McKey v. U.S. Bank National Association
Filing
127
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Defendant's Motion for Summary Judgment 49 is GRANTED. This action is DISMISSED WITH PREJUDICE. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Judge Nancy E. Brasel on 7/12/2019. (KMW)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
JULIE MCKEY,
Case No. 17‐CV‐5058 (NEB/DTS)
Plaintiff,
v.
ORDER ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
U.S. BANK NAT’L ASSOC.,
Defendant.
Plaintiff Julie McKey brought this action for age discrimination and retaliation
against her former employer, defendant U.S. Bank National Association (“U.S. Bank”).
U.S. Bank moves for summary judgment on both claims. For the reasons that follow, U.S.
Bank’s motion is granted.
BACKGROUND
I.
McKey’s Employment with U.S. Bank
U.S. Bank is a national bank with its offices in Minneapolis, Minnesota. [See ECF
No. 1 “Compl.” ¶ 3.] McKey started working for U.S. Bank in 1975. [ECF No. 77 “Rochel
Decl.” ¶ 4 (“McKey Dep.”) 24:7‐8.]1 In 2006, McKey transferred into the Global Corporate
The Declaration of Brian T. Rochel includes deposition transcripts for Julie McKey,
Yvonne Mehsikomer (“Mehsikomer Dep.”), Keith Frolicher (“Frolicher Dep.”), Alice
Owens (individual “Owens Dep.” and as a 30(b)(6) deponent “Owens Dep. 30(b)(6)”),
Kerri (Kristich) Guse (individual “Guse Dep.” and as a 30(b)(6) deponent “Guse Dep.
30(b)(6)”), Nathan Caswell (“Caswell Dep.”), and Scott Joers (“Joers Dep.”). In citations
throughout this opinion, the Court uses the full deposition transcripts that are attached
to the Rochel Declaration.
1
1
Actions department as a Securities Specialist, the position she held until her termination
in September 2016. (McKey Dep. 26:9‐19, 28:4‐18; 40:4‐8.) McKey’s job duties, which she
was typically expected to complete in a 40‐hour workweek, included managing clients’
financial portfolios, processing trades and transactions, meeting deadlines, and working
with multiple computer systems. (McKey Dep. 34:11‐36:12, 38:8‐10; Mehsikomer Dep.
20:9‐25.) McKey’s team consisted of six to eight members who worked together to process
transactions such as “stock options, dividends, stock splits, [and] different sorts of events
that foreign companies could invest in.” (Mehsikomer Dep. 22:13‐23:15; see also Caswell
Dep. 11:2‐9, 20‐12:10.)
In 2011, McKey began reporting to Yvonne Mehsikomer. (Mehsikomer Dep. 13:6‐
9.) Mehsikomer reported to Senior Trust Technology and Support Services Manager
Keith Frohlicher, who reported to U.S. Bank Operations Manager Alice Owens, who
reported to Senior Vice President of Global Services Scott Joers. (Mehsikomer Dep. 16:22‐
17:19; Rochel Decl. Ex. B.)
II.
McKey’s Performance Reviews
Generally, McKey was a solid employee. (Mehsikomer Dep. 34:11‐25.) McKey’s
performance was generally unremarkable until 2015, and her annual performance
reviews contain both positive comments and constructive feedback. (McKey Dep. 105:6‐
14; Mehsikomer Dep. 174:10‐20; Owens Dep. 12:8‐13:3.)
2
U.S. Bank uses a 1‐out‐of‐5 rating system in its employee performance reviews: 1
is the best (“exceptional”), and 5 is the worst (“not effective”). [See ECF No. 52 “Emmons
Decl.” Exs. 11‐13, 15.] McKey’s 2011 performance review, completed by Mehsikomer,
shows an overall 3‐out‐of‐5 performance rating. It states, “Julie needs to learn how to
work along side [sic] her peers.” (Emmons Decl. Ex. 11 at 2; McKey Dep. 45:15‐49:8.)
McKey’s 2012 performance review again shows an overall 3‐out‐of‐5 performance rating
and notes, “Julie needs to work on managing her time better.” (Emmons Decl. Ex. 12 at
2; McKey Dep. 54:8‐57:22.)2 Her 2014 review contains the same rating, this time noting
that “Julie was having a hard time processing her events within an 8 hour day and was
working a lot of overtime and needing to ask coworkers for help,” and that “Julie needs
to continue to work on processing all her events in an 8‐hour work day, and also without
help.” (Emmons Decl. Ex. 13 at 2; McKey Dep. 80:10‐82:21.) Similarly, McKey’s 2015
performance review shows an overall “solid performance” rating, but Mehsikomer
continued to note the same issues and gave McKey a “needs improvement” rating on the
“Establish Trust” category of her review. (Emmons Decl. Ex. 15 at 4.) McKey’s 2015
performance review also notes that McKey needs “to continue working on staying on top
of her desk and completing tasks assigned to her in an 8‐hour day. She also needs to work
on reporting issues, not assigned to her, to her manager right away rather than do them
herself and get behind on her own desk.” (Id. at 5.)
