Martinson v. ABM Parking Services, Inc.
Filing
51
ORDER granting in part and denying in part 33 Motion for Summary Judgment (Written Opinion). IT IS HEREBY ORDERED THAT defendant's motion for summary judgment 33 is GRANTED IN PART AND DENIED IN PART as follows: 1. Defendant's motio n for summary judgment on plaintiff's age-discrimination claim is DENIED. 2. Defendant's motion for summary judgment on plaintiff's disability-discrimination claim is DENIED. 3. Defendant's motion for summary judgment on plaintiff's reprisal claim is GRANTED, and that claim is DISMISSED WITH PREJUDICE AND ON THE MERITS. Signed by Judge Patrick J. Schiltz on August 13, 2015. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MONICA MARTINSON,
Case No. 14‐CV‐0870 (PJS/SER)
Plaintiff,
v.
ORDER
ABM PARKING SERVICES, INC.,
Defendant.
Joni M. Thome, BAILLON THOME JOZWIAK & WANTA LLP, for plaintiff.
Gregory L. Peters & Corie J. Tarara, SEATON, PETERS & REVNEW, PA, for
defendant.
Plaintiff Monica Martinson brought this action against her former employer,
defendant ABM Parking Services, Inc. (“ABM”), alleging that she was terminated
because of her age, because of her disability, and because she engaged in protected
activity—all in violation of the Minnesota Human Rights Act (“MHRA”). Minn. Stat.
§§ 363A.01 et seq. ABM has moved for summary judgment. For the reasons that
follow, ABM’s motion is granted as to Martinson’s reprisal claim, but denied as to her
age‐ and disability‐discrimination claims.
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I. BACKGROUND
ABM manages parking facilities throughout the United States, including the
parking facilities at the Minneapolis‐St. Paul International Airport. ABM manages the
parking facilities at the airport pursuant to a contract with the Metropolitan Airports
Commission (“MAC”).
Martinson worked for ABM at the airport in various positions from 2004 until
June 2013. See Martinson Dep. at 100; ECF No. 40‐1 at 28. In August 2010, Martinson
suffered a stroke and took several months off to recuperate. Martinson Dep. at 34‐37,
151. After Martinson returned to work in early 2011, some of her co‐workers—
including Greg Frankhauser—complained that she was having trouble with her
memory. Id. at 39‐40; see also ECF No. 40‐1 at 89.
At roughly the same time, ABM assigned some of Martinson’s duties to other
employees. Martinson Dep. at 130, 146‐47. Martinson complained to human resources
and then‐general manager James Horski about her duties being taken away and
questioned whether ABM’s decision was related to her stroke. Id. at 151‐56. During the
conversation with Horski, Martinson also complained of age discrimination because
ABM had recently paid bonuses to two younger employees in a different department
but not to Martinson or any of the workers in her department (who were older than the
two employees who had received bonuses). Id. at 166‐71.
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Martinson’s job duties continued to change over the next two years; essentially,
she went from performing mainly payroll duties to serving as an administrative
assistant. See id. at 141‐45, 174‐76, 256. In January 2013, Martinson again complained to
the general manager—now Frankhauser—about her duties being taken away.
Martinson also told Frankhauser that the reassignment of job duties seemed
discriminatory. Id. at 172‐73. (ABM has argued that Martinson’s job duties were being
changed because the airport parking facility in general—and the payroll functions in
particular—were being automated. See ECF No. 36‐13 at 2‐6.)
In 2012, MAC hired Lumin Advisors (“Lumin”) to conduct an audit of ABM’s
operation of the airport parking facilities. See ECF No. 36‐6. Lumin finalized its audit in
February 2013 and recommended (among other things) that Martinson’s position and
one other position be eliminated. See ECF No. 36‐2 at 18‐20. On April 12, 2013, MAC
informed Frankhauser of the results of the audit and directed him to eliminate the two
positions. Frankhauser Dep. at 28, 57‐58. Frankhauser asked MAC if he could transfer
Martinson and the other employee to other positions. Id. at 58‐59. He was told that he
could transfer them as long as they filled open positions; Frankhauser was forbidden to
create new positions to accommodate the two employees. Id.
