Murdock v. L A Fitness International, LLC et al
Filing
69
ORDER denying as moot 49 defendant's Motion to Alter/Amend/Supplement Pleadings; denying 26 plaintiff's Motion for Summary Judgment; granting 28 defendant's Motion for Summary Judgment (Written Opinion). Signed by Senior Judge David S. Doty on 6/4/2013. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-975(DSD/SER)
Elias A. Murdock,
Plaintiff,
ORDER
v.
L.A. Fitness International,
LLC, (a.d.b.a. Pro Results)
(formerly dba Body of Change),
and Bally Total Fitness, All
Individual Defendants herein,
Defendants.
Elias A. Murdock, 700 West Maryland Avenue, St. Paul, MN
55117, pro se.
Melissa Raphan, Esq., Jennifer L. Cornell, Esq. and
Dorsey & Whitney, LLP, 50 South Sixth Street, Suite 1500,
Minneapolis, MN 55402, counsel for defendants.
This matter is before the court upon cross-motions for summary
judgment.
Based on a review of the file, record and proceedings
herein, and for the following reasons, the court grants the motion
by defendant L.A. Fitness International, LLC (L.A. Fitness).
BACKGROUND
This employment dispute arises out of the 2010 termination of
pro se plaintiff Elias A. Murdock by L.A. Fitness.
In January
2008, Murdock, an American Indian male, began working for L.A.
Fitness as a part-time Group Fitness Instructor.
20.
Am. Compl. ¶¶ 8,
Murdock was promoted in December 2009 to Activities Director.
Lee Decl. ¶ 2.
trainer.
Murdock also served as a part-time personal
Murdock Dep. 62:23-25; Stokesberry Decl. ¶ 6.
Murdock
alleges
that
regarding his ethnicity.
coworkers
made
disparaging
remarks
In June 2009, General Sales Manager
David Madison told Murdock to “cut [his] Last of the Mohicans
hair.”
Murdock
Dep.
203:9-10.
Later
that
month,
Madison
introduced Murdock to a hair stylist and said: “Here you go.
Eli,
cut your hair.” Id. at 205:20-24. Murdock reported these comments
to Regional Group Fitness Coordinator Erin Bitney.
Id. at 206:18-
25.
Murdock further alleges that in September 2009, training
supervisor Alex Birch told Murdock that “white skin is so much more
beautiful than dark skin.”
Id. at 170:18-20.
In November 2009,
Birch also allegedly told Murdock that a long, black hair was
sticking out of his shirt.
Id. at 173:18-174:7.
Murdock reported
Birch’s comments to Personal Training Manager Daniel Knowles.
at 174:14-17.
Thereafter, Murdock sent a letter to Knowles,
outlining Birch’s comments.
Ex. A.
Id.
Id. at 142:14-18; see Knowles Decl.
Knowles investigated and asked Birch to have no future
contact with Murdock.
Knowles Decl. ¶ 4.
On January 25, 2010, fitness instructor Kara Hirdman de
Bonilla reported that Murdock made an inappropriate sexual remark
after she finished teaching a class.
Hirdman de Bonilla Decl. ¶ 3.
Hirdman de Bonilla reported the remark to Madison and Operations
2
Manager Jon Viana.
Id. ¶ 4.
In response, Viana scheduled a
meeting with Murdock and Hirdman de Bonilla, but Murdock refused to
discuss the incident or sign a statement acknowledging that the
meeting occurred.
Id. ¶¶ 4-5; Murdock Dep. 123:10-125:2.
After the meeting, Hirdman de Bonilla reported Murdock’s
behavior to Human Resources Director Mindy Stokesberry. Hirdman de
Bonilla Decl. ¶ 6.
Stokesberry initiated an investigation and
contacted Murdock on January 27, 2010. Stokesberry Decl. ¶¶ 12-14.
During the conversation, Murdock referred to a complaint that he
had sent to Human Resources on the previous day.
138:12-20.
Stokesberry was not aware of the report,1 and asked
Murdock to send her a copy of the complaint.
¶ 15.
that
Murdock Dep.
Stokesberry Decl.
Murdock scanned a copy of the letter to Stokesberry later
day.
Employee
Murdock
Relations
complaint.
Dep.
Manager
138:18-139:6.
Russ
Moy
to
Stokesberry
investigate
assigned
Murdock’s
Moy Decl. ¶ 2.
Shortly thereafter, Murdock visited a clothing store where
Hirdman de Bonilla gave yoga demonstrations and asked the store
employees questions about Hirdman de Bonilla.
Stokesberry Decl.
¶ 17; Hirdman de Bonilla Decl. ¶ 7; Madison Decl. ¶ 5.
When
Stokesberry confronted Murdock with this allegation, Murdock said
1
Murdock alleges that he first scanned the letter and sent it
to Human Resources on January 26, 2010. Murdock Dep. 137:18-25.
It is unclear whether any L.A. Fitness employee was aware of the
letter prior to the conversation between Murdock and Stokesberry on
January 27, 2010.
3
he would “plead the Fifth.”
