Stewart v. Rise, Inc.
Filing
39
MEMORANDUM OPINION AND ORDER: 1. Defendant's Motion for Summary Judgment [Doc. No. 20] is GRANTED, and 2. Plaintiff's Complaint [Doc. No. 1] is DISMISSED WITH PREJUDICE (Written Opinion). Signed by Judge Susan Richard Nelson on 10/31/13. (LPH)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Bernadine Stewart,
Case No. 12-cv-1187 (SRN/SER)
Plaintiff,
MEMORANDUM OPINION
AND ORDER
v.
Rise, Inc.,
Defendant.
Stephen C. Fiebiger, Stephen C. Fiebiger Law Office, Chartered, 2500 West County
Road 42, Suite 190, Burnsville, Minnesota 55337, for Plaintiff.
Michael D. O’Neill and Pamela M. Harris, Martin & Squires PA, 332 Minnesota Street,
W2750, Saint Paul, Minnesota 55101, for Defendant.
SUSAN RICHARD NELSON, United States District Judge
I.
INTRODUCTION
Plaintiff Bernadine Stewart sued her employer, Rise, Inc., (“Rise”) for
discrimination on account of her race, sex, and national origin in violation of Title VII of
the Civil Rights Act of 1964, the Minnesota Human Rights Act, and 42 U.S.C. § 1981
(Counts 1, 3, and 4). (Compl. ¶¶ 42-43, 46-48 [Doc. No. 1].) Ms. Stewart also sued Rise
for retaliation under Title VII (Count 2). (Id. ¶¶ 44-45). Ms. Stewart further alleges a
whistleblower claim against Rise under Minn. Stat. § 181.932 (Count 5). (Id. ¶ 49.)
This matter is before the Court on Rise’s Motion for Summary Judgment [Doc.
No. 20]. For the reasons that follow, the Court grants Rise’s motion.
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II.
BACKGROUND
A. The Parties
Rise is a non-profit organization that supports people with disabilities and other
barriers to employment through vocational programs and services. (Decl. of Lynn Marie
Noren ¶ 3 [Doc. No. 26].) The Rise Pathways program, started in 1999, serves recipients
of the Minnesota Family Investment Program (“MFIP”), Minnesota’s primary welfare
program for low-income families with children. (Id. ¶ 8.) MFIP aims to help clients
obtain employment and achieve self-sufficiency. (Id.)
From January 22, 2007 until March 12, 2012, Ms. Stewart was the coordinator of
MFIP at Rise’s Minneapolis office. (Compl. ¶ 5 [Doc. No. 1].) In this role, Ms. Stewart
supervised staff who handled cases of program participants. (Id.) Ms. Stewart was
supervised by Truc Pham, who primarily worked out of Rise’s office in Spring Lake
Park, Minnesota. (Id. ¶ 6.)
B. Rise’s Anti-Discrimination Policy and Training
In the first year of her employment, Ms. Stewart reviewed and acknowledged
receipt of Rise’s 2007 Personnel Manual. (Ex. 1 to Stewart Dep. [Doc. No. 23-2].) This
Manual explained that discriminatory conduct would not be tolerated, and it set forth the
procedures for reporting discriminatory conduct.1 (Dep. of Bernadine Stewart at 21-22
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The Conflict Resolution portion of Rise’s policy states that the employee should:
Discuss the concern with your supervisor.
If your concern is not resolved within five working days after discussing it with
your supervisor, take your concern to the next level of management.
If your problem is not resolved within thirty days after completing step two,
2
[Doc. No. 23-1]; Ex. 2 to Stewart Dep. [Doc. No. 23-2].) In addition, Ms. Stewart
reviewed, acknowledged, and signed Rise’s Code of Conduct each year from 2007 to
2011, affirming that:
To the best of my knowledge, I am unaware of any possible violations of
the standards described in the attached Code of Conduct and/or potential
conflict of interests either by me, managers, supervisors, or other
employees. I further agree to comply with the standards in the future and to
report promptly any questions or concerns that I may have, as noted in the
Code.
(Ex. 5 to Stewart Dep. [Doc. No. 23-2].) The Code of Conduct prohibits discrimination
“of any kind,” including “on the basis of race, color, creed, religion, sex, sexual
orientation, national origin, age, disability, veteran status, marital status, or status with
regard to public assistance.” (Ex. 2 to Stewart Dep. at 5 [Doc. No. 23-2].)
Rise organized quarterly meetings and trainings to discuss “all aspects of our HR
department,” including discrimination and harassment issues. (Dep. of Mary Stransky at
18-21 [Doc. No. 23-4].) Rise also sent all supervisors, including Ms. Stewart, to a tenweek supervision class that addressed managing employee performance and behavior.
(Id. at 18-19.)
C. Interactions between Ms. Stewart and Her Staff
Ms. Stewart alleges that her staff created a hostile working environment and
present your concern in writing to the Human Resources Department with a copy
to the President. The concern will be reviewed and a decision will be made, and
reviewed by the Personnel Committee of the Rise Board of Directors. This
decision will be made within thirty days after receipt of the written concern.
Retaliation . . . will not be tolerated. If you feel you have been retaliated against
please contact the HR Department immediately.
(Ex. 2 to Stewart Dep. at 3-4 [Doc. No. 23-2].)