Frankhauser started looking for open positions in early May, but he testified that
nothing was available at that time. Id. at 26, 28, 31, 60. It appears, however, that there
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were at least two open shift‐manager positions for which Martinson was qualified. See
ECF No. 40‐1 at 19; Frankhauser Dep. at 140‐141. In fact, ABM was interviewing for
these positions at the time that Martinson was terminated. Frankhauser Dep. at 178‐
182. According to Martinson, instead of interviewing her for an open position,
Frankhauser encouraged her to retire. Martinson Dep. at 172‐74.
On June 4, 2013, ABM terminated Martinson and the other employee whose
position was eliminated. ECF No. 40‐1 at 28. Martinson and her terminated co‐worker
were the two oldest employees in the office. After Martinson was terminated,
Frankhauser continued to look for positions for her within ABM. See Frankhauser Dep.
at 145. Frankhauser testified that he notified Martinson of two positions at an ABM
facility in downtown Minneapolis. Id. at 23‐26. But Martinson testified that
Frankhauser forwarded only a single job posting to her, and the deadline to apply for
that job had expired weeks earlier. See Martinson Dep. at 82‐85; Frankhauser Dep.
at 181‐82; ECF No. 41‐1 at 82‐83. After Frankhauser was notified that Martinson had
retained counsel and was accusing ABM of unlawful discrimination, Frankhauser
testified that his efforts to find a position for her “[came] to a screeching halt.”
Frankhauser Dep. at 145.
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II. ANALYSIS
Martinson brings three claims against ABM. First, Martinson claims that ABM
discriminated against her on the basis of age, in violation of Minn. Stat. § 363A.08,
subd. 2. Second, Martinson claims that ABM discriminated against her on the basis of
disability, also in violation of Minn. Stat. § 363A.08, subd. 2. Finally, Martinson claims
that ABM retaliated against her after she opposed practices forbidden by the MHRA, in
violation of Minn. Stat. § 363A.15(1). ABM moves for summary judgment on all of
Martinson’s claims.
A. Standard of Review
Summary judgment is warranted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A dispute over a fact is “material” only if its resolution
might affect the outcome of the lawsuit under the substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is “genuine” only if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Id. “The evidence of the non‐movant is to be believed, and all justifiable inferences are
to be drawn in [her] favor.” Id. at 255.
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B. Age Discrimination
Martinson claims that ABM discriminated against her on the basis of age in
violation of the MHRA. See Minn. Stat. § 363A.08, subd. 2. For the reasons explained on
the record at the hearing on ABM’s motion, the Court concludes that there is sufficient
evidence for a jury to find that Martinson was discriminated against on the basis of age.
Therefore, ABM’s motion for summary judgment on Martinson’s age‐discrimination
claim is denied.
C. Disability Discrimination
Martinson also claims that ABM discriminated against her on the basis of
disability in violation of the MHRA. See Minn. Stat. § 363A.08, subd. 2. This claim
appears to be quite weak. But the disability‐discrimination claim is closely tied to the
age‐discrimination claim, and trying the disability‐discrimination claim along with the
age‐discrimination claim would add little to the length or the expense of the trial. For
that reason, and for the reasons explained on the record at the hearing on ABM’s
motion, the Court denies ABM’s motion for summary judgment on Martinson’s
disability‐discrimination claim.
D. Reprisal
Martinson argues that ABM retaliated against her in two ways. First, Martinson
argues that ABM terminated her because she complained about age and disability
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discrimination. Second, Martinson argues that Frankhauser halted his efforts to find a
new job for her after she hired a lawyer and accused ABM of discrimination.
The MHRA prohibits employers from “intentionally engag[ing] in any reprisal
against any person because that person . . . opposed a practice forbidden under [the
MHRA] . . . .” Minn. Stat. § 363A.15. “To make a prima facie retaliation claim under the
MHRA, a plaintiff ‘must establish the following elements: (1) statutorily‐protected
conduct by the employee; (2) adverse employment action by the employer; and (3) a
causal connection between the two.’” Fischer v. Minneapolis Pub. Sch., No. 14‐2245, 2015
WL 4099847, at *5 (8th Cir. July 8, 2015) (quoting Bahr v. Capella Univ., 788 N.W.2d 76, 81
(Minn. 2010)).
If the plaintiff establishes a prima facie case, “the burden shifts to the defendant
to articulate a legitimate, non‐retaliatory reason for the adverse action . . . .” Macias Soto
v. Core Mark Int’l, Inc., 521 F.3d 837, 841 (8th Cir. 2008). “If the defendant advances a
legitimate reason for the termination, the plaintiff bears the burden of demonstrating
the defendant’s stated reason is a pretext for retaliation.” Id. Ultimately, the “burden of
persuasion remains with the plaintiff to show the termination was motivated by
intentional retaliation.” Id.
