Saffari v. St. Cloud State University et al

Filing 41

MEMORANDUM OF LAW & ORDER. IT IS HEREBY ORDERED that Defendants St. Cloud State University and President Earl H. Potter III's Motion for Summary Judgment 19 is GRANTED. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Chief Judge Michael J. Davis on 8/12/14. (GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

MAHMOUD SAFFARI,
Plaintiff,
v.

MEMORANDUM OF LAW & ORDER
Civil File No. 13-30 (MJD/LIB)

ST. CLOUD STATE UNIVERSITY
and PRESIDENT EARL H. POTTER III,
Defendants.
Judith K. Schermer, Judith K. Schermer PLLC, Counsel for Plaintiff.
Kathryn Fodness and Kristyn M. Anderson, Minnesota Attorney General’s
Office, Counsel for Defendants.
I.

INTRODUCTION
This matter is before the Court on Defendants St. Cloud State University

and President Earl H. Potter III’s Motion for Summary Judgment. [Docket No.
19] The Court heard oral argument on April 11, 2014. Finding no genuine
dispute of material fact, the Court grants Defendants’ motion.

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II.

BACKGROUND
Plaintiff Mahmoud Saffari is suing his former employer, St. Cloud State

University (“SCSU”), and its President, Earl H. Potter III.
A. Factual Background
i. Plaintiff’s First Four Years at SCSU
Plaintiff is a 53-year-old Muslim man of Iranian descent. (Saffari Aff. ¶ 2.)
In 2003, Plaintiff began working at SCSU as Associate Vice President for
Enrollment Management under President Roy Saigo. (Anderson Aff., Ex. 1,
Saffari Dep., Ex. 4.) This was an important position in SCSU’s administration,
and Plaintiff served at the pleasure of SCSU’s President as a member of his
leadership team. (Potter Aff., Docket No. 22, ¶¶ 3-5.) This position was one of
at-will employment. (Minnesota State Colleges and Universities Personnel Plan
for Administrators, http://www.hr.mnscu.edu/Cabinet_Executive_Se/documents/
AdminPlanNonLeg.pdf, at 9, § 1.03, subd. 3(a) (“Administrators serve at the
pleasure of the Chancellor / president and no provision of this Plan shall be
construed to alter the at-will nature of an administrator’s employment.”).)
Plaintiff’s job duties were as follows:

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[To] design, develop and implement a comprehensive enrollment
management plan to achieve the desired size and profile of the
student body. . . . The Associate Vice President works not only with
faculty and staff throughout campus and across divisions but also
with the external constituents . . . to develop short and long-term
enrollment management plans, establish objectives and develop
strategies in support of those plans, facilitate implementation of
enrollment management strategies, and monitor progress toward
enrollment management goals.
(Potter Aff., Ex. A, at SAFFARI 2740.) Plaintiff’s position was an important one
with substantial responsibility; he managed a two million dollar budget and
supervised 30 employees and 24 student workers. (Potter Aff. ¶¶ 3-4.)
During his initial years at SCSU, Plaintiff was supervised by SCSU’s
Provost, Michael Spitzer. (Potter Aff. ¶ 2.) Spitzer and Plaintiff developed a
negative working relationship during these years. (Id.) Plaintiff claims that
Spitzer removed many of Plaintiff’s duties, refused to put Plaintiff’s suggested
items for discussion on the President’s Council agenda, refused to hire a Dean of
Admissions, refused to give Plaintiff a computer, and generally created obstacles
for Plaintiff. (Saffari Aff. ¶¶ 6-11.) In 2005, Plaintiff filed a discrimination
complaint against Spitzer. (Saffari Aff. ¶ 12.) SCSU lost the complaint
documents Plaintiff submitted, and there was disagreement over how to conduct
the investigation. (Id.)
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ii. Changes in Leadership at SCSU and Plaintiff’s Subsequent
Performance
On July 1, 2007, Potter became SCSU’s new President. (Potter Dep. 5.)
Potter asked Plaintiff to develop and implement a comprehensive enrollment
management plan. (Potter Dep. 44-45, 48-49.) Plaintiff was told that the plan
should contain detailed statistical analysis of enrollment trends. (Id.) In 2007,
Plaintiff presented Potter with a 96-page document, but because the plan lacked
the data analysis Potter requested, Potter rejected the document and told Plaintiff
to lead the Enrollment Management Committee (“E/M Committee”) in
developing the requested data analysis. (Potter Aff. ¶ 6; Potter Dep. 48-49;
Saffari Aff. ¶ 15, Ex. A.) The E/M Committee, which met biweekly, was
comprised of 30 to 35 members from all areas of SCSU. (Palmer Dep. 7, 9.)
However, for over two years, in spite of informing other administrators that the
enrollment management plan was in development, Plaintiff did not produce the
data analysis. (Potter Dep. 21, 77-78; Malhotra Dep. 19-20.)
Plaintiff offers a different account of his interaction with Potter regarding
the enrollment management plan. Plaintiff asserts that Potter accepted the plan

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document and never commented on its contents. Rather, Potter simply
instructed Plaintiff to come up with a new plan. (Saffari Aff. ¶ 16.)
Meanwhile, Plaintiff’s discrimination complaint against Spitzer was
investigated in 2008. (Saffari Aff. ¶ 12.) Plaintiff was told by the investigator
that the affirmative action officer at SCSU referred to Plaintiff as “that Arab guy
who’s giving us a hard time.” (Saffari Dep. 80.)
iii. Conversation with Potter About Iranian Politics
At some point in 2008, in the midst of Plaintiff’s problems with Spitzer,
Potter called Plaintiff to discuss his relationship with Spitzer. (Saffari Dep. 2425.) Potter asked Plaintiff if his relationship with Spitzer was sour because
Spitzer was Jewish and Plaintiff was Muslim. (Id.) Plaintiff alleges that Potter
also engaged in a conversation or conversations with Plaintiff about the politics
of Iran, attempting to get him to admit that the Shah was better than the current
political leadership. (Saffari Dep. 77-78 (detailing one such conversation that
took place in 2007; the timing of any other similar conversations is unclear from
the record).) Potter also asked Plaintiff’s opinions about the Mullahs and the
established government of Iran. (Id.) These conversations made Plaintiff feel