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discriminated against her on the basis of her race, national origin, and sex. She claims
that they called her a “black female bitch.” (Stewart Dep. at 108.) She also claims that
male Somali staff refused to follow her instructions. (Pl.’s Answers to Def.’s
Interrogatories at 5-6 [Doc. No. 36-1].) For example, when she told them to answer
incoming telephone calls, they allegedly refused because they viewed answering the
telephone as “women’s work.” (Id. at 17; Dep. of Assata Damani at 55-56 [Doc. No. 239].) When Ms. Stewart re-directed them from discussing non-work related topics to
performing work-related tasks, they allegedly ignored Ms. Stewart. (Pl.’s Answers to
Def.’s Interrogatories at 17.) Additionally, Ms. Stewart claims that male Somali staff
made comments about women who wore black as “needing a man.” (Id.) Ms. Stewart
further alleges that Somali counselors often spoke in the Somali language, knowing that
Ms. Stewart could not understand them. (Id.) Ms. Stewart generalizes that male Somali
workers discriminate against black women who are born in the United States. (Stewart
Dep. at 105-06.)
Ms. Stewart also alleges conduct by specific individuals at Rise, including Abdi
Haid, Youssouf Robleh, Abdisalon Abdirahman, Yasin Jama, and Stephanie Ableiter.
Abdi Haid, a male Somali-American counselor, was allegedly “rude, condescending, and
disrespectful toward Ms. Stewart.” (Pl.’s Answers to Def.’s Interrogatories at 17.) Ms.
Stewart claims that Mr. Haid once threw a case file at her in the office. (Id.) Ms. Stewart
also claims that on February 18, 2009, Mr. Haid yelled at her, “fuck you, everyone
around here does not like you!” (Id.)
Youssouf Robleh, a male Somali counselor, allegedly yelled and slammed his
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office door in an intimidating manner around Ms. Stewart. (Id. at 18.) Ms. Stewart
claims that Mr. Robleh made comments such as “Americans owe Somalis; it’s okay for
Somali pirates to kill Americans and hijack their boats.” (Id. at 19.)
Abdisalon Abdirahman, a Somali-American male, allegedly intimidated Ms.
Stewart. (Pl.’s Answers to Def.’s Interrogatories at 20.) Ms. Stewart claims that after
Mr. Abdirahman was placed on a performance improvement program in January 2012, he
would move closer to her while she was seated, standing over her in a “confrontational
and defiant manner.” (Id.) This conduct made Ms. Stewart feel “threatened and
intimidated in the workplace.” (Id.) Ms. Stewart allegedly informed Mr. Pham about
Mr. Abdirahman’s conduct. (Id.)
Yasin Jama, a male Somali counselor, allegedly commented on Ms. Stewart’s
attire on a regular basis and asked whether Ms. Stewart was “looking for a husband or a
man” when she wore African clothing. (Pl.’s Answers to Def.’s Interrogatories at 6.)
Ms. Stewart claims that Mr. Jama disrespected her and ignored her directions. (Id.)
Stephanie Ableiter, a Caucasian female, allegedly became insubordinate toward
Ms. Stewart at least twice and shouted, “no one here likes you” and “we’re trying to get
you out of here.” (Id. at 17.) Ms. Ableiter also allegedly stated in a loud voice at the
office that Ms. Stewart “was sick,” which Ms. Stewart found “offensive and humiliating.”
(Id. at 20.) Ms. Stewart claims that Mr. Pham overheard the comment but did not
intervene or take any corrective action. (Id.)
During her employment with Rise, Ms. Stewart did not make any written reports
to Rise that she had been discriminated against on the basis of race, national origin, or
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sex. (Stewart Dep. at 30-31.) Mr. Pham states that Ms. Stewart never reported any
improper conduct by Rise employees against her to him. (Dep. of Truc Pham at 119
[Doc. No. 23-7].) Ms. Stewart, however, maintains that she verbally reported the hostile
work environment and discrimination that she allegedly experienced to Mr. Pham and
Ms. Stransky, but they did not provide guidance or assistance. (Stewart Dep. at 228-29;
Pl.’s Answers to Def.’s Interrogatories at 20.)
Various employees at Rise, former and current, believe that Ms. Stewart treated
African-American staff and clients more favorably than those of Somali origin. (Decl. of
Marsha Rasheed ¶ 6 [Doc. No. 25]; Decl. of Abdi Haid ¶ 7 [Doc. No. 29]; Decl. of
Abdirahman Abdisalan ¶ 12 [Doc. No. 30].) For example, Ms. Stewart allegedly
permitted Assata Damani,2 an African-American counselor at Rise, to arrive late and
leave work early, whereas she monitored Mr. Haid’s time very carefully and criticized
him if he arrived slightly late. (Haid Decl. ¶ 8.) In addition, Ms. Stewart was allegedly
“very hard” on Somali clients, not granting their paperwork or bus passes as freely as she
did to African-American clients. (Id. ¶ 7.) Further, Ms. Stewart allegedly required
Somali clients to make an appointment if they visited the office without an appointment,
even if they raised issues that required immediate attention. (Id. ¶ 8.)
