Ewald v. Royal Norwegian Embassy et al
ORDER denying Defendant's Motion to Dismiss, or, in the alternative, Motion for Summary Judgment 19 . (Written Opinion) Signed by Judge Susan Richard Nelson on 10/09/2012. (jmf)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Ellen S. Ewald,
Civil No. 11-CV-2116 (SRN/SER)
Royal Norwegian Embassy,
Thomas E. Marshall, Sheila A. Engelmeier, and Susanne J. Fischer, Engelmeier &
Umanah, P.A., 12 South Sixth Street, Suite 1230, Minneapolis, Minnesota 55402, for
Daniel G. Wilczek, Joel P. Schroeder, and Sean Somermeyer, Faegre Baker Daniels LLP,
90 South Seventh Street, Suite 2200, Minneapolis, Minnesota 55402, for Defendant
SUSAN RICHARD NELSON, United States District Court Judge
This matter is before the Court on Defendant’s Motion to Dismiss, or, in the
alternative, Motion for Summary Judgment [Doc. No. 43]. For the reasons set forth
herein, and as stated at the hearing, Defendant’s Motion is denied.
The facts of this employment discrimination are thoroughly set forth in this Court’s
Order of January 26, 2012 [Doc. No. 18], which this Court incorporates by reference.
Briefly, Plaintiff Ellen Ewald alleges that in July 2008, she applied for the position of
Higher Education and Research Officer with Defendant, the Royal Norwegian Embassy
(“the Embassy”), at the Honorary Norwegian Consulate General in Minneapolis. (Compl.
¶ 7 [Doc. No. 1].) At the time, the Embassy also posted an Innovation and Business
Development Officer position in Minneapolis. (Id.) Ewald alleges that the Embassy
informed her that the two Officer positions offered the same salary and benefits, were
considered “parallel positions” with similar responsibilities, and the Officers would work
as a team under the direction of the Honorary Consul General and the Honorary Consul.
(Id. ¶¶ 10-11.) Based on the Embassy’s representations, Ewald alleges that she accepted
the offer of employment as Higher Education and Research Officer on October 1, 2008,
and relocated from Norway in order to work for the Embassy in Minneapolis. (Id. ¶¶ 1213.) The Embassy subsequently hired Anders Davidson as the Innovation and Business
Development Officer. (Id. ¶ 15.)
Ewald contends that Defendant discriminated against her based on gender, alleging
the following differences in Defendant’s treatment of her and that of Mr. Davidson:
Ewald’s domestic partner and their two children were denied health insurance coverage,
while Mr. Davidson’s wife and children received coverage (id. ¶ 18); Davidson received
a significantly higher salary (id. ¶ 25); Davidson received an assistant, while Ewald did
not (id. ¶ 41); and Davidson received travel funding, while Ewald did not. (Id.)
further contends that she was not permitted to attend certain professional events –
specifically, a “Science Week” event – that were considered part of her job duties. (Id. ¶¶
43-51.) Davidson was provided travel expenses to attend such events, Ewald contends,
although his attendance was not an essential function of his duties. (Id.) When Ewald
expressed her frustration about the alleged unequal treatment, she contends that
Defendant retaliated against by not providing sufficient administrative assistance and by
further ostracizing her. (Id. ¶ 41.) Defendant informed Plaintiff that it would not extend
her employment contract beyond its October 2011 expiration date. (Id. ¶ 59.)
In her Complaint, Plaintiff asserts seven claims against Defendant: promissory
estoppel (Count I); false representation in violation of Minn. Stat. § 181.64 (Count II);
gender discrimination in violation of the Minnesota Human Rights Act (“MHRA”), Minn.
Stat. § 363A.08, Subd. 2 (Count III); reprisal in violation of the MHRA, Minn. Stat. §
363A.15 (Count IV); retaliatory harassment in violation of the MHRA, Minn. Stat. §§
363A.08, 363A.14, and 363A.15 (Count VI); violation of the Equal Pay Act (“EPA”), 29
U.S.C. § 206(d)(1) (Count VII); and violation of the Minnesota Whistleblower Act, Minn.