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very uncomfortable, and he felt that Potter did not approve of his political views.
(Saffari Aff. ¶ 44; Saffari Dep. 78.)
iv. Potter Decides to Retain Plaintiff, and Malhotra Becomes
Provost
In 2009, Spitzer recommended to Potter that the administration should be
reorganized and Plaintiff’s position should be eliminated. (Potter Aff. ¶ 2.)
Potter thought that Spitzer’s impending retirement would give Plaintiff an
opportunity to have a fresh start with a new supervisor, Provost Devinder
Malhotra. (Potter Dep. 41; Potter Aff. ¶ 2.) Therefore, Potter decided to reject
Spitzer’s recommendation and retain Plaintiff. (Id.)
Malhotra became Provost in July 2009. (Malhotra Dep. 5.) Spitzer, before
leaving, told both Potter and Malhotra that he was dissatisfied with Plaintiff’s
performance. (Potter Dep. 18.) In addressing the enrollment management plan,
Malhotra charged a subcommittee of the E/M Committee to develop a predictive
model for enrollment management. (Palmer Dep. 9.) At times, Malhotra would
tell Plaintiff that he and the members of the E/M Committee “were on the right
track.” (Saffari Dep. 35.) Plaintiff asserts that, during his two years reporting to
Malhotra, he never received a performance evaluation. (Saffari Aff. ¶ 26;
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Malhotra Dep. 33.) Plaintiff asserts that, in May 2011, Malhotra agreed with
Plaintiff in setting a goal date of November 2011 to present a completed
enrollment management plan. (Saffari Aff. ¶ 29.) Malhotra could not recall the
deadline imposed. (Malhotra Dep. 19.)
v. SCSU’s Budget Shortfall
SCSU is required to submit its enrollment projections and budget requests
to the Minnesota State Colleges and Universities System Office each April.
(Potter Aff. ¶ 7.) The System Office relies on these forecasts and requests to
determine its income and expenditures. (Id.) By the spring of 2011, Plaintiff still
had not yet created the enrollment management plan based on data analysis that
Potter had repeatedly requested. (Potter Aff. ¶ 8.) Plaintiff had, instead, given
forecasts on enrollment based on anecdotal information, such as the number of
students who had enrolled the past fall, and Plaintiff assured Potter that the
projections were accurate. (Potter Aff. ¶¶ 8-9; Potter Dep. 21-22.)
These projections predicted a decline in enrollment for the fall of 2011.
(Palmer Dep. 17, 21.) Malhotra insisted that the forecasts were too conservative,
and he asked the E/M Committee to add 250 FYE (full-year equivalent, i.e., a unit

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indicating full- or part-time undergraduate or graduate students) to the projected
number of enrolled students, which Plaintiff claims made the projections
inaccurate. (Saffari Dep. 50-52; Saffari Aff. ¶ 28.) Plaintiff claims that the E/M
Committee disagreed with adding the 250 number, but had no choice but to
accept Malhotra’s instructions. (Id.) As a result, the prediction for students was
“off by the additional 250 that he added.” (Id.) Defendants assert, however, that
SCSU relied on Plaintiff’s forecasts in developing and submitting a budget for
the 2011-2012 academic year. (Potter Aff. ¶ 9.)
In August of 2011, SCSU learned that its actual enrollment for the fall
semester had a significant shortfall: the differential between Plaintiff’s projection
of enrollment and actual enrollment was between 800 and 1000 students. (Potter
Aff. ¶ 10; Potter Dep. 126.) Consequently, SCSU had to make a one million
dollar emergency budget adjustment. (Potter Aff. ¶ 10; Potter Dep. 24-25, 71.)
While Potter did not blame Plaintiff for the enrollment decline itself, he
attributed SCSU’s emergency budget situation to Plaintiff’s failure to provide
enrollment forecasts based on data analysis after Potter’s repeated requests.
(Potter Aff. ¶ 11.)

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vi. Plaintiff’s Speech at the August 1, 2011 Leadership Retreat
On August 1, 2011, Plaintiff attended a leadership retreat for senior
management. (Saffari Dep. 38-42.) At the retreat, Plaintiff asked about the
method of choosing focus groups for a marketing presentation that was being
given; Plaintiff asked whether subjects for the focus groups had been selected at
random or handpicked. (Saffari Dep. 39, 44-45.) Plaintiff asserts that, at this
point, Potter became angry with him; Potter glared at Plaintiff and, in an angry
tone of voice, stated that they would move on to the next agenda item. (Id. at
40.)
Plaintiff also asserts that, later in the retreat, Plaintiff made a comment
regarding SCSU’s reputation for being a party school. (Saffari Dep. 40-42.)
Plaintiff stated that this reputation may have negatively affected enrollment, and
he suggested ways to change the perception. (Id.) Plaintiff asserts that Potter
became angry, stood up, cut Plaintiff off, and ended the discussion by
announcing that it was time to take a recess. (Saffari Aff. ¶ 37.) Plaintiff felt that
no one wanted to speak to him or associate with him because of Potter’s display
of anger towards him. (Id.) Potter later testified that there was no discussion
about terminating Saffari before this retreat. (Potter Dep. 68.)
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Potter stated that he expected Plaintiff to publicly support policies that had
been internally decided on and implemented by the school, as Plaintiff was a
member of Potter’s leadership team. (Potter Aff. ¶ 12; Potter Dep. 131-33.)
However, Potter thought that Plaintiff’s speech placed blame for enrollment
losses on others, and this reflected poorly on the University and its
administrators. (Potter Aff. ¶ 12; Potter Dep. 130-36.)
vii. Plaintiff Disallowed from Speaking to the Faculty Senate
In September 2011, Plaintiff was invited by the Faculty Senate to attend
their meeting, report enrollment statistics to them, and address their concerns
about enrollment. (Saffari Aff. ¶ 31.) Plaintiff told Malhotra that he had been
invited to make the presentation; he showed Malhotra the invitation to check and
see if it was permissible for him to attend, as speaking to the Faculty Senate was
not within Plaintiff’s usual job duties. (Saffari Aff. ¶ 31; Malhotra Dep. 61-62.)
Malhotra told Plaintiff that Malhotra would go to the meeting instead because it
was Malhotra’s responsibility to make such presentations, not Plaintiff’s. (Id.)
Malhotra stated that, “[M]y decision was based on the fact that there should be
one voice speaking for the administration when we were invited to the Faculty

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Senate. And relationships with the Faculty Senate are my direct responsibility,
so I was acting out of that.” (Id. at 62.)
viii. Disbandment of the E/M Committee
After the budget shortfall, Malhotra and Potter made the decision to
reorganize the administration to improve enrollment management. (Potter Dep.
75; Malhotra Dep. 48.) They decided to disband the E/M Committee because it
had not developed an enrollment management plan using data analysis. (Potter
Aff. ¶ 13; Potter Dep. 75-76; Malhotra Dep. 19-20.)
On August 19, 2011, Malhotra notified the E/M Committee that the
committee was being suspended, explaining that “we need to provide you better
tools, in the form of data analytics and a strategic enrollment management
approach(es), in order for the committee to do its work successfully.” (Anderson
Aff., Ex. 1, Saffari Dep., Ex. 41, at Saffari 0001.) A new team was created, and
Malhotra took responsibility to oversee an “Enrollment Executive Council . . . to
develop a strategic enrollment framework that will be used to develop the
overall enrollment management plan.” Id.

