Savoie v. Genpak, LLC
Filing
52
MEMORANDUM OPINION AND ORDER 1. Defendant's Motion for Summary Judgment (Doc. No. 38 ) is GRANTED in its entirety and Counts I and II are DISMISSED WITH PREJUDICE. 2. Plaintiff's Complaint (Doc. No. [1-1]) is DISMISSED WITH PREJUDICE. (Written Opinion). Signed by Judge Donovan W. Frank on 12/5/2014. (BJS)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
James Savoie,
Civil No. 13-1228 (DWF/SER)
Plaintiff,
v.
MEMORANDUM
OPINION AND ORDER
Genpak, LLC,
Defendant.
_______________________________________________________________________
Nixon O. Ayeni, Esq., Law Office of Nixon Ayeni, counsel for Plaintiff.
Carl Crosby Lehmann, Esq., and Matthew Webster, Esq., Gray Plant Mooty Mooty &
Bennett, PA; and Michael D. Billok, Esq., Bond, Schoeneck, King, PLLC, counsel for
Defendant.
_______________________________________________________________________
INTRODUCTION
This matter is before the Court on Defendant Genpak, LLC’s (“Defendant”)
Motion for Summary Judgment. (Doc. No. 38.) For the reasons set forth below, the
Court grants Defendant’s Motion.
BACKGROUND
Defendant manufactures disposable food service packaging and is headquartered
in New York with several locations nationwide. (Doc. No. 40 (“Sawchuk
Decl.”) ¶¶ 2-4.) Plaintiff was employed by Defendant from June 1, 1972 to
December 3, 2012 and worked most recently at the Lakeville, Minnesota plant. (Id. ¶ 9.)
Plaintiff’s claims stem from his termination by Defendant. On
November 29, 2012, Plaintiff was involved in a dispute with his supervisor, Russell
Snyder (“Snyder”), a Plant Manager for Defendant. (Id. ¶ 28.) On December 3, 2012,
Plaintiff was terminated for insubordination as a result of the dispute. (Id. ¶ 29.)
The events that gave rise to the dispute between Plaintiff and Snyder began
in 2006, when Plaintiff was promoted to Extrusion Department Manager. (Doc. No. 39
(“Billok Decl.”) ¶ 4, Ex. D (“Savoie Dep.”) at 9.) Plaintiff was hesitant to accept the
promotion due to the increase in responsibility but only marginal increase in salary.
(Doc. No. 40-12 (“Snyder Decl.”) ¶ 3; Savoie Dep. at 12-13.) However, Plaintiff
accepted the position after receiving encouragement from Snyder. (Snyder Decl. ¶ 3;
Savoie Dep. at 13.) At the time of Plaintiff’s promotion, Snyder did not know Plaintiff’s
exact age, but did know Plaintiff was in his fifties. (Snyder Decl. ¶ 3.) During the
negotiations for the promotion, Snyder alluded to an increase in Plaintiff’s salary in the
near future, promising that “your boss will recognize you,” and “we’ll get you there.”
(Savoie Dep. at 12-13, 16.)
Shortly after accepting the new position in 2006, Plaintiff and Snyder’s
relationship became contentious, such that Plaintiff began to document their interactions
in a journal. (Savoie Dep. at 56-57.) After his promotion, Plaintiff was moved to the day
shift after working the night shift since 1977. (Id. at 37-38.) However, as part of his new
job responsibility to train personnel, Plaintiff was shifted back to nights between
February and May of 2007 and again in February of 2010. (Id. at 37-39; Snyder
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Decl. ¶ 4.) Plaintiff testified that the shift change caused the recurrence of a sleeping
condition after a period of dormancy. (Savoie Dep. at 37.) Plaintiff stated that Snyder
“strongly contributed” to the recurrence of the sleep disorder when Snyder singled him
out to switch to night shifts, despite Plaintiff’s pleas not to switch. (Id.)