Stat. § 181.932 (Count VIII).1
Defendant moves to dismiss, arguing that, pursuant to Fed. R. Civ. P. 12(b)(6),
Plaintiff’s claims fail as a matter of law. Alternatively, if the Court relies on evidence
Plaintiff originally asserted a claim against former Defendant Gary Gandrud for
aiding and abetting unfair discriminatory employment practices (Count V). The Court
previously dismissed Gandrud from the suit based on consular immunity (Order of
1/26/12 [Doc. No. 18].) Because Count V refers to Gandrud by name, and no other
employee of the Embassy, the claim for aiding and abetting is therefore no longer in the
outside the pleadings, Defendant moves for summary judgment.
Standard of Review
When evaluating a motion to dismiss under Rule 12(b)(6), the Court assumes the
facts in the Complaint to be true and construes all reasonable inferences from those facts
in the light most favorable to Plaintiff. Morton v. Becker, 793 F.2d 185, 187 (8th Cir.
1986). However, the Court need not accept as true wholly conclusory allegations, Hanten
v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal
conclusions Plaintiffs draw from the facts pled. Westcott v. City of Omaha, 901 F.2d
1486, 1488 (8th Cir. 1990).
To survive a motion to dismiss, a complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
545 (2007). Although a complaint need not contain “detailed factual allegations,” it must
contain facts with enough specificity “to raise a right to relief above the speculative
level.” Id. at 555. As the United States Supreme Court recently stated, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,”
will not pass muster under Twombly. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing
Twombly, 550 U.S. at 555). In sum, this standard “calls for enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence of [the claim].” Twombly, 550
U.S. at 556. Here, the Court will not consider evidence outside of the pleadings, and
therefore confines its analysis to Plaintiff’s Complaint.
Defendant argues that Plaintiff’s promissory estoppel claim must be dismissed
because she had a valid employment contract with the Embassy. (Def.’s Mem. Supp.
Mot. Dismiss at 10 [Doc. No. 20].) Plaintiff responds, however, that she relied to her
detriment on the information that Defendant provided in the interview process, outside of
the employment contract – information regarding the same salary range for the two open
positions and the same benefits – in accepting her position with the Embassy.
“Promissory estoppel is an equitable doctrine that implies a contract in law where
none exists in fact.” Martens v. Minnesota Mining & Mfg. Co., 616 N.W.2d 732, 746
(Minn. 2000) (quotation and citations omitted). A claim for promissory estoppel requires
proof of the following three elements: (1) a clear and definite promise; (2) the promisor
intended to induce reliance and such reliance occurred to the promisee's detriment; and
(3) the promise must be enforced to prevent injustice. Id. (citation omitted). As this
Court has held, “[b]ecause promissory estoppel implies a contract where none exists in
fact, such a claim may not proceed where a legally enforceable contract was formed.”
InCompass IT, Inc. v. XO Commc’ns Servs., No. 10-CV-3864 (SRN/JJG), 2012 WL
28267, *5 (D. Minn. Jan. 5, 2012) (citing Gorham v. Benson Optical, 539 N.W.2d 798,
801–802 (Minn. Ct. App. 1995)).
In Jackson v. Navitaire, Inc., No. 04-CV-1557 (RHK/AJB), 2005 WL 61490, *3
(D. Minn. Jan. 11, 2005), this Court considered a similar motion to dismiss a promissory
estoppel claim under Rule 12. The plaintiffs in that case argued that the promises alleged
in the complaint, combined with the plaintiffs’ move to Minnesota in reliance on those
promises, formed an employment agreement prior to, and independent of, the signed
agreements. Id. The plaintiffs argued that it was the prior agreements – not the signed
agreements – that formed the basis of their breach of contract and promissory estoppel
claims. Id. This Court held that the allegations in the complaint sufficiently alleged those
claims and therefore denied the motion to dismiss them. Id. at *4.
At this early stage of the litigation, viewing the facts in the light most favorable to
Plaintiff, the Court finds that she has stated a promissory estoppel claim that is plausible
on its face. Plaintiff alleges clear and definite statements indicating that the two posted
positions offered the same salary range, with a maximum starting salary of $70,000.
(Compl. ¶ 11.) Moreover, she alleges that Defendant’s representatives also informed her
that the two positions offered the same benefits. (Id.) She further alleges that, in reliance
on those statements, she accepted the Higher Education and Research Officer position
and moved her family to Minnesota. (Id. ¶¶ 12; 62.)
Ewald contends that Defendant
breached its promise and, in fact, did not provide a salary and benefits identical to those
offered her male counterpart, Mr. Davidson. (Id. ¶ 63.) Finally, she alleges that it would
be unjust not to enforce Defendant’s promise. (Id. ¶ 64.) Plaintiff has sufficiently alleged
a plausible claim for promissory estoppel. See Martens, 616 N.W.2d at 746.