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ix. The Strategic Planning Committee Meeting with Foss
Plaintiff contends that he spoke at a Strategic Planning and Effectiveness
Committee meeting on September 1, 2011. (Saffari Aff. 38.) During this meeting,
Plaintiff attributed the enrollment decline to management decisions to reorganize
and cut student majors for the 2011-2012 academic year. (Id.) Upon making this
statement, Plaintiff alleges that he was silenced by Lisa Foss, Associate Vice
President and Associate Provost for Strategy Planning and Effectiveness. (Id.;
Foss Dep. 5.)
Plaintiff also asserts that he accused Foss of racial discrimination at this
meeting, citing the fact that she cut off people of color when they attempted to
speak. (Saffari Aff. ¶ 38.) When Plaintiff attempted to raise this issue, he was
prevented from doing so by Foss. (Id.)
x. Plaintiff’s Termination
In early September, Potter, Malhotra, Foss, and Special Assistant to the
President, Judith Siminoe, came to the decision to terminate Plaintiff. (Schermer
Aff., Ex. 6, Potter’s Answers to Interrogs., No. 2; Siminoe Dep. 5, 7.) In
discussing reasons for Plaintiff’s termination, Potter told the group that he was

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concerned about Plaintiff’s leadership and ability to take responsibility for his
enrollment management decisions. (Siminoe Dep. 8-9.) The group discussed
what would occur on the day of Plaintiff’s termination. (Siminoe Dep. 13-14.) It
was decided that Plaintiff would be escorted from the building after he was told
of his termination. (Siminoe Dep. 19.)
While other management employees had been terminated during his
presidency at SCSU, Potter had never directed that anyone else be escorted upon
their termination. (Potter Dep. 60-61.) The group acknowledged the possibility
that escorting Plaintiff would create speculation and negatively affect public
perception of his termination. (Potter Dep. 82-84.) Potter, however, decided to
escort Plaintiff because Potter felt he was responsible for safeguarding SCSU’s
assets, and it would be a failure in his role as President to not take the measure of
escorting Plaintiff. (Potter Dep. 62-63.)
Potter provided Plaintiff 90 days’ notice of Plaintiff’s termination on
September 20, 2011. (Potter Aff. ¶ 14, Ex. B.) Plaintiff was given the termination
letter and escorted to his office and car by Siminoe. (Saffari Aff. ¶ 39.) He was

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then observed until he drove off of the parking lot. (Id.) Plaintiff stated that this
entire process made him feel humiliated and ashamed. (Id. ¶ 40.)
Witnesses observed Plaintiff being escorted out of the building. (Siminoe
Dep. 15-17.) There was also media coverage of the termination. (Saffari Aff. ¶
41.) Plaintiff points out that an article appeared in the Spokesman Recorder
expressing the sentiment that Plaintiff should have accepted resignation to
prevent from being treated like a criminal and escorted off campus; however,
Debra Leigh, SCSU professor and the author of that article, entitled “SCSU
Campus Has Shown a Commitment to Diversity,” actually wrote the following:
I do not agree that Dr. Saffari was treated like a common
criminal. When Dr. Saffari chose firing instead of resigning, he
called into play a standard protocol that administrators are advised
to follow, but there were no handcuffs, cops, and no campus
security according to one observer. Dr. Saffari’s keys were taken
and he was escorted to his car by a woman I consider my elder, and
my age is over 55.
(Schermer Aff., Ex. 9.)
xi. Statements Made After Plaintiff’s Termination
Potter made various statements about Plaintiff’s termination. He told
Leigh, who also served as the Lead Organizer for the Community Anti-Racism
Education Initiative, that Plaintiff was terminated because he did not create an
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enrollment management plan. (Leigh Dep. 4, 30.) Potter expressed this same
reason to the Staff and Faculty of Color Caucus. (Potter Dep. 77.) Potter also told
Malhotra that Plaintiff never provided Potter a finished enrollment management
plan. (Malhotra Dep. 27-28.) At one point, Potter made the following statement:
“It is a matter of public record that we have never had an enrollment
management plan since I arrived at SCSU and before.” (Potter Dep. 101.)
However, Potter told Mark Jaede, Assistant Professor of History at SCSU, that
Plaintiff’s termination was not a matter of performance. (Potter Dep. 115-16.)
Finally, he characterized Plaintiff’s termination as an attempt for the
administration to go in a new direction. (Potter Dep. 80-81.)
When the student newspaper at SCSU asked Potter if escorting a person
out of the building was standard operating procedure, Potter stated that such an
occurrence was not atypical. (Schermer Aff., Ex. 7 (student newspaper quoting
Potter as saying that escorting Saffari “was not unusual practice.”).) However,
Potter was unable to name a single person who had been escorted in such a way.
(Id. (“[Potter] could not, however, name any other cases in which a security
escort was used.”).) Later, when asked by the Community Anti-Racism

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Education Initiative what the protocol for terminating management employees
was, Potter did not respond, stating that he was not at liberty to talk about what
had happened. (Leigh Dep. 10-11.) Siminoe, in her deposition, stated that the
only other person who had been escorted off campus in such a way was an
employee who had been accused of financial mismanagement. (Siminoe Dep. 2123.)
xii. Letter Providing Reasons for Termination
During the 90-day termination period, Plaintiff was given a special project
to complete at home. (Potter Aff. ¶ 14; Anderson Aff., Ex. 1, Saffari Dep., Ex. 43.)
Pursuant to Minn. Stat. § 181.933, Plaintiff requested the reasons for his
termination, and Malhotra provided the following letter, dated October 31, 2011:
As I explained to you in our meeting on September 20, 2011, and as
articulated in more detail in my August 19, 2011, letter to the
Enrollment Management Committee members . . . the University has
determined it is necessary to reorganize existing structure to
significantly improve its enrollment management process. The
position of Associate Vice President for Enrollment Management, as
you know, is a position of trust. It is a professional position
permitting significant autonomy and self-direction and that requires
working effectively with a broad constituency. There has been a
lack of continued confidence in your leadership and in your
judgment in this role.

