Selmon-Vasser v. Hennepin County

Filing 29

ORDER denying 16 Amended Motion to Dismiss (Written Opinion). Signed by Senior Judge David S. Doty on 11/26/2013. (PJM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 13-405(DSD/JSM)
James Selmon-Vasser,
Plaintiff,
ORDER

v.
Hennepin County,
Defendant.

Daniel G. Leland, Esq. and Baillon, Thome, Jozwiak &
Wanta, LLP, 222 South Ninth Street, Suite 2955,
Minneapolis, MN 55402, counsel for plaintiff.
Beverly J. Wolfe, Charles H. Salter, Hennepin County
Attorney’s Office, A2000, 300 South Sixth Street,
Minneapolis, MN 55487, counsel for defendant.

This matter is before the court upon the amended motion to
dismiss by defendant Hennepin County.

Based on a review of the

file, record and proceedings herein, and for the following reasons,
the court denies the motion.

BACKGROUND
This employment dispute arises out of the November 2011
termination of plaintiff James Selmon-Vasser by the Hennepin County
Department of Community Corrections and Rehabilitation (DOCCR). At
the time of his termination, Selmon-Vasser was employed as a
probation officer in the Hennepin County Drug Court.
¶ 7.

Am. Compl.

From September 2008 to January 2009, Selmon-Vasser had a
romantic relationship with a co-worker, Alyssa Walswick.

Id. ¶ 8.

Walswick was promoted to Acting Drug Court Corrections Supervisor
in November 2008.

Id. ¶ 9.

ended the relationship.

Shortly thereafter, Selmon-Vasser

Id. ¶ 10.

Selmon-Vasser alleges that

Walswick subsequently retaliated against him by (1) reprimanding
him and placing him on a Performance Improvement Plan in mid-2009
and (2) reprimanding him again in July 2010.

Id. ¶ 11.

In May or June of 2011, Selmon-Vasser applied and interviewed
for a position as a Neighborhood Probation Officer.
Selmon-Vasser was not hired for the position.

Id. ¶ 13.

Id. ¶¶ 15-16.

Selmon-Vasser alleges that he did not receive the position because
Walswick had “giv[en] [him] a bad name in [Hennepin] County.”

Id.

¶ 16.
On

November

4,

2011,

while

off

duty,

Selmon-Vasser

was

assaulted by two co-workers, Juliana Schroeder and Melissa Toavs.
Id. ¶¶ 18-19.

During the altercation, Schroeder also broke the

windshield of his vehicle.

Id. ¶ 19.

Selmon-Vasser reported the

assault and vehicle damage to the South St. Paul Police Department.
Id. ¶ 20.
Division

Following the incident, on November 5, 2011, DOCCR
Manager

Brian

administrative leave.

Kopperud

placed

Selmon-Vasser

on

Id. ¶ 22.

Selmon-Vasser met with Kopperud, DOCCR Program Manager Mike
Gephart and union representative Bobbi Harrington on November 15,

2

2011.

Id. ¶¶ 23-24.

At the meeting, Selmon-Vasser disclosed that

he was romantically involved with both Schroeder and Toavs.

Id.

¶ 25.

Kopperud and Gephart asked Selmon-Vasser several questions

about

those

relationships

during

the

meeting.

Id.

¶

26.

Thereafter, on November 21, 2011, Selmon-Vasser received a “Notice
of Intent” to terminate his employment.

Id. ¶ 28.

On November 28,

2011, Selmon-Vasser had a hearing on the proposed termination,
during which he disclosed his previous relationship with Walswick.
Id. ¶¶ 29, 31.
had

Selmon-Vasser also alleged at the hearing that he

“endure[d]

a

hostile,

unfair,

and

environment” because of that relationship.

discriminatory
Id. ¶ 32.

work

On November

28, 2011, DOCCR Workforce Administrator Rich Tiedeman informed
Selmon-Vasser that the decision to terminate his employment was
being upheld.

Id. ¶ 35.

On June 1, 2012, Selmon-Vasser filed administrative charges
with the EEOC and the Minnesota Department of Human Rights (MDHR).
Id. ¶¶ 45, 46.

