Lockridge v. Per Mar Security & Research Corp
Filing
79
MEMORANDUM OPINION AND ORDER. IT IS HEREBY ORDERED: 1. Defendant Per Mar Security & Research Corp.'s Motion for Summary Judgment 63 is GRANTED; 2. Plaintiff's Motion to Exclude Expert Testimony 52 is DISMISSED AS MOOT; and 3. This matter is dismissed with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Chief Judge Michael J. Davis on 9/15/14. (GRR)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Detrick Lockridge,
Plaintiff,
v.
MEMORANDUM OPINION
AND ORDER
Civil No. 12‐2894 (MJD/JJK)
Per Mar Security & Research Corp.,
Defendant.
_____________________________________________________________________
Michael A. Fondungallah, Fondungallah & Kigham LLC, Counsel for
Plaintiff.
James B. Sherman and Chad A. Staul, Wessels Sherman Joerg Liszka
Laverty Seneczko P.C., Counsel for Defendant.
_____________________________________________________________________
This matter is before the Court on Defendant’s motion for summary
judgment, and Plaintiff’s motion to exclude the expert report of Suanne Grobe
Ranheim.
I.
Factual Background
Plaintiff was employed with Defendant Per Mar Security & Research Corp.
(“Per Mar”) from September 2005 through August 2011. Plaintiff is African
American. Per Mar is a full‐service security company. It provides Wells Fargo
Bank with physical security guard services in various locations, including
1
Shoreview, Minnesota and downtown Minneapolis (the “NOC” location).
Plaintiff was hired by Per Mar as a security officer, but in December 2005, he was
promoted to the position of Account Manager for the Wells Fargo NOC location.
After his promotion, he reported directly to the General Manager. As Account
Manager, Plaintiff was responsible for following Per Mar’s policies and
procedures, making hiring and firing recommendations, supervising security
officers at Wells Fargo NOC location, overseeing training of new officers and
supervisors, being on‐call 24/7 and interacting with Wells Fargo client
representatives.
A.
Claims of Sexual Harassment
In September 2010, a Per Mar Security Guard named Robert Johnson filed a
claim of sexual harassment against the Account Manager in the Shoreview
location, Debbra Helmbrecht. Helmbrecht is white and Johnson is African
American. Johnson alleged that Helmbrecht invaded his personal space by
touching his knee, arms, back and leg, and that he perceived this touching to be
sexual in nature. (Zumdome Decl. ¶ 12.) Human Resources Generalist Jodie
Mortenson initiated an investigation, and asked General Manager Harlan Austin
and HR/Payroll Specialist Tanisha Bradford to assist in the investigation. (Id. ¶
2
11.) In a letter dated October 11, 2010, Mortenson informed Johnson that an
investigation was conducted in which witnesses identified by Johnson and
Helmbrecht were interviewed. (Fondungallah Decl. Ex. 9.) Mortenson informed
Johnson that the investigation revealed that Johnson’s specific allegations were
not substantiated, but that it was determined that Helmbrecht engaged in
conversations with Johnson that were against company policy, and that
“disciplinary action and training are in process.” (Id.) Because Human
Resources Director Mindy Zumdome and Mortenson were not aware that
Johnson had expressed any fear for his personal safety and did not allege any
inappropriate sexual banter, they decided it was not necessary to suspend
Helmbrecht during the investigation. (Zumdome Decl. ¶ 13.)
Two months later, in December 2010, Security Guard Cassandra Block
filed a sexual harassment complaint against Plaintiff. (Id. ¶ 6.) An investigation
was initiated Mortenson, and she was again assisted in the investigation by
Austin and Bradford. (Id.; Staul Decl. Ex. C (Bradford Dep. at 64).) Block
claimed that Plaintiff had squeezed her leg and engaged in repeated
inappropriate sexual discussions with her, such as asking whether she had ever
had an STD or whether she had ever been loved without being touched.
3
(Zumdome Decl. ¶ 7; Staul Decl. Ex. M.) Block also reported that Plaintiff
repeatedly asked her if she wanted to be his roommate, would call her cell phone,
talk with her about his marriage and other personal topics, and would ask her to
dinner. (Staul Decl. Exs. L, M.) She further reported that she was in fear of her
personal safety at work from Plaintiff. In an attachment to an email sent to
Bradford on December 12, 2010, Block wrote “The first thing I would like to
discuss is that since Per Mar cannot guarantee that I will not be in harm’s way
(the same as Dedric on Monday) the day that I am scheduled to come in, what
does Per Mar/HR suggest that I do? My main concern is for my safety and since I
know that Per Mar is also concerned about my safety, I will wait to hear back
from Per Mar/HR on when I should return back to my job out of harm’s way.”
(Id. Ex. L.) Based on the severity of Block’s allegations and her explicit fear for
her safety, Zumdome and Mortenson decided to place Plaintiff on paid
administrative leave while an investigation was completed. (Zumdome Decl. ¶
9.)
The investigation into the sexual harassment complaint against Plaintiff
was inconclusive “due to [Plaintiff’s] denial, denial made by the other named
employee, and lack of documentation.” (Staul Decl. Ex. I.) Plaintiff was allowed
4
to return to work after less than one full day suspension. He did not lose any pay
or other benefits as a result of the suspension. (Zumdome Decl. ¶ 10.) Block was
transferred to another account, so when Plaintiff returned to work after his
suspension, he never saw her again. (Fondungallah Decl. Ex. 3 (Plaintiff Dep. at
193).)