2
The record does not contain a 2013 review.
3
The 2015 review also states that McKey caused on error on an event “by not
properly researching her events on XSP, or asking her manager for assistance.” (Id. at 3.)
The 2015 review concludes, “Julie had a year of challenges and struggles … Julie needs
to learn to utilize her time more efficiently and ensure her own desk is complete before
helping others. My challenge for Julie is to work on being able to complete her desk in an
8‐hour day.” (Id. at 6.) All in all, McKey’s reviews consistently show that she struggled to
get her work done on time and correctly. (See Emmons Decl. Exs. 11‐13, 15.)
III.
XSP/SWIFT System
During McKey’s employment with U.S. Bank, the bank used the XSP computer
program to make client elections. (McKey Dep. 35:23‐36:7, 49:12‐50:5; Mehsikomer Dep.
25:22‐23.) McKey’s job duties included using XSP. (McKey Dep. 35:23‐36:7, 49:12‐50:5; see
also Mehsikomer Dep. 25:22‐23.) In 2015, U.S. Bank introduced an advancement to XSP
called SWIFT. (Mehsikomer Dep. 24:7‐25:22, 38:18‐39:17; Owens Dep. 45:1‐9.) SWIFT was
new to the entire team. (Mehsikomer Dep. 37:21‐38:4.) Employees attended various
trainings on SWIFT, both in group settings and individually via one‐on‐one training.
(Mehsikomer Dep. 37:21‐38:12; McKey Dep. 65:5‐22.) McKey wanted additional training
beyond what was offered to everyone else in the department, and she wanted someone
to sit with her at her desk every day to help her do her job. (McKey Dep. 70:6‐71:9, 72:12‐
74:9.) U.S. Bank provided additional training to McKey when she requested it.
(Mehsikomer Dep. 73:25‐74:1.)
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IV.
McKey’s Work Performance, Allegations of Discrimination, and the
“Iberdrola Error”
As is evident from the performance reviews, McKey’s “performance started to go
down in the fall of 2015.” (Mehsikomer Dep. 174:19‐20.) Mehsikomer described McKey
as “start[ing] to show that she was losing the ability to process her desk.” (Id. at 174:13‐
20.) McKey continued to make errors when using the SWIFT program. (McKey Dep. 59:6‐
60:20.) In July 2015, Mehsikomer started a “significant event form” to reflect McKey’s
performance issues. (Mehsikomer Dep. 168:3‐169:2; Emmons Decl. Ex. 14.) The significant
event form describes instances of McKey failing to complete her assigned duties or
needing extra time to complete her work. (McKey Dep. 50:6‐51:9, 84:2‐86:20; Mehsikomer
Dep. 44:17‐45:9; Emmons Decl. Exs. 11‐13.) McKey also made mistakes posting client
elections. (Emmons Decl. Ex. 14.) Mehsikomer and her manager, Frohlicher, met with
McKey at various times during the fall of 2015 to address these issues. (Emmons Decl. Ex.
14; Mehsikomer Dep. 44:17‐45:9; Frohlicher Dep. 11:5‐11, 13:20‐23.)
On April 22, 2016, Mehsikomer met with McKey to deliver a 60‐day Action Plan,
also known as a performance improvement plan (“PIP”). (Emmons Decl. Ex. 16.) The
Action Plan detailed McKey’s performance issues and stated that McKey had 60 days to
improve her performance with U.S. Bank. (Id.) Under the Action Plan, U.S. Bank reserved
the right to take additional action with respect to her employment, including termination,
prior to or at any time after the completion of the plan. (Id.) In the meeting with
Mehsikomer, McKey stated that she believed several of the assertions in the Action Plan
5
were inaccurate, and expressed her intent to contact human resources. (Mehsikomer Dep.
56:21‐57:10; McKey Dep. 150:16‐151:6.) After meeting with McKey, Mehsikomer emailed
Senior Human Resources Business Partner Kerri Guse (“Guse”), explaining that McKey
would be contacting her to report concerns. (Rochel Decl. Ex. G.)
