Winkelman v. AgStar Financial Services ACA

Filing 30

MEMORANDUM OPINION AND ORDER granting 18 Defendants' Motion for Summary Judgment; all claims in the Complaint 1 are DISMISSED (Written Opinion). Signed by Judge Ann D. Montgomery on 11/7/2017. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Nancy J. Winkelman,
Plaintiff,

MEMORANDUM OPINION
AND ORDER
Civil No. 16-3134 ADM/DTS

v.
AgStar Financial Services, ACA,

Defendant.
______________________________________________________________________________
Jeffrey D. Schiek, Esq., and Philip G. Villaume, Esq., Villaume & Schiek, P.A., Bloomington,
MN, on behalf of Plaintiff.
Kerry L. Middleton, Esq., Littler Mendelson, PC, Minneapolis, MN, and Tessa K. Mlsna, Esq.,
Gray Plant Mooty, Minneapolis, MN, on behalf of Defendant.
______________________________________________________________________________
I. INTRODUCTION
On August 17, 2017, the undersigned United States District Judge heard oral argument
on Defendant AgStar Financial Services, ACA’s (“AgStar” or the “Company”) Motion for
Summary Judgment [Docket No. 18]. Plaintiff Nancy J. Winkelman (“Winkelman”) alleges that
AgStar retaliated against her in violation of the Age Discrimination in Employment Act, 29
U.S.C. § 623(a). Compl. [Docket No. 1] ¶¶ 20–35. For the reasons set forth below, AgStar’s
motion is granted.
II. BACKGROUND
A. AgStar and its Annual Review Process
AgStar is a Financial Services company that provides a broad range of financial services

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for agricultural and rural clients in northwestern Wisconsin and Minnesota. Bridger Decl.
[Docket No. 22] ¶ 2.
Central to this dispute is AgStar’s annual employee review process. In January and
February of each year, supervisors conduct annual performance reviews of their team members.
Mlsna Decl. [Docket No. 21] Ex. A (“Winkelman Dep.”) 129:7–10. Supervisors are instructed
to rate their team members’ performance as “On Target” or “Unsatisfactory” using performance
metrics. Bridger Decl. Ex. 2. By comparing an employee’s performance metrics to that of their
peers, the performance metrics largely serve as the basis for annual salary adjustments and
promotion decisions. Bridger Decl. ¶ 4; Mlsna Decl. Ex. F; Paur Decl. [Docket No. 23] ¶ 7.
Each year, AgStar sets an overall budget for salary increases, and the Human Resources
(“HR”) department prepares Salary Administration Guidelines to assist supervisors in
distributing the salary increases within the budget. Bridger Decl. ¶ 7. These guidelines also
provide insight into an employee’s progression through the salary range for their position. Id.
Immediate supervisors make initial recommendations of their employees’ salary
increases and promotions. Winkelman Dep. 99:16–100:8. The initial recommendations are
reviewed and approved by upper management to ensure consistency with AgStar’s budget for
annual pay increases. Mlsna Decl. Ex. V (“Kramer Dep.”) 25:23–26:7.
B. Winkelman’s 2011 Charge of Discrimination
Winkelman starting working at AgStar as a Farm Records Technician in 1994.
Winkelman Dep. 55:19–20. She currently works at salary grade 11 as a Senior Business Analyst
in AgStar’s Baldwin, Wisconsin location. Id. Since 1994, Winkelman has received an annual
salary increase and has been promoted every three to four years. Id. 43:21–24; 164:3–6.