B.
Claims of Race Discrimination
1.
Ed Nolan
Ed Nolan is a Wells Fargo employee, and at the times relevant to this case,
was the person in charge of operations at the Wells Fargo NOC location where
Plaintiff also worked. In this position, Nolan interacted with Plaintiff and other
security personnel. (Staul Decl. Ex. G (Nolan Dep. at 8‐9).)
In 2009 or 2010, Austin proposed to Nolan that a single account manager
oversee both the NOC and Shoreview locations, and suggested that Plaintiff take
that position. (Id. Ex. A (Plaintiff Dep. at 144‐45).) At first, Nolan was on board
with the idea, but when he learned that Plaintiff would receive a pay raise, and
that he would be making more money than Nolan, Nolan told Plaintiff he was
not okay with Plaintiff making more money than him, and that he thereafter
opposed the plan. (Id. at 145‐46.) Plaintiff further claims that in or around May
5
2011, Plaintiff met with Nolan to discuss matters relating to Per Mar’s account
with Wells Fargo, and that during this meeting, Nolan was very disrespectful to
Plaintiff, used foul language, and told Plaintiff to get out of his office.
(Fondungallah Decl. Ex. 3 (Plaintiff Dep. at 169); Ex. 15 (Nolan Dep. at 83
(admitting that on one occasion he told Plaintiff to get out of his office, but only
after Plaintiff had stormed into his office and slammed the door).)
On or about July 21, 2011, Plaintiff alleges that Nolan came into the control
room where Plaintiff and three or four other officers were working. Nolan
allegedly said to them “This isn’t welfare, officers aren’t going to get a free check
to sit on their ass and do nothing.” (Id. Ex. 3 (Plaintiff Dep. at 157).) Plaintiff told
Nolan his comments were offensive and inappropriate, and reported the incident
to Human Resources. (Id.)
Plaintiff claims that other Per Mar employees complained about Ed Nolan
as well. Kenneth Henry complained about Nolan’s behavior and his prejudice
towards African Americans. (Id. Ex. 17.) Later, in an interview with then
General Manager Doug Belton, Henry refused to discuss Nolan. (Id. Ex. 18.)
Another Per Mar employee, Chantelle Bunkley, allegedly complained that
Nolan had racially profiled security guards. Nolan would say that they knew
6
nothing, were stupid and below him. Bunkley also reported that Nolan wanted
to get rid of Plaintiff because he is black. (Id. Ex. 23.1)
On July 26, 2011, Jasmine Brown reported that she had witnessed Nolan
make numerous racist comments. For example, Nolan questions why only black
people from other countries who could not read and spell were sent to Wells
Fargo, and that he said “No wonder why we can’t get shit right it’s mainly black
people that work here.” (Id. Ex. 24.2)
Nolan did not restrict his negative comments to people of color.
(Fondungallah Decl. Ex. 3 (Plaintiff Dep. at 143‐43 (“Did you ever see or witness
this Ed Nolan calling a white person stupid or asking them if they were dumb or
that sort of treatment? A: Oh yeah, I did. I did.”) For example, Alexia Nompeli,
who is white, complained that Nolan was disrespectful to her and her fellow
security officers. (Id. Ex. 19.) Nompeli also reported an incident in which Nolan
yelled at her in front of others, and that it made her feel harassed. When she
complained to management, she was told that Per Mar was in a delicate position
1
This exhibit is an undated memorandum from Bunkley, addressed to “Whom it May
Concern.” There is no evidence in the record as to whether this memorandum was given to
anyone in Per Mar management.
2
This exhibit is also in memorandum form. While it is dated, there is no
indication in the record that the memorandum was given to Per Mar management.
7
with Wells Fargo, and that she would have to do what Nolan told her to do
without question. (Id. Ex. 20.)
John Peaslee, another white employee, complained that Nolan had yelled
at him to “shut the fuck up” and that Peaslee felt he was being disrespected. (Id.
Ex. 25; Fondungallah Decl. Ex. 3 (Plaintiff Dep. at 148).)
2.
Deb Helmbrecht
On October 29, 2010, Helmbrecht used the term “nigger‐rig” during a
meeting with Charles Laitinen and Wells Fargo employee Bill Law, who is
African American, to describe a procedure used to fix a vehicle. (Staul Decl. Ex.
D (Laitenan Dep. 132‐33).) Nothing was said about the comment during the
meeting, but after the meeting, Laitinen approached Law and apologized for
Helmbrecht’s comment. (Id. at 133.) Laitinen then spoke with Tanisha Bradford,
Harlan Austin and Per Mar’s Vice President Steve Sabatke. (Id.) Sabatke told
Laitinen to talk with Helmbrecht and tell her the comment was “not okay.” (Id.)
Helmbrecht was told to apologize to Bill Law. (Id. at 134.)
3.
Complaints of Disparate Treatment Based on Race
In February 2011, Austin sent an email to Zumdome and Sabatke about his
perception of disparate treatment of employees based on race. (Staul Decl. Ex. N.)