Accordingly, Defendant’s motion to dismiss this claim is denied.
False Representation under Minn. Stat. § 181.64
Plaintiff asserts a false representation claim under Minn. Stat. § 181.64, which
It shall be unlawful for any person, partnership, company, corporation,
association, or organization of any kind, doing business in this state,
directly or through any agent or attorney, to induce, influence, persuade, or
engage any person to change from one place to another in this state, or to
change from any place in any state, territory, or country to any place in this
state, to work in any branch of labor through or by means of knowingly
false representations, whether spoken, written, or advertised in printed
form, concerning the kind or character of such work, the compensation
therefor, the sanitary conditions relating to or surrounding it, or failure to
state in any advertisement, proposal, or contract for the employment that
there is a strike or lockout at the place of the proposed employment, when
in fact such strike or lockout then actually exists in such employment at
such place. Any such unlawful acts shall be deemed a false advertisement or
misrepresentation for the purposes of this section and section 181.65.
Minn. Stat. § 181.64.
Defendant argues that the plain language of the statute requires a plaintiff to
demonstrate that the statements at issue were “knowingly false,” and that Plaintiff has
failed to do so. (Def.’s Mem. Supp. Mot. for Summ. J. at 12 [Doc. No. 20]) (citing
Minn. Stat. § 181.64). Defendant contends that Plaintiff cannot establish that the
Embassy made a knowingly false representation concerning her compensation or the
“kind or character” of her position. Id. Defendant asserts that Plaintiff has alleged that
Defendant informed her that the two positions “would” be paid the same salary. Thus,
Defendant contends that, at best, any alleged representation that the two positions would
be paid the same was a statement of future events and is not actionable. (Id.) In addition,
Defendant argues that Plaintiff’s allegations fail to meet the heightened pleading standard
for claims of fraud under Fed. R. Civ. P. 9(b). Ewald responds that Defendant made
specific statements that she would be paid the maximum salary allowed in the salary
range provided, i.e., $70,000, and would receive the same salary and benefits as her
colleague in the Innovation and Business Development position, knowing that such
statements were false. (Compl. ¶ 11.)
In Vaidyanathan v. Seagate U.S. LLC, No. 09-CV-1212 (DWF/JSM), 2010 WL
2925067, * 3 (D. Minn. July 21, 2010), this Court denied summary judgment on a claim
brought under Minn. Stat. § 181.64, finding genuine factual disputes as to whether the
employer “made false representations regarding the position and, if so, whether the
representations were known to be false.” (Id.)
Here, given the stage of litigation, which is far more preliminary than summary
judgment, the Court finds that Plaintiff has alleged a plausible claim for relief under
Minn. Stat. § 181.64. As to whether the alleged false representations related to the “kind
or character” of Plaintiff’s position, or to “compensation,” the Court finds that the
Complaint sets forth the elements of a plausible claim. Ewald alleges that during the
interview process, Defendant explicitly represented that the two Officer positions were
considered parallel, and they would work closely as a team, had similar responsibilities
and objectives, shared the same stakeholders, and that the experiences and qualifications
for the two positions were similar. (Compl. ¶ 32.) She alleges that Defendant
encouraged her to move to the United States from Norway to take the Higher Education
and Research Officer Position. (Id. ¶ 4.)
However, after commencing employment with
Defendant, Ewald contends that she learned that the two positions were not at all parallel.
While Ewald’s salary was $70,000, Davidson’s salary was $110,000; her family was not
covered under the Embassy’s benefits plan, whereas Mr. Davidson’s family was covered;
she was not given administrative support, whereas Davidson was; she was denied travel
expenses to attend out-of-town professional events, for which Davidson was reimbursed.
