCI Cablevision of Mo., Inc., 298 F.3d 723, 729 (8th Cir. 2002) (internal quotations omitted).
According to Defendants, Townsend's performance in customer service position did not satisfy AEFA's legitimate expectations that its customer service representatives behave professionally and competently use the computer system to fill customers' product needs.
Defendants assert that Townsend behaved unprofessionally after his transfer into customer service. For example, Townsend's altercation with Defrank, which Townsend admits was inappropriate behavior, disrupted the office. On another occasion, an employee sought advice from another customer service associate after Townsend refused to answer her questions and replied with an email that stated, "I have given you everything I had." The employee's questions were based on inaccurate information Townsend had previously provided. In a third instance, after a customer used the wrong order form, Townsend emailed her that "This was laziness, in it's [sic] purist [sic] form, and what happened to [the correct order form] anyway? . . . I'll enter them anyway but won't do it this way again." The last two episodes occurred while Townsend was under his written warning.
Defendants also contend that Townsend's performance problems with the computer system failed to meet their legitimate expectations. Townsend's failure to acknowledge pop-up windows on the new system led to customers being told incorrectly that orders could not be filled or to duplicate orders being sent. Townsend was given the opportunity to utilize one-on-one training to improve his skills; however, he failed to take advantage of this training while under his written warning.
Notwithstanding his behavioral and computer issues, Townsend asserts that he was qualified for the customer service position. In support, Townsend relies on two categories of evidence. First, Townsend offers six letters from co-workers and an email from a former supervisor. Three of the six letters are from employees who were not employed by AEFA during or after April 2001 when Townsend transferred to customer service. The fourth letter was from an employee of a different department. Accordingly, the four letters are irrelevant to the issue of Townsend's qualifications for his position in customer service. See Mole v. Buckhom Rubber Prods., 165 F.3d 1212, 1218 (8th Cir. 1999) (supporting affidavits from co-workers who did not interact with plaintiff on a continuous basis are insufficient to show plaintiff's discharge was not for failure to meet employer's legitimate expectations).
Defendants contend that the Court should not consider the remaining two letters because they do not comply with Fed.R.Civ.Proc. 56(e), which provides in relevant part: "[A]ffidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." See Stuart v. Gen. Motors Corp., 217 F.3d 621, 635 n. 20 (8th Cir. 2000) (stating that documents that fail to comply with Rule 56(e) cannot be considered in deciding motion for summary judgment). The first letter purports to be an affidavit from Andrea Jones. Jones did not sign the affidavit, and there is no evidence authenticating it. Consequently, the Court will not consider it. The same conclusion is warranted with regard to the other letter which purports to be from Jennifer K. Genovese. Townsend submitted the unsigned letter as part of his own affidavit and offers Genovese's statements for the truth of the matters asserted. Accordingly, the letter is inadmissible hearsay. See Fed.R.Evid. 801. The Court therefore declines to consider Genovese's letter.
Townsend also offers an email from his former supervisor, Evans. Evans positively reviews Townsend's performance in service establishment but does not address Townsend's qualifications as a customer service associate. Indeed, Evans had retired by the time Townsend transferred to customer service. Thus, the email is not applicable to the present inquiry. See Calder, 298 F.3d at 729 (stating that an employee's "positive reviews under the prior management are not probative of [an employee's] performance under the new management"). In sum, the letters and email submitted by Townsend to the Court are either inapposite or inadmissible.
The second category of evidence upon which Townsend relies to establish that he was qualified for the position in customer service is performance-related awards he received while working in service establishment. The awards illustrate his capacity to fill and ship orders in a timely and competent fashion. These skills, however, were no longer essential elements of Townsend's customer service position. As discussed above, his ability to process via the computer and solve problems over the phone, rather than physically preparing and managing an order, are the skills at issue in this case. Because the awards relate solely to his job in service establishment, they are not relevant to whether he was qualified for his position in customer service.
