Boettcher v. Express Services, Inc.
Filing
29
ORDER granting Defendant's Motion for Summary Judgment 15 . Plaintiff's Complaint [Doc. No. 1, Ex. 1] is DISMISSED with prejudice. (Written Opinion) Signed by Judge Susan Richard Nelson on 06/27/14. (SMD)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
James Boettcher,
Case No. 13-cv-01231 (SRN/JJG)
Plaintiff,
v.
MEMORANDUM OPINION
AND ORDER
Express Services, Inc.,
Defendant.
Ryan H. Ahlberg, Ahlberg Law, P.L.L.C., Minneapolis, MN, for Plaintiff.
Elizabeth Scott Wood and Philip R. Bruce, McAfee & Taft, P.A., Oklahoma City, OK,
and Margaret Ann Santos, O’Meara, Leer, Wagner & Kohl, P.A., Minneapolis, MN, for
Defendant.
SUSAN RICHARD NELSON, United States District Judge
I.
INTRODUCTION
Plaintiff James Boettcher brought this suit against his former employer, Express
Services, Inc. (“Express”), alleging that Express wrongfully terminated his employment in
violation of Minn. Stat. § 181.932 (the Minnesota Whistleblower Act), and in violation of
public policy grounded on Minnesota common law.1 Express moves for summary
judgment on both of Boettcher’s claims [Doc. No. 15]. For the reasons set forth below,
Defendant’s Motion is granted.
1
This suit was originally filed in the state district court of Le Sueur County, Minnesota.
Express, an Oklahoma corporation, removed the matter to this Court on the basis of
diversity jurisdiction. 28 U.S.C. § 1332.
II.
BACKGROUND
Express is a franchisor engaged in providing employment-related services to third-
party businesses. (Moody Decl. [Doc. No. 21] ¶ 4.) As a core part of its operations, its
independently-owned franchises place employees (known as “Express Associates”) in
temporary positions with other companies. (Id.)
In early May, 2012, Grant Moody, owner of the Express franchise in Mankato,
Minnesota, hired Boettcher as an Express Associate. (Id. at ¶ 5.) Boettcher worked three
temporary assignments from May 9, 2012 through September 2, 2012, before being placed
at Imperial Plastics, Inc. (“Imperial”),2 a plastic products manufacturer located in Kasota,
Minnesota. (Notice of Removal [Doc. No. 1], Ex. 1 (“Compl.”) ¶ 5.) As a primary duty,
Boettcher was assigned to operate an injection mold plastic press. (Becker Decl. [Doc. No.
18] ¶ 5; Bruce Decl. [Doc. No. 19], Ex. 10.) At some point during his work at Imperial, he
was also asked to provide training to new hires on use of the machinery. (Bruce Decl., Ex.
8 (“Boettcher Dep.”) at 52.) However, Boettcher was not placed in a supervisory position
over other employees, and did not consider himself to be a supervisor. (Becker Decl. ¶ 7;
Boettcher Dep. at 52.)
A.
The Incident
Boettcher worked at Imperial without apparent incident from September until early
November of 2012. (Compl. ¶ 12.) On November 7, however, a confrontation occurred
between Boettcher and another Express Associate working at Imperial, Faysal Jama.
2
Boettcher was placed at Rolco, Inc., which was purchased by Imperial Plastics, Inc.
shortly thereafter. (Compl. ¶ 9; Becker Decl. ¶ 4.) Both companies will be referred to
collectively as “Imperial.”
2
According to Boettcher, he had been requested by the Quality Auditor, Courtney Frost, to
observe the actions of a third press operator, Fatuma Abdalla, who was “leaving the
machine down and talking.” (Boettcher Dep. at 63.) Boettcher claims that he observed
Abdalla conversing with Jama in a manner that appeared to be intentionally calculated to
prevent Jama from working. (Id. at 61.) Accordingly, Boettcher took it upon himself to
speak with Jama and to encourage him to avoid unnecessary conversation. (Id. at 63.)
Boettcher contends that Jama responded by accusing him of racism. (Id. at 62.)
Nonetheless, both men apparently returned to their machines.
Approximately five minutes later, Boettcher noticed that Jama appeared to have
trouble operating his press. (Id. at 63–64.) He again approached Jama, and asked him if
anything was wrong. According to Boettcher, Jama replied that he was not having any
difficulties, and that “[i]f you come over here again, I will get a gun and shoot and kill you.”
(Id. at 64.)
Jama’s account of the incident differs markedly from Boettcher’s. Following his
first interaction with Boettcher, Jama complained to his immediate supervisor, Corey
Wandersee, that Boettcher was bothering him, a fact which Wandersee subsequently
confirmed. (Moody Decl., Ex. 4.) When Boettcher approached for the second time, Jama
told him that he was “not [his] boss,” to which Boettcher replied that “the Company is
owned by whites and that [Jama] will get fired, because all the blacks will be the first to go.”