8
One example was the perceived disparate treatment of Helmbrecht and Plaintiff
in response to claims of sexual harassment being made against them ‐ in which
Plaintiff was suspended during the investigation and Helmbrecht was not. (Id.)
Austin also felt that white employees were treated more favorably than
employees of color, specifically referencing the fact that Helmbrecht was not
disciplined for using the term “nigger‐rig.” (Id.)
In response to this email, Austin met with Zumdome and Per Mar’s Chief
Operating Officer Dean Guyette in Davenport, Iowa on February 15, 2011.
(Zumdome Decl. ¶ 19.) At this meeting, they discussed Helmbrecht’s use of a
racially derogatory term and that she was showing favoritism toward certain
employees. (Id.) Zumdome then issued a formal disciplinary writeup to
Helmbrecht regarding her use of the racially derogatory term. (Id ¶ 20; Ex. J.) At
the meeting, Zumdome also explained to Austin the differences between the two
claims of sexual harassment, and that Plaintiff was suspended because the
complainant had stated that she feared for her personal safety because of
Plaintiff, and that the complainant in the Helmbrecht claim did not assert a fear
from his safety. (Zumdome Decl. ¶ 21.) Guyette followed up with Austin by
email one month later and asked him how things were going, to which Austin
9
responded that “so far things have been going relatively smoothly. Thanks for
following up with me.” (Fondungallah Decl. Ex. 8 (Austin Dep. at 116, 118).)
In March 2011, Zumdome and Sabatke traveled to Minnesota from
Davenport, Iowa, and met with Plaintiff, Austin and Bradford. (Staul Decl. Ex. A
(Plaintiff Dep. at 104‐05).) Zumdome asserts that Plaintiff, Austin and Bradford
told her they were satisfied with Per Mar’s handling of their concerns of
disparate treatment. (Zumdome Decl. ¶ 22.)
In April 2011, Zumdome dispatched Dan Conroy, Per Mar’s Director of
Investigations, to Minnesota to conduct a thorough investigation of Helmbrecht’s
conduct. (Id. ¶ 23.) Conroy spent six days in Minnesota over a two week period,
and interviewed over two dozen employees. (Id.) Conroy forwarded his notes to
Zumdome in late May 2011, and in June 2011, Helmbrecht was terminated. (Id. ¶
24; Ex. Y; Ex J at 000256.)
4.
Investigation into Claims Against Plaintiff and Ed Nolan
In April 2011, Sabatke received a call from Plaintiff, who asked that they
meet about Plaintiff’s workplace concerns. (Sabatke Decl. ¶ 14.) The two met at a
fast food restaurant in northeast Minneapolis. (Id. ¶ 15.) During the meeting,
Plaintiff told Sabatke he had information that would embarrass Per Mar and that
10
he wanted $100,000 to make the information go away, as well as his complaints
about Helmbrecht. (Id.) Plaintiff also told Sabatke he knew one of the Presidents
of Wells Fargo and that if Wells Fargo learned of the information Plaintiff had,
Per Mar would lose the Wells Fargo account. (Id.) Sabatke told Plaintiff that Per
Mar would not be giving him any money but asked if Plaintiff would work with
him to address his concerns. (Id.)
In May 2011, Zumdome received a call from Plaintiff during which he told
her that he had a conversation with Sabatke about workplace concerns, and that
he told Sabatke for $100,000, such concerns would go away and that Sabatke had
not responded to his demand. (Zumdome Decl. ¶ 25.) As Sabatke had not
responded to his demand, Plaintiff informed Zumdome that he was now making
the same demand to her instead of filing suit. (Id.) Zumdome told Plaintiff that
she believed Per Mar had done nothing wrong and would not be paying Plaintiff
his demand. (Id. ¶ 26.) She told Plaintiff she would set up a phone conference
with Sabatke and Guyette to address his concerns. (Id.) Two days later, Plaintiff
called Zumdome and told her to cancel the phone conference, as Plaintiff had
decided to go another way. (Id.)
On June 24, 2011, Per Mar Security Officer Chantelle Bunkley complained
11
that Plaintiff had failed to address an incident in which Plaintiff’s daughter, Per
Mar Security Officer Jasmine English, had pinched Bunkley. (Id. ¶ 27, Ex. A at
000464, 000466‐67.) Bunkley later withdrew her complaint because Plaintiff had
told her he would address the situation. (Id.)
One month later, on or about July 26, 2011, Zumdome received an
anonymous call from a female who Zumdome believed to be Bunkley, making
numerous complaints against Plaintiff, including that he showed favoritism to
his daughters, both of whom he supervised, and that he used his position to
threaten employees and that many of Plaintiff’s subordinates were afraid for
their jobs. The anonymous caller further stated that when corporate human
resources routed complaints from Minnesota to Tanisha Bradford, Bradford
would relay the details of the complaint to Plaintiff. The caller stated that
Bunkley had withdrawn her complaint because Plaintiff had threatened her.
(Zumdome Decl. ¶ 28 (a).)
Around this same time, Zumdome received word from General Manager
Douglas Belton3 that Ed Nolan had complained that Plaintiff left his shift early on
3
Belton, who is also African American, replaced Harlan Austin as General Manager after
Austin resigned his position in April 2011.
