Opinion
Civil No. 02-4335 ADM/AJB.
September 17, 2004
Larry E. Reed, Esq., Reed Law Offices, Minneapolis, MN, appeared for and on behalf of Plaintiff.
Alec J. Beck, Esq., Seaton, Beck, Peters, Bowen Feuss, P.A., Minneapolis, MN, appeared for and on behalf of Defendants.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On July 2, 2004, the undersigned United States District Judge heard oral argument on the Motion for Partial Summary Judgment [Docket No. 44] of Defendants Holiday Stationstores, Inc. ("Holiday"), Catherine Cushard, and Denny Ethen (collectively, "Defendants"). In his Complaint [Docket No. 1], George McLemore ("Plaintiff") sues Defendants on causes of action relating to alleged employment discrimination at Holiday. Plaintiff has moved for Summary Judgment on all counts of Plaintiff's Complaint, with the exception of Counts 2 and 6. These counts include claims for racially hostile work environment, discrimination based on race and gender, termination based on Plaintiff's opposition to discrimination, defamation, negligent supervision, training, and retention, and breach of contract. For the reasons set forth below, Defendants' Motion is granted. At oral argument, Plaintiff abandoned the defamation and breach of contract claims and agreed they may be dismissed with prejudice.
Defendants admit that factual issues exist as to Count 2, alleging sexual harassment. The facts relating to Count 2, therefore, will not be discussed herein. At a hearing before the Court on March 17, 2004, Plaintiff voluntarily dismissed Count 6, a claim for intentional infliction of emotional distress, with prejudice [Docket No. 37].
II. BACKGROUND
For purposes of the instant Motion, the facts are viewed in the light most favorable to Plaintiff, the nonmovant. See Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
Holiday owns and operates convenience stores in Minnesota. On or about October 18, 2001, Plaintiff was hired by Denny Ethen ("Ethen") to be an Assistant Store Manager for Holiday. McLemore Dep. at 86. Plaintiff was given an employee handbook which contained an Equal Opportunity and Non-discrimination Provision, along with procedures for raising complaints relating to illegal or inappropriate treatment. Barack Aff. Exs. 1, 2. Plaintiff was hired to work at a Holiday store located in Maplewood, Minnesota. McLemore Dep. at 97-98. However, Holiday requires all management-level employees to begin work at a different store than they will be assigned to learn Holiday's policies and procedures. Ethen Aff. ¶ 3. Plaintiff was assigned to the West St. Paul store for his acclimation period. Id.; McLemore Dep. at 97-98. While at the West St. Paul store, Plaintiff had an incident with at least one female employee. Ethen Aff. ¶ 4; McLemore Dep. at 101-02. As a result, Plaintiff was immediately moved to the Maplewood store. Id.
Plaintiff again had incidents with a female employee and a customer at the Maplewood store. Ethen Aff. ¶ 5; McLemore Dep. at 106. Ultimately, the manager of the Maplewood store requested that Plaintiff be removed from the store. Ethen Aff. ¶ 5. Following this request, Ethen and Jacque Bezek, Holiday's Human Resources Manager, met with Plaintiff at Holiday's offices to counsel him. Id. The meeting took place on November 15, 2001. Id. at 6. Plaintiff was counseled on appropriate behavior and was assigned to the Holiday store located on West 7th Street in St. Paul ("West 7th Store"). Id. Plaintiff's regularly scheduled hours were from 3:00 p.m. to 11:00 p.m., Wednesday through Sunday. Id. at 7.
While at the West 7th Store, problems again arose with Plaintiff's behavior, including physically escorting a customer from the store. Id. at 8. During the relevant time period, Catherine Cushard ("Cushard") managed the West 7th Store. During his time at the West 7th Store, a number of incidents occurred between Plaintiff and Cushard which forms the bases for Plaintiff's Complaint. First, on December 11, 2001, Plaintiff heard Cushard say "What's up, my niggah?" McLemore Dep. at 115-16. The line was a quote from the motion picture "Rush Hour."Id. On another occasion, Cushard asked Plaintiff whether rumors regarding the size of African American male genitalia were accurate. Cushard Dep. at 39, 42. Last, Cushard made statements to Plaintiff to the effect that she had never had relations with a black man. McLemore Dep. at 176-77.