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During my tenure as provost you have not produced a satisfactory
strategic enrollment management plan, despite my continual
counsel to you to focus on data analytics and statistical predictive
models. I further counseled you to research the best practices from
other universities to provide a national and regional context to the
enrollment strategy.
Given increasingly challenging budget
realities, it is essential that the University have a research-based
statistical/econometric model on which to base recruiting and
retention efforts and plan for increased or decreased enrollments.
While there have been enrollment gains in certain areas, the lack of
data analytics and predictive capacity that should be part of such a
plan have deprived the university of the tools needed to manage the
allocation of resources and determine the most effective recruitment
and retention strategies.
This has limited St. Cloud State
University’s ability to prepare for or weather changes in enrollment
such as the recently reported lower enrollment for fall of 2011.
Finally, I will note that concerns regarding the lack of a satisfactory
enrollment management plan have been raised with you numerous
times during your employment, including by the President and the
prior provost.
(Anderson Aff., Ex. 1, Saffari Dep., Ex. 44.)
xiii. SCSU’s Enrollment Operations After Plaintiff’s Termination
Defendants note that, since Plaintiff’s termination, SCSU has developed
data analysis tools, which enabled it to predict the 2013-2014 academic year’s
enrollment within less than one percentage point, resulting in more informed
budgetary choices. (Potter Aff. ¶ 15; Potter Dep. 121, 126; Malhotra Dep. 21, 34.)
Plaintiff, however, points out that there is still no enrollment management plan
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in one place or in one document; there is simply an unwritten strategic position
on enrollment scattered across various documents. (Malhotra Dep. 21-23.)
Plaintiff also notes that there is an ongoing concern about the accuracy of SCSU’s
public predictions on enrollment. (Palmer Dep. 27.)
B. Procedural Background
On January 3, 2013, Plaintiff commenced this action against Defendants.
[Docket No. 1] Plaintiff’s Complaint alleges Count I: National Origin, Color, and
Religious Discrimination in Violation of Title VII of the Civil Rights Act of 1964
(“Title VII”) and the Minnesota Human Rights Act (“MHRA”); Count II: Civil
Rights Violations under 42 U.S.C. § 1983 (“Section 1983”); Count III: Violation of
the Minnesota Government Data Practices Act (“MGDPA”); and Count IV:
Defamation. All counts are asserted against both Defendants. Defendants have
moved for summary judgment on all claims. [Docket No. 19]
III.

DISCUSSION
A. Summary Judgment Standard
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

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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
Lobby, Inc., 477 U.S. 242, 248, 252 (1986)).
B. Barred Claims
As an initial matter, certain claims in this action fail by operation of
various statutes.
i. Title VII Claims Against Potter
Plaintiff’s Title VII claims against Potter in his official capacity and in his
individual capacity are barred because Title VII does not permit individual
supervisor liability. Roark v. City of Hazen, Ark., 189 F.3d 758, 761 (8th Cir.
1999) (“[A] supervisor may not be held liable under Title VII.”).

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ii. Section 1983 Claims Against Potter in His Official Capacity
and SCSU
Potter, in his official capacity, and SCSU are not subject to suit under 42
U.S.C. § 1983. Section 1983 claims can be asserted against a “person” acting
under color of state law who deprives another person of federal rights. 42 U.S.C.
§ 1983. However, “neither a State nor its officials acting in their official capacities
are ‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989) (“We hold that). Therefore, the Section 1983 claim against Potter in his
official capacity fails. See id.
Furthermore, the Eighth Circuit has held that state universities are not
persons within the meaning of the statute. See, e.g., Prostrollo v. Univ. of S.D.,
507 F.2d 775, 777 n.1 (8th Cir. 1974). Accordingly, the Court concludes that
Section 1983 does not apply to SCSU, and the claim against it must fail.
C. Remaining Claims
The following claims remain: (1) the Title VII claim against SCSU, (2) the
Section 1983 claim against Potter in his individual capacity, (3) the MHRA claim,
(4) the MGDPA claim, and (5) the defamation claim. The Court will first examine
the federal claims.
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D. Federal Claims Against SCSU and Potter Individually
Under Title VII and Section 1983, Plaintiff alleges discrimination based on
national origin, color, and religion. Plaintiff presents claims for (1)
discriminatory termination, (2) disparate treatment, (3) hostile work
environment, and (4) First Amendment violations.
i. Legal Standard for Discrimination Claims
To prevail on a Title VII discrimination claim, a plaintiff must show the
following four elements: “(1) he is a member of a protected class; (2) he met his
employer’s legitimate expectations; (3) he suffered an adverse employment
action; and (4) the circumstances give rise to an inference of discrimination.” Pye
v. Nu Aire, Inc., 641 F.3d 1011, 1019 (8th Cir. 2011). The parties agree that
elements one and three are met here.
There are two ways to prove element four, discriminatory intent: either by
proffering direct evidence of intent or by meeting requirements under the
McDonnell Douglas burden shifting analysis. Direct evidence in this context
includes evidence of statements or conduct by employment decision-makers
regarding an adverse employment decision, and these statements or conduct
must indicate a discriminatory attitude that would lead the finder-of-fact to infer
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that the discriminatory attitude was a motivating factor in the adverse
employment decision. Cronquist v. City of Minneapolis, 237 F.3d 920, 925 (8th
Cir. 2001).
If a plaintiff cannot show direct evidence of discriminatory intent, he may
establish a prima facie case with circumstantial evidence under the McDonnell
Douglas test. Bergstrom-Ek v. Best Oil Co., 153 F.3d 851, 857 (8th Cir. 1998). If a
plaintiff establishes a prima facie case, the burden shifts to the defendant to
proffer evidence of legitimate, non-discriminatory reasons for its employment
decision. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If a
defendant offers a legitimate, non-discriminatory reason for its decision, the
burden shifts back to the plaintiff to “demonstrate by a preponderance of the
evidence that the stated non-discriminatory rationale was a mere pretext” for
unlawful discrimination. Takele v. Mayo Clinic, 576 F.3d 834, 838 (8th Cir. 2009).
In doing so, and “[i]n order to survive summary judgment at this stage, the
plaintiff must establish there is a factual dispute whether the defendant’s
proffered reason is pretextual and whether retaliation was a determinative factor

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in the defendant’s termination.” Macias Soto v. Core-Mark Int’l, Inc., 521 F.3d
837, 841 (8th Cir. 2008).
ii. Title VII and Section 1983 Discriminatory Termination
Claims Against SCSU
Plaintiff’s discriminatory termination claims fail as a matter of law because
Defendants have produced evidence of their legitimate, non-discriminatory
reasons for terminating Plaintiff, and Plaintiff has failed to show that these
reasons are pretext.

Prima Facie Case for Discrimination:
Plaintiff maintains that he has made a prima facie case of discrimination
here. First, he asserts that he did indeed meet SCSU’s expectations, especially
with regard to the enrollment management plan, because the Enrollment
Management Committee predicted the enrollment decline that occurred in the
fall of 2011. Plaintiff also asserts that he met SCSU’s expectations because
Malhotra never gave Plaintiff any performance evaluations in the two years he
was Provost, and there is nothing in Plaintiff’s personnel file stating that he
performed poorly.
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Plaintiff, pointing to circumstantial evidence of totality of circumstances,
asserts that there was an inference of discrimination in his termination. Plaintiff
alleges that one may reasonably infer discrimination in his termination from the
tense conversations regarding Iranian politics, comments about his religion, and
the fact that he met employment expectations. However, because Plaintiff
cannot show discriminatory conduct or statements that were related to his
termination, Plaintiff’s evidence is circumstantial and analysis within the burden
shifting framework is required. To demonstrate discrimination with
circumstantial evidence, Plaintiff must show that he met SCSU’s legitimate
expectations of the position, and he must show that the circumstances gave rise
to an inference of discrimination. Pye, 641 F.3d at 1019. Assuming but not
deciding that Plaintiff’s circumstantial evidence establishes a prima facie case for
discrimination, the claim ultimately fails because Defendants provide legitimate
reasons for terminating Plaintiff, and Plaintiff is unable to demonstrate that these
reasons are pretext.