(Id.) Jama insisted subsequently that he did not threaten to shoot Boettcher, and that he did
not even own a gun. (Id.; Becker Decl., Ex. 1.)
3
While the exact nature of the confrontation is unclear, it is undisputed that Boettcher
subsequently approached his supervisor, Tom Feldman, and reported Jama’s alleged threat.
(Boettcher Dep. at 69.) After inquiring into the incident, Feldman chose to send both men
home for the day. (Becker Decl., Ex. 1.) Boettcher called the Le Sueur County Sheriff’s
Department from the parking lot to report that he had been threatened by a co-worker.
(Moody Decl., Ex. 3.) Sheriff’s deputies investigated the incident, but ultimately no charges
were filed against Jama because there was “a distinct lack of evidence” that he had engaged
in any “terroristic threats.” (Bruce Decl., Ex. 9.)
B.
Investigation by Imperial and Express
Immediately following the report of the altercation between Boettcher and Jama,
both men were placed on paid leave while Imperial and Express began separate
investigations. (Moody Decl. ¶ 13; Becker Decl. ¶ 14.) Express investigated the incident in
accordance with its policy requiring an investigation after any allegation of harassment.
(Moody Decl. ¶ 9.)
In the course of their investigations, both Mark Becker, Vice President of
Manufacturing at Imperial, and Grant Moody of Express, interviewed Boettcher and Jama.
(Becker Decl. ¶ 12; Moody Decl. ¶ 11.) Both men subsequently concluded that Jama was
more credible than Boettcher. (Becker Decl. ¶ 21; Moody Decl. ¶ 22.) In particular, both
noted that Boettcher’s account of the interaction appeared to change during re-telling.
(Becker Decl. ¶ 15; Moody Decl. ¶ 14.) Ultimately, Becker requested that both men be
removed by Express from their temporary assignments at Imperial. (Becker Decl. ¶ 24.) In
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Becker’s opinion, “the alleged incident would not have occurred if [Boettcher] had stayed at
his work space as expected instead of attempting to tell Mr. Jama what to do.” (Id. ¶ 23.)
Boettcher was subsequently terminated as an employee of Express on November 11,
2012.3 (Moody Decl. ¶ 24.) Moody attests that he made the termination decision because
he was no longer comfortable placing Boettcher at other companies given his conclusion
that Boettcher had indeed made a racist remark to Jama in violation of Express’s antidiscrimination policy. 4 (Id. ¶ 23.) In contrast, Boettcher contends that Moody informed
him that the decision to terminate his employment was “corporate’s decision.” (Boettcher
Decl. [Doc. No. 23] ¶ 4.)
Boettcher subsequently commenced this suit in state court on May 3, 2013, and
Express timely removed to federal court on May 23. Express now moves for summary
judgment, arguing that there are no genuine issues of material fact as to whether Boettcher
was retaliated against in violation of the Minnesota Whistleblower Act or state common
law.
III.
DISCUSSION
A.
Legal Standard
Summary judgment is appropriate if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the declarations, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to judgment
3
Jama was also terminated by Express. (See Boettcher Decl. at 87.)
The Express Employee Handbook states that, “Express does not tolerate any behavior
that could be perceived as discrimination or harassment against our associates by
anyone.” (Moody Decl., Ex. 7.) Boettcher acknowledged that he received, reviewed, and
would comply with this statement. (Id., Ex. 6.)
4
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as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears the burden of
establishing a lack of a genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). This burden may be discharged by “pointing out to the district court . . . that there is
an absence of evidence to support the nonmoving party’s case.” Id. at 325.
The Court
must view the evidence and any reasonable inferences in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). However, the nonmoving party must do more than proffer mere allegations or
denials. Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir. 2010). Instead,
it must show through the presentation of admissible evidence that a genuine issue of fact
exists such that a “jury could reasonably find [in its favor].” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986). Further, “[t]here is no ‘discrimination case exception’ to the
application of summary judgment, which is a useful pretrial tool to determine whether any
case, including one alleging discrimination, merits a trial.” Torgerson v. City of Rochester,
643 F.3d 1031, 1043 (8th Cir. 2011) (en banc) (quoting Berg v. Norand Corp., 169 F.3d
1140, 1144 (8th Cir. 1999)).
B.
The Claims
1.
