Summary
applying Minnesota law and ruling that the plaintiff's voluntarily disclosure of information precludes his claim that an intrusion has occurred
Summary of this case from Peterson v. MoldofskyOpinion
Civil No. 02-3629 (PAM/RLE)
November 17, 2003
MEMORANDUM AND ORDER
This matter is before the Court on Defendant's Motion for Summary Judgment. Plaintiff alleges claims of: (1) intrusion upon seclusion; (2) improper disclosure of his medical condition in violation of Minn. Stat. § 144.335, the Family and Medical Leave Act ("FMLA"), and the Minnesota Human Rights Act ("MHRA"); (3) negligent termination; (4) disability discrimination; (5) reprisal; and (6) defamation. Plaintiff concedes that his claims for improper disclosure and for negligent termination should be dismissed. (PL's Opp'n. Mem. at 17 n. 77.) For the following reasons, the Court grants Defendant's Motion.
In Plaintiff's Opposition Memorandum, Plaintiff requests that the Court strike the Declarations of CCX employees included in Exhibit 2 to Defendant's Motionfor Summary Judgment. The Court denies Plaintiffs request.
BACKGROUND
Plaintiff Bill Smith was employed as a linehaul driver at Defendant Con-Way Central Express Incorporated (CCX), from May 1998 to February 2002. From September 1999 to his termination, he was employed at the Eagan Service Center. (Jones Pierre Aff. Ex. 1 at 139, 144 (Simons Dep.).) Plaintiff took a leave of absence for depression associated with his bipolar disorder from late December 2000 to February 2001. (Eckland Aff. Ex. A at 195, 200 (Simons Dep.).) He was terminated in February 2002. This case arises from the circumstances of his leave of absence and his later termination.
Plaintiff has been diagnosed as suffering from manic depression and bipolar disorder. In December 2000, he was hospitalized for depression associated with this bipolar disorder. (Eckland Aff Ex. A at 195, 200.) In early January 2001, Plaintiff requested a leave of absence. (Id. at 217.) In February 2001, Plaintiff contacted Jack Cullen, his personnel supervisor, to discuss extending his leave of absence. (Id. at 154.) Plaintiff contends that Cullen coerced him into disclosing the reasons for the leave, under the "guise of sympathy." (PL's Opp'n. Mem. at 22.) CCX asserts that Plaintiff voluntarily disclosed his medical condition. Ultimately, Plaintiff asked Cullen to maintain confidentiality; Cullen agreed but told Plaintiff that it was necessary to inform both Plaintiff's supervisor, Helen Jones, and the Eagan Service Center Manager, Mike Clark, of the reason for Plaintiff's leave. (Jones Pierre Aff. Ex. 1 at 154, 218.) Plaintiff remained on a leave of absence until February 2001 when his doctor released him to work. Plaintiff was reinstated to his prior position and continued to work without incident through February 2002.
On his return to work, Plaintiff contends that his co-workers, particularly Jeff Dunn and Daye Myers, knew the details of his leave and that these co-workers claimed that Cullen and Jones told them. Plaintiff confronted Cullen and Clark and both denied releasing any information to anyone other than Jones. In their declarations and depositions, both Myers and Dunn deny receiving information regarding Plaintiff's absence from Cullen, Clark, or Jones. (Jones Pierre Aff Ex. 2 at ¶ 3 (Myers Decl. and Dunn Decl.); Jones Pierre 3d Aff. Ex. 1 at 13-16, 23-25 (Dunn Dep.); id Ex. 2 at 13-15, 25 (Myers Dep.).) Both testified that Plaintiff personally communicated to them the reasons for his absence. Id
In February 2002, Plaintiff was terminated CCX linehaul drivers are to accurately record their driving times to comply with both Department of Transportation ("DOT") and internal regulations. (Jones Pierre Aff. Ex. 1 at 164-69.) Because these drivers have a weekly cap on their driving hours, CCX requires drivers to computer "punch" their arrive time, and then manually record time in a pay sheet/log. (Id.) In December 2000, CCX circulated a memo reiterating the importance of accurate record logs. Plaintiff received this memo. (Id. at 168.) In February 2002, Plaintiff crossed out the computer punched time and manually altered it. (Id. at 229.) Plaintiff admitted to falsifying his records so that he could make an additional trip within the weekly time guidelines. (Id. at 230.) Plaintiff claims that Myers encouraged him to falsify his log, and that a similar change was approved earlier that week by the supervisor. (Id.: Eckland Aff Ex. A at 82-83.) CCX terminated Plaintiff based on the undisputed falsification of his DOT logs and pay sheets. (Jones Pierre Aff. Ex. 3 at 39-40 (Riordan Dep.).) Plaintiff appealed to CCX's Employee Termination Review Board ("ETRB"), which affirmed the termination. (Jones Pierre Aff. Ex. 1 at 237-38.) In his appeal to the ETRB, Plaintiff did not pursue any of the claims raised in this suit. (Id)