Legitimate, Non-Discriminatory Reasons for Termination:

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Defendants have offered three non-discriminatory reasons for terminating
Plaintiff’s employment. First, Defendants argue that Potter and SCSU
terminated Plaintiff because he failed to provide a satisfactory enrollment
management plan. Defendants point out that the plan that Plaintiff did develop
was not satisfactory because it lacked support from data analytics or statistical
modeling; Plaintiff did not create a quantitative analysis of the demographic
changes that could be encountered by SCSU. Specifically, as early as 2007, Potter
himself rejected Plaintiff’s enrollment management plan as unsatisfactory and
asked him to create a new plan with a better predictive model. (Potter Dep. 4849, 77.) After the Enrollment Management Committee created what it thought
was a predictive model, Malhotra told the Committee and Plaintiff that it was
unsatisfactory. (Palmer Dep. 7, 9-11.) SCSU was also increasingly frustrated
with Plaintiff’s inadequate predictive model. (Palmer Dep. 25-27; Potter Dep. 4142, 44, 72, 124-25.)
Second, Defendants argue that they terminated Plaintiff because his faulty
plan did not adequately prepare SCSU for a significant budget shortfall. The
Committee’s forecasts for entering freshmen were so inaccurate that they

25

predicted an enrollment shortfall that was off by several hundred of students—
regardless of whether Malhotra adjusted of the projection. While Plaintiff insists
that his plan predicted the enrollment decline, Defendants were surprised by the
extent and magnitude of the decline, for which Plaintiff’s plan did not prepare
them. (Schermer Aff., Ex. 10; Palmer Dep. 21-22.) Plaintiff offers no evidence to
directly rebut this.
Finally, Defendants argue that the third non-discriminatory reason for
Plaintiff’s termination was Plaintiff’s breach of Potter’s trust and failure to accept
accountability for the budget shortfall. The record has provided ample evidence
that Plaintiff had not met the reasonable expectations of his employer.

Pretext Arguments:
Because Defendants have proffered non-discriminatory reasons for
terminating Plaintiff, Plaintiff is required to show that these reasons are mere
pretext. Viewing the evidence in the light most favorable to Plaintiff, there is
insufficient evidence from which a reasonable factfinder could find pretext.

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A plaintiff can demonstrate pretext by showing that the employer’s
proffered reasons are unworthy of belief. Texas Dep’t of Comm. Affairs v.
Burdine, 450 U.S. 248, 256 (1981). First, Plaintiff notes that Defendants were in
fact satisfied with Plaintiff’s enrollment management plan. Plaintiff concludes
that satisfaction is implied here because he was never told that Defendants were
dissatisfied with his plan. Plaintiff notes that this is especially true considering
he never received a performance evaluation. This argument, however, ignores
evidence in the record that Plaintiff was notified that the plan was unsatisfactory.
(See, e.g., Potter Dep. 48-49, 77; Palmer Dep. 7, 9-11 (indicating that Potter
rejected Plaintiff’s plan and Malhotra rejected the Committee’s plan, and each
requested a more reliable predictive model).) These instances of communicated
dissatisfaction indicate that Defendants consistently demonstrated dissatisfaction
with Plaintiff’s performance. Furthermore, Plaintiff’s suggestion that an absence
of performance evaluations does not adequately demonstrate that the proffered
reasons for terminating Plaintiff are unworthy of belief.
Second, Plaintiff argues that Defendants’ focus on a supposed desire
for data analytics is disingenuous because the difference between data

27

analytics and the approach Plaintiff used in formulating his enrollment
management plan is irrelevant, and Plaintiff’s approach was sufficiently
thorough. While this argument may present a reasonable basis for
disagreement with Defendants’ preferences regarding enrollment plans, it
does not show that Defendants’ reasons for terminating Plaintiff were
disingenuous and unworthy of credence because Defendants’ desire for a
plan using data analytics was similarly reasonable. If anything, this
argument only highlights the professional disagreement between the
parties regarding the proper standards for creating enrollment plans.
Beyond this, without further indicia of discrimination, the Court cannot
decide what constitutes a satisfactory enrollment management plan, as
doing so would be second-guessing the wisdom of Defendants’
termination decision, which is impermissible. See Kiel v. Select Artificials,
Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (“[E]mployment-discrimination
laws have not vested in the courts the authority to sit as super-personnel
departments reviewing the wisdom or fairness of the business judgments

28

made by employers, except to the extent that those judgments involve
intentional discrimination.”) (citation omitted).
Plaintiff also argues that Defendants’ proffered rationale for terminating
Plaintiff because he did not prepare SCSU for the decline in freshman enrollment
is pretext because SCSU did in fact expect an enrollment decline. However,
Defendants have asserted that a decline was expected, but Plaintiff’s failure was
that his predictive model did not prepare the University for the magnitude of the
decline. (See Potter Aff. ¶ 11 (“I did not blame Saffari for the fact that there was a
decline in enrollment. However, I believed that the decline was something that
could have been accurately predicted had Saffari employed the data analytical
tools . . . .”); Schermer Aff., Ex. 10 (letter from Malhotra to Potter) (“I was bracing
for a decline but not of this magnitude.”); Palmer Dep. 21-22 (“The members of
the subcommittee . . . were not surprised by a decline, we were surprised by the
magnitude of the decline.”).) Plaintiff offers no support to directly rebut this.
Finally, Plaintiff argues that Defendants’ proffered reasons are pretext
because Potter shifted explanations for the termination. An employer’s shifting
rationale for termination can be evidence that its rationale is pretextual. See

29

Maschka v. Genuine Parts Co., 122 F.3d 566, 570 (8th Cir. 1997) (holding that
evidence of an earlier, inconsistent termination rationale was relevant at trial
because it tends to show that the offered reason is pretext). Plaintiff argues that
Potter offered shifting explanations about Plaintiff’s termination: at various
times, he said that termination was because Saffari did not produce an
enrollment management plan; was not because of performance; and was because
he failed to produce a predictive model.
Considered in context, this argument fails, however. Viewing the evidence
in the light most favorable to Plaintiff, Potter’s explanations are not accurately
described as shifting or inconsistent rationale to warrant application of Maschka
because the reasons listed are fairly consistent. Maschka involved two directly
contradictory termination rationales: one letter explaining why the plaintiff had
been terminated admitted against the defendant’s trial explanation for
terminating the plaintiff presented at trial. Id. at 569-70. Circumstances in the
present case are markedly different. Here, on three separate occasions, Potter
told two different organizations and Malhotra that Plaintiff was terminated
because he did not create an enrollment management plan. (Leigh Dep. 4, 30;