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Winkelman’s supervisors have rated her “On Target” in all of her annual performance reviews.
Id. 49:2–6; 129:20–23.
On May 5, 2011, Winkelman filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”). Schiek Aff. [Docket No. 27] Ex. C at 2–5
(“2011 EEOC Charge”). Winkelman alleged that her then-supervisor, Mel Pearson (“Pearson”),
made salary and promotional decisions based upon her age and gender. Id. Winkelman crossfiled the 2011 charge with the Wisconsin Equal Rights Division (“ERD”). Id. at 1.
AgStar’s HR representative, Leah Bridger (“Bridger”), investigated Winkelman’s
allegations. Winkelman Dep. 103:15–21; Mlsna Decl. Ex. P (“Bridger Dep.”) 39:12–18.
Bridger spoke with Winkelman to develop an understanding about her claim. Bridger Dep.
39:20–25. Bridger then interviewed Pearson and Winkelman’s higher-level supervisors, Owen
Thompson (“Thompson”) and Jeff Kramer (“Kramer”). Id. 40:13–16. Bridger stated that her
investigation did not substantiate Winkelman’s claims, and concluded that AgStar did not
discriminate against Winkelman. Id. 42:12–21.
On August 3, 2012, the EEOC dismissed Winkelman’s charge without finding evidence
to support her allegations of discrimination. Mlsna Decl. Ex. C. The ERD claim remained open
until Winkelman voluntarily withdrew it on June 16, 2014. Schiek Aff. Ex. S.
C. Winkelman’s 2014 Performance Review
In late 2013, Pearson retired and Bryan Paur (“Paur”), who was Winkelman’s peer, was
promoted into Pearson’s position. Mlsna Decl. Ex. S (“Paur Dep.”) 13:9–14. Paur directly
supervised three employees, including Winkelman. Paur Dep. 11:4–8.

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1. Paur Evaluates Winkelman’s Performance
Paur evaluated Winkelman’s year 2014 performance in January and February 2015.
Winkelman Dep. 129:11–19; Paur Dep. 21:13–15. During this evaluation period, Winkelman
was a Business Analyst, salary grade 10. Paur Decl. ¶ 4. In that position, Winkelman worked
with AgStar’s intermediate sized clients and underwrote loan applications, completed accrual
earning and financial reconciliation, and monitored loan performance. Id.
Winkelman’s productivity results were largely based on nine objective performance
metrics: 1) number of loans closed; 2) loan amount requested; 3) loan amount approved; 4)
financial statements reviewed; 5) earnings statements reviewed; 6) number of financial reviews
completed; 7) overrides; 8) farm visits; and 9) client information files. Paur Decl. ¶ 5, Ex. 1.
Paur determined that, compared to her peers, Winkelman scored below average on some, above
average on a few, and around average on most of the metrics. Paur Decl. Ex. 1. Based upon her
scores, Paur evaluated Winkelman’s 2014 performance as average. Paur Dep. 23:21–24.
For the 2014 performance reviews, AgStar budgeted for merit salary increases of 3.1%.
Bridger Decl. ¶ 9. Paur recommended that Winkelman’s average performance merited the
budgeted 3.1% salary increase. Winkelman Dep. 131:22–132:4. Paur did not recommend that
Winkelman be promoted into a higher position. Paur Dep. 40:9–14.
Paur communicated his recommendations to his immediate supervisor, Thompson, who
approved them without modification. Paur Dep. 22:5–11; 25:7–9. Kramer, AgStar’s Vice
President of the credit department, also signed off on the recommendations without change.
Kramer Dep. 25:23–26:7.