On January 28, 2013, Selmon-Vasser filed a

complaint in Minnesota court.
moved to dismiss.

Hennepin County timely removed and

Thereafter, on March 18, 2013, Selmon-Vasser

filed an amended complaint, alleging sex discrimination, race
discrimination,1 retaliation and reprisal.

Hennepin County renews

its motion to dismiss.

1

Selmon-Vasser alleges the sex and race discrimination claims
under both Title VII and the Minnesota Human Rights Act (MHRA).
3

DISCUSSION
I.

Standard of Review
To survive a motion to dismiss for failure to state a claim,

“a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(citations and internal quotation marks omitted).
facial

plausibility

when

the

plaintiff

[has

“A claim has

pleaded]

factual

content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”

Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)).

Although a complaint need not

contain detailed factual allegations, it must raise a right to
relief above the speculative level.

See Twombly, 550 U.S. at 555.

“[L]abels and conclusions or a formulaic recitation of the elements
of a cause of action” are not sufficient to state a claim.

Iqbal,

129 S. Ct. at 1949 (citation and internal quotation marks omitted).
The court does not consider matters outside the pleadings
under Rule 12(b)(6).

See Fed. R. Civ. P. 12(d).

The court,

however, may consider matters of public record and materials that
do not contradict the complaint, as well as materials that are
“necessarily embraced by the pleadings.” See Porous Media Corp. v.
Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (citation and
internal quotation marks omitted).

4

In this case, the EEOC charge

and correspondence regarding Selmon-Vasser’s disciplinary hearing
are

necessarily

embraced

by

the

pleadings

and

are

properly

considered.
II.

Failure to Promote
Hennepin

County

argues

that

the

claims

relating

to

its

decision not to hire Selmon-Vasser as a Neighborhood Probation
Officer should be dismissed.

Specifically, Hennepin County argues

that (1) Selmon-Vasser did not exhaust his administrative remedies
for his failure-to-promote claim and (2) has not adequately pleaded
that he was denied a promotion.
A.

Exhaustion of Administrative Remedies

Hennepin County argues that Selmon-Vasser did not exhaust his
administrative

remedies

for

his

failure-to-promote

claims.

Specifically, Hennepin County argues that the allegations included
in the EEOC charge - that Hennepin County retaliated against
Selmon-Vasser by “rejecting [his] application for another position”
- did not provide sufficient notice of the failure-to-promote
claims.
A

See Wolfe Aff. Ex. 2, at 2.
Title

VII

plaintiff

must

first

exhaust

administrative

remedies by filing a charge with the EEOC and receiving notice of

5

a right to sue.2

Stuart v. Gen. Motors Corp., 217 F.3d 621, 630

(8th Cir. 2000).
The information contained in an EEOC charge
must be sufficient to give the employer notice
of the subject matter of the charge and
identify generally the basis for a claim, but
it need not specifically articulate the
precise claim or set forth all the evidence an
employee may choose to later present in court.
Wallace v. DTG Operations, Inc., 442 F.3d 1122, 1123 (8th Cir.
2006) (citation omitted), abrogated on other grounds by Torgerson
v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011).

Rather, the

court construes administrative charges liberally, permitting a
plaintiff to “seek relief for any discrimination that grows out of
or

is

like

or

reasonably

related

to

the

substance

of

the

allegations in the administrative charge.” Stuart, 217 F.3d at 631
(citation and internal quotation marks omitted).

