Campbell v. St. Jude Medical S.C., Inc.
Filing
122
ORDER granting in part 64 Motion for Summary Judgment; granting 71 Motion for Judgment on the Pleadings; granting 71 Motion for Summary Judgment. (Written Opinion) Signed by Senior Judge David S. Doty on 11/2/2018. (DLO)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No.: 17-944(DSD/DTS)
Tanya L. Campbell,
Plaintiff,
Counter-Defendant,
v.
ORDER
St. Jude Medical, S.C., Inc.
Defendant,
Counter-Plaintiff.
Barry S. Fagan, Esq. and Fagan McManus, P.C., 25892 Woodward
Avenue, Royal Oak, MI 48067 and Susan E. Ellingstad, Esq. and
Lockridge Grindal Nauen, PLLP, 100 Washington Avenue South,
Suite 2200, Minneapolis, MN 55401, counsel for plaintiff and
counter-defendant.
Joseph W. Hammell, Esq., Courtney L. Burks, Esq. and Jones
Day, 90 South 7th Street, Suite 4950, Minneapolis, MN 55402,
counsel for defendant and counter-plaintiff
This matter is before the court upon the motion for summary
judgment by defendant St. Jude Medical S.C., Inc. (SJM) and the
motion for judgment on the pleadings by plaintiff Tanya Campbell.
After a review of the file, record, and proceedings herein, and for
the following reasons, the court grants SJM’s motion in part and
grants Campbell’s motion.
BACKGROUND
This employment discrimination dispute arises out of SJM’s
decision to terminate Campbell’s employment.
medical device manufacturer.
SJM is a large
On February 21, 2014, SJM hired
Campbell as a clinical specialist (CS) in its neuromodulation unit
based in southeast Detroit.
Hutson Decl. ¶ 4.
SJM assigned
Campbell to work with Dawn Hutson, a territory manager (TM), and
Barbara Hayes and Mary Ruehl, both clinical specialists.1
Hutson
was primarily responsible for selling SJM products, and Campbell,
Hayes,
and
assisting
Ruehl
assisted
physicians
Hutson
during
by
scheduling
procedures,
appointments,
programming
medical
devices, instructing patients regarding treatments, and organizing
educational programs for physicians.
Hutson Decl. ¶ 2.
Campbell and her fellow Detroit team members reported directly
to the regional sales director (RSD) - initially Jim Bordogna and
later John Collier.
Id.; Collier Decl. ¶¶ 4-5.
Thus, although
Campbell’s job was to support Hutson, Hutson did not formally
evaluate her performance or determine her compensation.
Collier
Decl. ¶ 7.
By all accounts, Campbell performed very well into the fall of
2014.
She was the MVP of her six-week training class and helped
her team achieve sales well above their established goals.
Exs. 9, 65; Hutson Dep. at 32:11-34:3.
relationship with Hutson.
Pl.’s
She also had a good working
Hutson Dep. at 38:3-18.
According to Campbell, things began to change in September
2014, after she told Collier she was pregnant and required certain
1
The CS position has three levels: I, II, and III. SJM
hired Campbell as a CS II and Hayes and Ruehl each held the
position of CS III. Hutson Decl. ¶ 4.
2
medical accommodations. Specifically, Campbell’s doctor restricted
her from repetitive x-ray exposure, which required her to leave the
operating room while x-rays were in progress, and later restricted
her travel.
Pl.’s Ex. 17 at 2; Collier Decl. Ex. H.
There is no
dispute that SJM honored each of Campbell’s restrictions. Campbell
asserts, however, that SJM discriminated and retaliated against her
in other ways as follows.
I.
TM Position
Campbell alleges that SJM declined to consider her for an open
TM position due to her pregnancy.
Campbell had been scheduled to
meet with Collier and his supervisor, Daniel Balkom, to discuss her
possible move to a TM position on September 10, 2014.
at 63:15-64:9.
Hutson Dep.
Hutson worked with Campbell to prepare for the
interview and felt, at the time, that Campbell would be a good
candidate for the position.
Id. at 63:15-64:9; 69:1-70:8.
After
informing Collier of her pregnancy on September 5, however, the
interview never happened.
According to Campbell, Collier told her
that he was taking some time to assess the Detroit market before
making changes to the team.
Campbell Dep. at 66:1-3.
Campbell
remained interested in becoming a TM, but did not actively pursue
the position given Collier’s comments.
Ex. 18.
Id. at 66:11-67:6; Pl.’s
In early December 2014, Collier hired Anthony Ball as the
new TM for the Detroit team without interviewing Campbell.
Pl.’s
Ex. 19. Collier testified that Campbell called him before he hired
3
Ball and withdrew from consideration.
II.
Collier Dep. at 71:23-72:1.
Sexual Harassment Incident
Campbell next alleges that SJM failed to adequately respond to
an incident in which she was sexually harassed by a client.
