Garrison v. Minnesota Department of Revenue of the State of Minnesota et al

Filing 79

ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED AND AFFIRMING MAGISTRATE JUDGE'S ORDER (Written Opinion). Signed by Judge Wilhelmina M. Wright on 08/07/2017. (TJB)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Pete Garrison,

Case No. 16-cv-2866 (WMW/HB)
Plaintiff,

v.
Minnesota Department of Revenue of the
State of Minnesota; Linda Craigie,
individually and in her capacity as
Supervisor for the Out-of-State East Unit;
Pam Evans, individually and in her
capacity as Director of the Sales and Use
Tax Division; and Kathy Zieminski,
individually and in her capacity as Director
of Human Resources,

ORDER ADOPTING REPORT AND
RECOMMENDATION AS MODIFIED
AND AFFIRMING MAGISTRATE
JUDGE’S ORDER

Defendants.

This matter is before the Court on the May 15, 2017 Report and Recommendation
(R&R) of United States Magistrate Judge Hildy Bowbeer, (Dkt. 75), which recommends
granting in part Defendants’ motion to dismiss Plaintiff’s complaint and granting in part
Plaintiff’s motion for leave to file a second amended complaint. Plaintiff objects to the
R&R on several grounds. Plaintiff also appeals Magistrate Judge Bowbeer’s April 25,
2017 Order striking as duplicative a later-filed motion for leave to amend the complaint
and denying a hearing on that motion. (Dkt. 72.) For the reasons addressed below, the
Court adopts the May 15, 2017 R&R as modified and affirms the April 25, 2017 Order.

BACKGROUND
The relevant factual and procedural background is addressed in detail in the R&R
and need not be repeated at length here. On August 24, 2016, Plaintiff Pete Garrison, an
employee of Defendant Minnesota Department of Revenue (Department), filed a
complaint against the Department and three Department employees in their individual
and official capacities. Garrison’s original complaint alleges (1) race discrimination and
maintaining a hostile work environment in violation of Title VII of the Civil Rights Act
of 1964 (Title VII); (2) violation of the Age Discrimination in Employment Act (ADEA);
(3) violation of the Rehabilitation Act of 1973; (4) violation of the Americans with
Disabilities Act (ADA); and (5) liability under 42 U.S.C. § 1983 for violations of the Due
Process Clause of the Fifth Amendment to the United States Constitution and the Due
Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution.1 Defendants moved to dismiss Garrison’s complaint in its entirety.
After the magistrate judge granted Defendants’ motion to strike Garrison’s first
amended complaint as procedurally deficient, Garrison filed a motion on March 14, 2017,
for leave to file a second amended complaint. (Dkt. 31.) The second amended complaint
largely advances the same claims as the original complaint, but no longer asserts claims
under the Fifth Amendment, the Rehabilitation Act, or the ADEA and states that
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Although Garrison’s original complaint does not expressly identify a violation of
the Equal Protection Clause, the R&R observes that the original complaint claims
discrimination on the basis of race and that both Garrison’s response to Defendants’
motion to dismiss and his proposed second amended complaint specifically allege
violations of the Equal Protection Clause. Accordingly, the R&R construes Garrison’s
pro se original complaint liberally to include a Section 1983 claim under the Equal
Protection Clause of the Fourteenth Amendment.

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Garrison’s ADA claim is brought under Title II of the ADA. Defendants opposed the
motion, arguing that the proposed second amended complaint does not cure the
deficiencies outlined in Defendants’ motion to dismiss the original complaint and that
Defendants would be prejudiced by the delay. On April 7, 2017, Garrison filed his
motion for leave to file the second amended complaint a second time, but included
additional documents in support thereof. Garrison also requested a hearing, both to
address the motion for leave and to address Defendants’ motion to dismiss a second time.
In an April 25, 2017 Order, the magistrate judge struck Garrison’s duplicative motion and
supporting documents and denied Garrison’s request for a hearing.
The magistrate judge issued an R&R on May 15, 2017, with respect to
Defendants’ motion to dismiss and Garrison’s motion for leave to file a second amended
complaint. The R&R recommends granting in part Defendants’ motion to dismiss the
original complaint. Specifically, the R&R recommends (1) dismissing Garrison’s Section
1983 claims against the Department and the named Defendants in their official capacities
as barred by Eleventh Amendment immunity; (2) dismissing Garrison’s Section 1983
procedural due process claims against the named Defendants in their individual capacities
for failure to state a claim and on the basis of qualified immunity; (3) dismissing
Garrison’s Section 1983 equal protection claims against Defendants Pam Evans and
Kathy Zieminski in their individual capacities for failure to state a claim; (4) dismissing
Garrison’s Title VII claims to the extent that those claims (a) are asserted against the
named Defendants in their individual capacities, (b) are asserted against Evans and
Zieminski in their official capacities, or (c) arise from alleged conduct that is time-barred