In a 2007 performance review, Snyder offered Plaintiff a four percent raise over
the three percent raise offered to most employees. (Id. at 14-16.) Plaintiff was
dissatisfied and believed he had been promised a higher raise by Snyder. (Id.) Through
the years, Plaintiff continued to record his hostile interactions with Snyder in his journal.
(Id. at 56-57.) In 2012, Plaintiff disagreed with and refused to sign his performance
review and forfeited a potential raise. (Id. at 19-20.) Snyder responded by revising and
improving Plaintiff’s performance review. (Id. at 21-24.) Plaintiff did not accept the
amended review and continued his protest by refusing to sign the review. (Id. at 24-25.)
As a result, Plaintiff declined the proposed raise and forfeited the potential back pay from
the raise. (Id. at 25.)
Beginning August 27, 2012, Plaintiff and Catherine Sawchuk, the Genpak
Director of Human Resources, exchanged a series of e-mails in which Plaintiff used an
alias because he feared retribution. (Sawchuk Decl. ¶ 10, Ex. C.) These e-mails
included: discussions about the relationship between Plaintiff and Snyder; allegations of
potential legal violations concerning improper FDA paperwork for resin purchases,
OSHA violations, and falsification of paperwork; and other grievances surrounding
Plaintiff’s employment. (Id.) On September 28, 2012, Plaintiff called Sawchuk, and
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identified himself as the author of the e-mails and continued to voice his grievances
against Snyder and the practices at Defendant’s facility that he thought were illegal.
(Sawchuk Decl. ¶ 11.) On October 8, 2012, Plaintiff sent Sawchuk another e-mail with a
list of violations he believed occurred at Genpak, as well as details regarding a personal
dispute between Plaintiff and Snyder. (Sawchuk Decl. ¶ 12; Savoie Dep. at 101-02.) The
dispute that Plaintiff reported about occurred when Snyder circulated a picture with a
comment about Plaintiff’s weight. (Sawchuk Decl. ¶ 21; Savoie Dep. at 143-44.)
Sawchuk began an investigation into the alleged violations and the dispute and promptly
scheduled a personal visit to the plant from her New York office. (Sawchuk Decl. ¶ 13.)
On October 16, 2012, Sawchuk met with Plaintiff to address his complaints.
(Id. ¶ 15; Savoie Dep. at 101.) Over the course of an 8.5-hour interview, Sawchuk
requested evidence regarding the alleged violations and the names of employees who
could verify Plaintiff’s allegations. (Sawchuk Decl. ¶ 15; Savoie Dep. at 102.) Sawchuk
continued her investigation in New York by interviewing employees and corresponding
with Plaintiff through e-mail. (Sawchuk Decl. ¶ 18.)
Over the course of her investigation, Plaintiff failed to provide any information
showing falsification of production reports or other evidence supporting his claims of
Genpak violations. (Id. ¶¶ 19, 20; Savoie Dep. at 99-102.) Sawchuk testified that her
interviews with the other employees revealed conflicting information. (Sawchuk
Decl. ¶ 23.) Sawchuk completed her initial findings on November 27, 2012, and
concluded that there was no evidence to corroborate Plaintiff’s claims regarding the
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falsification of production reports, safety issues, OSHA violations, or actionable
discrimination. (Sawchuk Decl. ¶¶ 25-27.) Sawchuk finalized her report after conferring
with counsel on November 29, 2012. (Id. ¶ 27, Ex. I.)
At approximately 4:00 p.m. on November 29, 2012, Snyder and Plaintiff had an
argument resulting in Plaintiff’s termination. (Savoie Dep. at 153-55.) The parties agree
that during the argument, Plaintiff picked up the phone in his office, which connected to
the plant paging system, and said either “I’m sick of you hassling me, I’m sick of this
shit” or “I’m sick and tired.” (Snyder Decl. ¶ 7; Savoie Dep. at 156.) Directly following
the argument between Plaintiff and Snyder, Plaintiff contacted Sue Lehman (“Lehman”),
the Human Resources Manager, to request a temporary leave of absence and was
provided with Family and Medical Leave Act paperwork to be filled out by his doctor.