In
December 2014, a doctor at St. Joseph Mercy Hospital, Dr. Radden,
touched Campbell’s stomach and pubic area and made inappropriate
comments to her.2
Dahl Decl. Ex. A at 1.
Campbell told Hutson
about the incident and also provided a detailed narrative to SJM’s
human
resources
department
the
following
day.
Id.
at
1-2.
According to Campbell, Hutson told her that Dr. Radden is “perverse
in that way” and encouraged her to report the incident to HR.
Campbell Dep. at 101:2-16; Hutson Dep. at 111:11-21.
Campbell did
so and HR ultimately told her that she needed to report the
incident to the hospital because SJM did not have authority over
the doctor.3
Dahl Decl. ¶¶ 3-4.
HR also told Campbell that she
would not be required to work with Dr. Radden going forward.
¶ 4.
Id.
Campbell ultimately reported the incident to the hospital,
which handled the matter to her satisfaction.
Campbell Dep. at
2
Dr. Radden was a valuable SJM client who generated
approximately $1 million per year in revenue. Ball Dep. at 57:2558:11.
3
In fact, SJM’s harassment policy expressly covers
prohibited conduct by a non-employee such as a client, as was the
case here. Pl.’s Ex. 32 at 1, 2. The policy states that SJM will
“investigate and take timely and appropriate responsive action ...
reasonably calculated to end the objectionable conduct or
harassment.” Id. at 1-2.
4
121:4-24.
Although Hutson and Ball mistakenly scheduled Campbell
to work with Dr. Radden after the incident on several occasions,
they corrected the error each time.
Hutson Decl. ¶¶ 9-10; Collier
Decl. ¶ 14; Campbell Dep. at 127:10-23.
III. Hutson Reports Performance Issues
Despite their previously good relationship, Campbell alleges
that Hutson began documenting perceived issues with Campbell’s
performance and reporting them to Collier in order to create a
paper trail for her termination.
For example, Hutson blamed
Campbell for a poorly attended client dinner on September 10, 2014,
that was apparently due to flooding in the area rather than poor
performance by Campbell.
Hutson Decl. ¶ 8; Hayes Decl. ¶¶ 9-13.
Hutson also forwarded complaints from at least one doctor about
Campbell’s medical restrictions to Collier, despite SJM’s purported
willingness to accommodate Campbell during her pregnancy.
Dep.
at
96:6-97:4.
Further,
Hutson
complained
on
Hutson
numerous
occasions to Collier that Campbell was unresponsive, difficult to
work with, unwilling to work outside of normal business hours, and
sometimes unprepared.
See Hutson Decl. ¶¶ 11-14; id. Exs. D, F;
Collier Decl. ¶¶ 15-16, 21.
Although Campbell acknowledges that
she and Hutson had a strained relationship, she disputes Hutson’s
characterization of her performance.
IV.
See Collier Decl. Ex. B.
CS III Position
Campbell alleges that, in January 2015, SJM denied her an
5
expected promotion from CS II to CS III.
Decl. ¶ 21.
Pl.’s Ex. 34; Collier
Campbell had been told by Collier’s predecessor that
she would be eligible for a promotion to CS III within six to
twelve months of her hire date.
Collier Decl. Ex. C at 2.
Collier declined to promote Campbell, however, explaining that she
was ineligible for the promotion because she had only been a CS II
for less than a year.
Collier Decl. ¶ 21.
Collier told Campbell
that SJM policy requires an employee to be a CS II for at least two
years before he or she is eligible to move up to the CS III
position.
Id. ¶¶ 19, 21; Collier Decl. Ex. D.
The policy actually
states that the decision to elevate an employee from CS II to CS
III is “performance based” and that the time in service is “not a
requirement.”
V.
Collier Decl. Ex. D.
Performance Discussions
On January 22, 2015, Collier met with Campbell to discuss the
CS III position and her performance.
After establishing that
Campbell would not receive a promotion, Collier raised concerns
about tension between Campbell and her co-workers.
1.
Pl.’s Ex. 1 at
Campbell then sent a lengthy email to HR - Colleen Pelton and
Lauren Hansen - describing her meeting with Collier, explaining her
strained relationship with Hutson, and defending her performance.
Id.
She further explained that she interpreted the meeting to be
a warning that her job was in jeopardy.
Id. at 2.
She told them
that she believed she was being retaliated against due to “jealousy
6
and/or inconvenience due to her pregnancy.”
Id. at 3.
Campbell
requested that HR assist her in addressing the situation.
Id.
Pelton testified that the email raised a concern about possible
pregnancy
discrimination
that
would
normally
warrant
an
investigation, but she does not recall what, if anything, SJM did
to address the situation.
Pelton Dep. at 64:14-66:8.
It is
unclear if HR reported Campbell’s email to Collier.