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2. Winkelman is Dissatisfied with her Performance Review
On February 17, 2015, Paur met with Winkelman to discuss her performance review.
Paur Dep. 28:22–25. Winkelman was not pleased with the recommended 3.1% salary increase.
Id. 29:1–6; Winkelman Dep. 134:18–20. Winkelman also expressed displeasure with Paur’s
decisions not to promote her to the Senior Business Analyst position and to deny her an increase
in lending approval authority. Winkelman Dep. 133:5–24; Paur Dep. 45:12–24. During their
discussion of her salary increase, Winkelman told Paur she had filed a charge of discrimination
with the EEOC in 2011. Paur Dep. 32:15–24. This was the first time Paur was aware that
Winkelman had previously accused AgStar of discrimination. Id. 29:3–12. Winkelman then
requested a meeting with Paur and his supervisor, Thompson. Id.; Winkelman Dep. 138:3–5.
On February 23, 2015, Winkelman, Paur, and Thompson met. Winkelman Dep. 138:3–8.
Winkelman reiterated her requests for a larger merit increase, a promotion, and increased lending
authority. Id. 139:15–18. Thompson denied Winkelman’s requests, explaining that her 2014
performance metrics reflected average performance that did not merit an additional pay raise,
promotion, or increased lending authority.1 Mlsna Decl. Ex. U (“Thompson Dep.”)
33:16–35:16; 63:19–64:8.
During the meeting, Winkelman referred to AgStar as the “Good ol’ Boys Club.” Id.
41:13–15. Winkelman claimed the salary and promotion decisions were made in retaliation for
her 2011 EEOC charge. Winkelman Dep. 145:7–13. After the meeting, Thompson reported
Winkelman’s claim of discrimination to HR. Id. 42:2–14. Bridger spoke with Winkelman about

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The managers assert that lending authority was not independently discretionary, but was
tied to job title. Paur Dep. 48:13–25.
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her concerns on March 10 and 25, 2015. Bridger Dep. 70:11–16. During the March 10
conversation, Winkelman stated that she believed the results of her 2014 performance review
were retaliation for filing her 2011 EEOC Charge. Mlsna Decl. Ex. Q.
D. 2015 EEOC Charge
On May 23, 2015, Winkelman filed a second charge with the EEOC. Winkelman Dep.
148:19–149:4; Schiek Aff. Ex. E. Winkelman alleged that Paur’s recommendations resulting
from her 2014 performance review—the 3.1% merit raise and no promotion or increase in
lending authority—were motivated to retaliate for her filing a 2011 EEOC Charge. Winkelman
Dep. 148:19–150:5.
On July 1, 2016, the EEOC closed its investigation, concluding that Winkelman’s charge
of retaliation lacked merit. Mlsna Decl. Ex. K, M.
E. This Lawsuit
On September 20, 2016, Winkelman filed a Complaint against AgStar asserting a single
count of retaliatory discrimination in violation of the Age Discrimination in Employment Act of
1967 (“ADEA”). Winkelman alleges that AgStar’s decisions not to promote her, and not to
increase her salary and lending approval authority were discriminatory actions in retaliation of
her 2011 EEOC Charge of sex and age discrimination.
Agstar moves for summary judgment.
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate if there are no genuine issues of material fact and the
moving party can demonstrate that it is entitled to judgment as a matter of law. Fed. R. Civ. P.

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56(a). A fact is material if it might affect the outcome of the suit, and a dispute is genuine if the
evidence is such that it could lead a reasonable jury to return a verdict for either party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court considering a motion for summary
judgment must view the facts in the light most favorable to the nonmoving party and give that
party the benefit of all reasonable inferences to be drawn from those facts. Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the nonmoving
party “may not rest upon allegations, but must produce probative evidence sufficient to
demonstrate a genuine issue [of material fact] for trial.” Davenport v. Univ. of Ark. Bd. of Trs.,
553 F.3d 1110, 1113 (8th Cir. 2009) (citing Anderson, 477 U.S. at 247–49).
B. Retaliation under the Age Discrimination in Employment Act
The ADEA makes it unlawful “for an employer to discriminate against any of [its]
employees . . . because such individual . . . has opposed any practice made unlawful by this
section, or . . . has made a charge, . . . assisted, or participated in any manner in an investigation,
proceeding, or litigation under this chapter.” 29 U.S.C. § 623(d). Because of her prior
complaints of age and sex discrimination, Winkelman asserts a retaliatory motive influenced her
2014 performance review results.
“A plaintiff may establish her claim of intentional age discrimination through either
direct evidence or indirect evidence.” King v. United States, 553 F.3d 1156, 1160 (8th Cir.
2009).
1. Direct Evidence
Winkelman argues that this is a direct evidence case because the final decisions on
Winkelman’s merit pay raise, promotion, and lending authority were made just days after she