Plaintiff claims that his immediate termination for falsifying time logs was contrary to normal procedure. Generally, if there is a discrepancy in the record log and the time punch, Clark would go directly to the driver to discuss it. (Eckland Aff. Ex. I at 27-28 (Clark Dep.).) In this instance, Clark did not talk to Plaintiff but rather reported the discrepancy directly to the personnel department, because "of the other issues involved." (Id.) Clark testified that he "did the same investigation as I do with any employee," but that the discrepancies between Plaintiffs time log, computer punched arrive time, and drive times "raised the red flag," requiring the involvement of personnel. (Id. at 27-29.) Terry Riordan, CCX's Assistant HR Manager, questioned Plaintiff and Plaintiff admitted falsifying the records. (Jones Pierre Aff. Ex. 3 at 39-44.) Riordan later informed Plaintiff of his termination. (Id. at 44.)
Plaintiff asserts that Dunn and Myers each had records of mistakes between their time punches and pay sheets, and neither of them received any adverse employment action. Instead, both were given the opportunity to correct their mistakes. There is a difference between Plaintiff's incident and other employees, however. Plaintiff intentionally altered a computer time punch, while other employees inadvertently made mistakes in their manual records. (See Jones Pierre Aff. Ex. 1 at 228-29; Ex. 3 at 41, 44; Jones Pierre 3d Aff. Ex. 1 at 28, 34-35, 37.)
CCX contends that other similarly situated employees were fired for intentionally falsifying their driving records. Plaintiff agrees, but alleges that four other employees falsified their driving records without adverse employment action. CCX management investigated Plaintiff's claim and discovered that although employees did falsify time logs, CCX did not know of the falsifications at the time they were made. (Jones Pierre Aff. Ex. 3 at 47-48.) However, Plaintiff has not established that these employees were similarly situated to Plaintiff, because they were employed at different CCX Service Centers than Plaintiff. (Jones Pierre Aff. Ex. 1 at 253-55; Eckland Aff. Ex. A at 253-55.), CCX's treatment of these employees was not relevant.
After Plaintiff was fired and while he was interviewing for new jobs, he disclosed to prospective employers the fact that he falsified his record logs. (Eckland Aff. Ex. A at 73-74, 76, 78.)
DISCUSSION
A. Standard of Review
Summary judgment is appropriate if no genuine issue of material fact exists, such that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). The Court must view the evidence in favor of the nonmoving party and give that party the benefit of all justifiable inferences. Id. at 250. The burden of demonstrating that there are no genuine issues of material fact rests on the moving party. Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986). The nonmoving party must set forth specific facts sufficient to raise a genuine issue of fact for trial. Id. at 324.
B. Intrusion Upon Seclusion
Intrusion upon seclusion requires an intrusion that is highly offensive into some matter about which a person has an expectation of privacy. Lake v. Wal-Mart Stores. Inc., 582 N.W.2d 231, 232, 235 (Minn. 1998). Plaintiffs claim fails because he has failed to establish any intrusion.
Plaintiff alleges that CCX intruded on his privacy when Cullen closed the door to his office and asked Plaintiff to "get it off his chest." CCX argues that Plaintiff voluntarily disclosed his medical condition to Cullen. An intrusion occurs when an actor believes or is substantially certain that he lacks the necessary legal or personal permission to commit an intrusive act. Fletcher v. Price Chopper Foods of Trumann. Inc., 220 F.3d 871, 876 (8th Cir. 2000). Cullen invited Plaintiff into his office and Plaintiff entered. Behind closed doors and after requesting confidentiality, Plaintiff disclosed his medical condition to Cullen. Although obtaining information through fraudulent means may be an intrusion, in this instance a concerned supervisor listened to a voluntary disclosure by an employee. In a case similar to this one, the court granted summary judgment for the employer because although the supervisor approved the employee's leave of absence without disclosure of her medical condition, the disclosure was nonetheless voluntary even though she felt "psychological pressure from [her supervisor] to legitimize her request" C.L.D. v. Wal-Mart Stores. 79 F. Supp.2d 1080, 1082 (D. Minn. 1999) (Tunheim, J.).
