Saulsberry v. Saint Mary's University of Minnesota

Filing 35

MEMORANDUM AND OPINION overruling the Plaintiff's objections [Docket No. 33], adopting the Report and Recommendation of the Magistrate Judge dated September 24, 2013 [Docket No. 32] and granting Saint Mary's University of Minnesota's Motion for Summary Judgment [Docket No. 14].(Written Opinion). Signed by Judge John R. Tunheim on December 12, 2013. (HAZ)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-1069 (JRT/FLN)

JOHN HENRY SAULSBERRY,
Plaintiff,
v.
SAINT MARY’S UNIVERSITY OF
MINNESOTA,

MEMORANDUM OPINION AND
ORDER ADOPTING THE REPORT
AND RECOMMENDATION OF THE
MAGISTRATE JUDGE

Defendant.

John H. Saulsberry, 4821 Columbus Avenue South, Minneapolis, MN
55417, pro se.
Robert L. McCollum and Cheryl A. Hood Langel, MCCOLLUM
CROWLEY MOSCHET MILLER & LAAK, LTD, 7900 Xerxes
Avenue South, Suite 700, Minneapolis, MN 55431, for defendant.

Plaintiff John Saulsberry challenges the termination of his employment by
Defendant Saint Mary’s University of Minnesota (“Saint Mary’s”), bringing claims for
defamation, age discrimination, racial discrimination, and retaliation.

The matter is

before the Court on the motion by Saint Mary’s for summary judgment. On September
24, 2013, United States Magistrate Judge Franklin L. Noel issued a Report and
Recommendation (“R&R”) recommending that the Court grant the motion for summary
judgment.

Saulsberry made timely objections to the R&R, asserting that summary

judgment should be denied on his defamation, racial discrimination, and retaliation

2013F-KJ

claims. 1 Having conducted a de novo review of those portions of the R&R to which
Saulsberry objects, see 28 U.S.C. § 636(b)(1)(C); D. Minn. LR 72.2(b), and having
carefully reviewed the submitted materials, the Court overrules Saulsberry’s objections
and adopts the R&R because it finds that there are no genuine disputes of material fact
and Saint Mary’s is entitled to judgment as a matter of law on all claims raised by
Saulsberry.

BACKGROUND
Saulsberry’s position as Director of Security was eliminated and Saulsberry’s
employment at Saint Mary’s was terminated when Saint Mary’s outsourced its campus
security needs to a private company. (Aff. of Ann Merchlewitz , Ex. 8, May 3, 2013,
Docket No. 20.)

Saulsberry’s claims arise out of his belief that (1) Saint Mary’s

investigated complaints that were made against him, as a black employee, more
rigorously than complaints lodged against white employees, and (2) the decision of Saint
Mary’s to outsource its security needs was a retaliatory response to Saulsberry’s
complaints about this alleged discrimination. (Pl.’s Mem. in Resp. to Mot. for Summ. J.
at 1, June 10, 2013, Docket No. 29; Objection to R&R at 3–4, Oct. 9, 2013, Docket No.
33.)

I.

SAULSBERRY’S EMPLOYMENT AT SAINT MARY’S

1

Plaintiff does not object to the recommendation that his age discrimination claim was
unfounded. As to this issue, the Court adopts the Report and Recommendation without further
discussion.
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Saulsberry began working at the Twin Cities campus of Saint Mary’s in 1995.
(Compl. ¶ 11, May 1, 2012, Docket No. 1.) From 1996 to November 7, 2011, Saulsberry
served as Director of Security. (Id.; Pl.’s Mem. in Resp. to Mot. for Summ. J. at 4.)
During the year leading up to the events in question, Saulsberry’s responsibilities
included assigning shifts to security guards, patrolling campus grounds, providing
escorts, conducting safety orientations, training personnel, responding to emergencies,
ensuring functioning alarm systems, documenting security incidents, and advising
Saint Mary’s administrators on security issues. (Aff. of Robert L. McCollum, Ex. 2
(Dep. of John Saulsberry (“Saulsberry Dep.”) 57:4–18), May 3, 2012, Docket No. 21.)
The job description for Saulsberry’s position also included “arrang[ing] for outside
security service when required.”