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1. Termination
Martinson does not argue that ABM acted unlawfully in eliminating her position.
That concession is wise; the record is clear that Lumin recommended to MAC that
Martinson’s position be eliminated and that, based on that recommendation, MAC
ordered ABM to eliminate the position. There is no evidence that Lumin’s
recommendation—or MAC’s acceptance of Lumin’s recommendation—had anything to
do with Martinson’s age, disability, or protected conduct.
Martinson argues, though, that just because ABM had to eliminate her position
does not mean that ABM had to fire her; it could, for example, have fired another
employee and given Martinson that employee’s position, or it could have hired
Martinson to fill an open position. Martinson argues that ABM decided to fire her in
retaliation for her earlier complaints about discrimination. As noted above, Martinson
complained of discrimination on two occasions. First, in early 2011, Martinson
complained of discrimination to human resources and then‐general manager Horski.
Second, in January 2013, Martinson complained of discrimination to general manager
Frankhauser.
To prove a causal connection between her complaints of discrimination and her
firing—that is, to establish the third element of her prima facie case—Martinson
primarily relies on what she characterizes as the close temporal proximity of the events.
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“The causal connection requirement may be satisfied ‘by evidence of circumstances that
justify an inference of retaliatory motive, such as a showing that the employer has
actual or imputed knowledge of the protected activity and the adverse employment
action follows closely in time.’” Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 327
(Minn. 1995) (quoting Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 445
(Minn. 1983)). “Generally, however, ‘more than a temporal connection between the
protected conduct and the adverse employment action is required to present a genuine
factual issue on retaliation.’” Hervey v. Cnty. of Koochiching, 527 F.3d 711, 723 (8th Cir.
2008) (quoting Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en banc)).
“Where timing is suggested as proof of causation, the time between an
employee[’]s complaint and the employer[’]s action must be ‘very close.’” Spencer v.
State, Dep’t of Corr., No. A07‐0462, 2008 WL 668259, at *10 (Minn. Ct. App. Mar. 11, 2008)
(unpublished) (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)) (two to
three months between complaint and adverse employment actions was insufficient to
infer a causal connection); see also, e.g., Bergstrom‐Ek v. Best Oil Co., 153 F.3d 851, 859‐60
(8th Cir. 1998) (“a few days” is sufficient for causation); Hubbard, 330 N.W.2d at 445
(two days is sufficient for retaliatory motive); Potter v. Ernst & Young, LLP, 622 N.W.2d
141, 145‐46 (Minn. Ct. App. 2001) (“less than three months after [plaintiff’s] complaint,”
is sufficient, where there is other evidence of retaliatory intent).
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Martinson’s firing was not “very close” to her complaints of discrimination.
Martinson was terminated in June 2013. Her first complaint of discrimination (to
Horski) occurred in early 2011, over two years earlier. To the Court’s knowledge, neither
the Eighth Circuit nor any Minnesota appellate court has ever held that the fact that an
adverse action followed protected conduct by “only” two years is sufficient to establish
causation. Martinson has failed to establish a causal connection between her 2011
complaint of discrimination and her 2013 firing.
Martinson’s second complaint of discrimination (to Frankhauser) occurred in
January 2013, five months before she was fired. Again, the Court is unaware of any
decision of the Eighth Circuit or a Minnesota appellate court that holds that a gap of
“only” five months between protected activity and adverse action is sufficient to
establish causation. No other evidence in the record suggests that Frankhauser was
motivated by animosity of any kind toward Martinson, much less animosity connected
to her complaint five months earlier.1 To the contrary, there is no hint that Frankhauser
planned to fire Martinson or take any other action against her until he was forced to
1
Martinson asserts, without elaboration, that Frankhauser’s retaliatory intent is
evidenced by his failure to consider her for other positions. Pl.’s Br. 26. This is
insufficient to connect Frankhauser’s actions (or failure to act) to Martinson’s protected
activity or to demonstrate retaliatory animus. See Guimaraes v. SuperValu, Inc., 674 F.3d
962, 976 (8th Cir. 2012) (holding that an employer’s explanation for its adverse
employment action must be “pretext for unlawful discrimination, not . . . merely false in
some way” (quoting Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011, 1017 (8th Cir.