During the week of December 31, 2001, Plaintiff was scheduled to work from Thursday, January 3, 2002, through Sunday, January 6, 2002. Ethen Aff. ¶ 9. On Wednesday, January 2, Plaintiff contacted Cushard at the West 7th Store and informed her that he was ill and might not be able to work on Thursday, January 3.Id. On Thursday morning, Plaintiff contacted the store and informed a Holiday employee that he would not be in that day.Id.
The following morning, Friday, January 4, Plaintiff stopped by the West 7th Store to pick up his paycheck. Id. ¶ 10. Plaintiff spoke with Cushard about how he was feeling. Id. At 2:45 p.m. on the same day, Plaintiff called the West 7th Store and spoke with Holiday employee Tiffany Smith ("Smith"). Id. Plaintiff stated he was having car trouble and was running about one half hour late. Id. Smith phoned this information to Cushard, who had left the West 7th Store for the day. Id. By 4:30 p.m., Plaintiff had not reported to work. Id. Dawn East, another Holiday employee, contacted Cushard to let her know she had now been working for ten straight hours. Id. Cushard attempted to reach Plaintiff on his cell phone multiple times, but was unable to contact him. Id.; McLemore Dep. at 151-52. Cushard returned to the West 7th Store to finish Plaintiff's shift. Ethen Aff. ¶ 10. Cushard also contacted Ethen twice on Friday to complain about Plaintiff's behavior. Id.
On Saturday morning, January 5, Plaintiff called Cushard and asked if he was fired. Cushard informed Plaintiff that he was suspended. McLemore Dep. at 193-94. Cushard later spoke with Ethen, who expressed the opinion that Plaintiff should be fired based on his attendance and performance issues. Ethen Aff. ¶ 11. Cushard then filled out and submitted termination paperwork, as she did not have the authority to terminate Plaintiff. Id. The termination was processed by Holiday's Human Resources Department, and Plaintiff was notified on January 10, 2002 of his termination. After the conservation between Cushard and Ethen regarding the termination of Plaintiff, but before Plaintiff was notified of his termination, Plaintiff submitted a complaint about Cushard on January 8, 2002. Id.
III. DISCUSSION
A. Summary Judgment StandardFederal 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 judgment as a matter of law." Fed.R.Civ.P. 56(c); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). The nonmoving party may not "rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial." Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
B. Title VII Framework
A number of Plaintiff's counts are based on alleged Title VII and Minnesota Human Rights Act ("MHRA") violations. Defendants argue that they are entitled to summary judgment because Plaintiff cannot establish a prima facie Title VII claim on his racial harassment, racial discrimination, and gender discrimination claims. In the alternative, Defendants argue the actions which constitute a prima facie Title VII case were all performed for legitimate purposes. Title VII provides that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he [the employee] has opposed any practice made unlawful by this subchapter. . . ." 42 U.S.C. § 2000e-3a. The burden shifting framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), applies to Plaintiff's Title VII claims.See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1134-36 (8th Cir. 1999) (applying framework to Title VII claim). Under this framework, the plaintiff employee must initially establish a prima facie case of discrimination. This showing creates a presumption that the employer acted unlawfully. See Kiel, 169 F.3d at 1134-35. The burden of production then shifts to the employer who must provide legitimate, non-discriminatory reasons for the adverse employment action. Id. If the defendant meets this requirement, the burden returns to the plaintiff to show that the employer's explanation is pretextual. Id.
The Minnesota Supreme Court has held that MHRA claims can be analyzed under Title VII principles. See Sigurdson v. Isanti County, 386 N.W.2d 715, 719 (Minn. 1986).