12
several occasions and that he failed to regularly be onsite during second and
third shift to ensure employees were trained properly. (Id. ¶ 28 (b).) Later,
Belton called Zumdome, with Plaintiff in his office, to inform her of Plaintiff’s
complaint that Nolan swore at Plaintiff and told Per Mar employees to get to
work ‐ that this is not welfare. (Id. ¶ 28 (c).) Also on July 26, 2011, Plaintiff went
on medical leave without prior notice. (Id. ¶ 28 (d).) Plaintiff later requested,
and was granted, FMLA leave. (Fondungallah Decl. Ex. A (Plaintiff Dep. at 246).)
On July 29, 2011, Sabatke and Belton met with Nolan to address Plaintiff’s
complaints about Nolan’s behavior. During this meeting, Nolan also relayed
concerns he had about Plaintiff, such as not following company policies and not
providing a safe environment for employees. (Staul Decl. Ex. G (Nolan Dep. at
136).)
Zumdome directed Belton to conduct a comprehensive investigation into
the allegations against Plaintiff and against Nolan. (Id. ¶ 29.) Belton conducted
the investigation over a number of days in late July and early August 2011. (Id.
Ex. A.) On August 1, 2011, Nolan’s manager ordered Nolan to suspend Plaintiff’s
badge pending the outcome of an investigation against Plaintiff. (Staul Decl. Ex.
G (Nolan Dep. at 40, 43).)
13
Belton talked with Plaintiff, Nolan, Buckley, Alexia Nompeli, Harlan
Austin, Security Officer Jacquelyn Cooper, Account Manager Randy Ham‐Ying,
Security Officer Kenneth Henry, Lead Officer Ray Modig, Security Officer Steve
Anderson, Security Officer Michael Pfluger and Second Shift Lead Deonte
Robbinson. Based on these interviews, Belton prepared a report that he
submitted to Zumdome. (Zumdome Decl. Ex. A.) Plaintiff claims that when the
investigation began, he was out on medical leave. He became aware of the
investigation through a letter sent to him from Doug Belton on August 20, 2011.
(Fondungallah Decl. Ex. 31.)
In his report, Belton indicated that he spoke with Chantelle Bunkley on
July 30, 2011. (Zumdome Decl. Ex. A at 000466.) Bunkley explained to him the
incident in which Plaintiff’s daughter pinched her, and that in response to
Bunkley’s complaint, Plaintiff told her that he could have Jasmine Brown and his
daughters wait for Bunkley after work and beat her up. (Id.) Because she felt
that she would be in danger if she pursued the matter further, she told Belton
that the matter had been resolved. (Id.)
Bunkley also told Belton that Plaintiff had told her that Tanisha Bradford
was his inside person, and that she had forwarded to him lots of Per Mar
14
documents for a lawsuit that he was planning. (Id. at 000467.) Bunkley also told
Belton that Plaintiff told her that he was going to take time off by going to his
doctor, and telling him he was stressed out from work. (Id.) He was going to use
the time to meet with his attorney about his lawsuit. (Id.) Bunkley stated she
was afraid of Plaintiff because he said he would “fuck up” any one who got in
the way of his money. (Id.)
Belton also interviewed Alexia Nompeli, who told Belton that she had
heard Plaintiff tell employees to “shut up”and that he frequently threatened to
fire employees. (Id.) Nompeli told Belton she feared Plaintiff would fire her.
(Id.) Nompeli also reported that Plaintiff had called her while he was on leave,
and told her to shred a document which indicated his daughter, Cieara English,
had improperly called off for her shift. (Id. at 000468.)
Belton also interviewed a number of other employees. None claimed to
have heard Nolan make any racist remarks. (See Id.) Based on his investigation,
and the interviews with Per Mar employees, Belton made the following
determinations:
!
!
Lockridge has been absent from work on several occasions
Lockridge has not worked second and third shift hours as expected
by the client, Ed Nolan despite Lockridge’s statements to myself and
15
!
!
!
!
!
!
HR Manager Mindy Zumdome to the contrary
Lockridge did not use proper channels to take leave during July 2011
through August 2011
Lockridge has authored and posted memorandi (sp) at the data
center that contained threatening language
Lockridge has led a number of Per Mar employees to believe he is
planning legal action against Per Mar and Wells Fargo
Lockridge has used threatening and intimidating language to gain
the compliance of his subordinates
There is no evidence that Ed Nolan has made any racist remarks to
or about any Per Mar employees
There is insufficient evidence to cooborate (sp) Bunkley’s claim that
Lockridge threatened her with physical harm
(Id. at 000465.) Belton recommended that based on the evidence gathered during
his investigation, Plaintiff be terminated from his employment at Per Mar. (Id. at
000472.)
Upon review of the investigative report, Zumdome determined that there
was no credible evidence that Nolan had made racist remarks to employees and
that there was credible evidence that Plaintiff failed to show up for work on
several occasions, that he was not training employees and that Plaintiff used
threatening and intimidating behavior to gain the compliance of his subordinates
and showed favoritism to his daughters and had directed another employee to
shred evidence that one daughter, Cieara English, had improperly called off for
her shift. (Zumdome Decl. ¶ 33.) Based on the results of the investigation,
16
Zumdome decided to terminate Plaintiff’s employment. (Id. ¶ 34.) Plaintiff was
thereafter terminated on September 19, 2011. (Staul Decl. Ex. E (Belton Dep. at
79).)