On February 10, 2015, Collier sent Campbell an email with the
subject line “Field Visit Follow Up,” in which he noted his
concerns about the “personal dynamics” of the Detroit team and
disclosed that he had spoken to everyone on the team about the
issue.
Collier Decl. Ex. E at 1.
Collier praised Campbell for her
“openness and professionalism” during their January meeting and for
promptly addressing the performance issues they discussed. Id. He
specifically noted that the team was “off to a great start with
addressing [the] issues.”
concerns
about
Campbell’s
Id.
Collier also raised specific
performance:
(1)
she
needed
to
be
available for meetings outside of normal working hours, (2) she
needed to be more responsive to her teammates, and (3) she needed
to work with her team regarding certain issues rather than asking
him for assistance.
Id.
He then thanked Campbell for her
professionalism and her “positive approach” to his concerns.
at 2.
7
Id.
According to Collier, the email constituted a memorandum of
expectation (MOE).
See id.; Collier Decl. ¶ 22.
An MOE is a
document that sets forth steps an employee needs to take to improve
performance and avoid adverse employment action.
Oefinger Dep. at
25:13-28:2. Campbell denies ever being told that email was an MOE.
Campbell
Dep.
at
192:20-22.
According
to
HR,
it
would
be
concerning for Collier to issue an MOE so soon after Campbell’s
report of possible pregnancy discrimination.
Pelton Dep. at 73:1-
11.
On February 13, 2015, Campbell responded to Collier via email.
Campbell reiterated her commitment to working more effectively with
her
team,
but
challenged
allegedly poor performance.
Collier’s
representations
Pl.’s Ex. 43 at 1.
about
her
She expressed
frustration that Collier had not raised those issue during their
January meeting and that he failed to get her version of events
before determining she was at fault.
each
area
of
perspective.
concerns
Id. at 1-2.
raised
in
Id.
Collier’s
late
February,
email
from
her
She concluded the email by again stating
her commitment to her work and her team.
In
She then responded to
despite
apparent
Id. at 2.
improvements
in
team
dynamics, Hutson continued to complain about Campbell to Collier.
In a February 25, 2015, email she noted that one of Campbell’s
clients complained that she was too talkative while in the office
and that Campbell still did not want to participate in after-hours
8
dinners and events.
Pl.’s Ex. 48.
Hutson requested that Collier
not share the information with Campbell and explained that she
doubted Campbell’s longevity at SJM: “I have a feeling she won’t
come back after the baby so it’s not worth getting things all riled
up.”
V.
Id.
Performance Review
Collier completed Campbell’s 2014 year-end performance review
in early 2015.
Collier rated Campbell’s performance as meeting
expectations in most areas and exceeding expectations in a few
areas.
See Collier Decl. Ex G.
With respect to teamwork and
collaboration, however, he rated Campbell’s performance below
expectations.
Id. at 7.
Collier commented that Campbell “is a
talent[ed] individual who can make an impact on our team” but noted
the “team dynamics” problem within the Detroit team.
Id. at 8.
He
noted his “confidence” that Campbell would work improve in that
area.
Id. at 8.
Campbell, in contrast, evaluated her performance
as largely exceeding expectations, even with respect to team work.
Id. at 1-7.
On March 5, 2018, Campbell participated in a conference call
with
Collier
and
Robyn
Dahl
from
HR
to
discuss
her
review.
Campbell recorded the call without Collier’s or Dahl’s consent.
She did so because she feared for her job and wanted to protect
herself.
Campbell Dep. at 32:11-18; 33:18-34:2.
Campbell told
Collier and Dahl that she was concerned about the discrepancy
9
between her self-evaluation and Collier’s evaluation, particularly
given her team’s strong sales in 2014.
see also Hayes Decl. Ex. A.
Pl.’s Ex. 44 at 2:14-5:5;
Collier explained that he is required
to rank all of his employees, which prevents him from providing
superlative reviews to each employee, even if earned. Pl.’s Ex. 44
at 3:22-4:9.
Campbell also again expressed her frustration that
she was being held responsible for unflattering reports by Hutson
without being asked for her side of the story.
Id. at 8:17-10:2.
She suggested that her pregnancy was the reason for her poor
treatment and reported that Hutson had warned her on more than one
occasion that having a child while working at SJM could be career
ending.
Id. at 10:3-6; id. at 21:17-23; id. at 23:3-22.
Dahl
assured Campbell that SJM has never terminated someone for having
a child.
VI.
Id. at 24:8-11.
First EEOC Complaint
On March 19, 2015, Campbell filed a charge of discrimination
with the Equal Employment Opportunity Commission (EEOC) alleging
sex and pregnancy discrimination and retaliation for complaining
about Dr. Radden’s harassment.
Pl.’s Ex. 45.
SJM’s response to
the charge included a document purporting to be the MOE Collier
sent to Campbell. Pl.’s Ex. 46-47. However, the document provided
to the EEOC was different than the original email in several
respects.