However, the plaintiff cannot necessarily avoid summary judgment at this stage by simply establishing a prima facie case and showing that the employer's purported justification is false. Summary judgment may still be warranted if the evidence reveals some other nondiscriminatory reason for the employer's action, or if the plaintiff creates only weak factual issues concerning pretext and additional, uncontroverted evidence shows that there was no discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148-49 (2000). Plaintiff retains the ultimate burden of persuasion in showing discrimination throughout this analysis. Id. at 143.
C. Racial Harassment Claim
To prove a claim of racial harassment, Plaintiff must prove the following elements: (1) he is a member of a protected group; (2) he was subject to unwelcome harassment; (3) there was a causal nexus between his membership in the protected group and the harassment; and (4) the harassment affected a term, condition, or privilege of employment. Mems v. City of St. Paul, 224 F.3d 735, 738 (8th Cir. 2000). To meet the fourth element of a racial harassment claim, Plaintiff must show that he was subjectively and objectively harassed. See Duncan v. General Motors Corp., 300 F.3d 928, 934 (8th Cir. 2002). Moreover, the threshold to demonstrate actionable harassment is high: Plaintiff must "show that `the workplace is permeated with discriminatory intimidation, ridicule, and insult.'" Id. (citation omitted). In determining the severity of the conduct at issue, the Court will look to "`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.'" Id. (citation omitted).
In the instant case, Defendants concede that Plaintiff may have been subjectively offended by the alleged comments made by Cushard. However, Defendants argue that Plaintiff has failed to make a prima facie showing on the fourth element of the count, claiming that the conduct alleged by Plaintiff is not sufficiently severe to alter a term or condition of his employment. No evidence is presented to suggest that the comments were physically threatening. Further, there is no evidence that Plaintiff was frequently harassed. Rather, Plaintiff alleges three incidents during his employment at Holiday in which Cushard made offensive comments to him. McLemore Dep. at 115-16, 176-77; Cushard Dep. at 39, 43; Exs. 7, 8. These remarks (the movie quote "what's up, my niggah?," a reference to the size of African American male genitalia, and a reference to the fact that Cushard had never had sexual relations with a black man), while clearly inappropriate, do not rise to the level of actionable harassment. Gilbert v. City of Little Rock, Ark., 722 F.2d 1390, 1394 (8th Cir. 1983) ("More than a few isolated incidents of harassment must have occurred to establish a violation of Title VII"). It cannot be objectively stated that the harassment at issue is severe enough to affect a term or condition of his employment.
In Jackson v. Flint Ink North American Corp., 370 F.3d 791, 795 (8th Cir. 2004), the Eighth Circuit found that six incidents of racial slurs over the course of a year and one half were not sufficiently severe to support a racial harassment claim. There, the Court noted that the objective component is not met unless there is a showing of a "steady barrage of opprobrious racial comment[s]." Id. at 794. The three incidents cited by Plaintiff do not rise to this level. Therefore, Plaintiff cannot prove an essential element of his case, and judgment on this count will be entered for Defendants.
D. Race and Gender Discrimination
To demonstrate a prima facie discrimination claim under Title VII and the MHRA, Plaintiff must prove the following elements: 1) he belonged to a protected class; 2) he was qualified to perform his job; 3) he suffered an adverse employment action; and 4) non-members of his class were treated differently. See Bredding v. Arthur J. Gallagher and Co., 164 F.3d 1151, 1156 (8th Cir. 1999). The fourth element of a discrimination claim has been described as requiring some "evidence that would give rise to an inference of unlawful discrimination." Putnam Search Term End v. Unity Health Sys., 348 F.3d 732, 735-36 (8th Cir. 2003);see also Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981).
Defendants argue that Plaintiff has failed to present a prima facie case of race or gender discrimination because he has not shown that he was qualified to perform his job, and that nonmembers of his class were treated differently. In short, Defendants argue that there is no evidence of improper motivation in terminating Plaintiff. Although the record reflects that Plaintiff had a number of incidents with other employees and customers while working at Holiday, it has not clearly established that Plaintiff was not qualified for his job. Therefore, this analysis will concentrate on the fourth element of this claim.