Retaliatory Discharge
Minnesota Statute § 181.932 (the Minnesota Whistleblower Act) declares, in
relevant part, that an employer may not discharge an employee because he or she “reports a
violation, suspected violation, or planned violation of any federal or state law . . . to an
employer or to any governmental body or law enforcement official.” Minn. Stat. § 181.932,
6
subd. 1(1). Where direct evidence of retaliation is lacking, as here, Minnesota
Whistleblower Act claims are analyzed under the familiar McDonnell Douglas burdenshifting framework. See Hilt v. St. Jude Med. S.C., Inc., 687 F.3d 375, 378 (8th Cir. 2012)
(citing Cokley v. City of Otsego, 623 N.W.2d 625, 630 (Minn. Ct. App. 2001)). Boettcher
thus has the initial burden of establishing a prima facie case of retaliation, at which point the
burden of production shifts to Express to articulate a legitimate, non-retaliatory reason for
his dismissal. Cokley, 623 N.W.2d at 630. Assuming Express meets this burden, the onus
is on Boettcher to establish that the reason proffered by Express is pretext. Id. “At all times
the employee has the burden to prove by a preponderance of evidence that the employer’s
action was for an impermissible reason.” Id. (citing Phipps v. Clark Oil & Refining Corp.,
408 N.W.2d 569, 572 (Minn. 1987)).
Under the Minnesota Whistleblower Act, Boettcher must establish three elements in
making his prima facie case: (1) statutorily protected conduct; (2) an adverse employment
action by Express; and (3) a causal connection between the two. See Ring v. Sears, Roebuck
& Co., 250 F. Supp. 2d 1130, 1135 (D. Minn. 2003) (citing Dietrich v. Canadian Pacific
Ltd., 536 N.W.2d 319, 327 (Minn. 1995)). Here, the parties do not appear to contest that
Boettcher suffered an adverse employment action when he was fired by Express, nor that
contacting the Le Sueur County Sheriff’s Department regarding a threat of gun violence
constituted statutorily protected conduct. Rather, Express argues that Boettcher cannot
show a causal link between his report of the alleged threat and his subsequent termination.
7
While the parties contest whether Plaintiff has established a prima facie case, “if an
employer has articulated a legitimate reason for its actions, it is permissible for courts to
presume the existence of a prima facie case and move directly to the issue of pretext . . . .”
Stewart v. Indep. Sch. Dist. No. 196, 481 F.3d 1034, 1043 (8th Cir. 2007). As to the
articulated reason for termination here, Express asserts that its decision to terminate
Boettcher was based on its business judgment and the results of its investigation of
Boettcher’s dispute with Jama. (Moody Decl. ¶ 22.) Courts have found that similar
business judgment decisions constitute legitimate, non-retaliatory reasons for adverse
employment actions. See, e.g., McCullough v. Univ. of Ark. for Med. Sciences, 559 F.3d
855 (8th Cir. 2009) (plaintiff terminated after employer investigation determined he had
sexually harassed co-worker); Hitt v. Harsco Corp., 356 F.3d 920 (8th Cir. 2004) (plaintiff’s
altercation with other employee provided basis, after investigation, for termination). Thus,
given Express’s articulated rationale for dismissing him, the Court considers whether that
reason was pretextual. Under that analysis, Boettcher “can avoid summary judgment only if
the evidence considered in its entirety (1) creates a fact issue as to whether the employer’s
proffered reasons are pretextual and (2) creates a reasonable inference that a [prohibited
motive] was a determinative factor in the adverse employment decision.” Cronquist v. City
of Minneapolis, 237 F.3d 920, 926 (8th Cir. 2001). Boettcher has failed to satisfy this
burden.
In his Memorandum of Law, Boettcher stresses the temporal proximity between his
protected conduct and his termination four days later. While it is true that close temporal
8
proximity may be sufficient to establish a plaintiff’s prima facie case (see Grover v. Smarte
Carte, Inc., 836 F. Supp. 2d 860, 870 (D. Minn. 2011)), it is generally insufficient, without
more, to overcome an employer’s proffered legitimate, non-discriminatory rationale. See,
e.g., Hilt, 687 F.3d at 379 (“[Temporal proximity] alone is insufficient to show pretext and a
retaliatory motive under the final step of the McDonnell Douglas framework.”); Hubbard v.
United Press Int’l, Inc., 330 N.W.2d 428, 445–46 (Minn. 1983) (“Although the timing of
the discharge in this action does raise an inference of retaliatory motive that is sufficient to
satisfy the causation element of [plaintiff’s] prima facie case . . . it does not operate to
satisfy [plaintiff’s] ultimate burden of persuasion.”). Absent additional evidence, Plaintiff’s
proffered evidence of temporal proximity fails to create an issue of fact as to pretext.5
Boettcher contends, however, that circumstantial evidence also exists to buttress an
inference of pretext. In support of this argument, Boettcher provides his own declaration, in
which he states that when he asked Grant Moody why he had been terminated, Moody
replied, “all I know is that it was corporate’s decision.” (Boettcher Decl. ¶ 4.) Moody,
however, attests that he terminated Boettcher for violating Express’s anti-discrimination
policy. (Moody Decl. ¶ 23.) Boettcher argues that the resulting inconsistency with the
reason set forth in Moody’s declaration suggests that Express’s rationale shifted, which
supports an inference of pretext. See, e.g., Gibson v. American Greetings Corp., 670 F.3d
5
Moreover, as a matter of policy, to allow Boettcher to establish pretext solely on the basis
of the short interval between the incident and his termination would discourage employers
such as Express from reacting promptly to difficult workplace incidents. The Minnesota
Whistleblower Act was “not intended to be used by employees to shield themselves from
the consequences of their own misconduct or failures.” Freeman v. Ace Tel. Ass’n, 404 F.