2

Similarly, under the MHRA, “[a] claim of an unfair
discriminatory practice must be brought as a civil action ...,
filed in a charge with a local commission ... or filed in a charge
with the commissioner within one year after the occurrence of the
practice.” Minn. Stat. § 363A.28, subdiv. 3. Selmon-Vasser dual
filed a charge of discrimination with the MDHR and EEOC on June 1,
2012. Am. Compl. ¶¶ 45-46; see Yousuf v. Fairview Univ. Med. Ctr.,
No. 12-2191, 2013 WL 1900653, at *3 (D. Minn. Apr. 10, 2013) (Rau,
M.J.) (“Dual filing is a process by which a claimant files a charge
of discrimination with a state or local agency, which then sends a
copy of the charge to the EEOC.” (citation omitted)), adopted by
2013 WL 1900651 (May 7, 2013). The court applies the same analysis
to claims under the MHRA and Title VII when, as here, the claims
depend on identical facts and theories. See Kasper v. Federated
Mut. Ins. Co., 425 F.3d 496, 502 (8th Cir. 2005). As a result, the
court’s analysis of exhaustion applies equally to the MHRA failureto-promote claim.
6

Here, the allegations that Selmon-Vasser included in the
administrative charge - that Hennepin County “reject[ed] [his]
application for another position” - are reasonably related to the
claim that he was denied a promotion after interviewing for the
Neighborhood Probation Officer position.

Wolfe Aff. Ex. 2, at 2;

see Stuart, 217 F.3d at 631 (noting that a later-filed civil suit
may

encompass

allegations

“as

broad

as

the

scope

of

any

investigation that reasonably could have been expected to result
from the initial charge of discrimination” (citation omitted)). As
a result, the contents of the charge were sufficient to give
Hennepin

County

notice

of

the

failure-to-promote

claims,

and

dismissal on this basis is not warranted.
B.

Sufficiency of Pleadings

Hennepin County next argues that its decision not to hire
Selmon-Vasser

as

a

Neighborhood

Probation

constitute an adverse employment action.

Officer

does

not

Under Title VII and the

MHRA, “in order for there to be ... discrimination that constitutes
an

unlawful

employment

employment action.”

practice,

there

must

be

some

adverse

Bahr v. Capella Univ., 788 N.W.2d 76, 83

(Minn. 2010) (citations omitted).

“An adverse employment action

must include some tangible change in duties or working conditions.”
Id. (citation omitted).

“The Eighth Circuit has held that ... a

denial of transfer ... [is] not [an] adverse employment action[]
when the transfer[] [is] for [a] job[] of equal title and pay and

7

do[es] not include a material change in working conditions.”
Jensen v. Astrazeneca LP, No. 02-4844, 2005 WL 1432220, at *4 (D.
Minn. Mar. 30, 2005) (citations omitted); see LePique v. Hove, 217
F.3d 1012, 1014 (8th Cir. 2000) (noting that although “the action
complained of is the failure to transfer, but we see no reason to
suppose

that

an

action

of

that

kind

should

be

treated

any

differently” than an employer-mandated transfer).
In

the

Amended

Complaint,

Selmon-Vasser

alleges

that

he

“applied for a promotion to a Neighborhood Probation Officer
position,” and interviewed for the position but “was not given the
promotion.” Am Compl. ¶¶ 13-14. Hennepin County responds that the
only Neighborhood Probation Officer position for which it accepted
applications

during

the

relevant

designated a “lateral transfer.”

time

period

was

explicitly

Tiedeman Aff. Ex. 1, at 2.

Further, the application included a statement that read “I am
interested in being considered for lateral transfer to the full
time Probation/Parole Officer position in the DOCCR Adult Division,
Neighborhood

Probation

Unit.

I

am

currently

classification of Probation/Parole Officer.”

in

the

job

Id.

The inquiry into whether the position was a promotion or a
lateral transfer, however, is necessarily fact-dependent and the
position’s label of “lateral transfer” is not dispositive.

See,

e.g., Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 919 (8th Cir.
2000) (noting that a transfer may constitute an adverse employment

8

action if “the transfer results in a significant change in working
conditions” (citations omitted)); cf. Spears v. Mo. Dep’t of Corrs.
& Human Res., 210 F.3d 850, 853 (8th Cir. 2000) (finding, in
retaliation context, that “changes in employment that significantly
affect an employee’s future career prospects” can constitute an
adverse employment action (citation omitted)); Delgado-O’Neil v.
City of Minneapolis, 745 F. Supp. 2d 894, 902-03 (D. Minn. 2010)
(analyzing,

in

retaliation

context,

whether

forced

transfer

constituted an adverse employment action and considering change in
“seniority or supervisory authority”), aff’d 435 F. App’x 582 (8th
Cir. 2011) (per curiam).