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complained about age discrimination. Winkelman also argues that there is direct evidence of
AgStar’s pattern and history of not allowing women into upper management.
“Direct evidence is evidence showing 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) (quotations and alterations omitted).
This is not a direct evidence case. The record does not include any comments, remarks,
or actions from Paur or any other supervisor that directly show discriminatory animus.
Winkelman also does not have direct evidence that AgStar’s culture explicitly or surreptitiously
operates to stifle the upward mobility of women.2
2. Indirect Evidence
ADEA cases without direct evidence of retaliation are analyzed using the McDonnell
Douglas3 burden-shifting framework. Stewart v. Indep. Sch. Dist. No. 196, 481 F.3d 1034,
1042–43 (8th Cir. 2007). Winkelman must first establish a prima facie case of retaliation by
showing that: 1) she engaged in protected activity; 2) she suffered an adverse employment
against; and 3) a causal connection exists between the protected activity and the adverse
employment action. Logan v. Liberty Healthcare Corp., 416 F.3d 877, 880 (8th Cir. 2005).
“Although the burden of establishing a prima facie case . . . is not onerous, the plaintiff must
satisfy every element of [her] prima facie case, carrying at all times the ultimate burden of proof

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Winkelman’s assertion that AgStar suppresses female advancement is not probative of
the claim she asserts here, retaliation under the ADEA.
3

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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and persuasion to establish that the employer discriminated against [her] on an impermissible
basis.” Grant v. City of Blytheville, Ark., 841 F.3d 767, 773 (8th Cir. 2016) (citation and
quotations omitted).
AgStar argues that Winkelman cannot establish a prima facie case of retaliation because
Paur’s raise, promotion, and lending authority recommendations are not causally related to any
protected activity. Winkelman responds that she engaged in protected activity on three different
occasions, once when she filed the 2011 EEOC charge of discrimination, again when she
withdrew this claim from the ERD in June 2014, and also when she raised the issue of
discrimination during the February 23, 2015 meeting with Paur and Thompson. Winkelman
contends that there is a causal connection between these activities and Paur’s recommendations,
which she argues is the adverse employment action AgStar took in retaliation to her protected
activity.
Each of Winkelman’s claims of protected activity will be discussed in turn.
a. The 2011 EEOC Charge
It is undisputed that Winkelman’s 2011 EEOC Charge is protected activity. AgStar
argues that the 2011 EEOC Charge cannot present a genuine factual issue on retaliation because
the temporal gap between the 2011 EEOC harge and the adverse employment action in February
of 2015 is too distant.
“Generally, more than a temporal connection between the protected conduct and the
adverse employment action is required to present a genuine factual issue on retaliation.” Kiel v.
Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en banc). However, “we have
sometimes held that the timing of one incident of adverse employment action following

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protected activity sufficed to establish causal connection.” Smith v. Allen Health Sys., Inc., 302
F.3d 827, 832 (8th Cir. 2002). “The cases that accept mere temporal proximity between an
employer’s knowledge of protected activity and an adverse employment action as sufficient
evidence of causality to establish a prima facie case uniformly hold that the temporal proximity
must be very close.” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (quotations
omitted).
The lapse of time between the 2011 EEOC charge and AgStar’s January and February
2015 employment decisions cannot establish the causal connection necessary to support a
retaliation claim. The Eighth Circuit has been very reticent to find a causal connection been two
events spanning only a few months in time. See Weger v. City of Ladue, 500 F.3d 710, 727 (8th
Cir. 2007) (“Though not dispositive, we have previously held that an interval as brief as two
months did not show causation for purposes of establishing a retaliation claim, . . . and that a
two-week interval was sufficient, but barely so . . . .” (quotations omitted, alterations in
original)). The several year duration between the two events here is far too long to satisfy even
the minimal evidentiary burden at the prima facie stage.
b. The June 2014 Withdrawal of the ERD Claim
Winkelman also claims that she engaged in protected activity when she withdrew her
claim with the ERD in June 2014. Winkelman does not offer legal support for this argument.
Instead, Winkelman merely asserts that her 2014 performance review was the first occasion after
withdrawing the claim when she would have been eligible for a promotion or salary increase.
Winkelman’s argument fails for two reasons.