In this action, Plaintiff has asserted a number of claims: race discrimination
and retaliation under Title VII, Section 1981 and the Minnesota Human Rights
Act. He also asserted a claim for interference under the Family Medical Leave
Act and a claim for intentional infliction of emotional distress (“IIED”). Plaintiff
is not proceeding with the IIED claim. (See Pl.’s Opp. at 51.)
II.
Standard for Summary Judgment
Summary judgment is appropriate if, viewing all facts in the light most
favorable to the non‐moving party, there is no genuine dispute as to any material
fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322‐23 (1986). The party seeking
summary judgment bears the burden of showing that there is no disputed issue
of material fact. Celotex, 477 U.S. at 323. “A dispute is genuine if the evidence is
such that it could cause a reasonable jury to return a verdict for either party; a
fact is material if its resolution affects the outcome of the case.” Amini v. City of
Minneapolis, 643 F.3d 1068, 1074 (8th Cir. 2011) (citing Anderson v. Liberty
17
Lobby, Inc., 477 U.S. 242, 248, 252 (1986)).
III.
Argument
A.
Race Discrimination
The elements of a prima facie case of race discrimination are 1) Plaintiff is a
member of a protected group; 2) he was meeting Per Mar’s legitimate
expectations; 3) he was discharged; and 4) the discharge occurred in
circumstances that give rise to an inference of unlawful discrimination. Riser v.
Target Corp., 458 F.3d 817, 819‐20 (8th Cir. 2006).
If Plaintiff meets his burden of demonstrating a prima facie case, the
burden shifts to Per Mar to articulate a legitimate, non‐discriminatory reason for
his termination. Once this showing is made, the burden then shifts back to
Plaintiff to show Per Mar was likely motivated by a discriminatory reason or that
Per Mar’s explanation was unworthy of credence. Reeves v. Sanderson Plumbing
Prod. Line., 530 U.S. 133, 142‐43 (2000). “‘The factfinder’s disbelief of the reasons
put forward by the defendant (particularly if disbelief is accompanied by a
suspicion of mendacity) may, together with the elements of the prima facie case,
suffice to show intentional discrimination. Thus, rejection of the defendant’s
proffered reasons will permit the trier of fact to infer the ultimate fact of
18
intentional discrimination.’” Id. at 147 (quoting St. Mary’s Honor Center v.
Hicks, 509 U.S. 502, 511 (1993)).
Assuming without deciding that Plaintiff has put forth a prima facie case
of disparate treatment, the Court finds that Per Mar is entitled to summary
judgment as Plaintiff has failed to demonstrate a genuine dispute as to pretext or
intentional discrimination.
1.
Pretext
a.
Suspension
The Court finds that Plaintiff has failed to demonstrate that Per Mar’s
decision to suspend him pending the investigation into a complaint of sexual
harassment is a pretext for discrimination. The record is undisputed that
Zumdome and Mortenson made the decision to suspend Plaintiff during the
investigation only after they learned that the claimant had alleged that she was in
fear for her personal safety from Plaintiff. (Zumdome Decl. ¶ 7; Staul Decl. Ex.
L.) The record is also undisputed that with respect to the complaint of sexual
harassment against Helmbrecht, the claimant did not allege fear for his personal
safety. (Id. ¶ 13.)
With respect to Plaintiff’s assertions that Helmbrecht was not counseled
19
following the sexual harassment complaint against her, the Court finds there is
evidence in the record that Helmbrecht was subjected to disciplinary action and
training. (See Fondungallah Decl. Ex. 9.) In addition, as evidenced by a
counseling report issued to Helmbrecht on November 1, 2010, management had
met with Helmbrecht on “several occasions to discuss [] job expectations and
provide coaching and guidance regarding [Helmbrecht’s] performance.” (Staul
Decl. Ex. J.) Specifically, Helmbrecht was counseled regarding payroll errors,
professionalism, and communication with the branch office. (Id.) Further,
because Helmbrecht had not shown improvement, she was placed on a 60 day
performance plan. (Id.) Ultimately, Helmbrecht was terminated in June 2011.
b.
Termination
Per Mar asserts the decision to terminate Plaintiff’s employment based on
the result of a detailed investigation into complaints against both Plaintiff and
Nolan. Based on that investigation, Per Mar obtained evidence to sustain
findings that Plaintiff had failed to show up for work on multiple occasions, that
he was not training employees as he was required to do, he was using
threatening and intimidating behavior to gain compliance from subordinates and
was showing favoritism to his daughters who worked under his direction. (See
20
Zumdome Decl. Ex. A.)
Plaintiff argues there is insufficient evidence to support the claim that
Plaintiff used fear and intimidation to gain compliance of subordinates.
Specifically, the only employee that reported she felt threatened by Plaintiff was
Chantelle Bunkley, but the evidence shows that Bunkley told General Manager
Doug Belton that she was actually afraid that Plaintiff’s daughters would beat her
up ‐ not that Plaintiff would beat her up. The only other piece of evidence to
support this claim is that Plaintiff was heard to have told an employee to “shut
up.”