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because it occurred before November 9, 2013; (5) dismissing Garrison’s claims under the
ADEA, the Rehabilitation Act, and Title I of the ADA for failure to exhaust
administrative remedies, and (6) dismissing Garrison’s claim under Title II of the ADA
for failure to state a claim.
The R&R also recommends granting in part Garrison’s motion for leave to file a
second amended complaint, but only to the extent that the second amended complaint
advances claims that are not subject to the foregoing recommended dismissals.

In

addition, the R&R recommends that, although Garrison’s service of the original
complaint was improper, the circumstances warrant permitting Garrison a limited 30-day
period in which to properly serve the second amended complaint on Defendants.
Garrison filed objections to certain aspects of the R&R. Garrison objects to
(1) the R&R’s recitation of certain facts, (2) the recommended dismissal of Garrison’s
Section 1983 equal protection claim against Evans in her individual capacity, (3) the
recommended dismissal of Garrison’s Section 1983 procedural due process claims
against the named Defendants in their individual capacities, (4) the recommended
dismissal of Garrison’s Title VII race discrimination claim against Evans in her official
capacity, (5) the R&R’s failure to address Garrison’s Title VII hostile-work-environment
claim, and (6) the R&R’s conclusion that Garrison improperly served the original
complaint.

Defendants did not object to the R&R.

But in response to Garrison’s

objections, Defendants assert that this Court should adopt the R&R in full. Now pending
before this Court are the R&R, Garrison’s objections to the R&R, and Garrison’s appeal
of the magistrate judge’s April 25, 2017 Order.

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ANALYSIS
A party “may file and serve specific written objections to a magistrate judge’s
proposed findings and recommendations.” LR 72.2(b)(1). The district court reviews de
novo those portions of the R&R to which a specific objection is made, and the district
court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); accord Fed. R.
Civ. P. 72(b)(3); LR 72.2(b)(3). The district court reviews for clear error those portions
of an R&R to which no objections are made. See Fed. R. Civ. P. 72(b) 1983 advisory
committee note; Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per curiam).
When reviewing an appeal of a magistrate judge’s order on a nondispositive issue,
the district court’s standard of review is “extremely deferential.” Scott v. United States,
552 F. Supp. 2d 917, 919 (D. Minn. 2008). A district court must consider timely
objections to a magistrate judge’s ruling on a nondispositive pretrial matter and shall
modify or set aside any part of the magistrate judge’s ruling that is either clearly
erroneous or contrary to law.

28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a);

LR 72.2(a); Ferguson v. United States, 484 F.3d 1068, 1076 (8th Cir. 2007).

A

nondispositive ruling is clearly erroneous when, “although there is evidence to support it,
the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.”

Wells Fargo & Co. v. United States, 750

F. Supp. 2d 1049, 1050 (D. Minn. 2010) (internal quotation marks omitted).

A

nondispositive ruling is contrary to law when it “fails to apply or misapplies relevant
statutes, case law or rules of procedure.” Id. (internal quotation marks omitted).

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I.