(Id. at 50:10–54:14, 135:22–136:1.)

Saulsberry

testified that arrangements for outside security were required when there was a staffing
shortage or a special event. (Id. at 55:21–25.) But, Saulsberry could not recall a time
that it was necessary to arrange for additional security staff for any reason between 2009
and 2011. (Id. at 56:1–12.)

II.

INVESTIGATION OF COMPLAINTS MADE AGAINST SAULSBERRY
Between 2009 and 2011, employees managed by Saulsberry filed several formal

complaints against Saulsberry. (Merchlewitz Aff., Exs. 1–5.) The complaints involved
both Saulsberry’s scheduling of work hours and alleged unprofessional treatment of the
employees he managed. (Id.) The 2009 complaints were resolved with a written warning
instructing Saulsberry to treat his staff with respect.

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(Id., Ex. 1.)

Saint Mary’s

investigated complaints made in 2010 and provided Saulsberry feedback about employee
scheduling concerns, but no finding was made regarding the complaints. (McCollum
Aff., Ex. 1 at 11–12.)
In June 2011, two security employees, Corey Walthers and William Oatis, made
complaints regarding Saulsberry’s management to Saulsberry’s supervisor and the
university’s Department of Human Resources. (Merchlewitz Aff., Ex. 3 at 9) Corey
Walthers asserted that Saulsberry promised but did not provide him part-time
employment instead of on-call employment, that Saulsberry swore at him and “invaded
his ‘personal space,’” and that Saulsberry treated the security staff with disrespect. (Id.)
William Oatis complained that his work hours were reduced and that Saulsberry yelled at
him and called him “an ‘idiot’ and a ‘liar’” when Oatis approached Saulsberry about the
reduction.

(Id., Ex. 3 at 10.) Saint Mary’s was unable to substantiate any of the

allegations raised by Walthers or Oatis. (Id., Ex. 3 at 9–10.) But, the investigation of
these complaints did reveal that “nearly every campus security guard and some Twin
Cities campus staff reported that [Saulsberry] treat[ed] them with disrespect and [was]
unprofessional in [his] communication with them.” (Id., Ex. 3 at 11.) No disciplinary
action was taken as a result of the investigation into Walthers’ and Oatis’s complaints,
but Saint Mary’s required that Saulsberry work with a human resources employee to
improve his supervisory and leadership skills and that Saulsberry treat all employees with
respect. (Id., Ex. 3 at 5.)
Saulsberry alleges that during the investigation of the 2011 complaints, a
Saint Mary’s employee reported that Saulsberry stated he “could ‘kill about half the
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security staff’ like Larry Hoover would,” that Larry Hoover is a Chicago gangster, and
that Saint Mary’s published these statements in Saulsberry’s employment record. (Pl.’s
Mem. in Resp. to Mot. for Summ. J. at 21–23, Ex. 1 at 9; Compl. at 6.) Saulsberry denies
making any statements about Larry Hoover. (Saulsberry Dep. 120:18–121:23.)
On July 18, 2011, Saulsberry filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) regarding the investigation into the
2011 complaints.

(Merchlewitz Aff., Ex. 6.)

Saulsberry alleged that Saint Mary’s

“investigates complaints against Black employees differently than it investigates
complaints made by Black employees against White employees.” (Id.)

III.

SAULSBERRY’S TERMINATION
In 2010, Saint Mary’s entered into negotiations to purchase additional land near its

Twin Cities campus. (Merchlewitz Aff. ¶ 4.) Saint Mary’s finalized the land purchase on
June 24, 2011. (Id.) The land exceeds an acre and a half in area and includes an event
center and parking lots.

(Id. ¶¶ 4–5.)