Contrary to Plaintiff’s claims, there is evidence in the record which shows
that Plaintiff used fear and intimidation to gain compliance with subordinates.
For example, Zumdome states in her declaration that she received a phone call on
or about July 26, 2011, whom she believed to be Ms. Bunkley, and that the caller
stated Plaintiff showed favoritism to his daughters and used his position to
threaten employees. (Zumdome Decl. ¶ 28(a).) The caller further told Zumdome
that when employees complaints were routed from Minnesota to corporate,
Tanisha Bradford would relay the details of the complaint to Plaintiff, and as a
result, Ms. Bunkley withdrew her June 24, 2011 complaint because Plaintiff
21
threatened her. (Id.)
In addition, during his investigation of complaints against both Plaintiff
and Ed Nolan, Bunkley told Belton that Plaintiff threatened her by stating he
could have his daughters and another Per Mar employee “wait for Bunkley after
work and beat her up.” (Id. Ex. A at 000466.) Bunkley also told Belton that “[a]t
this point [she] felt she would be in danger if she pursued the matter any further
so she called [Belton] and told [Belton] the matter had been resolved.” (Id.)
Bunkley also told Belton that Plaintiff would “fuck up” anyone that got in the
way of his money from the lawsuit he planned to bring against Per Mar. (Id. at
000467.) During his investigation, Belton also talked with Per Mar Security
Officer Jacquelyn Cooper, who told Belton that Plaintiff was trying to get
Bunkley fired. Plaintiff also told Cooper that if he ever saw Cooper speaking
with Bunkley, he would have her fired. (Id.)
While Belton did speak with other Per Mar employees who told him that
they believed Plaintiff was fair to all employees, the fact remains that two
employees did report to Belton that they were threatened by Plaintiff and were
intimidated by him.
Plaintiff also challenges the assertions regarding his work attendance and
22
failure to train employees. In support, he cites to the unsigned letters of Chuck
Laitinen and Harlan Austin that are dated after Plaintiff had already been
terminated. (Fondungallah Decl. Exs. 32 and 33.) Plaintiff also questions the
timing of Ed Nolan’s complaints about Plaintiff, as they were not raised until
after Plaintiff had complained about him and even though the investigation
uncovered evidence that Nolan did make racist comments, such as “people from
other countries should go back to where they come from” Belton nonetheless
concluded that no evidence was discovered that Nolan had made racist
comments.
As evidenced in the “Conclusion” section of his investigative report, Belton
found no evidence that Nolan made any racist or racially offensive remarks to or
about any Per Mar employee. (Zumdome Decl. Ex. A at 000472.) He did,
however, recognize that Nolan made a number of unguarded and unflattering
comments, including the comment that “people from other countries should go
back where they come from.” (Id.) Belton noted that he found no evidence that
any Per Mar employee took Nolan’s comments as verbal assaults motivated by
race. (Id.)
23
Plaintiff further asserts that Per Mar did not confront Ed Nolan with the
complaints that he made racist comments. However, Nolan testified at his
deposition that he was made aware that allegations were made against him that
he had made racist comments when he met with Sabatke and Belton on July 29,
2011. (Staul Decl. Ex. G (Nolan Dep. at 135).)
Finally, Plaintiff challenges Per Mar’s claim that he ordered documents
shredded to cover up the fact that one of his daughters had improperly missed
work and that she tried to cover it up. Plaintiff alleges that this report came from
Alexia Nompeli, and that Nompeli was lying about the incident because she was
trying to replace Plaintiff as account manager. (Fondungallah Decl. Ex. 3 (Plaintiff
Dep. at 277).) There is no evidence in the record, however, which shows that
Belton had any reason to doubt Nompeli’s credibility when she told him that
Plaintiff ordered her to destroy documents concerning his daughter’s work
attendance. See Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1003
(8th Cir. 2012) (finding that a showing that the employer made a mistaken and
unreasonable determination that an employee violated company rules does not
prove that the employer was motivated by intentional discrimination); Pye v. Nu
Aire, Inc., 641 F.3d 1011, 1022 (8th Cir. 2011) (recognizing that “[a] proffered
24
legitimate, non‐discriminatory reason for termination need not, in the end, be
correct if the employer honestly believed the asserted grounds at the time of the
termination.”).
To show pretext, Plaintiff further asserts there is evidence in the record that
similarly situated non‐African American employees were treated differently.
Employees are similarly situated “when they are involved in or accused of the
same offense and are disciplined in different ways.” Riser, 458 F.3d at 821.
With respect to this case, an employee is similarly situated if he/she was not
subjected to an internal investigation or terminated, even though that employee
failed to show up for work on multiple occasions, failed to perform assigned
work duties, such as training new employees, and engaged in threatening and
intimidating behavior to gain the compliance of subordinates.