(Doc. No. 40-14 (“Lehman Decl.”) ¶ 5.) Plaintiff responded that he wanted to pursue a
workers’ compensation claim for the stress caused by Snyder, and Lehman advised
Plaintiff to go to Defendant’s clinic to be evaluated. (Id.)
On November 30, 2012, Sawchuk was informed of Plaintiff and Snyder’s
argument involving the paging system. Sawchuk spoke with Snyder that day and again
on December 3, 2012. (Snyder Decl. ¶ 14.) Plaintiff was terminated for insubordination
and denigrating Snyder and received his notice of termination on December 3, 2012.
(Sawchuk Decl. ¶ 29.) Plaintiff was 58 years old at the time he was terminated. (Savoie
Dep. at 108.) Plaintiff’s position as Extrusion Department Manager remained vacant for
approximately two months and was eventually filled by Don Kiser, a 51-year-old man
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who had a new title with different duties. (Sawchuk Decl. ¶¶ 31-32; Savoie Dep.
at 106-08.)
At his deposition, Plaintiff testified that Snyder made comments about the age of
other employees in a negative manner. (Savoie Dep. at 51-54.) Plaintiff did not record
any entries in his eighteen-page journal regarding these age-related comments and
admitted to not being aware of Snyder making a comment about his age. (Id. at 51,
55-57, 60-61.) Plaintiff also stated that while he knew the “stated” reason for his
termination, he did not know why he was terminated. (Id. at 108-09.)
On May 6, 2013, Plaintiff filed the present action asserting two claims against the
Defendant: (1) Violation of the Minnesota Human Rights Act (“MHRA”) for age
discrimination under Minn. Stat. § 363A.08 (Count I); and (2) Violation of the Minnesota
Whistleblower Act (”MWA”) under Minn. Stat. § 181.932 (Count II). (Doc. No. 1
(“Compl.”).) Defendant now moves for summary judgment on both counts. (Doc.
No. 38.)
DISCUSSION
I.
Summary Judgment Standard
Summary judgment is proper if there are no disputed issues of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
Court must view the evidence and the inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna
Bank of Mo., 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has
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stated, “[s]ummary judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which
are designed ‘to secure the just, speedy, and inexpensive determination of every action.’”
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank, 92 F.3d
at 747. The nonmoving party must demonstrate the existence of specific facts in the
record that create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953,
957 (8th Cir. 1995). A party opposing a properly supported motion for summary
judgment “may not rest upon the mere allegations or denials of his pleading, but must set
forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986).
II.
Age Discrimination Claim
Age discrimination claims under the MHRA, Minn. Stat. § 363A.08, are analyzed
under the same framework as claims under the Age Discrimination in Employment Act
(“ADEA”). Chambers v. Travelers Cos., 668 F.3d 559, 566 (8th Cir. 2012). The ADEA
makes it unlawful for an employer to discharge or discriminate against any employee,
age 40 or older, because of his age. 29 U.S.C. § 623(a)(1). A plaintiff bears the burden
of either: (1) providing direct evidence of discrimination; or (2) creating an inference of
discrimination under the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). King v. United States, 553 F.3d 1156, 1160 (8th Cir. 2009).
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Defendant contends that Plaintiff did not provide either direct or indirect evidence
of age discrimination. Defendant argues that Plaintiff failed to present any connection
between the alleged discrimination and the adverse employment action. Defendant
further argues that Plaintiff failed to establish a prima facie case for age discrimination
and, even if Plaintiff established a prima facie case, he failed to carry his burden of
responding to Defendant’s legitimate reason for termination.
A.
Direct Evidence
Plaintiff claims he can show age discrimination through direct evidence. Direct
evidence requires “a specific link between the alleged discriminatory animus and the
challenged decision, sufficient to support a finding by a reasonable fact finder that an
illegitimate criterion actually motivated the adverse employment action.” Ramlet v. E.F.
Johnson Co., 507 F.3d 1149, 1152 (8th Cir. 2007) (citation omitted). “Direct evidence”
will not be found in “stray remarks in the workplace, statements by nondecision-makers,
or statements by decision-makers unrelated to the decisional process itself.” Id. at 1153.