2005))).
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eliminate her position by MAC. Upon being informed that he had to eliminate
Martinson’s position, Frankhauser asked MAC if he could transfer Martinson to another
job—and, after he fired Martinson, he made at least some effort to find a position for her
within ABM. None of this suggests personal animosity toward Martinson.
In sum, Martinson’s claim that ABM fired her in retaliation for her complaints of
discrimination fails because Martinson cannot establish a causal connection between the
adverse action and any protected activity.
2. Cessation of Efforts to Find New Employment
Frankhauser admits that he stopped his efforts to find a job for Martinson after
he learned that she had hired an attorney and accused ABM of discrimination. This,
Martinson argues, violated the MHRA. According to Martinson, her hiring a lawyer
and bringing a claim of discrimination were activities that were protected by the
MHRA, and Frankhauser was retaliating against her for engaging in those activities
when he stopped looking for a job for her.
Martinson’s claim fails because she cannot establish that Frankhauser’s cessation
of his voluntary efforts to look for a job for her constituted a materially adverse action
for purposes of the MHRA. “An employee suffers a materially adverse employment
action in the context of a MHRA retaliation claim when the employer engages in
conduct that would dissuade a reasonable employee from making a discrimination
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claim.” Quinn v. St. Louis Cnty., 653 F.3d 745, 751 (8th Cir. 2011). Post‐employment
retaliation has been found actionable where, for example, the former employee had
recall rights or had applied for a job and was not rehired. See, e.g., Fischer v. Minneapolis
Pub. Sch., No. 14‐2245, 2015 WL 4099847, at *1, *5 (8th Cir. July 8, 2015) (former
employee was eligible for recall); Maynard v. Motors Mgmt. Corp., No. 05‐CV‐1089, 2006
WL 2530354, at *5, *11 (D. Minn. Aug. 31, 2006) (former employee applied for a position
but was not rehired).
This is not such a case, however. Martinson had no recall rights, and she never
applied for a position with ABM after she was terminated. This is a case, rather, in
which Martinson’s supervisor—acting entirely of his own volition, and simply as a
favor to Martinson—kept his eye out for a job opening that might interest her.
Martinson has not cited (and the Court has not found) any judicial decision extending
the notion of post‐employment retaliation to cover this type of case. This Court is
unwilling to do so.
Again, Frankhauser’s efforts to look for another position at ABM that might
interest Martinson were entirely voluntary. Frankhauser had no obligation to help
Martinson after she had been fired, and Martinson had no right to that assistance. If
supervisors could be held liable to former employees under these circumstances, the
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result would not be to curtail retaliation, but to curtail voluntary efforts by supervisors
to help their former employees.
Moreover, Martinson herself has insisted that Frankhauser’s efforts were useless
to her. She says that he passed along only one job posting, and he did so only after the
deadline to apply for that position had expired. Obviously, the cessation of useless
attempts to help a former employee to find a position would not dissuade that
employee from hiring an attorney and making a discrimination claim—and thus such a
cessation does not constitute materially adverse action for purposes of the MHRA.
Finally, the Court notes that Frankhauser halted his efforts to find Martinson a
job after he was told that Martinson had hired a lawyer and was accusing him of acting
unlawfully in firing her. Under those circumstances, a supervisor in Frankhauser’s
position will almost always be instructed by his employer and his attorney not to have
any further contact with the former employee. The Court doubts very much that the
MHRA was intended to force a supervisor to continue to do favors for a former
employee who has hired a lawyer and sued or threatened to sue him.
In any event, because Martinson did not suffer a materially adverse action for
purposes of the MHRA when Frankhauser discontinued his voluntary (and ineffective)
efforts to help her find a job, Martinson’s retaliation claim must be dismissed.
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ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT defendant’s motion for summary judgment [ECF
No. 33] is GRANTED IN PART AND DENIED IN PART as follows:
1.
Defendant’s motion for summary judgment on plaintiff’s age‐
discrimination claim is DENIED.
2.
Defendant’s motion for summary judgment on plaintiff’s disability‐
discrimination claim is DENIED.
3.
Defendant’s motion for summary judgment on plaintiff’s reprisal claim is
GRANTED, and that claim is DISMISSED WITH PREJUDICE AND ON
THE MERITS.
Dated: August 13, 2015
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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