The record shows that Ms. Stewart struggled with the interpersonal aspects of
working with her staff. For instance, Ms. Stewart sat inside her office with the door
2
On March 11, 2011, Ms. Damani resigned from employment with Rise allegedly
because of a hostile work environment and harassment by male Somali counselors.
(Damani Dep. at 44, 53.) Ms. Damani claims that they did not value African-American
women and acted in ways to antagonize and upset her. (Id. at 53.)
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locked for most of the day. (Haid Decl. ¶ 12; Rasheed Decl. ¶ 5.) Also, Ms. Stewart
would not let her staff work when she was not in the office. (Haid Decl. ¶ 6.) She
allegedly would not give them keys to the office, causing employees to wait outside the
office until Ms. Stewart arrived. (Rasheed Decl. ¶ 5.) In her working relationships, Ms.
Stewart allegedly started out “fine” with counselors, but once they challenged her, Ms.
Stewart “would change on them and take it out on them going forward.” (Id. ¶ 6.)
Various employees contrasted Ms. Stewart with her predecessor, Amina Gesale, who
worked collaboratively with her staff and allowed them more flexibility with office
hours. (Haid Decl. ¶ 6; Decl. of Youssouf Robleh ¶14 [Doc. No. 31].)
D. Ms. Stewart’s Performance Evaluations from 2009-2011 and the Work
Participation Rate
In the formal evaluations for Ms. Stewart from 2009 through 2011, Mr. Pham
rated her interpersonal and leadership skills as falling below the performance standard.
(Stewart Dep. at 158-61.) On March 11, 2009, Mr. Pham commented that Ms. Stewart
needed to improve her “working relationships with other supervisors, co-workers,
partners, especially staff,” as well as her interpersonal skills and communication style so
that her team would view her as a leader. (2009 Performance Appraisal at 1-2 [Doc. No.
23-3].) On February 23, 2010, Mr. Pham gave similar feedback, additionally noting the
need for Ms. Stewart to maintain Rise’s performance standards and increase the work
participation rate. (2010 Performance Appraisal at 1-2 [Doc. No. 23-3].) On February
23, 2011, Mr. Pham wrote that despite some improvement, Ms. Stewart needed to
“continue improving the interpersonal skills and communication style before she [Ms.
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Stewart] can gain her leadership qualities.” (2011 Performance Appraisal at 1-2 [Doc.
No. 23-3].) Again, Mr. Pham stated the need for Ms. Stewart to increase Rise’s work
participation rate. (Id. at 2.) Mr. Pham also attached a chart reflecting the decrease in
Rise’s work participation rate from 2008 to 2011, with each year failing to meet the goal
of 50%.3 (Annual Average WPR Trend [Doc. No. 23-3].)
During her employment with Rise, Ms. Stewart did not dispute the work
participation rates. On January 12, 2011, Ms. Stewart signed an acknowledgement
statement that
. . . performance toward client outcomes will be measured on a monthly
basis or more frequently and I will be required to show progress toward
attainment of monthly goals because failure to show progress may be
grounds for reduction or reallocation of funds or termination of the Rise
MFIP contract by Hennepin County.
(Ex. 13 to Stransky Dep. [Doc. No. 23-5].) On January 17, 2012, at a staff meeting that
Ms. Stewart could not attend, Mr. Pham learned that Rise was no longer a welcoming
place for clients; clients were asking to transfer out of Rise’s program; the work
environment was unsupportive and rigid; and Ms. Stewart was micromanaging and not
supporting her staff. (Ex. 37 to Stransky Dep. [Doc. No. 23-6].)
E. Rise’s Decision to Terminate Ms. Stewart’s Employment
On January 24, 2012, Mr. Pham decided to terminate Ms. Stewart’s employment.
(Pham Dep. at 163.) He based the decision on the decreasing work participation rate, the
lack of improvement to the program, the issues and complaints concerning Ms. Stewart,
3
Rise’s work participation rate was 39.7% in 2008, 24.7% in 2009, 26.2% in 2010, and
18.2% in 2011. (Id.)
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and the “total breakdown in the management of that department.” (Stransky Dep. at
137.) The Human Resources department supported Mr. Pham’s decision. (Id.) Mr.
Pham then drafted a memorandum, dated January 27, 2012, stating the decision to
terminate Ms. Stewart’s employment with Rise. (Ex. 41 to Stransky Dep. [Doc. No. 236].) This memorandum stated in part:
. . . the Pathways program has not performed up to the expectations of
Hennepin County. Our participation rate has been declining since 2010 and
we had the second lowest participation rate of 23 agencies in 2011.
This is a trend that I must change in order to keep the program viable.
After careful discussion with Don Lavin I have decided to make a change in
the program management at Pathways. I have made the decision to
terminate your employment with Rise effective today.
(Id.)
On January 25, 2012, Ms. Stewart notified Rise through her doctor that due to the
recent death of her mother, she needed to take time off from work. (Pham Dep. at 163.)
To accommodate the request for leave, Mr. Pham decided to postpone the termination
until the end of Ms. Stewart’s leave. (Id.)
F. Ms. Stewart’s EEOC Charge of Discrimination
On February 6, 2012, Ms. Stewart signed a Charge of Discrimination against Rise,
alleging discrimination based on race, sex, and national origin. (Ex. 44 to Stransky Dep.