Defendants claim that Plaintiff has not introduced evidence that other Holiday employees in his situation were treated differently. Defendants specifically cite the fact that Plaintiff has not shown that other assistant managers with his employment history at Holiday were not terminated, regardless of their race or gender. Alternatively, Defendants argue that even if Plaintiff can demonstrate a prima facie claim of gender or race discrimination, they possessed legitimate reasons to terminate Plaintiff. Specifically, Defendants cite Plaintiff's incidents at work, as well as his attendance issues the week prior to his termination as reasons for terminating Plaintiff. Ethen Aff. 4-5, 6, 8-10.
Plaintiff does not directly refute these arguments, other than to state that sufficient evidence exists to avoid summary judgment on these issues. This, however, is insufficient to defeat Defendants' Motion, as Plaintiff has not offered any evidence to demonstrate that nonmembers of his class were treated differently. Nor has Plaintiff provided evidence to allow an inference of an improper purpose by Defendants in terminating Plaintiff. The three alleged racial comments are not sufficient to infer that Plaintiff was terminated because of his race or gender. As a result, judgment must be found for Defendants.
E. Whistleblower and Reprisal Claims
Plaintiff alleges separate counts of reprisal and violations of the Minnesota Whistleblower Law. Both of these claims are analyzed under the Title VII framework. Ring v. Sears, Roebuck and Co., 250 F.Supp.2d 1130, 1134 (D. Minn. 2003) (Minnesota Whistleblower Law violations analyzed under McDonnell Douglas framework); Smith v. DataCard, 9 F.Supp.2d 1067, 1080 (D. Minn. 1998) (MHRA reprisal claim analyzed under McDonnell Douglas framework). Proof of a causal connection between the employee's participation in a protected activity and an adverse employment action is required for reprisal claims. See Wiehoff v. GTE Directories Corp., 61 F.3d 588, 597-98 (8th Cir. 1995).
Defendants contend that Plaintiff's termination cannot be causally connected to his written complaints of discrimination because the decision to fire Plaintiff was initially made on Saturday, January 5. Plaintiff's complaint, however, was not received by Holiday until January 8. Plaintiff argues that he was not officially notified of his termination until January 10, and therefore, the termination could constitute reprisal for his complaint.
Although Plaintiff was not informed of his termination until January 10, the record clearly shows that the decision to terminate Plaintiff was made prior to January 8, when Plaintiff delivered his written complaint to Holiday. Defendants argue that Ethen made the decision to terminate Plaintiff in a phone conversation with Cushard on January 5, and the decision was confirmed on January 7. Cushard Dep. at 62-64; Bezek Dep. at 60-61; Krogen Aff ¶¶ 1-4, Ex. A. The temporal connection belies Plaintiff's contention that his termination was reprisal for his reporting Cushard's conduct. Therefore, Defendants' Motion on these counts will be granted.
F. Negligent Hiring, Retention, and Supervision
Plaintiff also alleges a claim for negligent hiring, retention and supervision. Minnesota does recognize these causes of action; however, they are intended to protect others from the intentional torts of an employer's employees. Yunker v. Honeywell, 296 N.W.2d 419, 422 (Minn.App. 1993). Moreover, "[l]iability is predicated on the negligence of the employer in placing a person with known propensities . . . in an employment position in which . . . it should have been foreseeable that the hired individual would pose a threat to others." Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 442 (Minn.App. 1996). Plaintiff's claims must fail as he has failed to proffer any evidence that an intentional tort was committed against him. Nor has he presented any evidence to suggest that Cushard, or any other Holiday employee, was a threat to Plaintiff. Whatever unpleasant experiences Plaintiff has alleged, he has not alleged that any of them constituted a threat to him, much less an intentional tort. Moreover, the court in Bruchas specifically noted that no Minnesota court had allowed a negligence claim to stand based on gender harassment. Id. As result, judgment will be entered for Defendants on this count.