Wussow v. Andor Technology
Filing
36
ORDER denying 34 Plaintiff's APPEAL OF MAGISTRATE JUDGE DECISION to District Judge (Written Opinion). Signed by Senior Judge David S. Doty on 5/20/2013. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-614(DSD/TNL)
Michael Wussow,
Plaintiff,
ORDER
v.
Andor Technology,
Defendant.
Celeste E. Culberth, Esq., Leslie L. Lienemann, Esq. and
Culberth & Lienemann, 444 Cedar Street, Suite 1050, St.
Paul, MN 55101, counsel for plaintiff.
Bradley J. Lindeman, Esq. and Meagher & Geer, 33 South
Sixth Street, Suite 4400, Minneapolis, MN 55402 and
Gabriel J. Jiran, Esq. and Shipman & Goodwin, One
Constitution Plaza, Hartford, CT 06103, counsel for
defendant.
This
matter
is
before
the
court
upon
the
objection
by
plaintiff Michael Wussow to the March 27, 2013, order of Magistrate
Judge Tony N. Leung.
based on
the
file,
After a de novo review of the order, and
record
and
proceedings
herein,
the
court
overrules the objection.
BACKGROUND
This employment dispute arises out of the termination of
Wussow by defendant Andor Technology (Andor).
The background of
this matter is fully set forth in the magistrate judge’s order, and
the court summarizes only those facts relevant to resolving the
present objection.
On March 8, 2012, Wussow filed suit, alleging
a violation of the Minnesota Human Rights Act (MHRA), breach of
contract, promissory estoppel, unjust enrichment and failure to pay
wages or commissions pursuant to Minnesota Statues § 181.13.
On
October 22, 2012, the court dismissed Wussow’s MHRA claim on
statute-of-limitations grounds.
On February 20, 2013, Wussow moved to amend his complaint to
allege Minnesota Whistleblower Act (MWA) and unlawful discharge
claims.
On March 27, 2013, the magistrate judge determined that
amendment was futile, and denied the motion.
Wussow objects.
DISCUSSION
A district court ordinarily reviews a magistrate judge’s
denial of a motion to amend under a clearly erroneous or contrary
to law standard.
See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P.
72(a); D. Minn. L.R. 72.2(a).
A motion to amend that is denied as
futile, however, is subject to a de novo review.
See U.S. ex rel.
Joshi v. St. Luke’s Hosp. Inc., 441 F.3d 552, 555-56 (8th Cir.
2006).
As the magistrate judge correctly notes, the court shall
provide leave to amend “when justice so requires.” Fed. R. Civ. P.
15(a)(2).
Leave to amend, however, is not an absolute right and
“undue delay, bad faith, or dilatory motive, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice
2
to the non-moving party, or futility of the amendment may be
grounds to deny [the] motion.”
Doe v. Cassel, 403 F.3d 986, 991
(8th Cir. 2005) (citation and internal quotation marks omitted).
Amendment is futile when the proposed claim cannot withstand a
motion to dismiss.
In re Senior Cottages of Am., LLC, 482 F.3d
997, 1001 (8th Cir. 2007).
I.
MWA
Wussow
seeks
leave
to
add
a
claim
under
the
MWA.
Specifically, Wussow alleges that he was terminated in retaliation
for reporting pay discrimination based on pregnancy.
In response,
Andor argues that the exclusivity provision of the MHRA bars
Wussow’s MWA claim.
The MHRA contains an exclusivity provision, stating that “the
procedure herein provided shall, while pending, be exclusive.”
Minn. Stat. § 363A.04.
In other words, an employee may not
“simultaneously maintain” claims for a violation of both the MHRA
and MWA when the “allegedly discriminatory practice ... [is]
predicated on identical factual statements and alleg[es] the same
injury or damages.”
Williams v. St. Paul Ramsey Med. Ctr., Inc.,
551 N.W.2d 483, 485 (Minn. 1996); see Abraham v. Cnty. of Hennepin,
639 N.W.2d 342, 347 (Minn. 2002) (analyzing Williams and concluding
“that an employee may not seek redress for the same allegedly
3
discriminatory practices on the same facts under both the MHRA and
the [MWA], because the MHRA expressly provides that its procedure,
while pending, shall be exclusive” (citation omitted)).
Wussow argues that Wirig v. Kinney Shoe Corp., 461 N.W.2d 374
(Minn. 1990), which permitted a common law battery claim while an
MHRA claim was pending, provides an exception to this rule.
id. at 378-79.
See
Wirig is inapposite, however, as its exception to
MHRA exclusivity applies only when the non-MHRA claim “require[s]
different elements of proof and address[es] different injuries.”