To support Plaintiff’s claim of direct evidence of age discrimination, Plaintiff
appears to argue that there is “direct illegality.” Specifically, Plaintiff asserts:
Savoie can show direct evidence of discrimination In holmes all the
court layed the foundation that plaintiff has to show that there is a direct
illegality by evidence.” Holmes v. Trinity Health, 729 F.3d at 821 “ the
decision process is not one that comes within the gambit of illegality
because such act is one of decision to act in the best interest of the
company, it however does not cover illegal decision see Morgan v. A.G.
Edwards & Sons, Inc., 486 F.3d 1034, 1043 (8th Cir. 2007).
((Doc. No. 47 (“Pl.’s Opp. Mem.”) at 12) (mistakes in the original).)
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This fails to constitute direct evidence regarding age discrimination. Plaintiff
offers no evidence that Snyder’s comments about another employee’s age were related to
his own termination. (Savoie Dep. at 51-54.) Plaintiff also admits to not being aware of
Snyder making a comment about his age. (Id. at 51, 55-57, 60-61.) Despite his claim
that he recorded his disputes with Snyder, Plaintiff failed to record any comments made
by Snyder regarding Plaintiff’s age in his journal. (Id. at 60-61.) In fact, Plaintiff fails to
point to any evidence in the record at all that would support a claim for age
discrimination. Finally, Plaintiff’s unsigned and unsworn declaration is not admissible
evidence and cannot be used to support raising a genuine issue of material fact for
summary judgment. 1 28 U.S.C. § 1746; see Elder-Keep v. Aksamit, 460 F.3d 979, 984
(8th Cir. 2006) (holding that the court was authorized to exclude unsigned affidavits in
considering its summary judgment motion).
Because the burden to specify facts that show a genuine issue for trial rests with
the non-moving party, Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1113 (8th
Cir. 2004), and because “[a] district court is not required to speculate on which portion of
the record the nonmoving party relies, nor is it obligated to wade through and search the
entire record for some specific facts that might support the nonmoving party’s claim,”
Gallagher v. Magner, 619 F.3d 823, 832 (8th Cir. 2010) (citation omitted), this Court will
not speculate or search the record to find direct evidence of age discrimination. Thus, the
1
Even if Plaintiff’s declaration was admissible, it was not cited in Plaintiff’s Reply
and did not raise a genuine dispute of material fact regarding Plaintiff’s age
discrimination or whistleblower claim. Consequently, the Court’s decision would be the
same with or without Plaintiff’s declaration.
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Court concludes that Plaintiff has failed to carry his burden and that there is no evidence
that would lead a reasonable fact finder to conclude that there is a genuine issue of
material fact based on direct evidence of age discrimination.
B.
Indirect Evidence
Plaintiff also claims he can show age discrimination through indirect evidence.
When a plaintiff is unable to set forth direct evidence of age discrimination, courts have
traditionally applied the McDonnell Douglas burden-shifting framework to determine
whether there is indirect evidence of age discrimination. See Haigh v. Gelita USA, Inc.,
632 F.3d 464, 468 (8th Cir. 2011). To present a prima facie case for age discrimination, a
plaintiff must show the following: (1) he was 40 years old or older; (2) suffered an
adverse employment action; (3) met the expectations of the employer at the time of the
adverse action; and (4) was replaced by someone substantially younger. Holmes v.
Trinity Health, 729 F.3d 817, 822 (8th Cir. 2013) (emphasis added).
With regard to the fourth element, the Eighth Circuit not only requires the
employee to be replaced by someone younger, but someone who is “substantially
younger.” Hilde v. City of Eveleth, 986 F. Supp. 2d 1068, 1075 (D. Minn. 2013)
(citations omitted). Courts have reasoned that “evidence of a substantial age difference
reasonably allows the conclusion that the plaintiff’s age factored into the employer’s
decision.” Id. at 1075 (citations omitted) (emphasis in original). Courts have found that
“an eight-year gap appears too small to meet the ‘substantially younger’ threshold.” Id.