[Doc. No. 23-6].) The United States Equal Employment Opportunity Commission
(“EEOC”) prepared notices of discrimination, dated January 26, 2012 and February 17,
2012. (Exs. 45 and 46 to Stransky Dep. [Doc. No. 23-6].) On February 21, 2012, Ms.
Stransky received the EEOC’s documents. (Stransky Dep. at 148.)
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G. Implemented Termination of Ms. Stewart’s Employment
Ms. Stewart’s termination ultimately occurred on March 12, 2012, when it became
clear that she was back from leave. (Id. at 169.) Rise revised the date on the previously
drafted termination memorandum, and it elaborated on the reasons for terminating Ms.
Stewart. (Pham Dep. at 160-61.) The updated memorandum allegedly included more
facts about the work participation rate, the fact that the work participation rate was not
improving, and the threatened viability of the MFIP. (Id.)
III.
DISCUSSION
A. Standard of Review
Summary judgment is appropriate “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(c). A dispute over a fact is “material” only if its resolution might affect the outcome
of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute over a fact is “genuine” only if the evidence is such that
a reasonable jury could return a verdict for the non-moving party. (Id.) In considering a
motion for summary judgment, the court views the evidence and the inferences that may
be reasonably drawn from the evidence in the light most favorable to the nonmoving
party. Enter. Bank v. Magna Bank of Missouri, 92 F.3d 743, 747 (8th Cir. 1996). The
moving party bears the burden of showing that there is no genuine issue of material fact
and that it is entitled to judgment as a matter of law. Id. The party opposing a properly
supported motion for summary judgment may not rest on mere allegations or denials, but
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must set forth specific facts in the record showing that there is a genuine issue for trial.
Anderson, 477 U.S. at 256.
B. Discrimination Claims
Title VII of the Civil Rights Act of 1964 and the Minnesota Human Rights Act
prohibit an employer from discriminating against any individual on the basis of race,
national origin, or sex. See 42 U.S.C. § 2000e-2(a); MINN. STAT. § 363A.08, subd. 2.
Similarly, Section 1981, as amended by the Civil Rights Act of 1991, provides a cause of
action for discrimination in the employment relationship. 42 U.S.C. § 1981; Bogren v.
Minnesota, 236 F.3d 399, 408 (8th Cir. 2000). An employee may establish unlawful
employment discrimination under Title VII or Section 1981 through (1) direct evidence
or (2) indirect evidence, as described in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-03 (1973). Takele v. Mayo Clinic, 576 F.3d 834, 838 (8th Cir. 2009). Where
the plaintiff has direct evidence of discrimination—e.g., an admission by a decision
maker that he acted on a forbidden basis—the plaintiff simply submits her evidence to the
fact finder. Darke v. Lurie Besikof Lapidus & Co., LLP, 550 F. Supp. 2d 1032, 1040 (D.
Minn. 2008). When a plaintiff instead has indirect evidence of intentional discrimination,
then the plaintiff may rely on McDonnell Douglas’ burden-shifting framework to avoid
summary judgment. Id. The same analysis applies to MHRA claims. Torgerson v. City
of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011)
Rise contends that Ms. Stewart has no direct evidence of discrimination, and Ms.
Stewart does not argue to the contrary. Thus, the Court analyzes Ms. Stewart’s
discrimination claims under the indirect method, using the burden-shifting framework of
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McDonnell Douglas. At the initial step, Ms. Stewart must make a prima facie case of
discrimination, which entails showing that: (1) she belonged to a protected group; (2) she
was qualified for the position in question or was meeting her employer’s legitimate
expectations; (3) she suffered an adverse employment action; and (4) the adverse
employment action occurred under circumstances giving rise to an inference of
discrimination. See Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046, 1055
(8th Cir. 2007). If she makes a prima facie case, Rise has the burden of production to
provide a legitimate, non-discriminatory explanation for the adverse action. See id. The
burden then shifts to Ms. Stewart to show that Rise’s proffered explanation is pretextual,
and that discrimination is the true reason for the adverse action. See id.
1. Prima Facie Case
The parties contest whether Ms. Stewart can establish the second and fourth
elements of a prima facie case of discrimination. Rise argues that by the end of 2011,
Ms. Stewart had become unqualified to lead the MFIP. (Mem. in Supp. of Def.’s Mot.
for Summ. J. at 24 [Doc. No. 22].) Rise also argues that the facts do not show that Ms.
Stewart was terminated on any basis other than her poor performance regarding the work
participation rate and her relationships with the staff. (Id. at 25.) In opposition, Ms.
Stewart argues that she was qualified for the MFIP position, and that Rise’s alleged
reason for firing her is pretext for discrimination. (Pl.’s Mem. of Law in Opp’n to Summ.
J. at 38-48 [Doc. No. 34].)
a. Whether Ms. Stewart Met Rise’s Legitimate Expectations
At issue is whether Ms. Stewart was qualified for her position or was meeting
12
Rise’s legitimate expectations for her as a supervisor. In each of her performance
evaluations from 2009 to 2011, Mr. Pham rated her interpersonal and leadership skills as
falling below the performance standard. (Stewart Dep. at 158-161; 2009-2011
Performance Appraisals [Doc. No. 23-3].) He also repeatedly stated the need for Ms.