In sum, the Court concludes that Townsend was not qualified for his position in customer service because his job performance failed to meet his employer's legitimate expectations, both in behaving professionally and competently using the computer. See Richmond v. Bd. of Regents of the Univ. of Minn., 957 F.2d 595, 598 (8th Cir. 1992) (finding plaintiff not qualified when her performance was unsatisfactory for over a year, she ignored progressive warnings and discipline, and her performance did not improve). Accordingly, Townsend has failed to establish his prima facie case of race discrimination.
Even if Townsend had established his prima facie case of race discrimination, he concedes that Defendants offer legitimate nondiscriminatory reasons for discharging him-namely his behavioral problems in customer service. Under McDonnell Douglas, after the employer puts forth a legitimate nondiscriminatory reason for discharge, the employee must present evidence that the proffered reason is pretextual. 411 U.S. at 804. To show pretext, a plaintiff must show that a discriminatory animus lies behind the defendant's nondiscriminatory explanation for discharge. Wilking v. County of Ramsey, 153 F.3d 869, 874 (8th Cir. 1996). "Specifically, the plaintiff must do more than simply create a factual dispute as to the issue of pretext; he must offer sufficient evidence for a reasonable trier of fact to infer discrimination." Id. (internal quotations omitted).
Townsend relies on a statement overheard by Maureen Sigg, an AEFA employee, in March 2001 to demonstrate that Defendants' proffered reason for discharge is pretextual. According to Sigg, she overheard Hermes say to Weidner, "I am not kissing that fag's ass." Sigg believes this statement referred to Townsend. This statement, however, does not demonstrate Hermes' alleged racially discriminatory animus. Townsend also relies on statements overheard by Genovese. Again, the Court cannot consider Genovese's letter. In sum, because Townsend failed to establish a prima facie case of race discrimination and presented no competent evidence to infer that Defendants' proffered reason for discharge is pretextual, Defendants are entitled to summary judgment on Townsend's claims of race discrimination.
B. Retaliation claims
Defendants also assert they are entitled to summary judgment on Townsend's retaliation claim under Title VII, 42 U.S.C. § 2000e-3(a), and reprisal claim under the MHRA, Minn. Stat. § 363.03 subd. 7. Both claims are analyzed under McDonnell Douglas. See Scott v. County of Ramsey, 180 F.3d 913, 917 (8th Cir. 1999); Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999). To establish his prima facie case of retaliation, Townsend must show that: (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) the adverse action was causally connected to the protected activity. See Feltmann v. Seiben, 108 F.3d 970, 976-77 (8th Cir. 1997); Fletcher, 589 N.W.2d at 102.
Defendants do not dispute Townsend's contentions that his complaint regarding Hermes in April 2000 constitutes protected activity and that his discharge in August 2001 is an adverse employment action. They do assert, however, that Townsend fails to establish a causal connection between the two. A causal connection is established by "a showing that an employer's retaliatory motive played a part in the adverse employment action." Kipp v. Mo. Highway Transp. Comm'n, 280 F.3d 893, 897 (8th Cir. 2001). "Evidence that gives rise to an inference of a retaliatory motive on the part of the employer is sufficient to establish a causal link." Id.
Townsend asserts that "temporal proximity is instructive here because the timing of when Hermes began building a file against [Townsend] for his performance and behavioral issues was immediately upon [Townsend's] transfer to [Hermes'] department." Townsend acknowledges that this allegation may not establish the causal connection on its own but urges the Court to consider the timing in conjunction with the statement overheard by Sigg.
As a threshold matter, temporal proximity may demonstrate causal connection if the protected activity and the adverse employment action follow closely in time. See Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832-33 (8th Cir. 2002); Kuechle v. Life Companion P.C.A., Inc., 653 N.W.2d 214, 221-22 (Minn.Ct.App. 2002). In the instant case, sixteen months separate the protected activity and the adverse action. A gap of that length is too long to create an inference of retaliatory motive. See Krough v. Cessford Constr. Co., 336 F.3d 710, 712 (8th Cir. 2003); Kuechle, 653 N.W.2d at 221-22.