Compare Pl.’s Ex. 46 with Collier Decl. Ex. E.
First,
it excludes the “Field Visit Follow Up” header and the email’s
10
initial paragraph noting improvements in the areas of concern. See
id.
in
Second, it deleted reference to being “off to a great start”
addressing
issues.
Third,
it
added
the
words
“without
resistance or challenge” to the following sentence: “These are the
requirements of the job and need to be executed without resistance
or challenge.” See id.
According to Collier, the MOE submitted to
the EEOC was an earlier draft of the email he sent to Campbell that
must have been provided to the EEOC in error.
Collier Dep. at
247:19-249:2.
VII. Post-Maternity Leave
Campbell went on maternity leave from April 22, 2015, to July
15, 2015. On her return to SJM, Collier reminded Campbell that the
MOE was still in place.
Collier Decl. Ex. J.
Thereafter, Hutson
and Collier documented numerous alleged performance issues similar
to those raised before Campbell’s maternity leave.
Decl. ¶¶ 31-34; Hutson Decl. ¶¶ 15-22; Pl.’s Ex. 49.
Campbell denies having performance problems.
See Collier
As before,
See, e.g., Collier
Decl. Ex. K; Campbell Decl. ¶¶ 2-4.
On August 14, 2015, Campbell had a medical emergency that
required her to go to the emergency room and thereafter miss
several days of work.
Ex. 51.
Campbell Dep. at 225:16-18; see also Pl.’s
That morning, Campbell was scheduled to work on a case
with a client, Dr. Shuayto.
She contacted Hutson and Anthony Ball
at 6:17 a.m. to let them know she would not be able to work that
11
day due to an “emergency.”
Pl.’s Ex. 50.
She did not immediately
explain that the emergency was medical in nature.
See id.
Ball
covered Dr. Shuayto’s cases that morning, but they were delayed due
to Campbell’s last-minute absence.
Shuayto Dep. at 19:3-9.
Ball
told Dr. Shuayto that Campbell could not be there and that he had
been
trying
unsuccessfully
to
reach
her.
Id.
at
19:12-21.
Although Campbell sent a text to Ball later that morning letting
him know that she was under a doctor’s care, Ball did not share
that information with Dr. Shuayto.
Id. at 19:17-20:11.
Dr.
Shuayto was so upset that Campbell had failed to show up without
explanation that he sent a letter to Hutson saying that he no
longer wanted to work with Campbell because her “recent actions
have resulted in less than desirable results.” Hutson Decl. Ex. H.
SJM
never
informed
Dr.
Shuayto
that
Campbell
had
a
medical
emergency that prevented her from working with him that day.
Shuayto Dep. at 20:6-11.
Dr. Shuayto testified that had he known
about Campbell’s hospitalization, he would not have requested that
she no longer work with him.
Id. at 20:12-21:14.
On August 19, 2015, Hutson reported to Collier that Dr.
Shuayto would no longer work with Campbell because, in her words,
she was not “reliable” and was “detrimental to their business and
ours.”
she
Pl.’s Ex. 55 at 2.
could
not
send
Hutson also complained to Collier that
Campbell
to
the
majority
of
the
team’s
appointments due to her conflicts with Drs. Radden and Shuayto.
12
Pl.’s Ex. 54.
In doing so, Hutson blatantly ignored the reasons
for those conflicts.
VII. Performance Improvement Plan and Termination
Collier
improvement
emergency.
placed
plan
Campbell
(PIP)
a
on
few
a
days
Collier Decl. Ex. M.
thirty-day
after
performance
Campbell’s
medical
Campbell acknowledged receiving
the PIP, but disagreed that her performance was sub-par. Id. at 3.
Even though she felt that the PIP was SJM’s final step in the plan
to terminate her, Campbell tried to meaningfully participate in the
process.
Campbell Dep. at 222:4-224:24.
According to Hutson and
Collier, however, she was unable to meet the demands of the PIP.
See Collier Decl. Ex. L.
On
August
26,
2015,
Campbell
filed
a
second charge of
discrimination with the EEOC alleging retaliation for filing the
original EEOC complaint. Pl.’s Ex. 61. On September 29, 2015, SJM
terminated
Campbell’s
complete the PIP.
employment
for
Collier Decl. ¶ 39.
failing
to
successfully
Campbell thereafter filed
a third charge of discrimination with the EEOC alleging sexual
discrimination
discrimination.
and
retaliation
for
complaining
about
the
On May 11, 2016, the EEOC issued right to sue
letters for all three charges of discrimination.
VIII.
This Lawsuit
On July 21, 2016, Campbell commenced this action in the
Eastern District of Michigan alleging pregnancy discrimination,
13
hostile work environment, and retaliation in violation of Title VII
of the Civil Rights Act and Michigan’s corresponding Elliott-Larsen
Civil Rights Act (ELCRA).