(citing Chambers, 668 F.3d at 566); see Girten v. McRentals, Inc., 337 F.3d 979, 982 (8th
10
Cir. 2003) (finding that a nine-year age difference was not substantial enough of an age
disparity to support an inference of age discrimination).
Once a plaintiff establishes a prima facie case of age discrimination, the burden
shifts to the employer to set forth a “legitimate, nondiscriminatory reason for its adverse
employment action.” Rahlf v. Mo-Tech Corp., Inc., 642 F.3d 633, 637 (8th Cir. 2011). If
the employer offers a legitimate reason, the burden shifts back to a plaintiff to provide
evidence that the employer’s “reason was mere pretext for discrimination.” Haigh, 632
F.3d at 468. This requires more than “merely discrediting an employer’s asserted
reasoning for terminating an employee . . . . [The plaintiff] is also required to show that
the circumstances permit a reasonable inference” that the real reason he was terminated
was because of discriminatory animus. Johnson v. AT&T Corp., 422 F.3d 756, 763
(8th Cir. 2005) (alteration in original) (citations omitted).
The first three elements of Plaintiff’s prima facie case are not in dispute.
However, Defendant argues that Plaintiff cannot show the fourth element because
Plaintiff was not replaced by an individual who was substantially younger. Plaintiff
appears to argue that he was replaced by someone substantially younger by arguing:
It cannot be disputed that who took over Savoie’s job was younger
and was a couple of years younger than Savoie the age differential alone
does not by itself exposed the act of Snyder and Genpack, they did admit
that the person put in Savoie’s job was a Supervisor and that Savoie’s job
remained unfilled, so the fact that the person placed in the job temporarily
does not absolve Genpak from their illegal act.
((Pl.’s Opp. Mem. at 12) (mistakes in the original).)
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The Court agrees with Defendant that Plaintiff fails to present facts that could
allow a reasonable jury to conclude that Plaintiff was replaced by someone substantially
younger. First, it is unclear that Plaintiff’s position was ever filled. Plaintiff’s position
remained vacant for approximately two months following his termination. (Sawchuk
Decl. ¶¶ 31-32.) Don Kiser, who was 51 at the time of his hiring, was hired as a Plant
Supervisor and not an Extrusion Department Manager, and held different duties than
those of the Plaintiff. (Id.; Savoie Dep. at 106-07.) However, even assuming that Don
Kiser replaced Plaintiff, the seven-year age difference between the two does not, as a
matter of law, constitute a substantial age difference. (See Hilde, 986 F. Supp. 2d 1068.)
Therefore, Plaintiff fails to present evidence that he was replaced by someone
substantially younger and, thus, fails to establish a prima facie case of age discrimination.
Even if Plaintiff established that he was replaced by someone substantially
younger, Defendant proffers a legitimate, non-discriminatory reason for Plaintiff’s
termination. Specifically, Defendant cites insubordination as the reason for Plaintiff’s
termination and points to facts in the record to support its claims. For example,
Defendant submitted evidence and affidavits that Sawchuk terminated Plaintiff for cause
because he publicly denigrated his supervisor over the intercom system and this dispute
was heard by numerous employees. (See Doc. No. 40-16 (“Gehrke Decl.”); Doc.
No. 40-17 (“Dulac Decl.”).) The Eighth Circuit has “repeatedly held that insubordination
. . . [is a] legitimate reason[] for termination.” Kiel v. Select Artificials, Inc., 169 F.3d
1131, 1135 (8th Cir. 1999) (citations omitted).
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The burden then shifts back to Plaintiff to provide evidence that Defendant’s
reason for termination was mere pretext. Here too, Plaintiff fails to offer any evidence
that rebuts Defendant’s reason for termination. Plaintiff simply tries to discredit
Defendant’s reason through conclusory statements and fails to direct the Court to facts in
the record that show the termination was mere pretext for a discriminatory animus. After
reviewing the record, the Court finds that Plaintiff fails to provide direct or indirect
evidence so as to create a “specific link” between the alleged discriminatory motive and
adverse employment decision.