Stewart to increase Rise’s work participation rate—a crucial factor for MFIP to continue
receiving funding from Hennepin County. (2009-2011 Performance Appraisals [Doc.
No. 23-3].) The record shows that Rise’s work participation rate continued to decrease
under Ms. Stewart’s leadership, and that her interpersonal challenges with staff did not
improve. (2008-2011 Annual Average WPR Trend [Doc. No. 23-3].) Despite Ms.
Stewart’s own assertions that she was qualified to lead her department, the record reflects
otherwise. The Court concludes that Ms. Stewart cannot establish the second element of
a prima facie case.
b. Whether Ms. Stewart’s Termination Occurred Under
Circumstances Giving Rise to an Inference of Discrimination
Another issue is whether Ms. Stewart’s termination occurred under circumstances
giving rise to an inference of discrimination. Evidence of pretext, normally considered
only at the third step of the McDonnell Douglas analysis, can satisfy the inference-ofdiscrimination element of the prima facie case. Putman v. Unity Health Sys., 348 F.3d
732, 736 (8th Cir. 2003). A plaintiff may show pretext, among other ways, by
demonstrating that an employer (1) failed to follow its own policies; (2) treated similarlysituated employees in a disparate manner; or (3) shifted its explanation of the
employment decision. Arnold v. Nursing & Rehab. Ctr. at Good Shepherd, LLC, 471
13
F.3d 843, 847 (8th Cir. 2006) (abrogated on other grounds).
Ms. Stewart contends that Rise failed to follow its harassment and conflict
resolution policies for Ms. Stewart’s complaints and her EEOC charge of discrimination.
(Pl.’s Mem. of Law in Opp’n to Summ. J. at 40 [Doc. No. 34].) The Court respectfully
disagrees. The record, other than Ms. Stewart’s self-serving statements, does not indicate
that Ms. Stewart reported any complaints about discrimination to Rise’s management.
(Stewart Dep. at 228-29; Pl.’s Answers to Def.’s Interrogatories at 20.) Mr. Pham states
that Ms. Stewart never reported any improper conduct by Rise employees against her to
him. (Pham Dep. at 119.) Ms. Stewart concedes that she did not make written reports to
Rise about any discrimination against her on the basis of race, national origin, or sex.
(Stewart Dep. at 30-31.) Without more, Ms. Stewart has not shown that she reported the
alleged discrimination to Rise, as needed to trigger a response under Rise’s harassment
and conflict management policies.
As for Ms. Stewart’s report of discrimination to the EEOC, dated February 6,
2012, Rise received notice of the discrimination charge after it decided to terminate Ms.
Stewart. The record reflects that Rise prepared to terminate Ms. Stewart on January 27,
2012, and Ms. Stransky received the EEOC’s notices on February 21, 2012. (Ex. 41 to
Stransky Dep. [Doc. No. 23-6]; Stransky Dep. at 148.) But for Ms. Stewart’s request for
leave and Rise’s accommodation of the request, Ms. Stewart was set for termination
before Rise received notice of the EEOC charge. Accordingly, the Court declines to find
that Rise’s alleged failure to follow its harassment and conflict resolution policies after
receiving notice of the EEOC charge supports a finding of pretext.
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Ms. Stewart additionally argues that Mr. Pham’s changing reasons for terminating
her are evidence of pretext. (Pl.’s Mem. of Law in Opp’n to Summ. J. at 48 [Doc. No.
34].) Again, the Court respectfully disagrees. “Pretext may be shown with evidence that
the employer’s reason for the termination has changed substantially over time.” Loeb v.
Best Buy Co., Inc., 537 F.3d 867, 873 (8th Cir. 2008). For example, pretext was evident
when an employer first claimed to have fired an employee “due to corporate
reorganization,” but later claimed discharge on grounds of poor performance.
Scheidecker v. Arvig Enters., Inc., 122 F. Supp. 2d 1031, 1041 (D. Minn. 2000). Here,
however, the record shows that Rise terminated Ms. Stewart because of the program’s
low work participation rate under her leadership. The initial termination memorandum,
dated January 27, 2012, noted that the declining work participation rate was
a trend that I [Mr. Pham] must change in order to keep the program viable.
After careful discussion with Don Lavin I have decided to make a change in
the program management at Pathways. I have made the decision to
terminate your employment with Rise effective today.
(Ex. 41 to Stransky Dep. [Doc. No. 23-6].) When Ms. Stewart’s termination ultimately
occurred on March 12, 2012, Rise still cited the work participation rate as the reason for
her termination, and it provided more information about the work participation rate and
its impact on the MFIP’s viability. (Pham Dep. at 160-61.) And when Mr. Pham stated
that he terminated Ms. Stewart because of the decreasing work participation rate, the lack
of improvement to the program, the issues and complaints concerning Ms. Stewart, and
the “total breakdown in the management of that department,” the concern about the work
participation rate remained a constant. Therefore, the Court does not find pretext on the
15
basis of Rise’s allegedly changing reasons for Ms. Stewart’s termination.
Finally, the Court notes that the allegedly discriminatory comments by Ms.