(Id. ¶¶ 18-21; 15;48;50-51.) While Defendant cites a number of cases involving false
representations, the Court finds them factually and procedurally distinguishable.2
Defendant cites the following authority: Kanner v. Fairmont Foods of Minn.,
Inc., No. C1-99-568, 2000 WL 31790, *2 (Minn. Ct. App. Jan. 18, 2000) (affirming a
post-trial order and judgment denying plaintiff’s false representation claims following
jury verdict for plaintiff; the court affirmed the trial court’s ruling that the alleged false
representation, concerning whether the defendant had an office in Minneapolis, did not
concern the “kind or character” of the plaintiff’s position.); Lincoln v. Sears, Roebuck
and Co., No. 02-CV-840 (DWF/SRN), 2002 WL 31108204, *5 (D. Minn. Sept. 17, 2002)
(dismissing claim on a Rule 12 motion, finding that representation made as to FMLA
leave was not related to the “kind or character” of employment, or compensation for the
employment); Anderson v. Alorica, No. 03-CV-3248 (RHK/JSM), 2004 WL 1118635,
*3-4 (D. Minn. May 18, 2004) (dismissing a claim for false representation on summary
judgment where the plaintiff’s evidence failed to support a claim of false representations);
Coxall v. First Bank System, Inc., No. C8-93-599, 1993 WL 339062, *2 (Minn. Ct. App.
Sept. 7, 1993) (affirming entry of summary judgment on false representation claim where
plaintiff had alleged that he expected permanent employment prior to downsizing and the
elimination of his position). (Def.’s Mem. Supp. Mot. for Summ. J. at 13-15 [Doc. No.
Plaintiff’s allegations describe representations related to her compensation, benefits and
job duties – representations which, at this stage of the litigation, appear to concern the
“kind or character” of Ewald’s employment or compensation for employment.
Ewald also has plausibly alleged the circumstances constituting the allegedly false
representation sufficient for purposes of Rule 9(b). See Bennett v. Berg, 685 F.2d 1053,
1062 (8th Cir. 1982) (requiring a plaintiff pleading a fraud claim to sufficiently set forth
the circumstances of the alleged fraud, including the “time, place and contents of false
representations, as well as the identity of the person making the misrepresentation and
what was obtained or given up thereby.”); Stark v. Monson, No. 07-CV-4374
(MJD/AJB), 2008 WL 189959, at *8 (D. Minn. Jan. 22, 2008) (same). As noted above,
Ewald’s allegations sufficiently set forth the circumstances regarding the time, place and
contents of the representations, as well as the identity of the person making the
Retaliatory Harassment, Reprisal and Minnesota Whistleblower
Plaintiff asserts claims for reprisal in violation of the MHRA, retaliatory
harassment, and violation of the Minnesota Whistleblower Law, Minn. Stat. § 181.932.
Defendant notes that it is unable to identify a cause of action entitled “retaliatory
harassment,” and therefore considers the claim to be a restatement of Ewald’s reprisal
claim. (Def.’s Mem. Supp. Mot. for Summ. J. at 16, n.3 [Doc. No. 20].) Defendant
argues that Ewald’s reprisal and whistleblower claims fail as a matter of law because she
has not shown that she suffered a cognizable adverse employment action. (Id. at 17.)
Ewald contends that other federal courts have recognized a claim for retaliatory
harassment under Title VII.3 (Pl’s Opp’n Mem. at 23 [Doc. No. 24]) (citing Jensen v.
Potter, 435 F.3d 444, 449 (3d Cir. 2006)). The Eighth Circuit has acknowledged such a
claim, albeit in passing, in a suit involving discrimination on the basis of religion and
retaliatory harassment. Abramson v. Council Bluffs Cmty. Sch. Dist., 808 F.2d 1307,
1308 (8th Cir. 1987). Other courts have addressed claims for retaliatory harassment
under the general framework for Title VII retaliation claims, see, e.g., Alvarado v.
Donahue, 687 F.2d 453, 458 (1st Cir. 2012) (reviewing claim for disability and retaliatory
harassment under retaliation claim analysis); Rose v. Mabus, No. 11-55125, 2012 WL
2833942, *1 (9th Cir. July 11, 2012) (granting summary judgment to the defendant on
plaintiff’s retaliatory harassment claim where he failed to raise a genuine dispute of
material fact as to whether the alleged conduct was because of his protected activity, or
was sufficiently severe or pervasive to alter the conditions of his employment), or under
the framework of a retaliatory hostile work environment claim, see Cleveland v. S.