30

Potter Dep. 77, 101; Malhotra Dep. 27-28.) This explanation is consistent with
what Defendants now proffer as their termination rationale. However, Potter
stated in his deposition that, on one occasion, he told Mark Jaede, Assistant
Professor of History at SCSU, that Plaintiff’s termination “was not for
performance and [SCSU] had determined to go in a different direction.” (Potter
Dep. 115-16.) Potter explained that he was attempting to protect Plaintiff’s
reputation and curtail discussion among staff that could foster rumors that
Plaintiff had committed dishonesty or malfeasance:
[W]e agreed that we were not going to discuss Dr. Saffari’s
performance with the staff.
And particularly wanted to
communicate that this was not a disciplinary action. It was not a –it
didn’t occur as a consequence of some malfeasance or dishonesty.
And so we characterized it as not a matter of performance, but an
interest in the university’s part of changing both direction and the
way in which we managed enrollment.
(Id. 80-81.) Viewing the record as a whole, there is not enough evidence from
which a reasonable juror could conclude that Potter’s statements show pretext.
Additionally, the Court concludes that Defendants receive the benefit of
the “same actor” inference regarding Plaintiff’s termination claim. There is “a
strong inference that discrimination was not a motivating factor if the same
person hired and fired the plaintiff within a relatively short period of time.” Herr
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v. Airborne Freight Corp., 130 F.3d 359, 362-63 (8th Cir. 1997). “This inference
arises because it is unlikely that the same supervisor would hire a [person of a
protected class], only to turn around and discharge [him] for that reason.” Id. at
363. Here, because Potter previously advocated on Plaintiff’s behalf and decided
not to terminate him, there is an inference that Potter lacked discriminatory
intent when Plaintiff was later terminated. Plaintiff fails to effectively rebut this
“same actor” consideration.
Viewing the evidence in the light most favorable to Plaintiff, the Court
concludes that Defendants have offered legitimate reasons for terminating
Plaintiff, and Plaintiff’s attempts at showing pretext are inadequate.
Accordingly, the Court dismisses the discriminatory termination claim.
iii. Title VII and Section 1983 Disparate Treatment Claim
Against SCSU and Potter
Plaintiff also makes a claim for disparate treatment. (Compl. ¶ 20.) The
parties argue this claim within the McDonnell Douglas burden shifting
framework. Viewing the evidence in the light most favorable to Plaintiff, the
Court concludes that the disparate treatment claim fails because Plaintiff has not
offered sufficient evidence to show pretext.
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Prima Facie Case for Discrimination:
Specifically, Plaintiff argues that there is circumstantial evidence for
disparate treatment discrimination because Plaintiff was escorted from his office
to the parking lot when he was terminated. Plaintiff also asserts that he was
treated differently by being told that he could not speak to employees in his
department, while other non-Iranian terminated employees were not told this.
Assuming without deciding that these points comprise a prima facie case for
disparate treatment, the claim ultimately fails because Defendants provide
legitimate reasons for escorting Plaintiff, and Plaintiff is unable to demonstrate
that these reasons are pretext.

Legitimate, Non-Discriminatory Reasons for the Manner of Termination:
Defendants provide a legitimate, non-discriminatory reason for the
decision to escort Plaintiff off campus. They argue that the decision to escort
Plaintiff was based on a desire to safeguard SCSU’s private and sensitive
information and equipment. Defendants also claim that Plaintiff was escorted in

33

order to allow the administration the ability to inform staff about the change in
leadership in the appropriate way. Defendants also note that Plaintiff was not
told to not talk to his staff; rather, he was told in his termination letter that he did
“not need to contact others in your former office” because his special project did
not involve past duties. (Second Anderson Aff., Ex. 6, Malhotra Dep., Ex. 2.)
Defendants argue that this instruction was not discriminatory.

Pretext:
A plaintiff may show pretext in disparate treatment claims by showing
that he was treated differently from others who were similarly situated. See
Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691-92 (8th Cir. 2002). Similarly
situated others, however, must be similarly situated in all relevant respects. Id.
(holding that two comparators were not similarly situated where the plaintiff did
not show that two employees had a comparable disciplinary history). This is a
rigorous and difficult test, as “employees used for comparison must have dealt
with the same supervisor, have been subject to the same standards, and engaged
in the same conduct without any mitigating or distinguishing circumstances.”

34

Muor v. U.S. Bank Nat’l Assoc., 716 F.3d 1072, 1078 (8th Cir. 2013) (internal
quotation marks omitted).
Plaintiff has failed to show pretext here because he is unable to show that
others not escorted were similarly situated in all relevant respects. Plaintiff
argues that he was the only terminated administrator who was escorted off
campus. However, a review of the record shows relevant distinctions in the
circumstances of other administrators who were not escorted that show they are
not truly similarly situated. For example, another administrator was terminated
off campus and therefore did not need to be escorted from campus. (Siminoe
Dep. 21.) Other administrators who were not escorted did not have access to
their offices anyway, so there was no need to escort them to safeguard sensitive
information. (Malhotra Dep. 69-70.) Finally, yet another administrator who was
not escorted was told to work from home and not come to campus. (Potter Dep.
58-59.) Notably, she was told not to contact her staff, which further weakens
Plaintiff’s claim that he was the only administrator told not to contact his staff.
(Id.)

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Finally, it is significant that none of the other administrators have been
shown to have breached Potter’s trust as Potter thought Plaintiff had. These
distinctions are relevant, and they make Plaintiff’s disparate treatment claim
untenable. He is unable to demonstrate that similarly situated administrators
were treated differently. Viewing the record as a whole, the Court concludes
that the evidence is insufficient for a reasonable factfinder to find pretext.
Accordingly, the Court dismisses Plaintiff’s disparate treatment claim.
iv. Both Title VII and Section 1983 Harassment (Hostile Work
Environment) Claims Against SCSU and Potter
Plaintiff’s complaint asserts that Defendants violated Title VII and Section
1983 by subjecting him to harassment resulting from hostile work environment.
Plaintiff alleges hostile work environment under Title VII against Potter,
individually, and alleges harassment in violation of Section 1983 and the Equal
Protection Clause of the Fourteenth Amendment against SCSU.
To establish a harassment claim, a plaintiff must show that: (1) he belongs
to a protected group; (2) he was subject to unwelcome harassment; (3) the
harassment was based on his protected class status; (4) the harassment affected
the terms, conditions, or privileges of his employment; and (5) the employer
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knew or should have known of the harassment and failed to take appropriate
remedial action. See, e.g., Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216,
1222 (8th Cir. 1997). To show hostile work environment, a plaintiff must indicate
that his work environment was severely and continually pervaded with
intimidation, ridicule, and insult based on protected class status, so much so that
the plaintiff’s conditions of employment were altered and an abusive work
environment was created. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57,
66-67 (1986); Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1379 (8th Cir. 2006).
Plaintiff’s allegations simply fail to rise to the level of harassment or hostile
work environment. The conduct creating hostile work environment harassment
must be “extreme in nature and not merely rude or unpleasant.” Sutherland v.
Mo. Dep’t of Corr., 580 F.3d 748, 751 (8th Cir. 2009) (citation omitted).
“[O]ffhand comments and isolated incidents (unless extremely serious) will not
amount to” an actionable claim for harassment. Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998).
The strongest facts supporting Plaintiff’s claim are (1) that someone
referred to plaintiff as “that Arab guy,” (2) that Plaintiff and Potter had an