In sum, Plaintiff was not replaced by someone substantially younger and Plaintiff
failed to carry his burden in responding to Defendant’s reason for termination. When
viewed in a light most favorable to Plaintiff, there is no genuine issue of material fact
regarding Plaintiff’s age discrimination claim and the Court, therefore, grants
Defendant’s Motion as to Count I.
III.
Whistleblower Claim
The MWA prohibits an employer from discharging or discriminating against an
employee who “in good faith, reports a violation or suspected violation, of any federal or
state law or rule adopted pursuant to law to an employer or to any governmental body or
law enforcement official.” Minn. Stat. § 181.932, subd. 1(1). Like age discrimination
claims under the MHRA, when direct evidence is lacking, the Court analyzes MWA
claims using the burden-shifting framework set forth in McDonnell Douglas. Cokley v.
City of Otsego, 623 N.W.2d 625, 630 (Minn. Ct. App. 2001).
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To establish a prima facie case under the MWA, a plaintiff employee must first
show: (1) he engaged in statutorily-protected conduct; (2) suffered an adverse
employment action; and (3) there was a casual nexus between the two. Id. If a plaintiff
can establish a prima facie case, the burden of production shifts to the defendant to
articulate a legitimate, non-retaliatory reason for its action. Id. If a defendant advances a
legitimate reason for the adverse employment action and meets its burden of production,
the plaintiff must then demonstrate that the defendant’s articulated justification is
pretextual. Id. At all times the employee has the burden to prove by a preponderance of
evidence that the employer’s action was taken for an impermissible reason. Phipps v.
Clark Oil & Ref. Corp., 408 N.W.2d 569, 572 (Minn. 1987).
Defendant acknowledges that Plaintiff suffered an adverse employment action but
challenges whether he engaged in statutorily-protected conduct and, if he did, whether
such conduct was causally connected to his termination. Defendant attacks Plaintiff’s
MWA claim on three grounds. First, with regard to the statutorily protected conduct,
Defendant argues that Plaintiff did not allege facts which, if true, would establish any
legal violation. Second, Defendant argues that Plaintiff’s reports of alleged legal
violations were not made in good faith. Finally, Defendant contends that Plaintiff cannot
demonstrate pretext because his complaints were earnestly investigated and were not
causally connected to his termination. The Court agrees.
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A.
Statutorily Protected Conduct
To engage in statutorily protected conduct, a plaintiff must identify “a federal or
state law or rule adopted pursuant to law that is implicated by the employee’s complaint,
the employee reported the violation or suspected violation in good faith, and the
employee alleges facts that, if proven, would constitute a violation of law or rule adopted
pursuant to law.” Abraham v. Cnty. of Hennepin, 639 N.W.2d 342, 354-55 (Minn. 2002)
(emphasis added). However, the plaintiff “need not identify the specific law or rule that
the employee suspects has been violated.” Id. “While an actual violation of state or
federal law need not have occurred for an employee’s report to be protected, the
employee must show that the activity reported, if it turned out to be true, would violate
the law.” Weigman v. Everest Inst., 957 F. Supp. 2d 1102, 1106 (D. Minn. 2013)
(citation omitted).
Plaintiff fails to raise any factual issues regarding whether Defendant violated any
law and relies only on his Complaint to assert that there might be possible violations and
potential illegal activity by Defendant. (Compl. ¶¶ 8-9.) While Plaintiff is not required
to identify a specific violation of law in his complaint, none of the actions that Plaintiff
alleges and nothing in the record implicate a violation of a law. During Plaintiff’s
deposition, he admitted that he was unaware of any violation of the law or even an
industry standard that was not met. (Savoie Dep. at 69-70.) The record reflects that
Plaintiff spoke with Snyder and wrote to the Human Resources manager, however,
Plaintiff fails to point to any specific violation of a law or rule and instead refers only to
15
“potentially illegal activity.” (Compl. ¶¶ 8-9.) Therefore, the Court concludes that there
is no evidence that would support a finding that a law or rule was violated by the facts
alleged by the Plaintiff.