At this early stage in the proceedings,

even if the court were to consider the contents of the job posting,
as Hennepin County urges,3 there is no record evidence by which to
compare the two positions at issue.

In sum, given the allegations

that Selmon-Vasser was denied a promotion and the fact-specific
nature

of

the

failure-to-promote

adequately pleaded a plausible claim.

claim,

Selmon-Vasser

has

As a result, dismissal is

not warranted.

3

Selmon-Vasser argues that the court should not consider the
posting because it is (1) not embraced by the Amended Complaint and
(2) inadmissible without further evidentiary foundation. The court
need not reach this argument, however, as even if the posting is
considered, dismissal is not warranted.
9

III.

Reprisal and Retaliation
Selmon-Vasser next alleges claims for MHRA reprisal and Title

VII retaliation.

To ultimately prevail on either claim,4 Selmon-

Vasser “must prove (1) [he] engaged in protected activity; (2) [he]
suffered a materially adverse employment action; and (3) the
materially adverse action was causally connected to [his] protected
activity.”

Wright v. St. Vincent Health Sys., 730 F.3d 732, 737

(8th Cir. 2013) (citations omitted).

To establish causation,

Selmon-Vasser “must prove the desire to retaliate was the but for
cause of [his] termination - that is, that the unlawful retaliation
would not have occurred in the absence of the alleged wrongful
action or actions of” Hennepin County.

Id. at 737-38 (citations

and internal quotation marks omitted).
Hennepin County argues that dismissal is warranted on the
reprisal and retaliation claims.

Specifically, Hennepin County

argues that Selmon-Vasser cannot demonstrate a causal link between
his reports of discrimination and his termination because he did
not reveal the alleged harassment and discrimination until the
November

28,

2011,

proposed

termination

hearing.

Generally,

“[e]vidence that the employer had been concerned about a problem
before the employee engaged in the protected activity undercuts the
significance of the temporal proximity” between the report and the

4

The court applies the same analysis to claims for Title VII
retaliation and MHRA reprisal when, as here, the claims depend on
identical facts and theories. See Kasper, 425 F.3d at 502.
10

termination.

Smith v. Allen Health Sys., Inc., 302 F.3d 827, 834

(8th Cir. 2002).
Such a determination, however, is a fact-specific inquiry and
is thus premature at this stage in the proceedings.

Here, Selmon-

Vasser has pleaded that he reported harassment and discrimination
at the hearing and that, after the hearing, Tiedeman advised
Selmon-Vasser that he would remain on administrative leave pending
further investigation.

See Am. Compl. ¶¶ 32-33.

Thereafter, in

the letter upholding the proposed termination, Tiedeman wrote, in
part, “I have concluded that you were not forth coming [sic] during
the Administrative Hearing regarding your relationship with a
former co-worker who became your supervisor.

You stated that you

had a sexual relationship with this individual.

After further

investigation, I find your statements to be untruthful.”
Aff. Ex. 3; see Am. Compl. ¶ 36.
-

without

the

benefit

of

a

Tiedeman

At this stage in the proceedings

developed

record

-

such

factual

allegations plausibly plead a claim for retaliation and reprisal
based on the reports of discrimination.

As a result, dismissal is

not warranted.5

5

Hennepin County also moves to strike from the Amended
Complaint several allegations related to the alleged relationship
between Selmon-Vasser and Walswick. Under Rule 12(f), “[t]he court
may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.”
The
allegations that Hennepin County seeks to strike, however, are
connected to Selmon-Vasser’s retaliation and reprisal claims.
Because the court finds that dismissal of the retaliation and
(continued...)
11

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that the
amended motion to dismiss [ECF No. 16] is denied.
Dated:

November 26, 2013
s/David S. Doty
David S. Doty, Judge
United States District Court

(...continued)
reprisal claims is not warranted, it declines to strike the related
alleged facts from the Amended Complaint.
12