Garrison’s Objections to the May 15, 2017 R&R

Garrison objects to certain factual statements in the R&R, the recommended
dismissal of several of Garrison’s claims, the R&R’s failure to address Garrison’s Title
VII hostile-work-environment claim, and the R&R’s conclusion that Garrison improperly
served the original complaint. The Court addresses each of these objections in turn.
A. Garrison’s Factual Objections
Garrison first objects to certain aspects of the R&R’s recitation of the procedural
and factual background. In doing so, Garrison seeks to elaborate on or provide context to
certain facts described in the R&R and to correct several alleged factual and
typographical errors in the R&R. Even if Garrison’s factual corrections and elaborations
are true, they are immaterial to and do not alter the merit of the R&R’s analysis and
recommendations. Accordingly, the Court overrules Garrison’s factual objections to the
R&R.
B. Garrison’s Section 1983 Equal Protection Claims
Garrison’s objections to the R&R that pertain to his Section 1983 equal protection
claims are limited to the recommended dismissal of those claims as to Evans in her
individual capacity. The R&R recommends dismissing these claims because Garrison
has not pleaded any direct involvement or personal responsibility of Evans in any alleged
equal protection violation. Garrison’s objections state, in a conclusory manner, that the
proposed second amended complaint “lists numerous examples of Equal Protection
violations.”

Garrison further asserts that Evans was deliberately indifferent and

acquiesced to her subordinate’s unconstitutional conduct.

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“Liability under section 1983 requires a causal link to, and direct responsibility
for, the deprivation of rights.” Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006)
(internal quotation marks omitted). To establish the personal liability of supervisory
defendants, a plaintiff “must allege specific facts of personal involvement in, or direct
responsibility for, a deprivation of [the plaintiff’s] constitutional rights.” Id.
The R&R concludes that neither Garrison’s original complaint nor the proposed
second amended complaint alleges facts that Evans was personally involved in or directly
responsible for discriminatory conduct sufficient to state a Section 1983 equal protection
claim. Garrison’s objections do not identify any such factual allegations that the R&R
overlooked, nor do his objections otherwise alter the merit of the R&R’s findings and
conclusions.

Although the proposed second amended complaint states that Evans

demonstrated “active participation [in] applying rules discriminately,” this is merely a
legal conclusion that the Court need not accept as true on a motion to dismiss. See
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (stating that legal conclusions couched as
factual allegations may be disregarded by the district court on a motion to dismiss).

The

factual allegations underlying that legal conclusion suggest that Evans directed her
subordinates to implement a department-wide policy and that other individuals may have
selectively implemented the policy in a discriminatory manner. These allegations, when
accepted as true and viewed in the light most favorable to Garrison, do not demonstrate
Evans’s personal involvement or direct responsibility in the alleged discriminatory
conduct.

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Accordingly, the Court overrules Garrison’s objection to the R&R with respect to
his Section 1983 equal protection claims.
C. Garrison’s Section 1983 Procedural Due Process Claims
Garrison’s objections to the R&R that pertain to his Section 1983 procedural due
process claims are limited to the R&R’s recommended dismissal of those claims as to
Defendants Evans, Zieminski and Linda Craigie in their individual capacities. Garrison
argues that these defendants violated his procedural due process rights because
Minnesota law and his union contract both require a “just cause” investigation before he
may be disciplined.
As the R&R correctly observes, even in cases involving discipline more extreme
than that experienced by Garrison, such as termination of employment, “[d]ue process
does not require elaborate . . . procedures.” Christiansen v. W. Branch Cmty. Sch. Dist.,
674 F.3d 927, 934 (8th Cir. 2012). Rather, “even an informal meeting with supervisors is
sufficient [if] the employee is given notice of the charges, an explanation of the
employer’s evidence, and an opportunity to respond.” Id. at 936. And a violation of state
law, without more, does not state a claim for a violation of constitutional rights under
Section 1983.

Bagley v. Rogerson, 5 F.3d 325, 328 (8th Cir. 1983).

Garrison’s

reiteration of the “just cause” requirements of Minnesota law and his union contract,
which the R&R rejected, do not alter the merit of the R&R’s factual findings or legal
analysis and conclusions.
Accordingly, the Court overrules Garrison’s objection to the R&R with respect to
his Section 1983 procedural due process claims.

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D. Garrison’s Title VII Claims
Garrison objects to the R&R with respect to his Title VII claims on two bases.
First, he objects to the recommended dismissal of his race-discrimination claim against
Evans in her official capacity for failure to state a claim. Second, he objects to the
R&R’s failure to address his hostile-work-environment claim. The Court addresses each
of these objections.
1. Title VII Race Discrimination Claim
Garrison objects to the recommended dismissal of his Title VII race discrimination
claim against Evans, arguing that Evans is a supervisor who is empowered to take
tangible employment action against him. In support of this argument, Garrison cites
Vance v. Ball State University, 133 S. Ct. 2434 (2013). In Vance, the Supreme Court of
the United States addressed the circumstances under which an employee may be
considered a “supervisor” for the purpose of determining the employer’s vicarious
liability under Title VII. 133 S. Ct. at 2439. The Supreme Court held that “an employee
is a ‘supervisor’ for purposes of vicarious liability under Title VII if [the employee] is
empowered by the employer to take tangible employment actions against the victim.” Id.
Garrison accurately describes the holding in Vance.