The Court has reviewed Plaintiff’s comparator evidence and finds that
Plaintiff has failed to present evidence that similarly situated non‐African
American employees were treated differently for committing the same “offenses”
as Plaintiff. For example, Plaintiff claims that a white employee, Mike Erdmann,
was found to have committed time fraud on many occasions. Rather than facing
immediate termination, this employee was allowed to resign. (Fondungallah
25
Decl. Ex. 8 (Austin Dep. at 138).) The record does not demonstrate that Erdmann
engaged in threatening or intimidating behavior or that he failed to perform
assigned duties. Plaintiff further claims that a white employee named Tim
Jensen was found using a company camera to take pictures of his private parts
and those of a client’s employee. Austin recommended he be fired, but Jensen
was allowed to resign. (Id. at 140‐41.) Again, the record does not demonstrate
that Jensen engaged in the same type of conduct for which Plaintiff was
terminated.
Plaintiff also claims that a Latino employee, Chester Spears, was
immediately terminated for falsifying his time records, and that a white
employee, Mary Verness, was late to work on multiple occasions, yet she
continues to work for Per Mar. In support, Plaintiff cites to the deposition of
Harlan Austin, but Austin specifically testified that he did not know Spears or
the allegations surrounding his termination. (Id. at 139‐40.) With respect to
Mary Verness, Austin testified that the issue with Verness concerned her sharing
confidential information on Deb Helmbrecht with Alexia Nompeli, not that she
was late to work. (Id. at 149‐50.) Unsubstantiated deposition testimony that
similarly situated white employees were treated more favorably does not create a
26
genuine dispute on pretext or intentional discrimination. Davenport v.
Riverview Gardens Sch. Dist., 30 F.3d 940, 945 (8th Cir. 1994).
Because Plaintiff has failed to demonstrate there are genuine issues as to
whether Per Mar’s articulated reasons for his termination are a pretext for
intentional discrimination, Per Mar is entitled to summary judgment on
Plaintiff’s claims of disparate treatment.
B.
Retaliation/Reprisal
“To defeat summary judgment on a retaliation claim, a plaintiff must
produce either direct evidence of retaliation, or create an inference of retaliation
under the McDonnell Douglas burden‐shifting framework.” Pye, 641 F.3d at 1020
(quoting Young–Losee v. Graphic Packaging Intʹl, Inc., 631 F.3d 909, 912 (8th Cir.
2011) (citation omitted)).
1.
Prima Facie Case
The elements of a prima facie claim for retaliation under Title VII are: “(1)
[Plaintiff] engaged in protected conduct, (2) [Plaintiff] suffered a materially
adverse employment action, and (3) the adverse action was causally linked to the
protected conduct.” Pye, 641 F.3d at 1021.
Plaintiff alleges that he engaged in protected conduct when he repeatedly
27
opposed race discrimination and harassment directed at him by Per Mar and Ed
Nolan. He asserts that within the first year of his employment with Per Mar, he
complained to Chuck Laitinen that Nolan used racially derogatory language.
(Fondungallah Decl. Ex. 3 (Plaintiff Dep. at 130‐31).) Plaintiff further asserts that
in 2011, he complained to Harlan Austin when allegations of sexual harassment
were brought against him. (Id. at 129.) He notes that prior to the sexual
harassment claim made against him, Plaintiff had never been disciplined by Per
Mar.
On or about July 25, 2011, Plaintiff complained to Belton and Zumdome
that Nolan made racist remarks to Per Mar employees in Plaintiff’s presence,
referring to the comment that people from other countries should go back to
where they came from, and the comment that “this isn’t welfare.” (Fondungallah
Decl. Ex. 3 (Plaintiff’s Dep. at 157, 160; Ex. 16 (Belton Investigative Report ¶ 2).)
Plaintiff asserts that it was only after he made the complaint against Nolan that
Nolan raised any concerns about Plaintiff’s performance. Per Mar then
conducted an investigation while Plaintiff was out on medical leave and less than
two months after making a complaint against Nolan, Plaintiff was terminated.
Plaintiff argues that the circumstances and timing of his termination warrant an
28
inference of retaliatory motive.
As set forth above, the Court finds that intervening events were involved
in the decision to terminate Plaintiff, namely the complaint of several employees
about Plaintiff which led to an investigation into concerns that Plaintiff was,
among other things, threatening and intimidating employees and was not
performing his duties. See Cheshewalla v. Rand & Son Constr. Co., 415 F.3d 847,
852 (8th Cir. 2005) (finding intervening events erodes causal connection based on
temporal proximity); Freeman v. Ace Telephone Assoc., 467 F.3d 695 (8th Cir.
2006) (same).
As a whole, the Court finds that the evidence is insufficient to permit a
reasonable jury to draw an inference that Per Mar unlawfully retaliated against
him for engaging in protected activity. Montes v. Greater Twin Cities Youth
Symphonies, 540 F.3d 852, 859 (8th Cir. 2009).
C.
Racially Hostile Work Environment
To succeed on this claim, Plaintiff must prove that 1) he was a member of a
protected group; 2) he was subject to unwelcome harassment; 3) the harassment
was based on his race; 4) the harassment affected a term, condition or privilege of
employment; and 5) that Per Mar knew or should have known of the harassment
29
and failed to take prompt and remedial action. See Sutherland v. Missouri Dep’t
of Corr., 580 F.3d 748, 751 (8th Cir. 2009); Palesch v. Missouri Comm’n on Human
Rights, 233 F.3d 560, 566 (8th Cir. 2000). “Hostile work environment harassment
occurs when ‘the workplace is permeated with ‘discriminatory intimidation,
ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions
of the victimʹs employment and create an abusive working environment.’”