Stokesberry Decl. ¶ 18.
In response,
Stokesberry stripped Murdock of his supervisory position.
Id.
On
February 4, Stokesberry attempted to call Murdock three times to
discuss his behavior.
hung up on Stokesberry.
the next day.
Id. ¶ 20.
Id. ¶ 21.
Id. ¶ 22.
During one phone call, Murdock
Murdock called in sick to work
At that point, Stokesberry notified
Murdock by letter and email that he was terminated.
Id.
On July 6, 2012, Murdock filed a nine-count amended complaint,
alleging various state and federal claims.2
On October 29, 2012,
the court dismissed six of the nine claims, leaving allegations of
race discrimination, sex discrimination and retaliation.
See ECF
No. 22. Murdock moved for summary judgment on the remaining claims
on November 15, 2012.
L.A. Fitness moved for summary judgment on
October 19, 2012.
DISCUSSION
I.
Standard of Review
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
2
In the amended complaint, Murdock lists Madison, Birch,
Knowles, Robert Andy Smith, Ed Hustad, Corey Hines, Dan Arneson,
Lee, Stokesberry, Hirdman de Bonilla and John and Jane Does as
individual defendants. None of these parties have been served.
Moreover, the court notes that there is no individual liability
under Title VII or the Minnesota Human Rights Act. See Mehl v.
PortaCo., Inc., 859 F. Supp. 2d 1026, 1034 (D. Minn. 2012). As a
result, Murdock cannot state a claim against these defendants.
4
movant is entitled to judgment as a matter of law.”
Fed. R. Civ.
P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A dispute is genuine if the evidence is such that it could
cause a reasonable jury to return a verdict for either party.
See
id. at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
See id. at 255.
The nonmoving party, however, may not rest upon
mere denials or allegations in the pleadings but must set forth
specific facts sufficient to raise a genuine issue for trial.
Celotex, 477 U.S. at 324.
See
A party asserting that a genuine dispute
exists — or cannot exist — about a material fact must cite
“particular parts of materials in the record.”
56(c)(1)(A).
Fed. R. Civ. P.
If a plaintiff cannot support each essential element
of a claim, the court must grant summary judgment because a
complete
failure
of
proof
regarding
an
necessarily renders all other facts immaterial.
essential
element
Celotex, 477 U.S.
at 322-23.
II.
Race Discrimination
Murdock argues that L.A. Fitness maintained a racially-hostile
work environment, in violation of Title VII and the Minnesota Human
Rights Act (MHRA).
Specifically, Murdock bases his claim on
5
(1) Madison telling Murdock to cut his “Last of the Mohicans” hair,
(2) Madison bringing a hairstylist to the club and joking that
Murdock needed a haircut, (3) the comment by Birch that a long
black hair was sticking out of Murdock’s shirt and (4) Birch’s
comment that “white skin is so much more beautiful than dark skin.”
Claims under Title VII and the MHRA are analyzed using the
same standard.
See Clearwater v. Indep. Sch. Dist. No. 166, 231
F.3d 1122, 1124 n.2 (8th Cir. 2000).
To prevail on a claim of
hostile work environment, a plaintiff must prove “(1) the plaintiff
belongs to a protected group; (2) the plaintiff was subject to
unwelcome
harassment;
(3)
a
causal
nexus
exists
between
the
harassment and the plaintiff’s protected group status; and (4) the
harassment affected a term, condition, or privilege of employment.”
EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 683 (8th Cir. 2012)
(citations and internal quotation marks omitted).
For harassment
to affect a term, condition or privilege of employment, it must be
“subjectively offensive to the employee and objectively offensive
such that a reasonable person would find it hostile or abusive.”
Turner v. Gonzales, 421 F.3d 688, 695 (8th Cir. 2005) (citation
omitted). “A hostile work environment exists when the workplace is
dominated by racial slurs, but not when the offensive conduct
consists of offhand comments and isolated incidents.”
Bainbridge
v. Loffredo Gardens, Inc., 378 F.3d 756, 759 (8th Cir. 2004)
(citation omitted).
6
Murdock alleges four racially-tinged incidents during his
employment with L.A. Fitness.
As a matter of law, these isolated
incidents do not present an actionable hostile work environment
claim.
See id. (finding insufficient one racially-insensitive
remark per month for two years); see also Malone v. Ameren UE, 646
F.3d 512, 517 (8th Cir. 2011) (finding four incidents over two
years
insufficient
to
establish
claim).
Therefore,
summary
judgment for L.A. Fitness as to the race discrimination claim is
warranted.
III.
Sex Discrimination
Murdock next argues that L.A. Fitness discriminated against
him based on his sex.
Specifically, Murdock bases his claim on
(1) receiving more scrutiny from reviewing managers than his female
coworkers, (2) a female co-worker appearing in a promotional video
and (3) not receiving discounts at Lucy, a women’s active wear
store.
L.A. Fitness argues that Murdock cannot establish a prima
facie case of sex discrimination.