37

uncomfortable conversation about his and Spitzer’s religious beliefs, and (3) that
Plaintiff and Potter engaged in conversation about Iranian politics, which made
Plaintiff uncomfortable. However, this limited number of potentially offensive
comments is not enough. See, e.g., Elmahdi v. Marriott Hotel Servs., 339 F.3d
645, 653 (8th Cir. 2003) (holding that racially offensive statements that occurred
on “a few occasions over a period of years” were insufficient to create a hostile
work environment).
Potter’s comments are more aptly categorized as isolated incidents and
they are not suggestive of a connection to Plaintiff’s termination in the totality of
the circumstances. Even if the conversation between Potter and Plaintiff was
discriminatory, Plaintiff has failed to show any connection between the
conversation and Plaintiff’s termination. Cronquist, 237 F.3d at 925 (“Not all
comments that may reflect a discriminatory attitude are sufficiently related to the
adverse employment action in question to support [an inference of
discrimination].”) Given that the conversation occurred in 2008, the year before
Potter’s decision to retain Plaintiff and three years before Plaintiff’s termination,
it is unlikely that the conversation and Plaintiff’s termination are sufficiently

38

related to rise to the level of harassment. For these reasons, the Court concludes
that Plaintiff’s hostile work environment claim against Potter, and harassment
claim against SCSU, fails.
v. Section 1983 First Amendment Claim Against Potter,
Individually
Plaintiff asserts a Section 1983 claim against Potter regarding Plaintiff’s
First Amendment rights. Specifically, Plaintiff claims that he was retaliated
against for his speech and that his speech was restrained. For the following
reasons, the Court concludes that Plaintiff’s First Amendment claim fails.
To prevail on a Section 1983 action, a plaintiff must prove two elements: (1)
the action complained of was committed by a person acting under color of state
law, and (2) this conduct deprived a person of rights, privileges or immunities
secured by the Constitution or laws of the United States. Dubose v. Kelly, 187
F.3d 999, 1002 (8th Cir. 1999).
First, regarding retaliation for speech, Plaintiff argues that both elements
are met. Plaintiff claims that his termination was retaliation for the speech he
made at the August 1, 2011 leadership retreat about focus group selection and
SCSU’s reputation for being a party school, after which Potter became visibly
39

angry. Plaintiff argues that this speech about enrollment issues at SCSU was
protected because it was a matter of public concern; enrollment was of great
interest to both members of the community and the faculty.
Second, in asserting his First Amendment claim, Plaintiff also claims that
his speech was unconstitutionally restrained. Specifically, Plaintiff cites when
Malhotra prevented him from accepting the invitation to speak to the Faculty
Senate about enrollment issues. (Compl. ¶ 11.) Plaintiff argues that the
statements he would have made were protected because they were not jobrelated, as it was not a responsibility of Plaintiff’s job to address the Faculty
Senate. Plaintiff maintains that the purpose of his speech was not to address a
private employment interest, but to raise issues of public concern. Therefore, this
was protected speech and was unconstitutionally restrained.
The Court holds that neither Plaintiff’s comments made at the retreat nor
what he would have said at the Faculty Senate were constitutionally protected
speech because they did not involve a matter of public concern. A matter of
public concern involves political, social, or other concerns of the community. See
Connick v. Myers, 461 U.S. 138, 146 (1983) (holding that speech on a matter of

40

public concern is protected). In determining whether speech evokes a matter of
public concern, one must examine the speech’s content, form, and context. Id. at
147-48. Statements are not a matter of public concern if they are purely jobrelated. Buazard v. Meridith, 172 F.3d 546, 548 (8th Cir. 1999).
“[T]he First Amendment does not prohibit managerial discipline based on
an employee’s expressions made pursuant to official responsibilities.” Garcetti v.
Ceballos, 547 U.S. 410, 424 (2006). Furthermore, “speech by public employees
undertaken in the course of their job duties will frequently involve matters of
vital concern to the public, without giving those employees a First Amendment
right to dictate to the state how they will do their jobs.” See Urofsky v. Gilmore,
216 F.3d 401, 407 (4th Cir. 2000).
Here, Plaintiff’s comments at the retreat and what he would have said at
the Faculty Senate were not a matter of public interest. Plaintiff did not seek to
communicate some wrong to the public in these contexts. These instances of
speech were purely job-related, and the tone of the speeches was not to “bring to
light actual or potential wrongdoing or breach of public trust on the part of”
SCSU. See Connick, 461 U.S. at 148. The statements were made in Plaintiff’s role

41

as Associate Vice President for Enrollment Management, and Plaintiff
acknowledged his statements were job-related in stating that he raised the
enrollment issues “as the chief enrollment officer.” (Saffari Dep. 86.) In these
instances, Plaintiff was merely reporting or given the opportunity to report on
his work to others in the context of his employment. Furthermore, in considering
the context of the speech, the retreat and the Faculty Senate meeting were
relatively non-public venues involving only faculty, not a larger community of
interested listeners. Because Plaintiff’s comments in these instances were not a
matter of public interest, Plaintiff had no First Amendment interest in his speech.
However, in continuing to allege restraint on speech, Plaintiff also points
to the September 2011 Strategic Planning Committee meeting. Plaintiff claims
that, during the meeting, Foss cut Plaintiff off and did not allow him to speak
after he complained that Foss discriminated against people of color. Arguably,
Plaintiff’s statements to Foss about her treatment of faculty of color raise a matter
of public interest because they allege discrimination. Crain v. Bd. of Police
Comm’rs, 920 F.2d 1402, 1411 (8th Cir. 1991) (holding that a written complaint
alleging racial discrimination by a supervisor involved a matter of public