Stewart’s staff toward her do not establish pretext, because they are stray remarks by
non-decision makers. See Simmons v. Oce-USA, Inc., 174 F.3d 913, 916 (8th Cir. 1999)
(incorporating the “stray remarks doctrine” into the court’s analysis of pretext in the
McDonnell Douglas burden-shifting framework). Ms. Stewart wholly attributes the
alleged statements to staff members at Rise, not to any decision makers. Even if the
comments came from decision makers at Rise, Ms. Stewart has not shown that they relate
to the decisional process of her termination. The Court concludes that the alleged
remarks, without more, fail to create a genuine issue of fact on the question of pretext.
Because Ms. Stewart fails to show that (1) she was qualified for her position or
was meeting Rise’s legitimate expectations of her as a supervisor, and (2) the adverse
employment action occurred under circumstances giving rise to an inference of
discrimination, Ms. Stewart has not presented a prima facie case of discrimination.
2. Legitimate, Non-Discriminatory Reason
Even if the Court found that Ms. Stewart established a prima facie case, Rise can
rebut the inference of unlawful discrimination by offering a legitimate, nondiscriminatory reason for its decision to terminate Ms. Stewart. “This burden is one of
production, not persuasion; it ‘can involve no credibility assessment.’” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). A proffered legitimate, nondiscriminatory reason need not be correct if the employer honestly believed the asserted
grounds at the time of the adverse employment action. Twymon v. Wells Fargo & Co.,
16
462 F.3d 925, 935 (8th Cir. 2006).
Rise contends that it terminated Ms. Stewart because of the decreasing work
participation rate, the lack of improvement to the program, the issues and complaints
concerning Ms. Stewart, and the “total breakdown in the management of that
department.” (Stransky Dep. at 137.) The Court finds that Rise has met its burden of
producing a legitimate, non-discriminatory reason for terminating Ms. Stewart.
3. Pretext
Because Rise has offered a legitimate, non-discriminatory reason for terminating
Ms. Stewart, Rise is entitled to summary judgment unless Ms. Stewart submits evidence
sufficient to show that Rise’s explanation is pretextual, and that animus based on race,
national origin, or sex was the real reason for Rise’s adverse action. See St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). As discussed earlier, Ms. Stewart has not
shown that Rise’s explanation for her termination is pretextual for discrimination. Supra
Part III(B)(1)(b).
In short, Ms. Stewart demonstrated neither direct nor indirect evidence of Rise’s
discrimination against her on the basis of race, national origin, and sex. Under
McDonnell Douglas, Ms. Stewart has not established a prima facie case. Even if she had,
Rise produced a legitimate, non-discriminatory explanation for Ms. Stewart’s
termination, and Ms. Stewart has not presented sufficient evidence to create an issue of
fact that Rise’s articulated reason for the termination was pretextual. For these reasons,
the Court grants Rise’s motion for summary judgment on the discrimination claims.
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C. Hostile Work Environment Claim
To establish a hostile work environment claim, Mr. Stewart must prove that: (1)
she belongs to a protected group; (2) she was subject to unwelcome harassment based on
her race, national origin, or sex; (3) the harassment affected a term, condition, or
privilege of employment; (4) her employer knew or should have known of the
harassment; and (5) the employer failed to take proper action. See Peterson v. Scott
Cnty., 406 F.3d 515, 523-24 (8th Cir. 2005) (abrogated on other grounds). Harassment
is actionable when it is so “severe or pervasive” as to “alter the conditions of [the
victim’s] employment and create an abusive working environment.” Faragher v. City of
Boca Raton, 524 U.S. 775, 786 (1998). In determining whether the alleged harassment
creates a hostile work environment, courts consider the frequency of the offending
conduct, its severity, whether it was physically threatening or humiliating, and whether it
unreasonably interfered with work performance. Hesse v. Avis Rent A Car Sys., Inc.,
394 F.3d 624, 630 (8th Cir. 2005). The Eighth Circuit has “repeatedly emphasized that
anti-discrimination laws do not create a general civility code. Conduct that is merely
rude, abrasive, unkind, or insensitive does not come within the scope of the law.” Shaver
v. Indep. Stave Co., 350 F.3d 716, 721 (8th Cir. 2003).
In this case, Ms. Stewart generally asserts that her staff subjected her to a hostile
work environment because they called her a “black female bitch”; refused to follow her
instructions; made comments about women who wore black as “needing a man”; and
often spoke in the Somali language, which Ms. Stewart could not understand. (Stewart
Dep. at 108; Pl.’s Answers to Def.’s Interrogatories at 5-6, 17.) Ms. Stewart also alleges
18
that specific individuals at Rise created a hostile working environment. These
individuals include:
Abdhi Haid, who allegedly (1) threw a case file at her in the office, and (2)
yelled, “fuck you, everyone around here does not like you!” on February 18, 2009;
Youssouf Robleh, who allegedly (1) yelled and slammed his office door in an
intimidating manner around Ms. Stewart, and (2) commented that “Americans owe
Somalis; it’s okay for Somali pirates to kill Americans and hijack their boats”;
Abdisalon Abdirahman, who allegedly moved closer to Ms. Stewart while she
was seated, standing over her in a “confrontational and defiant manner”;
Yasin Jama, who allegedly commented on Ms. Stewart’s attire and asked whether
she was “looking for a husband or a man” when she wore African clothing; and
Stephanie Ableiter, who allegedly shouted to Ms. Stewart, “no one here likes
you,” “we’re trying to get you out of here,” and publicly stated that Ms. Stewart
“was sick.”