In the absence of direct evidence, Murdock may establish a
prima facie case of sex discrimination by showing that he “(1) is
within the protected class, (2) was qualified to perform his job,
(3) suffered an adverse employment action, and (4) has facts that
give rise to an inference of sex discrimination.”
7
McGinnis v.
Union Pac. R.R., 496 F.3d 868, 874 (8th Cir. 2007) (citation
omitted).
L.A. Fitness argues that no adverse employment action
occurred.3
“An
adverse
conditions
that
employment
produces
a
action
material
is
a
tangible
employment
change
in
disadvantage.”
Clegg v. Ark. Dep’t of Corr., 496 F.3d 922, 926 (8th Cir. 2007)
(citations and internal quotation marks omitted). Poor performance
evaluations, such as the ones Murdock alleges were based on his
sex, do not constitute an adverse employment action.
See id. at
927 (“[A]n unfavorable evaluation is actionable only where the
employer
subsequently
uses
the
evaluation
as
a
basis
to
detrimentally alter the terms or conditions of the recipient’s
employment.” (citation and internal quotation marks omitted)).
Further, not being selected for a promotional video or receiving a
discount
at
an
“[a]nnoyance[s]
unaffiliated
or
actionable harm.”
petty
clothing
slight[s]”
and
store
“do[]
are,
not
at
most,
constitute
Fercello v. Cnty. of Ramsey, 612 F.3d 1069,
1078-79 (8th Cir. 2010) (citations omitted).
Therefore, Murdock
has introduced no evidence of an adverse employment action, and
summary judgment for L.A. Fitness on the sex discrimination claim
is warranted.
3
Murdock undoubtedly suffered an adverse employment action
when he was terminated. Murdock does not allege - and there is no
evidence suggesting - that he was terminated because of his sex.
8
IV.
Retaliation
Murdock next argues that L.A. Fitness retaliated against him
for the November 2009 and February 2010 complaints.
Specifically,
Murdock argues that (1) his personal training workload was reduced
from thirty to ten clients per week and (2) he was terminated
shortly after the February 2010 complaint.
In the absence of direct evidence, retaliation claims are
analyzed under the McDonnell Douglas burden-shifting framework.
Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1048 (8th Cir.
2007).
To
demonstrate
retaliation,
establish a prima facie case.
Id.
a
plaintiff
must
first
If he does, the employer may
then rebut by proffering a legitimate, nondiscriminatory reason for
the employment action.
Id.
The plaintiff may then show that the
proffered reason is a pretext for retaliation.
Id.
L.A. Fitness argues that Murdock cannot establish a prima
facie case of retaliation.
To do so, Murdock “must show: (1) [he]
engaged in protected conduct; (2) [he] suffered materially adverse
employment action, action that would deter a reasonable employee
from making a charge of employment discrimination or harassment;
and (3) the materially adverse action was causally linked to the
protected conduct.”
Fercello, 612 F.3d at 1077-78 (citation
omitted).
9
A.
Reduced Workload
L.A. Fitness argues that Murdock cannot demonstrate that he
suffered a materially-adverse employment action based on his claim
of a reduced workload.
Other than a bald assertion that Birch
canceled his personal training appointments, Murdock has adduced no
evidence of a diminished workload.
Moreover, Murdock testified
that personal training clients were responsible for booking and
canceling personal training appointments.
Murdock Dep. 89:1-11.
As a result, any diminished workload is attributable to individual
clients, not to L.A. Fitness.
In sum, Murdock has introduced no
evidence from which a reasonable jury could find a prima facie case
of retaliation based on his allegedly-diminished workload.
B.
Termination
Murdock presents no evidence that would permit a reasonable
jury to find a link between his termination and either the November
2009 or February 2010 complaint.
Over two months elapsed between
the November 2009 complaint and Murdock’s termination.
This
timing, without more, cannot establish a causal link between the
report and termination.
See Kipp v. Mo. Highway & Transp. Comm’n,
280 F.3d 893, 897 (8th Cir. 2002) (“[T]he interval of two months
between the complaint and ... termination so dilutes any inference
of causation that we ... hold as a matter of law that the temporal
connection could not justify a finding in [plaintiff’s] favor on
the matter of causal link.”).
Moreover, when Murdock lodged the
10
February 2010 complaint, he was already being investigated for
misconduct. As a result, the temporal proximity between the report
and termination, without more, cannot establish a prima facie case
of retaliation.
See Smith v. Allen Health Sys., Inc., 302 F.3d
827, 834 (8th Cir. 2002) (“Evidence that the employer had been
concerned about a problem before the employee engaged in the
protected activity undercuts the significance of the temporal
proximity.” (citation omitted)). Therefore, summary judgment as to
the retaliation claim is warranted.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.
Plaintiff’s motion for summary judgment [ECF No. 26] is
denied;
2.
Defendant’s motion for summary judgment [ECF No. 28] is
granted; and
3.
Defendant’s motion to amend its amended answer [ECF No.
49] is denied as moot.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:
June 4, 2013
s/David S. Doty
David S. Doty, Judge
United States District Court
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