The court granted SJM’s motion to
transfer the case here due to the forum selection clause in
Campbell’s employment agreement.
asserted
a
counterclaim
See ECF No. 12.
against
Campbell
SJM thereafter
alleging
that
her
recording of the March 5, 2015, telephone call with Collier and
Dahl violated the Illinois eavesdropping statute.
for
summary
judgment
and
Campbell
moves
to
SJM now moves
dismiss
the
counterclaim.
DISCUSSION
I.
Motion for Summary Judgment
“The court shall grant summary judgment 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A dispute is genuine if the evidence is such that it could
cause a reasonable jury to return a verdict for either party.
See
id. at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
14
Id. at 255.
The nonmoving party, however, may not rest upon mere
denials or allegations in the pleadings but must set forth specific
facts sufficient to raise a genuine issue for trial.
U.S. at 324.
Celotex, 477
A party asserting that a genuine dispute exists - or
cannot exist - about a material fact must cite “particular parts of
materials in the record.”
Fed. R. Civ. P. 56(c)(1)(A).
If a
plaintiff cannot support each essential element of a claim, the
court must grant summary judgment because a complete failure of
proof regarding an essential element necessarily renders all other
facts immaterial.
Celotex, 477 U.S. at 322-23.
A.
Pregnancy Discrimination Act Claim
The
Pregnancy
Discrimination
Act,
42
U.S.C.
§
2000e(k),
establishes that discrimination based on “pregnancy, childbirth, or
related medical conditions” constitutes sex discrimination for the
purposes of Title VII. The ELCRA likewise prohibits discrimination
based on pregnancy.4
plaintiff
evidence
claiming
of
the
Mich. Comp. Laws § 37.2202(1)(a)-(d).
discrimination
discrimination
must
or
either
satisfy
present
the
A
direct
three-part
burden-shifting test presented in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
Fjelsta v. Zogg Dermatology, PLC, 488 F.3d
804, 809 (8th Cir. 2007).
4
The court analyzes discrimination and retaliation claims
under Title VII and the ELCRA identically. Sutherland v. Mich.
Dep’t of Treasury, 344 F.3d 603, 614 n.4 (6th Cir. 2003).
15
Direct evidence “must be strong enough to show a specific link
between the [alleged] discriminatory animus and the challenged
decision, sufficient to support a finding by a reasonable factfinder
that
an
illegitimate
employment decision.”
criterion
actually
motivated
the
Schierhoff v. GlaxoSmithKline Consumer
Healthcare, L.P., 444 F.3d 961, 965 (8th Cir. 2006)(alteration in
original)
(citation
omitted).
Direct
evidence
can
include
“evidence of conduct or statements by persons involved in the
decision-making process that may be viewed as directly reflecting
the
alleged
discriminatory
attitude
sufficient
to
permit
the
factfinder to infer that attitude was more likely than not a
motivating factor in the employer’s decision.”
255
F.3d
546,
548
(8th
Cir.
2001).
Yates v. Douglas,
However,
“[n]ot
every
prejudiced remark made at work supports an inference of illegal
employment
Treatment
discrimination.”
Ctr.,
133
F.3d
Rivers–Frison
616,
619
(8th
v.
Cir.
Se.
Mo.
1998).
Cmty.
Courts
distinguish between “stray remarks in the workplace, ... statements
by decisionmakers unrelated to the decisional process, ... [and]
direct evidence of discrimination.”
Id.
Campbell argues that Hutson made two comments that constitute
direct evidence of pregnancy discrimination.
Campbell
that
she
was
concerned
that
First, Hutson told
getting
pregnant
could
negatively affect her career because she had heard that SJM fired
a woman after she returned from maternity leave.
16
Second, Hutson
told Collier that she did not believe Campbell would return to work
after maternity leave.
SJM denies that the comments are direct
evidence of discrimination because Hutson was not involved in the
decision to terminate Campbell and because there is no link between
the statements and Campbell’s termination.
Although a close call
given Hutson’s many complaints to Collier about Campbell, the court
agrees with SJM that the comments, standing alone, are insufficient
to definitively establish that “an illegitimate criterion actually
motivated the employment decision.”
Schierhoff, 444 F.3d at 965.
They are relevant, however, to Campbell’s claim as analyzed under
McDonnell Douglas.
Under McDonnell Douglas, Campbell must first establish a prima
facie case of discrimination by showing that she:
1) is a member
of a protected group, 2) was qualified for her position, 3)
suffered an adverse employment action, and 4) was discharged under
circumstances
giving
rise
to
an
inference
of
discrimination.
Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011).
If Campbell meets her burden, the burden of production shifts to
SJM “to articulate a non-discriminatory, legitimate justification
for its conduct, which rebuts the employee’s prima facie case.”
Id.
If SJM then meets its burden, Campbell “must then produce
evidence sufficient to create a genuine issue of material fact
showing that [SJM’s] explanation is merely a pretext for unlawful
discrimination.”