These incidents, while entirely inappropriate and rude, are not sufficiently severe or
pervasive to establish a hostile work environment. Ms. Stewart has not shown that the
alleged statements and conduct were more than isolated incidents. Nor has she shown
that they necessarily occurred because of Ms. Stewart’s race, national origin, or sex.
Even if the alleged harassment were sufficiently severe and pervasive to affect the
terms, conditions, or privileges of her employment, Rise has an affirmative defense under
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca
Raton, 524 U.S. 775 (1998), to warrant dismissal of Ms. Stewart’s hostile work
19
environment claim. An employer is entitled to such dismissal upon showing that (1) it
“exercised reasonable care to prevent and correct promptly any sexually harassing
behavior,” and (2) the “employee unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the employer or to avoid harm
otherwise.” Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 570-71 (Minn. 2008)
(applying Ellerth/Faragher defense in MHRA claim).
Ms. Stewart asserts that she reported the staff’s conduct toward her to Mr. Pham
and Ms. Stransky, who allegedly ignored her complaints and took no corrective action.
(Pl.’s Mem. of Law in Opp’n to Summ. J. at 49 [Doc. No. 34].) The record does not
support Ms. Stewart’s position. To the contrary, it shows that Ms. Stewart did not make
any written reports to Rise that she had been discriminated against on the basis of race,
national origin, or sex. (Stewart Dep. at 30-31.) Mr. Pham similarly states that Ms.
Stewart never reported any improper conduct by Rise employees against her to him.
(Pham Dep. at 119.) Moreover, each year from 2007 to 2011, Ms. Stewart affirmed that
she was “unaware of any possible violations of the standards described” in the Code of
Conduct. (Ex. 5 to Stewart Dep. [Doc. No. 23-2].) Without more than Ms. Stewart’s
self-serving statements, the Court finds that Ms. Stewart did not “take advantage of any
preventative or corrective opportunities” provided by Rise, thereby satisfying the second
element of the defense.
The Court also finds that the first element of the Ellerth/Faragher defense is met.
The record shows that Rise had various anti-discrimination policies and trainings in
place. For example, Rise’s Personnel Manual explained that discriminatory conduct
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would not be tolerated, and it set forth the procedures for reporting discriminatory
conduct. (Exs. 1 and 2 to Stewart Dep. [Doc. No. 23-2].) Rise’s Code of Conduct also
prohibited discrimination “of any kind,” including “on the basis of race, color, creed,
religion, sex, sexual orientation, national origin, age, disability, veteran status, marital
status, or status with regard to public assistance.” (Ex. 2 to Stewart Dep. at 5 [Doc. No.
23-3].) Further, Rise provided trainings and quarterly meetings to address discrimination
and harassment issues, which Ms. Stewart attended. (Stransky Dep. at 18-21.) Finally,
the record suggests that Ms. Stewart could have complained about any harassment by her
staff to Rise’s management. These circumstances show that Rise took reasonable care to
prevent any sexually harassing behavior.
For these reasons, the Court grants Rise’s motion for summary judgment on Ms.
Stewart’s hostile work environment claim.
D. Retaliation and Whistleblower Claims
Federal law prohibits an employer from discriminating against an employee who
“has opposed any practice” made unlawful by Title VII, or “made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding or hearing” under
the statute. 42 U.S.C. § 2000e-3(a); see Barker v. Missouri Dep’t of Corr., 513 F.3d 831,
834 (8th Cir. 2008). And under Minnesota’s Whistleblower Act,
An employer shall not discharge, discipline, threaten, otherwise
discriminate against, or penalize an employee regarding the employee’s
compensation, terms, conditions, location, or privileges of employment
because:
(1) the employee, or a person acting on behalf of an employee, in good
faith, reports a violation, suspected violation, or planned violation of any
21
federal or state law or common law or rule adopted pursuant to law to an
employer or to any governmental body or law enforcement official.
MINN. STAT. § 181.932, subd. 1. In the absence of direct evidence, as here, Ms.
Stewart’s Title VII retaliation claim and Minnesota whistleblower claim are analyzed
under the McDonnell Douglas burden-shifting framework. See McDonald v. City of St.
Paul, 679 F.3d 698, 707 (8th Cir. 2012) (applying McDonnell Douglas framework to
Title VII and MHRA retaliation claims); Hitchcock v. FedEx Ground Package Sys., Inc.,
442 F.3d 1104, 1106 (8th Cir. 2006) (applying McDonnell Douglas framework to claims
under Minn. Stat. § 181.932).
1. Prima Facie Case
To establish a prima facie case of retaliation, Ms. Stewart must show that (1) she
engaged in protected conduct, (2) reasonable employees would have found the challenged
retaliatory action materially adverse, and (3) the materially adverse action was causally
linked to the protected conduct.4 Weger v. City of Ladue, 500 F.3d 710, 726 (8th Cir.
2007). A “materially adverse action” is one that “would have ‘dissuaded a reasonable
worker from making or supporting a claim of discrimination.’” Hervey v. Cnty. of
Koochiching, 527 F.3d 711, 722 (8th Cir. 2008).