Here, although Plaintiff maintains that Cullen's "guise of empathy" coerced his disclosure and that he "didn't really want to tell [Cullen]," Plaintiff does not dispute that he entered Cullen's office and told him of his bipolar disorder. Plaintiff voluntarily disclosed his condition, and therefore there is no intrusion. Moreover, Plaintiff told Myers of his condition. CCX's Motion is granted on Plaintiff's intrusion upon seclusion claim.
C. Disability Discrimination
Plaintiff claims that he was terminated because of his bipolar disorder. Defendant contends that Plaintiff was terminated because he admittedly falsified record logs, in violation of DOT regulation and company policy. Absent direct evidence of discrimination, the MHRA requires analysis under the McDonnell Douglas burden-shifting framework for claims of disability discrimination. See McDonnell Douglas v. Green. 411 U.S. 792 (1973). To survive summary judgment, Plaintiff must establish a prima facie case of discrimination: (1) he is disabled; (2) he was qualified for the job from which he was discharged; (3) he was discharged; and (4) the employer replaced him with someone who was not disabled. Hubbard v. United Press Int'l. Inc., 330 N.W.2d 428, 441 (Minn. 1983). The burden then shifts to CCX to show a nondiscriminatory and legitimate reason for termination, requiring Plaintiff to subsequently establish that CCX's justifications were pretextual. Id at 442-43.
Claims under the MHRA are not affected by the U.S. Supreme Court's holding in Desert Palace. Inc. v. Costa, ____ U.S. ____, 123 S.Ct. 2148 (2003). Dare v. Wal-Mart Stores. Inc., 267 F. Supp.2d 987, 994 (D. Minn. 2003) (Magnuson, J.).
Plaintiff cannot establish a prima facie case of disability discrimination. A person is disabled if the person (1) has a physical, sensory or mental impairment that materially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment Minn. Stat. § 363.01 subd. 13. Plaintiff asserts that his bipolar disorder materially limits one or more of his major life activities. (Pl.'s Opp'n. Mem. at 27.) CCX does not dispute that Plaintiffs bipolar disorder may be an impairment under the MHRA. However, CCX contends that Plaintiff fails to establish how this disability materially limits one or more of his major life activities.See Minn. Stat. § 363.01 subd. 13. While Plaintiff asserts that he is limited in his ability to work and in "a variety of other major life activities," Plaintiff tails to provide any factual evidence to support this assertion. (Pl.'s Opp'n. Mem. at 27.) To the contrary, when questioned as to whether his psychiatric condition limited his ability to work at CCX or in any other activity, he testified, "absolutely not." (Jones Pierre Aff. Ex. 1 at 225.) Dr. Lori Suvalsky, Plaintiff's retained expert, also testified that Plaintiff's condition did not limit Plaintiff in any major life activity. (Jones Pierre Fourth Aff. Ex. 1 at 51 (Dr. Lori Suvalsky Dep.).) Although Plaintiffs condition required a six-week leave of absence in early 2001, a leave of absence alone is insufficient to establish a "material" limitation on Plaintiff's ability to work. See e.g., 29 C.F.R. § 1630.2(j) (requiring consideration of the severity, duration and lasting impact of the condition in Americans with Disability Act ("ADA") discrimination claims); Liljedahl v. Ryder Student Transp. Servs., Inc., 341 F.3d 836, 843 (8th Cir. 2003) (upholding district court determination that plaintiffs cancer did not materially limit major life activity, because cancer surgery was successful and recuperation period was limited);Cornman v. N.P. Dodge Mgmt. Co., 43 F. Supp.2d 1066, 1071 (D. Minn. 1999) (Frank, J.) (determining that plaintiff's four-month absence from work for recuperation from surgery was insufficient to establish any material limitation on a major life activity). Plaintiff has failed to set forth any evidence whatsoever to establish that his bipolar disorder materially affected a major life activity.