Although Saint Mary’s began considering

outsourcing its security needs as early as 2009, the purchase of this additional property
modified Saint Mary’s security needs, which led to Saint Mary’s ultimate decision to
outsource its security services. (Id. ¶¶ 5, 15, Ex. 10; Aff. of Don Winger ¶ 3, May 3,
2013, Docket No. 17.)
Saint Mary’s administrators initiated a bidding process for outsourcing the
university’s security needs between April and May of 2011. (Winger Aff. ¶¶ 8–9.) They
met with four potential security vendors between July 18 and July 22, 2011. (Id. ¶ 10.)

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Don Winger, Dean of Campus Security from December 2009 to March 2012, arranged
these meetings and was unaware of Saulsberry’s July 18, 2011 Charge of Discrimination
when the meetings were scheduled. (Id. ¶¶ 2, 10–11.) Saulsberry was not involved in the
decision to outsource the security department. (Saulsberry Dep. 54:11–13.)
On November 7, 2011, Saint Mary’s informed Saulsberry that it was outsourcing
its security needs and terminating his employment. (Merchlewitz Aff., Exs. 8, 10.)
Saulsberry was informed that he and all the security staff were able to apply for
employment with the private security vendor. (Id., Ex. 10.) Saulsberry did not apply in a
timely manner. (Saulsberry Dep. 43:11–15, 47:1–4.) Saulsberry filed a second Charge
of Discrimination with the EEOC on December 28, 2011, alleging that his discharge was
“in retaliation for opposing discrimination.” (Merchlewitz Aff., Ex. 9.)

ANALYSIS
I.

STANDARD OF REVIEW
Summary judgment is appropriate where there are no genuine issues of material

fact and the moving party can demonstrate that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the suit,
and a dispute is genuine if the evidence is such that it could lead a reasonable jury to
return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A court considering a motion for summary judgment must view the facts in the
light most favorable to the non-moving party and give that party the benefit of all

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reasonable inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587–88 (1986).

II.

DEFAMATION CLAIM
Saulsberry claims that he was defamed when the statement made by a

Saint Mary’s employee regarding Larry Hoover was recorded in his employment record
during the course of the investigation into his alleged misconduct. “To establish a
defamation claim, a plaintiff must prove three elements: (1) the defamatory statement is
‘communicated to someone other than the plaintiff,’ (2) the statement is false, and (3) the
statement ‘tend[s] to harm the plaintiff’s reputation and to lower [the plaintiff] in the
estimation of the community.’” Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 919–20
(Minn. 2009) (alterations in original) (quoting Stuempges v. Parke, Davis & Co., 297
N.W.2d 252, 255 (Minn. 1980)). Saulsberry objects to the R&R’s conclusion that he
failed to make a prima facie showing of defamation under this standard. (See R&R at 4–
5, Sept. 24, 2013, Docket No. 32.)
Even if Saulsberry has made a prima facie showing of defamation, Saint Mary’s is
shielded from liability by a qualified privilege. In order for a defamatory communication
to be shielded by a qualified privilege, it “must be made upon a proper occasion, from a
proper motive, and must be based upon reasonable or probable cause.” Stuempges, 297
N.W.2d at 256–57 (internal quotation marks omitted). “[T]he existence of a privilege
results from the court’s determination that statements made in particular contexts or on
certain occasions should be encouraged despite the risk that the statements might be