Palesch, 233 F.3d at 566 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)). The Court must keep in mind that “[n]ot all unpleasant conduct creates a
hostile work environment. Rather, the plaintiff must show that []he was singled
out because of []race, and that the conduct was severe and pervasive.” Id.
(quoting Williams v. City of Kansas City, Missouri, 223 F.3d 749, 753 (8th Cir.
2000)).
Plaintiff claims he was subjected to racially derogatory comments from Ed
Nolan about welfare, being yelled at by Nolan, denial of leadership
opportunities, differential treatment, suspension, fabricated counseling reports
and false and unsubstantiated violations of company policy.
Plaintiff further argues that other employees complained to management
about Nolan’s racist attitude and comments, and instead of responding to these
30
complaints, Per Mar succumbed to Wells Fargo’s demands and began a bogus
investigation to find reasons to fire Plaintiff.
The Court finds that Plaintiff has failed to demonstrate the existence of fact
questions as to whether he was subjected to actionable harassment. By his own
admission, Nolan’s offensive comments were not restricted to people of color.
For example, the “welfare” comment was made in the presence of both white and
black employees. Plaintiff himself characterized Nolan as rude and aggressive
toward any employee that was below him, and that over the six year period
Plaintiff worked for Per Mar, he heard Nolan make racist comments only five or
six times. (Fondungallah Decl. Ex. 3 (Plaintiff Dep. at 135‐36, 148‐49).) The Court
further notes that Plaintiff admitted that Nolan’s abrasive management style
applied to all races, and that he had a complex about people underneath him.
(Fondungallah Decl. Ex. 3 (Plaintiff Dep. at 135‐36) (“I think Ed Nolan was racist,
but I think Ed Nolan also had just a complex on his shoulder about people
underneath him. So just because you was black, he’d tell you your black things,
but if you were white he’d disrespect you too and treat you like crap.”)
The Court further finds that Plaintiff has not demonstrated facts questions
as to whether Per Mar failed to take prompt, remedial action once it was notified
31
of Plaintiff’s complaints. With respect to the comment made by Deb Helmbrecht,
the record demonstrates that management met with Austin, Bradford and
Plaintiff in Iowa, and thereafter traveled to Minnesota to again meet with them.
The record also demonstrates that Per Mar conducted a comprehensive
investigation into the complaints against Helmbrecht, and that based on that
investigation, Helmbrecht was terminated.
With respect to Nolan, the record demonstrates that an investigation was
commenced right after management was made aware of Plaintiff’s complaints
about Nolan. The fact that the investigation also looked into complaints against
Plaintiff does not invalidate the investigation against Nolan.
Per Mar is thus entitled to summary judgment on the claim that Plaintiff
was subjected to a hostile work environment.
D.
FMLA Interference
Under the FMLA, it is “unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise, any right provided
[thereunder].” 29 U.S.C. § 2615(a)(1). To prove an interference claim, Plaintiff
must show that he was denied substantive rights under the FMLA for a reason
connected with FMLA leave. Ballato v. Comcast Corp., 676 F.3d 768, 772 (8th Cir.
32
2012). Plaintiff has the initial burden of showing that he was entitled to a benefit
denied. Id. If this showing is made, the burden shifts to the employer to show
there was a reason unrelated to the Plaintiff’s exercise of FMLA rights for
terminating employment. Id. “If the employer can prove that it would have
terminated the employee had the employee not exercised FMLA rights, the
employer will not be liable.” Id.
Here, the evidence is undisputed that Plaintiff requested, and was granted,
FMLA leave. Plaintiff argues, however, that he was entitled to reinstatement
after his leave and that Per Mar interfered with that right when it terminated his
employment. “However, the mere fact of discharge during FMLA leave by no
means demands an employer be held strictly liable for violating the FMLAʹs
prohibition of interfering with an employeeʹs FMLA rights.” Throneberry v.
McGehee Desha County Hosp., 403 F.3d 972, 980 (8th Cir. 2005).
The Court finds that Plaintiff should not be shielded from wrongdoing
simply because he was on FMLA leave. Plaintiff has failed to demonstrate
material fact questions exist that the real reason he was terminated was because
he was exercising his rights under the FMLA. Accordingly, the Court finds that
summary judgment as to Plaintiff’s interference claim is also warranted.
33
IV.
Motion to Exclude Expert Report
Per Mar retained Suanne Grobe Ranheim as an expert witness to prove that
Plaintiff did not adequately mitigate his damages during the almost two years
following his termination by Per Mar. Because the Court finds that Per Mar is
entitled to summary judgment as to all claims asserted against it, the motion to
strike Ranheim’s expert testimony is moot.
IT IS HEREBY ORDERED:
1.
Defendant Per Mar Security & Research Corp.’s Motion for
Summary Judgment [Doc. No. 63] is GRANTED;
2.
Plaintiff’s Motion to Exclude Expert Testimony [Doc. No. 52] is
DISMISSED AS MOOT; and
3.
This matter is dismissed with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY
Date: September 15, 2014
s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court
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