In passing, Plaintiff suggests that even if he is not materially limited in major life activity, CCX regarded him as disabled. Plaintiff has established that his supervisors knew of his bipolar condition. However, mere awareness of Plaintiff's condition is not sufficient by itself to establish that CCX regarded Plaintiff as disabled. Hayes v. Blue Cross Blue Shield of Minnesota. Inc., 21 F. Supp.2d 960, 972 (D. Minn. 1998) (Erickson, Mag. J.) (interpreting the MHRA). This argument does not satisfy the Plaintiffs burden to establish a factual issue concerning his disability. Therefore, Plaintiff is not disabled under the meaning of the MHRA. His disability discrimination claim fails.
D. Reprisal
Plaintiff claims that CCX terminated him in retaliation for confronting Cullen and Clark about the disclosure of his medical condition. CCX asserts that Plaintiff's claim fails because Plaintiff did not engage in a protected activity, nor did any causal connection exist between this confrontation and Plaintiff's termination. CCX alternatively argues that Plaintiff cannot establish pretext.
A reprisal claim is analyzed under the McDonnell Douglas burden-shifting test. Hoover v. Norwest Private Mortg. Banking. 632 N.W.2d 534, 549 (Minn. 2001). A prima facie case of reprisal requires Plaintiff to establish that: (1) he engaged in statutorily protected conduct; (2) an adverse employment action was taken against him; and (3) a causal connection exists between his conduct and his termination. Id.: Minn. Stat. § 363.03, subd. 7. Even assuming that Plaintiff can establish that he engaged in protected conduct, his claim fails because he cannot establish a causal connection between his termination and the allegedly protected activity.
Plaintiff confronted his supervisors about the alleged disclosure of his medical condition when he returned to work in February 2001. In February 2002, Plaintiff was fired. Plaintiffs termination occurred after admitting that he knowingly falsified his record log, in violation of DOT regulations and company policy. Plaintiff knew of the importance of maintaining accurate records. Further, Plaintiff knew that other employees had been terminated for falsifying their record logs. The fact that nearly one year had passed since he took his leave of absence and confronted his supervisors also suggests that there was no connection to his termination. Compare Hubbard. 330 N.W.2d at 445 (indirect evidence of employer's knowledge of protected activity coupled with close temporal connection to termination may support inference of retaliation). In the absence of any other evidence genuinely disputing CCX's assertion that it terminated Plaintiff for violating DOT regulations and company policy, Plaintiff's evidence is insufficient as a matter of law to establish a causal connection. Because Plaintiff has failed to establish a genuine issue for trial, summary judgment is appropriate on his reprisal claim.
E. Defamation
Defamation requires that a false statement be communicated to someone other than the plaintiff that results in harm to the plaintiff. Lewis v. Equitable Life Assurance Soc'y. 389 N.W.2d 876, 886 (Minn. 1986). Generally, there is no defamation if the defendant communicates the statement to the plaintiff who then communicates the statement to a third person. Id.: see also Restatement (Second) of Torts, § 577, cmt. m (1977). However, "self publication" is a narrow exception to this general rule: if the defamed person is compelled to communicate the defamatory statement to a third person and it was foreseeable to the defendant that the defamed person would be so compelled, then the defendant can be liable for defamation. Lewis. 389 N.W.2d at 888-89 (recognizing "self-publication"). Plaintiff claims that CCX defamed him by firing him because he was forced to tell prospective employers of the reason for his termination. Thus, he argues that CCX is liable for defamation under the self-publication exception.
Whether or not the self-publication exception applies, Plaintiff must first prove that the statement was false. Plaintiff alleges that the accuracy of the statement made to prospective employers was in fact false, because the true reason for Plaintiff's termination was that he confronted his supervisors about the disclosure of his medical condition, not because he falsified log records. Conversely, CCX contends the underlying statement itself, that Plaintiff falsified his log records, is true and therefore an absolute defense. If the underlying statement is true, then there is no claim for defamation. Id. at 889. It is undisputed that Plaintiff falsified log records. Moreover, the Court has concluded that Plaintiff's termination resulted from his intentional falsification of log records. Therefore, truth affords CCX an absolute defense. The Court grants CCX's Motion on Plaintiff's defamation claim.
CONCLUSION
There is no genuine issue of material fact on any of Plaintiff's claims. Accordingly, for the foregoing reasons, and upon all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment (Clerk Doc. No. 17) is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.