Disposal Waste Connections, No. 11-5228, 2012 WL 3241561, *8 (6th Cir. Aug. 9, 2012)
(addressing whether plaintiff established severe or pervasive retaliatory harassment as
part of her claim of hostile work environment based on retaliation). In general, for such
Minnesota courts have relied on federal law developed under Title VII in
analyzing claims under the MHRA. See Fletcher v. St. Paul Pioneer Press, 589 N.W.2d
96, 101 (Minn. 1999).
retaliatory harassment claims, the plaintiff must show that (1) she engaged in statutorilyprotected activity; (2) she suffered an adverse employment action/severe or pervasive
retaliatory harassment; and (3) there was a causal connection between the protected
activity and the harassment. See id. These elements are identical to the required elements
for a claim of reprisal under Minnesota law. Hoover v. Norwest Private Mortgage
Banking, 632 N.W.2d 534, 548 (Minn. 2001).
It is an unfair discriminatory practice to engage in reprisal against any person
because that person opposed a practice prohibited by the MHRA. Minn. Stat. § 363A.15.
Under the MHRA, a reprisal is defined as “any form of intimidation, retaliation, or
harassment.” Minn. Stat. § 363A.15. Under the statute, an employer engages in reprisal
when it does the following in response to an employee engaging in protected activity:
refuse to hire the individual; depart from any customary employment
practice; transfer or assign the individual to a lesser position in terms of
wages, hours, job classification, job security, or other employment status; or
inform another employer that the individual has engaged in [protected]
Id. Minnesota courts analyze reprisal claims under the familiar McDonnell-Douglas
burden-shifting test. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999)
(citing McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973)).
Defendant argues that Plaintiff’s allegations regarding the Embassy’s conduct do
not rise to the level of adverse employment actions sufficient to form the basis of an
actionable retaliation claim. To establish the element of an adverse employment action, a
plaintiff “must show that a reasonable employee would have found the challenged actions
materially adverse.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
The defendant’s conduct must be sufficiently severe such that it “well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Id. (internal quotations omitted). “[N]ormally petty slights, minor annoyances, and
simple lack of good manners” will not dissuade a reasonable person from pursuing a
claim of retaliation.” Id.
Defendant contends that Ewald experienced none of the adverse actions that are
typically considered actionable – she served the entire term of her employment,
experienced no reduction in salary or demotion, nor was she subject to any disciplinary
action. Plaintiff, however, contends that she experienced adverse employment actions as
a result of her complaints. She alleges that she “opposed Defendant[’s] practices of
discrimination and retaliation against her by her multiple complaints” regarding her
treatment. (Compl. ¶ 81.) Ewald contends that Defendant retaliated against her by
making significant efforts to renew Mr. Davidson’s contract, while making no such
efforts with regard to her contract. (Id. ¶ 84.) She also incorporates into her reprisal and
retaliatory harassment counts the numerous factual allegations in the Complaint relating
to her offer of employment, the alleged representations about the parallel position
ultimately offered to Mr. Davidson, the differences in health insurance benefits,
administrative support, travel expenses, and salary, and eventual lack of inclusion in
professional events. (Id. ¶¶ 1-78.)
Accepting Plaintiff’s allegations as true for purposes of a motion to dismiss, the
Court finds that she has stated plausible claims for reprisal, retaliatory harassment and
whistleblower claims. While a plaintiff must demonstrate a material,adverse action to
state a claim for reprisal and retaliatory harassment, the Eight Circuit has observed that it
is “proper to consider the cumulative effect of an employer’s alleged retaliatory conduct.”
Fercello v. Cty. of Ramsey, 612 F.3d 1069, 1083-84 (8th Cir. 2010) (citing Devin v.
Schwan’s Home Serv., Inc., 491 F.3d 778, 787-88 (8th Cir. 2007)). Courts have also held
that a plaintiff need not necessarily be demoted, terminated, reassigned, suspended, or
lose compensation in order to demonstrate an adverse employment action. Kim v. Nash
Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997). As set forth in the factual allegations of
the Complaint, Ewald alleges that after complaining of discrimination, she was thereafter
subjected to various actions that interfered with the conditions of her position. For
example, after complaining of unequal pay and benefits, Defendant canceled health
insurance for her domestic partner (Compl. ¶ 24.) After expressing her complaints to
Honorary Consul Gandrud, Ewald alleges that he told her to “nip [her complaints] in the
bud,” or to be prepared for the “consequences.” (Id. ¶ 36.) If she continued to complain,
Gandrud allegedly warned her that “someone would ‘likely have to go.’” (Id. ¶ 37.)