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First, the act of withdrawing a claim of discrimination is not protected activity.4
Winkelman argues that withdrawing the claim gave notice to AgStar that she had no recourse
against the Company, implying that AgStar would have been very reluctant from taking adverse
action against her while a claim of discrimination was being investigated. But this conflicts with
established law that under the ADEA, protected conduct is activity that opposes age
discrimination. Trammel v. Simmons First Bank of Searcy, 345 F.3d 611, 615 (8th Cir. 2003);
see also Jeseritz v. Potter, 282 F.3d 542, 548 (8th Cir. 2002) (stating that the conduct must
involve some kind of opposition to the employer’s practice that the employee reasonably
believes violates the ADEA). Withdrawing a claim of age discrimination is not behavior
opposing an employer’s practice that violates the age discrimination statute.
Second, even if withdrawal of a discrimination claim were protected activity, it is
undisputed that when Paur made his salary, promotion, and lending authority decisions in
January and February 2015, he did not have knowledge that Winkelman had even filed such a
claim, much less that she had withdrawn it over six months before their meeting. Since an
actionable retaliation claim requires the employer to have “actual or constructive knowledge of
the protected conduct,” this is not prima facie evidence of retaliation which is actionable under
the ADEA. Smith v. Riceland Foods, Inc., 151 F.3d 813, 818 (8th Cir. 1998) (quotations
omitted).

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While it was not squarely addressed, one court that considered withdrawing a claim as
protected activity found it to be a “unique legal theory.” Williams v. Tradewinds Servs., Inc.,
No. 10-437, 2013 WL 832405, at *7 n.8 (N.D. Ind. Mar. 4, 2013).
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c. The February 23, 2015 Meeting with Paur and Thompson
Finally, Winkelman claims that she engaged in protected activity when she expressed to
Paur and Thompson that AgStar was a “Good ol’ Boy’s Club.” AgStar responds that even if
Winkelman engaged in protected behavior during the February 23, 2015 meeting, it cannot
support her retaliation claim because the comment occurred after Paur made his initial salary and
promotion recommendations.
Assuming without deciding that Winkelman’s February 23rd comment about the
discriminatory work environment at AgStar was protected conduct, it cannot form the basis for a
retaliation claim stemming from an adverse employment action that occurred earlier. Paur made
his salary, promotion, and lending authority recommendations no later than February 17, 2015.
It is of no consequence here that Paur’s initial recommendations needed approval from higherlever supervisors because Paur’s recommendations were approved without change.5
To save her claim, Winkelman cites cases addressing “cat’s paw” liability, which “refers
to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal
decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.”
Qamhiyah v. Iowa State Univ. of Sci. & Tech., 566 F.3d 733, 742 (8th Cir. 2009) (quoting
EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 484 (10th Cir. 2006)). In the
Eighth Circuit, the “rule provides that an employer cannot shield itself from liability for unlawful
[retaliation] by using a purportedly independent person or committee as the decisionmaker where
the decisionmaker merely serves as the conduit, vehicle, or rubber stamp by which another

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A genuine issue of material fact might have been created if Paur’s recommendations
were modified by higher-level supervisors who had knowledge of Winkelman’s prior protected
activity.
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achieves his or her unlawful design.” Id. (quoting Richardson v. Sugg, 448 F.3d 1046, 1060 (8th
Cir. 2006)). “Cat’s paw” liability does not apply here because Paur, the initial decisionmaker,
did not have knowledge of Winkelman’s prior protected activity. This theory does not save
Winkelman’s retaliation claim.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS
HEREBY ORDERED that:
1.

Defendant AgStar Financial Services, ACA’s Motion for Summary Judgment

[Docket No. 18] is GRANTED; and
2.

All claims in the Complaint [Docket No. 1] are DISMISSED.

LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: November 7, 2017.

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