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defamatory.” Lewis v. Equitable Life Assurance Soc’y of the U.S., 389 N.W.2d 876, 889
(Minn. 1986). “Whether an occasion is a proper one upon which to recognize a privilege
is a question of law for the court to determine.” Id. “[S]tatements made in the course of
an employer’s investigation into employee misconduct are protected by the qualified
privilege.” Bahr, 766 N.W.2d at 923.
A plaintiff can only overcome a qualified privilege if he or she can demonstrate
the defendant acted with actual malice. Lewis, 389 N.W.2d at 889. “Actual malice
requires a showing that the defamatory statements are made from ill will and improper
motives, or causelessly and wantonly for the purpose of injuring the plaintiff.” Bahr, 766
N.W.2d at 920 (internal alterations and quotation marks omitted). When a qualified
privilege exists, to survive a motion for summary judgment, a plaintiff must present at
least some evidence from which it might be inferred that the defendant knew the
statement at issue was false and some evidence of ill feeling between the parties.
Sherman v. Rinchem Co., Inc., 687 F.3d 996, 1009–10 (8th Cir. 2012) (citing Frankson v.
Design Space Int’l, 394 N.W.2d 140, 144 (Minn. 1986)).
Here, Saint Mary’s is entitled to a qualified privilege and Saulsberry has not made
any showing of actual malice sufficient to overcome this privilege. Undisputed facts in
the record reflect that the statement that Saulsberry said he could kill staff like Larry
Hoover was recorded in the course of Saint Mary’s legitimate investigation into
Saulsberry’s alleged unprofessional and aggressive behavior towards other employees.
Saulsberry has not presented evidence that Saint Mary’s recorded the statement in his
employment record knowing it to be false, nor has Saulsberry presented evidence that
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Saint Mary’s recorded the statement with ill will or improper motive. Therefore,
Saint Mary’s is entitled to summary judgment on Saulsberry’s defamation claim.

III.

DISCRIMINATION CLAIM
Saulsberry claims that Saint Mary’s discriminated against him on the basis of his

race in violation of Title VII of the Civil Rights Act by investigating complaints against
him with more rigor than Saint Mary’s investigated complaints against white employees.
Saulsberry objects to the R&R’s finding that he failed to show that he suffered an adverse
employment action. He argues that core responsibilities of his job description were
removed after the allegedly discriminatory investigation in 2011. 2 Specifically, he argues
that he was not informed of the pending decision to outsource the security department or
allowed to have input in that decision, amounting to an adverse employment action.
Because there is no direct evidence of discrimination in the record, Saulsberry’s
racial discrimination claim must be evaluated under the McDonnell Douglas burden
shifting framework. McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 860
(8th Cir. 2009).

Under the McDonnell Douglas framework, the plaintiff first must

demonstrate a prima facie case of discrimination. Id. If the plaintiff makes out a prima
facie case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its action. Id. If the employer successfully demonstrates a non-

2

To the extent that Saulsberry’s objection addresses events occurring before the 2011
investigation, those events are not properly before the court. The Court is limited to addressing
matters raised as part of Saulsberry’s EEOC charges of discrimination. See Cottrill v. MFA, Inc.,
443 F.3d 629, 634–35 (8th Cir. 2006).
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discriminatory reason, then the burden shifts back to the plaintiff to show that the
employer’s stated reason was a mere pretext for discrimination. Id.
In order to establish a prima facie case of racial discrimination, Saulsberry must
demonstrate that (1) he is a member of a protected class, (2) he was qualified for the job
in question, (3) he suffered an adverse employment action, and (4) the facts permit an
inference of discrimination. Bearden v. Int’l Paper Co., 529 F.3d 828, 831 (8th Cir.
2008). Saint Mary’s concedes that Saulsberry is a member of a protected class and that
he was qualified for his position. (Def.’s Mem. in Supp. of Mot. for Summ. J. at 22, May
3, 2013, Docket No. 16.) The parties dispute whether Saulsberry establishes a genuine
issue of fact regarding the third and fourth element: whether he suffered an adverse
employment action and whether the facts permit an inference of discrimination.
The Court finds that Saulsberry has not raised a genuine issue of material fact on
either of these disputed elements. First, the record does not support a finding that
Saulsberry suffered an adverse employment action in relation to the 2011 investigations
into his conduct. “An adverse employment action is defined as a tangible change in
working conditions that produces a material employment disadvantage, including but not
limited to, termination, cuts in pay or benefits, and changes that affect an employee’s
future career prospects, as well as circumstances amounting to a constructive discharge.”
Jackman v. Fifth Judicial Dist. Dep’t of Corr. Servs., 728 F.3d 800, 804 (8th Cir. 2013).
Minor changes in duties which do not cause a material disadvantage, even if unpalatable,
do not amount to an adverse employment action. Id.