Id.
“[T]he issue is whether the plaintiff has
17
sufficient evidence that unlawful discrimination was a motivating
factor in the defendant’s adverse employment action.”
1.
Id.
Prima Facie Case
There is no question that SJM’s decision not to promote
Campbell and later to terminate her constituted adverse employment
actions.
The parties dispute whether Campbell has established the
remaining three elements of her prima facie case. A reasonable jury
could conclude that Campbell has met her burden.
As a threshold matter, there are sufficient facts to establish
that Campbell was a member of a protected group at the time of her
termination.
The court recognizes that pregnancy “differs from
most other protected attributes in that it is not immutable”
because “at some point the female employee is no longer ‘affected
by pregnancy, childbirth, or related medical conditions.”
Sura v.
Stearns Bank, N.A., No. 01-1344, 2002 WL 31898167, at *5 (D. Minn.
Dec. 18, 2002) (citation and quotation marks omitted).
“[A] woman
who is not pregnant at or very near the time when an adverse
employment action is taken against her must demonstrate that the
effects of her pregnancy continued to exist at the time she was
[subject to the action], either in actual fact or in the thoughts
and actions of those responsible.” Id. (quoting Solomen v. Redwood
Advisory
Co.,
183
F.
Supp.
2d
(alteration in original).
18
748,
753
(E.
D.
Pa.
2002))
Here, there is sufficient evidence of a causal nexus tying
Campbell’s pregnancy to her eventual termination.
SJM terminated
Campbell less than three months after she returned from maternity
leave,
which
is
sufficiently
close
in
time
to
establish
connection between her pregnancy and her termination.
a
See Helmes
v. S. Colonie Cent. Sch. Dist., 564 F. Supp. 2d 137, 147 (N.D.N.Y.
2008) (concluding that denial of tenure nine weeks after returning
from maternity leave was sufficiently close in time to establish
protected class status under the circumstances).
Further, the
alleged discrimination began with her pregnancy announcement,
continued throughout her pregnancy, and ended with her termination
soon after she returned from maternity leave.
As a result, the
record supports a finding that there was a connection between
Campbell’s pregnancy and SJM’s adverse employment decisions, and
thus that she was a member of a protected group.
There is also no genuine dispute that Campbell was qualified
for her position and at least nominally qualified for the TM and CS
III positions.
See McGinnis v. Union Pacific R.R., 496 F.3d 868,
874 n.2 (8th Cir. 2007) (citation and quotation marks omitted)
(“Under the qualification prong, a plaintiff must show only that he
possesses
the
basic
skills
necessary
for
performance
of
the
job....”).
Third, the record supports a finding that Campbell was denied
promotions and eventually terminated under circumstances giving
19
rise to an inference of discrimination.
above,
Campbell
pregnancy
has
triggered
termination.
credibly
a
As set forth in detail
supported
narrative
her
designed
theory
to
lead
that
her
to
her
Before Campbell announced her pregnancy, she was
highly regarded and lauded for her role in achieving excellent
sales for the Detroit team.
That allegedly changed when she told
Hutson and Collier she was pregnant.
Thereafter and until SJM
terminated Campbell, Hutson routinely complained about Campbell’s
performance despite her continued sales success and even commented
that she did not believe Campbell would return to work after having
her baby.
Collier appears to have accepted Hutson’s version of
events without talking to Campbell.
When Campbell tried to defend
herself, Collier simply instructed her to improve her performance.5
Collier also declined to consider Campbell for a TM and CS III
position during her pregnancy despite earlier indications that
Campbell was well suited for either position.
SJM has provided
neutral explanations for Collier’s decisions to do so, but given
the competing evidence, the court must resolve the matter in
Campbell’s favor.
As a result, Campbell has set forth ample facts
from which a jury could conclude that SJM denied her promotions and
eventually terminated her due to her pregnancy.
5
Although there were legitimate issues within the Detroit
team with respect to communication and teamwork, the record
supports a finding that Collier placed undue blame on Campbell.
20
2.
An
Non-Discriminatory Reason for Termination
employer’s
burden
of
showing
a
legitimate,
nondiscriminatory reason for termination is not onerous.
Bone v.
G4S Youth Servs., LLC, 686 F.3d 948, 954 (8th Cir. 2012).
SJM has
provided sufficient evidence to meet this low burden.
Thus, the
burden shifts back to Campbell to demonstrate that SJM’s proffered
explanation is pretextual, and that discrimination is the true
reason for the adverse action.
3.
Evidence of Pretext
“There are at least two ways [Campbell] may demonstrate a
material question of fact regarding pretext.” Torgerson v. City of
Rochester, 643 F.3d 1031, 1047 (8th Cir. 2011). “She may show that
[SJM’s] explanation is unworthy of credence because it has no basis
in fact, or she may show pretext by persuading the court that
discriminatory animus more likely motivated [SJM].”