Williams, 551 N.W.2d at 485 (discussing Wirig). Here, Wussow bases
his MWA claim on the same facts that gave rise to his MHRA claim,
and alleges no new injuries.
See Mot. Amend Compl. Ex. B (redlined
version of amended complaint).
the same elements of proof.
Moreover, the MHRA and MWA require
Compare Bahr v. Capella Univ., 788
N.W.2d 76, 81 (Minn. 2010) (“Under the MHRA, to establish a prima
facie case for a reprisal claim, a plaintiff ... must establish the
following
elements:
(1)
statutorily-protected
conduct
by
the
employee; (2) adverse employment action by the employer; and (3) a
causal
connection
between
the
two.”
(citation
and
internal
quotation marks omitted)), with Coursolle v. EMC Ins. Grp, Inc.,
794 N.W.2d 652, 657 (Minn. Ct. App. 2011) (“To establish liability
under
the
[MWA],
an
employee
must
prove
three
elements:
[1] statutorily protected conduct by the employee, [2] an adverse
4
employment action by the employer, and [3] a causal connection
between the two.” (alterations in original) (citations and internal
quotation marks omitted)).
As a result, Wirig is unpersuasive.
In an attempt to distinguish Williams, Wussow next argues that
his MHRA claim is no longer pending, thereby rendering the MHRAexclusivity provision inapplicable.
The court disagrees and notes
that “a final decision ... is one that ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment.”
Maristuen v. Nat’l States Ins. Co., 57 F.3d 673, 676
(8th Cir. 1995) (citation and internal quotation marks omitted).
As a result, the MHRA claim is still pending, and amendment would
infringe the MHRA’s exclusivity provision.1
Therefore, amendment
is futile, and the objection is overruled.
II.
Unlawful Discharge
Wussow
discharge.
next
seeks
leave
to
assert
a claim
for
wrongful
Specifically, Wussow argues that his discharge was in
violation of the public-policy mandate expressed in both federal
and state law.
See 42 U.S.C. § 2000e(k) (Civil Rights Act); Minn.
1
Such a conclusion is logical given that the dismissal of the
MHRA claim is subject to appellate review upon the entry of
judgment. If this court were to allow Wussow to add a claim under
the MWA, and the Eighth Circuit was to reinstate the MHRA claim, an
anomalous result would be reached, whereby both an MHRA and MWA
claim would be under consideration. Moreover, though the court is
convinced that Wussow is not attempting to do so, allowing
amendment would permit litigants to repackage an MHRA claim as an
MWA claim and relitigate an argument that was previously dismissed
on the merits.
5
Stat. § 181.67, subdiv. 1 (Equal Pay for Equal Work Law).
In
response, Andor argues that amendment is futile, as Wussow cannot
demonstrate that he was discharged for refusing to participate in
an activity that violated a federal or state law.2
The tort of wrongful discharge allows an “employee to bring an
action
...
if
that
employee
is
discharged
for
‘refusing
to
participate in an activity that the employee, in good faith,
believes violates any state or federal law or rule or regulation
adopted pursuant to law.’”
Nelson v. Productive Alternatives,
Inc., 696 N.W.2d 841, 846 (Minn. 2005) (quoting Phipps v. Clark Oil
& Refining Corp., 408 N.W.2d 569, 571 (Minn. 1987)).
law
cause
of
action,
however,
“is
limited
to
This commona
refusal
to
participate in an activity that violates a law or promulgated
regulation or rule.”
Id. (emphasis added).
Here, Wussow does not allege that his termination was the
result
of
refusing
to
participate
in
an
unlawful
activity.
Instead, the wrongful discharge claim is based on his report of
2
Andor concedes that the exclusivity provision of the MHRA
does not bar a claim for wrongful discharge. See Tr. 20:21-21:9.
6
suspected employment discrimination.
As a result, Wussow has not
stated a claim for wrongful discharge.3
Therefore, amendment is
futile, and the objection is overruled.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.
Plaintiff’s objection [ECF No. 34] to the magistrate
judge’s order is overruled; and
2.
The magistrate judge’s order [ECF No. 31] is adopted in
its entirety.
Dated:
May 20, 2013
s/David S. Doty
David S. Doty, Judge
United States District Court
3
The Minnesota Court of Appeals recently declined “to
recognize a cause of action for wrongful discharge in violation of
public policy beyond the situation in which an employee is fired
for refusing to violate the law.”
Dukowitz v. Hannon Security
Servs., 815 N.W.2d 848, 852 (Minn. Ct. App. 2012) (citation
omitted), review granted No. A11-1481 (Minn. argued Mar. 4, 2013).
Although the Minnesota Supreme Court granted review in Dukowitz,
this court is tasked with interpreting the current state of the
law, not what the law could become.
7
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