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While Saulsberry’s title did not change and he did not receive a cut in pay or
benefits as result of the 2011 investigations, Saulsberry argues that he suffered an adverse
employment action because core responsibilities of his job were removed. Saulsberry
points to the fact that he was not involved in the decision to outsource Saint Mary’s
security needs. While there is some evidence in the record to support a conclusion that
Saulsberry’s job responsibilities included arranging for outside security personnel when
necessary because of a staffing shortage or a special event, Saulsberry does not point to
anything in the record to establish that deciding whether or not to outsource the entire
security department, including his own position, was part of the responsibilities of his
job.
Saulsberry also fails to point to a genuine dispute of material fact regarding the
fourth element of his prima facie case. This element can be satisfied “in a variety of
ways, such as by showing more-favorable treatment of similarly-situated employees who
are not in the protected class, or biased comments by a decisionmaker.” Pye v. Nu Aire,
Inc., 641 F.3d 1011, 1019 (8th Cir. 2011). To raise an inference of discrimination based
on different treatment of a similarly-situated white employee, Saulsberry must at least
point to an employee “‘involved in or accused of the same or similar conduct [that was]
disciplined in different ways.’” Wimbley v. Cashion, 588 F.3d 959, 962 (8th Cir. 2009)
(quoting Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 851 (8th Cir. 2005)).
Saulsberry does not point to any similarly situated white employees who were
disciplined in a different way after having complaints lodged against them by multiple
employees, nor does he demonstrate biased comments by Saint Mary’s administrators
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responsible for investigating complaints lodged against employees. Therefore, the Court
concludes that Saulsberry has not shown any circumstances that give rise to an inference
of discrimination concerning the investigations into his alleged misconduct. See id.
Saint Mary’s is entitled to summary judgment on Saulsberry’s discrimination claim.

IV.

RETALIATION CLAIM
Saulsberry also claims that Saint Mary’s retaliated against him, in violation of

Title VII, for reporting the University’s allegedly discriminatory actions to the EEOC.
The McDonnell Douglas burden-shifting framework also applies to this claim. Barker v.
Mo. Dep’t of Corr., 513 F.3d 831, 834 (8th Cir. 2008). In his objections, Saulsberry
asserts that outsourcing the entire security department because of the purchase of
additional land was pretext for the real desire of Saint Mary’s to terminate Saulsberry for
“opposing discrimination.” (Objection to R&R at 4–5.)
To establish a prima facie case of retaliation under Title VII, Saulsberry has the
initial burden to show (1) that he engaged in a protected activity, (2) he suffered an
adverse employment action, and (3) a causal connection between the protected activity
and the adverse employment action. Shanklin v. Fitzgerald, 397 F.3d 596, 603 (8th Cir.
2005). To establish a causal connection, Saulsberry must prove that Saint Mary’s desire
to retaliate was the but for cause of his termination. Wright v. St. Vincent Health Sys.,
730 F.3d 732, 737 (8th Cir. 2013) (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct.
2517, 2533 (2013)).

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Even if Saulsberry has made a prima facie showing of retaliation, Saint Mary’s
points to undisputed facts in the record to demonstrate that it had a legitimate reason for
outsourcing its security needs and terminating Saulsberry’s employment, i.e., the
purchase of additional property and expansion of its Twin Cities campus. Saulsberry
points to no facts in the record to support his allegation that this stated reason for
termination was pretextual. Therefore, no genuine issues of material fact exist and
Saint Mary’s is entitled to judgment as a matter of law.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, the
Court OVERRULES the Plaintiff’s objections [Docket No. 33] and ADOPTS the
Report and Recommendation of the Magistrate Judge dated September 24, 2013 [Docket
No. 32]. Accordingly, IT IS HEREBY ORDERED that Saint Mary’s University of
Minnesota’s Motion for Summary Judgment [Docket No. 14] is GRANTED, and all
claims against it are DISMISSED WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: December 12, 2013
at Minneapolis, Minnesota.

__________s/John R. Tunheim_________
JOHN R. TUNHEIM
United States District Judge

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