Guimaraes v.
SuperValue, Inc., 674 F.3d 962, 975 (8th Cir. 2012) (citation
omitted).
“Either route amounts to showing that a prohibited
reason, rather than [SJM’s] stated reason, actually motivated” her
termination.
Id. (citation and quotation marks omitted).
Campbell has set forth ample facts credibly challenging SJM’s
stated
non-discriminatory
actions.
reasons
for
its
adverse
employment
There are, at a minimum, genuine questions as to the
accuracy and extent of the performance issues identified by SJM,
which served as the basis for its decisions to deny Campbell
21
promotions and to terminate her.
The court will not repeat each
material fact in dispute, but notes that there are many.
A jury,
and not the court, must consider those facts and decide whether
SJM’s
stated
pretextual.
reasons
for
it
adverse
employment
actions
were
As a result, the record precludes summary judgment on
Campbell’s pregnancy discrimination claim.
B.
Hostile Work Environment
Campbell claims that she was subject to a hostile work
environment due to Dr. Radden’s sexual harassment. SJM argues that
Campbell has not met the high bar for establishing such a claim.
The court agrees.
In order to establish a hostile work environment claim, a
plaintiff must show: (1) that she belongs to a protected group; (2)
she was subject to unwelcome harassment; (3) a casual nexus exists
between the harassment and the plaintiff’s protected group status;
and (4) the harassment affected a term, condition or privilege of
her employment.
Gordon v. Shafer Contracting Co., Inc., 469 F.3d
1191, 1195–96 (8th Cir. 2006).
When a hostile work environment
claim is based on the acts of a non-supervisor, a plaintiff “must
show
that
[her]
employer
knew
or
should
harassment and failed to take proper action.”
have
known
of
the
Id. at 1195.
SJM argues that Campbell has failed to allege facts showing
that the harassment affected a term, condition, or privilege of her
employment.
In deciding that issue, the court looks at all the
22
circumstances, including “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating,
or
a
mere
offensive
utterance;
and
whether
it
unreasonably interferes with an employee’s work performance.”
Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 843 (8th
Cir. 2002).
A plaintiff “must demonstrate that the harassment was
sufficiently severe or pervasive to create a work environment that
[is] both objectively and subjectively hostile.” Reedy v. Quebecor
Printing Eagle, Inc., 333 F.3d 906, 908 (8th Cir. 2003) (citations
omitted).
A hostile work environment does not exist when the
“offensive
conduct
incidents.”
consists
of
offhand
comments
and
isolated
Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756,
759 (8th Cir. 2004) (citation and quotation marks omitted).
Here,
notwithstanding
Dr.
Radden’s
plainly
inappropriate
conduct, the court cannot conclude that Campbell was subject to a
hostile work environment.
The incident was isolated and SJM
ensured that Campbell did not have to work with Dr. Radden again.
Although SJM did not handle the incident as Campbell preferred, SJM
acted reasonably in simply removing Campbell from Dr. Radden’s
service.
Indeed, SJM’s options were limited given that Dr. Radden
was not its employee.
As a result, the court will grant summary
judgment on this claim.
23
C.
As
Retaliation Claim
noted
above,
in
the
absence
of
direct
evidence
of
retaliation, the court examines Campbell’s claim under the threepart McDonnell Douglas burden-shifting analysis.
F.3d at 760.
Bainbridge, 378
To establish a prima facie case of retaliation, “a
plaintiff must show (1) that he or she engaged in statutorily
protected activity; (2) an adverse employment action; and (3) a
causal connection ... between the two events.”
Green v. Franklin
Nat’l Bank of Minneapolis, 459 F.3d 903, 914 (8th Cir. 2006)
(citation and quotation marks omitted).
To establish a causal
connection, plaintiffs must present evidence that gives rise to an
inference of retaliatory motive. Kipp v. Mo. Hwy. & Trans. Comm’n,
280 F.3d 893, 897 (8th Cir. 2002).
Campbell engaged in protected activity when she filed the EEOC
complaints, reported Dr. Radden’s sexual harassment, and complained
to HR about possible pregnancy discrimination.
See McClure v.
Career Sys. Dev. Corp., 447 F.3d 1133, 1137 (8th Cir. 2006)
(“Filing an employment discrimination complaint is a protected
activity.”); Becker v. Josten’s, Inc., 210 F. Supp. 3d 1110, 1120
(D. Minn. 2016) (holding that complaining to an employer about
sexual harassment constitutes protected activity).
The failure to
promote and termination plainly constitute adverse employment
actions, and the court will assume that the purported MOE and PIP
constitute adverse employment actions.