Additionally, the record does not support Townsend's intimation that Hermes manufactured complaints to build a file against Townsend. That Townsend received verbal and written warnings within three months of his transfer to customer service does not demonstrate that Hermes was papering Townsend's file. Townsend's allusion that Hermes manufactured the complaints is belied by Townsend's admissions that he engaged in much of the complained-of behavior. Moreover, the complaints that formed the basis of Townsend's warnings came from people other than Hermes. Without more, Townsend fails to create a causal connection. See Keil v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (finding plaintiffs "intervening unprotected conduct eroded any causal connection that was suggested by the temporal proximity of his protected conduct and his termination").
Finally, the record does not reveal any evidence that Hermes' alleged statement, "I'm not kissing that fag's ass," relates to Townsend's complaint about Hermes. Townsend asserts that, "a trier of fact could easily conclude that such words were uttered with contempt towards [Townsend] and that the source of the contempt was [Townsend's] complaint about [Hermes] to Tom Evans a year before." Townsend fails to direct the Court to facts that would support such a conclusion. Rather, the record reflects that AEFA and Hermes took Townsend's complaint seriously, that Hermes attended diversity training, and that Townsend testified that he was satisfied that his complaints regarding Hermes had been addressed. Accordingly, Townsend fails to establish that a retaliatory motive played a part in his discharge. See Krough, 336 F.3d at 712 (no causal connection where time difference between adverse action and protected activity was nine months, and employer had taken employee's complaint seriously and provided employee with report of findings based on employee's complaint); Feltman, 108 F.3d at 976-977 (supervisor's concern over complaint and employee's admission that her complaint was handled to her satisfaction were relevant to finding no causal connection).
In short, there is no evidence in the record of a causal connection between Townsend's complaint in April 2000 and his discharge in August 2001. Townsend therefore cannot satisfy his prima facie case of retaliation.
Even assuming that Townsend established a prima facie case of retaliation, his claims would still fall short under the McDonnell Douglas framework. Townsend concedes that Defendants had a legitimate nondiscriminatory reason for terminating him, and he does not offer any evidence to show that Defendants' reasons are actually pretext for retaliation. Accordingly, the Court grants Defendants' motion as to the retaliation claims.
C. Sexual orientation discrimination, negligent retention and negligent supervision claims
The sole basis for the Court's jurisdiction over Townsend's remaining state-law claims is 28 U.S.C. § 1367(a) (2000), which permits a district court to exercise supplemental jurisdiction over claims that are part of the same case or controversy as the claims that fall within the district court's original jurisdiction. A district court may, in its discretion, decline to exercise supplemental jurisdiction when `all claims over which it has original jurisdiction" have been dismissed. 28 U.S.C. § 1367(c)(3); see Franklin v. Zain, 152 F.3d 783, 786 (8th Cir. 1998) (holding district court did not abuse its discretion in declining to exercise supplemental jurisdiction over state-law claim pursuant to section 1367(c)(3)); Save Our Health Org. v. Recomp of Minn., Inc., 829 F. Supp. 288, 293 (D. Minn. 1993), aff'd, 37 F.3d 1334 (8th Cir. 1994) (declining to exercise supplemental jurisdiction over state law claims pursuant to section 1367(c)(3)). In this case, Defendants are entitled to summary judgment on all claims that fall within the Court's original jurisdiction. The Court declines to exercise its supplemental jurisdiction over Townsend's remaining state-law claims. The Court therefore remands to state court Townsend's claims for sexual orientation discrimination, negligent supervision, and negligent retention. See Lindsey v. Dillards, Inc., 306 F.3d 596, 599 (8th Cir. 2002).
III. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:
1. Townsend's Motion to Strike Defendants' Reply Memorandum [Docket No. 28] is DENIED.
2. Defendants' Motion for Summary Judgment [Docket No. 13] is GRANTED IN PART.
3. Count I and Count III of Townsend's Complaint are DISMISSED WITH PREJUDICE.
4. Count II and Count IV of Townsend's Complaint are REMANDED to the Minnesota District Court for the Fourth Judicial District.LET JUDGMENT BE ENTERED ACCORDINGLY.