Supp. 2d 1127, 1140 (D. Minn. 2005).
9
844, 854 (8th Cir. 2012) (“[A] plaintiff may show pretext, among other ways, by showing
that an employer . . . shifted its explanation of the employment decision.”). The Court
disagrees. The statement offered by Boettcher that the decision to terminate was “made by
corporate” (Boettcher Decl. ¶ 4) does not contradict the reason for termination identified by
Moody – that Boettcher was terminated for violating the employer’s anti-discrimination
policy. (See Moody Decl. ¶ 23.) At most, it may suggest ambiguity about who made the
decision, but the statement contained in Boettcher’s Declaration does not provide a different
reason for termination.6
If Boettcher believed that someone other than Moody made the termination decision,
he was free to seek discovery on this issue. For example, he could have deposed Moody to
inquire further into the basis of Moody’s statement, or he could have deposed an Express
representative under Fed. R. Civ. P. 30(b)(6) to discover who at “corporate” made the
decision, and on what basis. Having chosen not to do so, Boettcher’s self-serving
declaration fails to establish a disputed issue of fact with respect to pretext. See, e.g., Anda
v. Wickes Furniture Co., 517 F.3d 526, 531 (8th Cir. 2008) (“In order to establish the
6
In making the argument that his declaration is sufficient to raise a genuine issue of
material fact as to pretext, Boettcher inadvertently raises the possibility that he cannot
establish the third element of his prima facie case. The Minnesota Whistleblower Act
requires proof of intentional retaliation. See Chadwell v. Koch Refining Co., 251 F.3d
727, 734 (8th Cir. 2001). Because a corporation acts through its decision-makers, it
follows that to establish intentional retaliation, a plaintiff must identify a corporate
decision-maker who acted with the requisite retaliatory intent. See Jones v. Frank, 973
F.2d 673, 676 n.3 (8th Cir. 1992) (“[Plaintiff] has totally failed to identify the
[defendant’s] decision maker . . . [who] intentionally discriminated against her . . . .
[D]iscrimination may be proved by inference, but such proof requires identifying a
relevant actor who has, by inference, discriminated.”). Boettcher’s reference to
“corporate” fails to identify a “relevant actor” who has retaliated against him.
10
existence of a genuine issue of material fact, ‘[a] plaintiff may not merely point to
unsupported self-serving allegations.’”) (quoting Bass v. SBC Commc’ns, Inc., 418 F.3d
870, 872 (8th Cir. 2005); Conolly v. Clark, 457 F.3d 872, 876 (8th Cir. 2006) (“[A] properly
supported motion for summary judgment is not defeated by self-serving affidavits.”)).
The Court finds that Boettcher’s evidence of pretext fails to show the existence of
disputed issues of material fact as to pretext or retaliatory intent. Accordingly, summary
judgment for Defendant is warranted on this claim.
2.
Wrongful Discharge
In addition to his retaliatory discharge claim under the Minnesota Whistleblower
Act, Boettcher also asserts a claim for wrongful discharge under Minnesota common law,
alleging that his termination violated the public policy of promoting workplace safety.
Under settled Minnesota law, however, causes of action for wrongful discharge are
narrowly circumscribed. The Minnesota Supreme Court has only recognized a cause of
action for common law wrongful discharge where employees have been retaliated against
for refusing to break a law, rule, or regulation. See Phipps, 408 N.W.2d at 571. Boettcher
does not allege that he was terminated by Express for refusing to break a law, rule, or
regulation. Accordingly, Plaintiff’s common law claim fails.7
7
Moreover, as this Court has previously recognized, “[t]he public policy at stake in this
case—prohibiting employers from terminating employees who report ostensible
violations of the law—has already been addressed by the legislature through the
Minnesota Whistleblower Act.” Weigman v. Everest Inst., 957 F. Supp. 2d 1102, 1109
(D. Minn. 2013).
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THEREFORE, IT IS HEREBY ORDERED THAT:
1.
Defendant’s Motion for Summary Judgment [Doc. No. 15] is GRANTED;
and
2.
Plaintiff’s Complaint [Doc. No. 1, Ex. 1] is DISMISSED with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: June 27, 2014
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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