But the R&R does not

recommend dismissal of Garrison’s Title VII race-discrimination claim against Evans on
the grounds that Evans is not a supervisor or that the Department cannot be vicariously
liable for Evans’s conduct. Rather, the R&R recommends dismissal of Garrison’s Title
VII race-discrimination claim against Evans on the same grounds that it recommends
dismissal of Garrison’s Section 1983 equal protection claim against Evans—namely, for

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failing to allege facts sufficient to state a claim against Evans for race discrimination.
Courts analyze discrimination claims arising under Title VII using the same legal
standard as discrimination claims arising under Section 1983, as the R&R does here. See
DePriest v. Milligan, 823 F.3d 1179, 1185-86 (8th Cir. 2016); see also Wright v. Rolette
Cty., 417 F.3d 879, 884-85 (8th Cir. 2005) (observing that “the elements of a prima facie
case are the same regardless of which statute the plaintiff uses to seek relief”). The
R&R’s analysis is legally sound, and Garrison’s objection and his reliance on Vance are
inapposite.
For these reasons, the Court overrules Garrison’s objection to the R&R with
respect to his Title VII race-discrimination claim against Evans.
2. Title VII Hostile-Work-Environment Claim
Garrison also objects on the ground that the R&R failed to address his Title VII
hostile-work-environment claim.

Garrison argues that the “continuous violations

doctrine” permits him to assert a hostile-work-environment claim based on conduct
outside the statutory time period.

The R&R does not expressly address Garrison’s

hostile-work-environment claim, and Defendants did not respond to Garrison’s objection
on this ground.
In support of his argument, Garrison relies on National Railroad Passenger Corp.
v. Morgan, 536 U.S. 101 (2002). In National Railroad, the Supreme Court rejected the
“continuing violation doctrine” with respect to discrete discriminatory acts, which “are
not actionable if time barred, even when they are related to acts alleged in timely filed
charges.” 536 U.S. at 113. This holding is what the R&R correctly relies on to support

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its recommendation that Garrison’s Title VII race-discrimination claims must be
dismissed to the extent that they arise from discrete acts that occurred before
November 9, 2013. But the Supreme Court also observed in National Railroad that
“[h]ostile environment claims are different in kind from discrete acts” because “[t]heir
very nature involves repeated conduct.” Id. at 115. For this reason, the Supreme Court
held with respect to a Title VII hostile-work-environment claim that, “[p]rovided that an
act contributing to the claim occurs within the filing period, the entire time period of the
hostile environment may be considered by a court for the purposes of determining
liability.” Id. at 117.
The Court sustains Garrison’s objection on this ground. The R&R is modified to
clarify that the dismissal of Garrison’s Title VII race-discrimination claim as to timebarred conduct does not encompass Garrison’s Title VII hostile-work-environment claim,
which is not limited to conduct arising within the statutory time period.
E. Service of Process
The R&R concludes that Garrison did not properly serve the original complaint on
Defendants. The R&R recommends not dismissing Garrison’s complaint on this ground,
however. Instead, the R&R recommends permitting Garrison a limited 30-day period in
which to properly serve his second amended complaint on Defendants. For this reason,
although Garrison objects to the R&R’s conclusion that he did not properly serve the
original complaint on Defendants, Garrison’s objection on this ground is moot.
Moreover, the R&R correctly concludes that Garrison’s service of the original complaint

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was deficient. Accordingly, the Court overrules Garrison’s objection with respect to the
service-of-process issue.
In summary, the Court sustains Garrison’s objection with respect to his Title VII
hostile-work-environment claim and modifies the R&R as to that claim as addressed
above. The Court overrules Garrison’s objections in all other respects.
II.