Ewald alleges that she was denied travel expenses and opportunities to attend
professional events, whereas Mr. Davidson was provided travel expenses and
opportunities to attend the very same events and meetings. (Id. ¶ 46-51.) Again, after
complaining of the alleged unfair treatment, Ewald contends that she was “frozen out of
virtually all communication lines” relating to work events and heard reports from third
parties about discussions within the Embassy about an “Ellen problem” in Minneapolis.
(Id. ¶¶ 42; 47.) Ewald alleges that while she was told that her contract would not be
extended beyond the expiration of its three-year term, Mr. Davidson was offered an
extension. (Id. ¶ 59.) As to her whistleblower claim, Plaintiff alleges that after voicing
her belief to the Norwegian Ambassador that the denial of health insurance for her family
members violated Defendant’s “insurance policy and US law”– her alleged protected
activity – Defendant retaliated against her, as set forth above. (Compl. ¶ 111.)
Taken together, the Court finds that Plaintiff’s allegations plead plausible claims
for reprisal, retaliatory harassment and whistleblower actions. Discovery has not been
completed in this case, and the Court must construe Plaintiff’s allegations as true.
Accordingly, Defendant’s motion to dismiss Plaintiff’s claims for reprisal, retaliatory
harassment and violation of the Minnesota whistleblower statute Minn. Stat. § 181.932,
Although the parties do not appear to have raised this issue, the MHRA’s
exclusive remedy provision, Minn. Stat. § 363A.04, prohibits an employee from seeking
recovery for the same allegedly discriminatory conduct on the same facts under both the
MHRA and the whistleblower statute. Williams v. St. Paul Ramsey Med. Ctr., 551
N.W.2d 483, 485-86 (Minn. 1996). For the present, and in light of motion to dismiss
standard that favors the non-moving party, the Court will permit the MHRA and
whistleblower claims to remain, with the understanding that the whistleblower claim may
Equal Pay and Gender Discrimination
Defendant argues that Plaintiff’s claims of gender discrimination in violation of
the MHRA and the Equal Pay Act (“EPA”) fail as a matter of law. Defendant contends
that Plaintiff cannot show that her position and Davidson’s position were substantially
equivalent positions. (Def’s Mem. Supp. Mot. for Summ. J. at 21 [Doc. No. 20].)
Defendant argues that the job descriptions on their face show that the positions were
different, requiring different skills and experience. In support of its argument, Defendant
notes that Ewald did not apply for both positions.
To establish a claim under the EPA, Ewald must show that she was paid less than
similarly situated male employees for equal work in jobs that required equal skill, effort,
and responsibility, and that were performed under similar working conditions. 29 U.S.C.
§ 206(d)(1); Taylor v. White, 321 F.3d 710, 715 (8th Cir. 2003). The Embassy must then
show that any pay differential was based on a factor other than gender. Id.
Again, this Court’s review is confined to the Complaint. Ewald alleges sufficient
facts to state plausible claims of gender discrimination under the MHRA, Minn. Stat. §
363A.08, Subd. 2, and the EPA, 29 U.S.C. § 206(d)(1). In support of her claims, Plaintiff
has identified a male comparator, Mr. Davidson. Her Complaint details many of the job
responsibilities considered parallel between her education position and Mr. Davidson’s
be considered an alternative theory of liability.
business position. (Compl. ¶¶ 8-9.) The Complaint also alleges a $40,000 salary
disparity, against the backdrop of various representations from Defendant that the two
positions were considered parallel and part of a team. (Id. ¶¶ 11; 16; 32.) While
Defendant argues that the two positions were, in fact, different, this Court has held that “.
. . job titles and classifications are not dispositive; it is the actual requirements of the jobs
that control.” Grover v. Smarte Carte, Inc., 836 F. Supp.2d 860, 866 (D. Minn. 2011)
(citing Tenkku v. Normandy Bank, 348 F.3d 737, 741 (8th Cir. 2003)). Again, discovery
is crucial to the ultimate resolution of Plaintiff’s claims and the dismissal of Plaintiff’s
claims at this time would be premature. For purposes of the sufficiency of the pleading,
Plaintiff has stated plausible claims for relief under the MHRA for gender discrimination
and under the EPA. Accordingly, Defendant’s motion to dismiss these claims is denied.
THEREFORE, IT IS HEREBY ORDERED THAT:
Defendant’s Motion to Dismiss, or, in the alternative, Motion for Summary
Judgment [Doc. No. 19] is DENIED.
October 9, 2012
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Court Judge
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