Ms. Stewart alleges that Rise terminated her employment on March 12, 2012, in
retaliation for filing her charge of discrimination with the EEOC on February 6, 2012,
and complaining about a hostile work environment to Rise. (Compl. ¶ 44 [Doc. No. 1].)
4
The elements of a Title VII retaliation claim are the same as those defined under the
Minnesota Whistleblower Act, Minn. Stat. § 181.932. Green v. Franklin Nat. Bank of
Minneapolis, 459 F.3d 903, 914 n.8 (8th Cir. 2006). Thus, the Court’s analysis of Ms.
Stewart’s retaliation claim also applies to her whistleblower claim.
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At issue is the third element of a prima facie case: whether the termination of Ms. Stewart
was causally linked to the protected conduct. Ms. Stewart relies on the timing of her
protected activity and subsequent termination to establish that Rise’s actions were
retaliatory. (Pl.’s Mem. of Law in Opp’n to Summ. J. at 53-54 [Doc. No. 34].)
Generally, however, “more than a temporal connection between the protected
conduct and the adverse employment action is required to present a genuine factual issue
on retaliation.” Hervey, 527 F.3d at 723. Additionally, “[e]vidence that the employer
had been concerned about a problem before the employee engaged in the protected
activity undercuts the significance of the temporal proximity.” Smith v. Allen Health
Sys., Inc., 302 F.3d 827, 834 (8th Cir. 2002).
In her efforts to establish a prima facie case, Ms. Stewart’s focus on the time
frame between her EEOC charge on February 6, 2012, and her ultimate termination on
March 12, 2012, is misplaced. The record shows that Rise’s decision to terminate Ms.
Stewart predates the filing of her discrimination charge with the EEOC. On January 24,
2012, Mr. Pham decided to terminate Ms. Stewart, and he memorialized the decision in a
memorandum dated January 27, 2012, with termination effective as of January 27, 2012.
(Stransky Dep. at 137; Ex. 41 to Stransky Dep. [Doc. No. 23-6].) On January 25, 2012,
however, Ms. Stewart notified Rise that due to the death of her mother, she needed to
take time off from work. (Pham Dep. at 163.) Consequently, Mr. Pham postponed the
termination until the end of Ms. Stewart’s leave. Ms. Stewart overlooks the fact that but
for Mr. Pham’s accommodation of her request for time off from work, she would have
been terminated before she filed her discrimination charge with the EEOC.
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Moreover, the record shows that Rise’s concerns about Ms. Stewart’s performance
predate her charge of discrimination with the EEOC or any alleged complaints about a
hostile work environment. Notably, the 2009-2011 Performance Appraisals and the
termination memorandum support Mr. Pham’s and Ms. Stransky’s testimony that Rise
terminated Ms. Stewart because of the decreasing work participation rate, the lack of
improvement to the program, the issues and complaints concerning Ms. Stewart, and the
“total breakdown in the management of that department.” (Pham Dep. at 158; Stransky
Dep. at 137.) The record does not support a reasonable inference of retaliation for
protected activity.
For these reasons, the Court finds that Ms. Stewart has not established a prima
facie case for her retaliation and whistleblower claims.
2. Legitimate, Non-Discriminatory Reason
Even if the Court found that Ms. Stewart established a prima facie case, Rise has
offered a legitimate, non-discriminatory reason for its decision to terminate Ms. Stewart.
By claiming that it terminated Ms. Stewart because of the declining work participation
rate, the lack of improvement to the program, and the concerns about Ms. Stewart’s
interpersonal skills, Rise meets its burden here.
3. Pretext
To overcome summary judgment, Ms. Stewart must identify evidence sufficient to
permit a reasonable jury to find that Rise’s explanation for her termination is pretext.
Ms. Stewart applies her earlier arguments about pretext, supra Part III(B)(1)(b), to her
retaliation and whistleblower claims. (Pl.’s Mem. of Law in Opp’n to Summ. J. at 55
24
[Doc. No. 34].)
Ms. Stewart has not provided evidence that Rise’s reasons for terminating her
were pretext for retaliation. As discussed earlier, Rise was concerned about the low work
participation rate under Ms. Stewart’s leadership and her poor interpersonal skills long
before her termination on March 12, 2012. Additionally, the decision to terminate Ms.
Stewart occurred in January 2012, before she filed her charge of discrimination with the
EEOC in February 2012. Accordingly, the Court concludes that Ms. Stewart’s retaliation
and whistleblower claims fail as a matter of law.
In summary, Ms. Stewart has not established a prima facie case for retaliation.
Even if she had, Rise offered legitimate, non-discriminatory reasons for Ms. Stewart’s
termination, and Ms. Stewart has not shown that they are pretext. The Court therefore
grants Rise’s motion for summary judgment on the retaliation claim. As the Court treats
Ms. Stewart’s whistleblower claim as analogous to her retaliation claim, it grants
summary judgment on the whistleblower claim as well.
IV.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1. Defendant’s Motion for Summary Judgment [Doc. No. 20] is GRANTED, and
2. Plaintiff’s Complaint [Doc. No. 1] is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACORDINGLY.
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Dated:
October 31, 2013
s/ Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Court Judge
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