24
See Kim v. Nash Finch Co.,
123 F.3d 1046, 1060 (8th Cir. 1997) (“[R]etaliatory conduct may
consist of action less severe than outright discharge.” (citation
and quotation marks omitted)). The court also concludes that there
is a genuine issue of material fact as to whether Campbell has
established a causal connection between the protected activity and
the adverse employment consequences.
The temporal proximity between her protected activity and the
adverse employment consequences alone could support a finding of
causation. Moreover, as discussed, Campbell has adduced sufficient
facts to undermine SJM’s stated reasons for its actions, which
gives rise to an inference of retaliatory motive.
Campbell has
therefore established a prima facie case of retaliation.
SJM has offered a legitimate, non-retaliatory reason for its
actions, but Campbell has provided ample evidence of pretext as set
forth above.
As a result, the court must deny summary judgment on
the retaliation claim.
II.
Motion for Judgment on the Pleadings/Summary Judgment
SJM has brought a counterclaim alleging that Campbell violated
the
Illinois
conversation
eavesdropping
with
Collier,
statute
an
by
Illinois
recording
a
resident.
telephone
The
facts
underlying the counterclaim are straightforward.
On March 5, 2015, Campbell recorded a work-related conference
call with Dahl and Collier without their consent.
All parties
joined the call through SJM’s phone conferencing system.
25
Campbell
Decl., ECF No. 73-7, ¶¶ 6-8.
At the time of the call, Campbell was
in Michigan, Dahl was in Texas, and Collier was in Illinois.
¶ 9; Collier Decl., ECF No. 106, ¶ 7.
Campbell did not know where
Dahl or Collier were located at the time of the call.
Decl.
¶
11.
SJM
policy
prohibits
employees
conversations without each party’s consent.6
A.
Id.
from
Campbell
recording
Pl.’s Ex. 63 at 8.
Standard of Review
The same standard of review applies to motions under Federal
Rules of Civil Procedure 12(c) and 12(b)(6).
Ashley Cty., Ark. v.
Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009).
Thus, to survive
a motion for judgment on the pleadings, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.”
Braden v. Wal–Mart Stores,
Inc., 588 F.3d 585, 594 (8th Cir. 2009) (citation and quotation
marks
omitted).
“A
claim
has
facial
plausibility
when
the
plaintiff [has pleaded] factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although a complaint need not contain detailed factual allegations,
it must raise a right to relief above the speculative level.
Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[L]abels and
conclusions or a formulaic recitation of the elements of a cause of
6
Whether Campbell knowingly violated SJM policy in recording
the conversation has no bearing on her potential liability under
the statute.
26
action” are not sufficient to state a claim.
Iqbal, 556 U.S. at
678 (citation and quotation marks omitted).
B.
Merits
A person violates the Illinois eavesdropping statute when she,
without
law
enforcement
justification,
“[k]nowingly
and
intentionally uses an eavesdropping device for the purpose of
hearing or recording all or any part of any conversation ... unless
[s]he does so ... with the consent of all of the parties to such
conversation.” Int’l Profit Assocs., Inc. v. Paisola, 461 F. Supp.
2d 672, 678 (N.D. Ill. 2006) (quoting 720 Ill. Comp. Stat. §
5/14–2(a)).
Further, “when communications with individuals acting
as agents or representatives of a company are taped in violation of
the Illinois eavesdropping statute, claims under the eavesdropping
statute belong to the company.”
Id. at 678 n.7.
Campbell makes
several arguments as to why the Illinois eavesdropping statute
should not apply. Even assuming it does, however, the counterclaim
fails on the merits.
Civil remedies under the eavesdropping statute include: (1) an
injunction prohibiting further eavesdropping, (2) actual damages,
and (3) punitive damages.
720 Ill. Comp. Stat. §§ 5/14–6(a)-(c).
Although SJM seeks actual and punitive damages,7 it has failed to
establish that is entitled to either.
7
For obvious reasons, SJM does not seek to enjoin Campbell
from recording future conversations.
27
SJM has not disclosed any actual damages or the amount it
claims to have been harmed in its responses to discovery, which
closed months ago.
With respect to punitive damages, SJM must
establish that Campbell acted with “malice, violence, oppression or
wanton recklessness” or that “the act complained of partakes of a
criminal or wanton nature.”
By-Prod Corp. v. Armen-Berry Co., 668
F.2d 956, 961–62 (7th Cir. 1982).
The record does not support a
finding that Campbell’s decision to record the telephone conference
met this very high bar.
Campbell feared for her job and recorded
the call to protect herself.
There is no evidence of malice,
violence, oppression, or wanton recklessness. As a result, SJM has
not established that it suffered any actual or punitive damages
that would entitle it to relief under the eavesdropping statute,
and the counterclaim must be dismissed.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1. The motion for summary judgment [ECF No. 64] is granted in
part as set forth above; and
2.
The motion for judgment on the pleadings [ECF No. 71] is
granted.
Dated: November 2, 2018
s/David S. Doty
David S. Doty, Judge
United States District Court
28
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