Even if Plaintiff adequately identified a violation of a law, his reporting actions
must have originally been conducted in good faith. To determine whether a plaintiff
acted in good faith, “the central question is whether the reports were made for the
purpose of blowing the whistle, i.e., to expose illegality.” Obst v. Microtron Inc.,
614 N.W.2d 196, 202 (Minn. 2000) (citation omitted). “A court considers the
employee’s purpose at the time the report was made, not after subsequent events have
transpired.” Id.
Plaintiff only provides the following to support his claim that the reporting was
done in good faith and does not cite to any facts in the record that would suggest good
faith:
People sometimes wrestle for years with ethical delima and fear stops them
from acting this not uncommon For Genpak to use the time of knowledge
and report does make them less liable for the illegal act.
((Pl.’s Opp. Mem. at 13) (mistakes in the original).)
Here, there is no evidence that Plaintiff was a neutral party who was “blowing the
whistle” on his employer to expose illegality. Instead, Plaintiff’s personal frustration
with Snyder is evident in his e-mails with Sawchuk in which he makes negative
comments about Snyder; through his negative statement on the intercom; and through the
comments recorded in his journal. The Court concludes that the Plaintiff’s reason for
16
“blowing the whistle” was not a good faith effort to expose an illegality, and rather, was a
platform to voice his animosity and discontent with his supervisor.
B.
Causal Nexus
Even assuming Plaintiff had presented a prima facie case for whistleblowing
retaliation, Plaintiff’s Whistleblower claim would still fail because he did not point to
evidence supporting a causal connection between his reporting of alleged violations and
his termination, and he did not allege facts to establish pretext.
“[A]n employee may demonstrate a causal connection by circumstantial evidence
that justifies an inference of retaliatory motive.” Cokley, 623 N.W.2d at 632. “A
claimant under the Whistleblower Act may establish an inference of reprisal by showing
a close temporal proximity between the statutorily protected activity and the
termination.” Krutchen v. Zayo Bandwidth Ne., LLC, 591 F. Supp. 2d 1002, 1015
(D. Minn. 2008) (citing Cokley, 623 N.W.2d at 633).
To show causation and pretext, Plaintiff merely states in an unmarked footnote
that the proximity between the protected act and termination is sufficient to establish a
causal connection without any legal authority to support his claim. (Pl.’s Opp. Mem.
at 13.) Plaintiff otherwise makes no reference to the record to support causation and
pretext. This is not enough. As Defendant argues, the record reflects that Plaintiff was
fired for a legitimate, non-discriminatory reason and not as a result of the complaints.
While Plaintiff’s termination was within two months of his complaints, Defendant
demonstrated that Plaintiff’s action in arguing with Snyder over the intercom system was
17
the reason for his termination. And, as Defendant also notes, Sawchuk’s investigation
into Plaintiff’s claims concluded that they were groundless.
In sum, the Court concludes that Plaintiff failed to implicate a violation of law and
fails to provide sufficient evidence to support a prima facie case of whistleblower
retaliation. Even if Plaintiff could establish a prima facie case, Plaintiff’s claim would
still fail because Plaintiff failed to show that the legitimate reason given by Defendant for
terminating Plaintiff was mere pretext for discrimination. Therefore, the Court grants
Defendant’s Motion as to Count II.
CONCLUSION
The record establishes that Plaintiff was subject to unprofessional conduct during
his employment with Defendant. However, while Defendant’s conduct may have been
unprofessional, it was not tantamount to legally actionable conduct. Because the Court
concludes that there are no genuine issues of material fact with respect to both Counts I
and II, Defendant is entitled to summary judgment on both of Plaintiff’s claims.
ORDER
Based upon the foregoing, and the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.
Defendant’s Motion for Summary Judgment (Doc. No. [38]) is GRANTED
in its entirety and Counts I and II are DISMISSED WITH PREJUDICE.
2.
Plaintiff’s Complaint (Doc. No. [1-1]) is DISMISSED WITH
PREJUDICE.
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LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: December 5, 2014
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
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