42

concern). However, Plaintiff’s conversation with Foss is irrelevant to the claim
against Potter because Section 1983 does not allow for vicarious liability.
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is
inapplicable to . . . § 1983 suits, [a plaintiff] must plead that each Governmentofficial defendant, through his own individual actions, has violated the
Constitution.”).
Therefore, the only relevant aspect of this conversation is Potter’s intent
and knowledge of this conversation. Potter was not present at this meeting and
was unaware that these comments were made. (Second Potter Aff., Docket No.
37, ¶ 2; Potter Dep. 68-71; Foss Dep. 57-62, 70-73.) Because of this, Plaintiff has
no actionable claim against Potter for Foss’s actions. Accordingly, the Court
dismisses Plaintiff’s First Amendment claim altogether.
E. Plaintiff’s State Law Claims
Plaintiff asserts MHRA, MGDPA, and defamation claims against SCSU
and Potter. However, these state law claims fail against SCSU and Potter in his
official capacity on Eleventh Amendment grounds. The Eleventh Amendment
prohibits federal courts from exercising jurisdiction over state law claims against

43

non-consenting states when the state is the real, substantial party in interest.
Cooper v. St. Cloud State Univ., 226 F.3d 964, 968-69 (8th Cir. 2000) (holding
SCSU immune from MHRA claims under the Eleventh Amendment). In other
words, claims that a state agency has violated state law are barred from federal
court, even if those claims are pendent to federal claims. Id. (citing Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)).
Plaintiff’s state law claims against SCSU and Potter in his official capacity
are barred under the Eleventh Amendment. Furthermore, the MHRA and
MGDPA claims against Potter in his individual capacity fail because neither
statute provides for individual liability. The MHRA does not impose individual
liability for discrimination on supervisors. Arens v. O’Reilly Automotive, Inc.,
874 F. Supp. 2d 805, 807-08 (D. Minn. 2012). Additionally, “the [MGDPA] does
not impose civil liability on individuals.” Walker v. Scott County, 518 N.W.2d
76, 78 (Minn. Ct. App. 1994), rev. denied (Aug. 24, 1994). Therefore, Potter
cannot be individually liable under either statute. Plaintiff does not contest these
conclusions with respect to the MHRA claim, and Plaintiff concedes that the
MGDPA claim fails. (Pl.’s Mem. 1, n.1.)

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Accordingly, the Court dismisses Plaintiff’s MHRA and MGDPA claims.
F. Defamation Claim
This leaves the defamation claim. Because the Court has dismissed all
federal claims, it is purely within the Court’s discretion whether to retain
supplemental jurisdiction under 28 U.S.C. § 1367 and decide the defamation
claim. Carlsbad Tech. Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (“A district
court’s decision whether to exercise [supplemental] jurisdiction after dismissing
every claim over which it had original jurisdiction is purely discretionary.”).
Because Plaintiff has spent a significant amount of time on this claim and only
questions of law remain, the Court will retain jurisdiction over the claim. See
Condor Corp. v. City of St. Paul, 912 F.2d 215, 221 (8th Cir. 1990) (listing time
spent in litigation as a factor in deciding to reach the merits of a pendent state
claim). Nevertheless, the Court holds that the defamation claim fails on the
merits.
Statements are considered defamatory if they are (1) false; (2)
communicated to someone other than the plaintiff; and (3) tend to harm the

45

plaintiff’s reputation and to lower his estimation in the community. Lewis v.
Equitable Life Assur. Soc., 389 N.W.2d 876, 886 (Minn. 1986).
Plaintiff provides various factual bases for his defamation claim. First,
Plaintiff alleges that he was defamed when “[t]hey made statements that he was
escorted and they made statements that he was instructed not to talk.” (Pl.’s
Mem. 30-31.) A defamation claim based on these statements fails as a matter of
law. These statements are impermissibly vague, as Plaintiff has not pled the
statements with reference to “who made the statement, to whom it was made,
and where.” Burns v. City of Minneapolis, 2001 WL 1589619, at *3 (D. Minn.
2001). There is no indication that Potter made these alleged statements and no
allegations as to when or where these statements were made. Additionally, these
statements are not false, and therefore Plaintiff fails to show all elements of a
defamation claim.
Second, Plaintiff, claiming defamation by implication, argues that he was
defamed when SCSU administrators failed to explain why he was escorted off
campus, and this omission created the implication that Plaintiff had committed
malfeasance. Diesen v. Hessburg, 455 N.W.2d 446, 450 (Minn. 1990) (assessing a

46

claim for defamation by implication when a series of articles written about the
plaintiff implied a false notion). Plaintiff argues that this omission was
particularly egregious because Potter expected there would be speculation
surrounding Plaintiff being escorted off campus, especially because Potter had
never directed any other administrator to be escorted off campus.
This second claim also fails as a matter of law. First, the conduct of
escorting Plaintiff after his termination is not defamatory in itself. See Bolton v.
Dept. of Human Servs., 540 N.W.2d 523, 526 (Minn. 1995) (holding that the
conduct of escorting terminated employees is not actionable defamation by
conduct). Therefore, the Court is left to consider any implication created by
statements Potter made after Plaintiff’s termination. The student newspaper
quoting Potter only provides that Potter said escorting was routine practice in
the education industry. (Schermer Aff., Ex. 7 (“Potter said that this was not
unusual practice. . . . ‘Yes, there have been other people [escorted off campus]
since I’ve been here.’”).) Plaintiff has not shown this to be false, but he asserts
Potter’s failure to explain why Plaintiff was escorted is what created a
defamatory implication. Potter’s refusal to answer a question expressly

47

attributed his omission to legal limitations; it was not an omission suggestive of
wrongdoing by Plaintiff. Even though the student newspaper implied suspicion
as to Potter’s inability to name others who had been escorted it in such a way, the
newspaper is the entity that created any negative implication, not Potter. (Id.
(“When asked to name the positions in which this action was taken, Potter said
he could not, under the law.”).) As in Diesen, the newspaper would be the
proper party to whom one would attribute a defamatory omission, because the
newspaper is responsible for the “thrust and tenor of the article[]” and its
“organizing and editing.” Diesen, 455 N.W.2d at 450.
Furthermore, Plaintiff has not shown that any implication tended to harm
Plaintiff; rather, Potter’s statements likely helped Plaintiff by suggesting that he
was treated no differently from other terminated employees. Stating that
escorting is standard procedure relieves Plaintiff from scrutiny and reduces
speculation that he committed wrongdoing to warrant unique, negative
treatment. Considering the record as a whole, there is insufficient evidence for a
reasonable factfinder to conclude that (1) Potter’s statements were false or (2)

48

Potter’s statements and omissions implied something that harmed Plaintiff’s
reputation. The Court therefore dismisses Plaintiff’s defamation claim.
Finding no genuine dispute of material fact, and viewing the record in the
light most favorable to Plaintiff, the Court concludes that there is insufficient
evidence by which a reasonable juror could find for Plaintiff on any claim.
Accordingly, based on all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendants St. Cloud State University and President
Earl H. Potter III’s Motion for Summary Judgment [Docket No. 19] is
GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: August 12, 2014

s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court

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