Clear-Error Review

This Court reviews for clear error those portions of the R&R to which no
objections have been made. See Fed. R. Civ. P. 72(b) 1983 advisory committee note;
Grinder, 73 F.3d at 795.

Having reviewed those portions of the R&R to which no

objections have been made, the Court concludes that the R&R is neither clearly erroneous
nor contrary to law. But the Court modifies the R&R to the extent that it resolves
Defendants’ motion to dismiss before resolving Garrison’s motion for leave to file his
second amended complaint. In doing so, the Court first grants Garrison’s motion for
leave to file his second amended complaint and, in turn, construes Defendants’ motion to
dismiss the original complaint as a motion to dismiss the now-operative second amended
complaint. Consequently, the Court grants in part the motion to dismiss, consistent with
the R&R as modified herein.
Garrison also has appealed the magistrate judge’s April 25, 2017 Order, arguing
that the magistrate judge erred by dismissing as duplicative Garrison’s April 7, 2017
motion for leave to file a second amended complaint and the documents filed in support
thereof. Garrison also argues that the magistrate judge erred by denying his request for a
hearing on that motion. In light of the Court’s conclusion that Garrison’s motion for

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leave to file a second amended complaint should be granted, the Court denies as moot
Garrison’s appeal of the April 25, 2017 Order.
ORDER
Based on the May 15, 2017 R&R, the foregoing analysis and all the files, records
and proceedings herein, IT IS HEREBY ORDERED:
1.

Plaintiff Pete Garrison’s objections to the May 15, 2017 R&R, (Dkt. 76),

are OVERRULED IN PART and SUSTAINED IN PART as addressed herein.
2.

The May 15, 2017 R&R, (Dkt. 75), is ADOPTED AS MODIFIED as

addressed herein.
3.

Plaintiff Pete Garrison’s motion for leave to file a second amended

complaint, (Dkt. 31), is GRANTED, and Garrison is directed to proceed as follows:
a. No later than 14 days after the entry of this Order, Garrison shall file a
redacted version of the second amended complaint that will be publicly
available, consistent with the magistrate judge’s April 25, 2017 Order; and
b. No later than 30 days after the entry of this Order, Garrison shall serve the
second amended complaint on Defendants consistent with the requirements
of the Federal Rules of Civil Procedure and the May 15, 2017 R&R.
4.

Defendants’ motion to dismiss the original complaint, (Dkt. 5), as

construed against the now-operative second amended complaint, is GRANTED IN
PART AND DENIED IN PART as follows:
a. Plaintiff Pete Garrison’s claims arising under Title 42, United States Code,
Section 1983, to the extent they are asserted against the Department and the

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named Defendants in their official capacities, are DISMISSED WITH
PREJUDICE;
b. Plaintiff Pete Garrison’s procedural due process claims arising under
Title 42, United States Code, Section 1983, to the extent they are asserted
against the named Defendants in their individual capacities, are
DISMISSED WITH PREJUDICE;
c. Plaintiff Pete Garrison’s equal protection claims arising under Title 42,
United States Code, Section 1983, to the extent they are asserted against
Defendants Pam Evans and Kathy Zieminski in their individual capacities,
are DISMISSED WITH PREJUDICE;
d. Plaintiff Pete Garrison’s race discrimination claims arising under Title VII
of the Civil Rights Act of 1964, to the extent they are asserted against
Defendant Linda Craigie in her individual capacity and against Defendants
Pam Evans and Kathy Zieminski in both their individual and official
capacities, are DISMISSED WITH PREJUDICE;
e. Plaintiff Pete Garrison’s race discrimination claims arising under Title VII
of the Civil Rights Act of 1964, to the extent they are asserted against the
Department or Craigie in her official capacity and arise from conduct that
occurred

before

November

9,

2013,

are

DISMISSED

WITH

PREJUDICE as time-barred;
f. Plaintiff Pete Garrison’s claims arising under Title II of the Americans with
Disabilities Act are DISMISSED WITH PREJUDICE; and

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g. Defendants’ motion to dismiss, (Dkt. 5), is DENIED in all other respects.
5.

Plaintiff Pete Garrison’s appeal of the magistrate judge’s April 25, 2017

Order, (Dkt. 72), is OVERRULED and the April 25, 2017 Order, (Dkt. 71), is
AFFIRMED.

Dated: August 7, 2017

s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge

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