McKey was true to her intent, emailing Guse soon after: “I am concerned that my
manager [Mehsikomer] is attempting to have me fired due to my age. I am planning to
retire at 65 years of age. I am 64 now. I would like a chance to discuss this with you please
as soon as possible.” (Emmons Decl. Ex. 17.) Guse called McKey to address her concerns.
(McKey Dep. 186:1‐188:6; Guse Dep. 32:8‐35:23; Emmons Decl. Ex. 18.)
Meanwhile, McKey continued to make errors while on the Action Plan. (McKey
Dep. 195:17‐199:25.) For example, on May 11, 2016, an employee discovered that McKey
had not followed procedure for making a client election. (Emmons Decl. Ex. 14.) On May
19, 2016, another employee notified Mehsikomer that McKey asked her team members
questions several times a day about how to complete her job duties. (Id.; see also Emmons
Decl. Ex. 19.) On May 23, 2016, McKey failed to properly make an election for a customer.
(Emmons Decl. Ex. 20; McKey 195:13‐23.) Around this same time, she also made another
mistake when posting a different client election, and her co‐worker had to correct the
error. (Emmons Decl. Ex. 21; McKey Dep. 196:21‐10.) Despite these errors, McKey was
issued a “completion notice” for the Action Plan on July 8, 2016. (Emmons Decl. Ex. 22.)
It stated: “If consistent performance is not demonstrated, further action, up to and
6
including termination may result without additional warnings.” (Emmons Decl. Ex. 22.)
McKey understood that she could be terminated for further performance issues;
however, Mehsikomer told McKey not to worry about termination. (McKey Dep. 201:1‐
203:25.)
In early August 2016, McKey was responsible for handling a corporate action
notice about a customer asset called “Iberdrola.” (McKey Dep. 205:8‐206:2; 212:17‐15;
Mehsikomer Dep. 101:5‐102:22.) After being alerted by the customer that an error had
been made in the election, McKey immediately reported it to Mehsikomer and they had
a meeting with Frolicher, who told McKey that as the senior employee in the department,
she should not be making such mistakes.3 (McKey Dep. 95:3‐96:12, Frohlicher Dep. 64:10‐
19.) Mehsikomer asked McKey to check if other accounts were affected by the same issue.
(McKey Dep. 213:16‐218:23, 221:7‐225:12; Mehsikomer Dep. 102:13‐105:9; Emmons Decl.
Ex. 14.) Ultimately, the department discovered that the Iberdrola asset election was
processed incorrectly due to an issue with XSP. (McKey Dep. 206:6‐209:11; see also
Emmons Decl. Ex. 27.) But after Mehsikomer directed McKey to look at the same issue in
other accounts, McKey gave Mehsikomer incorrect calculations and failed to produce
information for two other accounts that were affected by the same error. (McKey Dep.
214:25‐216:23; Mehsikomer Dep. 102:13‐105:9; Emmons Decl. Exs. 14, 25.) And
throughout the first half of August, errors continued. For example, on August 15, 2016,
3
The error resulted in a $62,000 loss. (McKey Dep. 208:7‐21, 209:12‐210:9.)
7
Mehsikomer emailed McKey asking her to correct an error she had made processing a
notification. (Emmons Decl. Ex. 23; McKey Dep. 227:5‐228:15.) On August 17, 2016,
McKey made another error posting an event. (Emmons Decl. Exs. 14, 24; McKey Dep.
228:17‐229:5.)
V.
McKey’s Termination
Finally, on August 18, 2016, Mehsikomer recommended terminating McKey to
Frohlicher and Owens. (Emmons Decl. Ex. 25; Mehsikomer Dep. 98:3‐20; Frohlicher Dep.
11:5‐16; Owens Dep. 9:25‐10:15.) Mehsikomer detailed the reasons for her
recommendation, including: the 60‐day Action Plan, failure to perform due diligence
after Iberdrola, and additional errors using XSP. (Emmons Decl. Ex. 25.) Owens
responded that she was informing her manager, Joers, and said she wanted to consult
with Guse as well. (Owens Dep. 17:11‐18:25; Joers Dep. 12:2‐8; Ex. 26.) Upon discovering
that the Iberdrola error was an XSP issue rather than a McKey error, Mehsikomer emailed
Guse on August 30, 2016:
[n]ew information came to light regarding an error we thought [McKey]
created which caused a large loss. Someone from XSP, which is our Corp
Action system, informed us of a more accurate way to execute this process.
Due to this new info, she may have done it the way she was told to. Since
it’s impossible to tell, we cannot hold her accountable for it, however, there
are other errors. I am not sure if they warrant termination, but at this point
I am not clear how to proceed. I hold firm to the fact that Julie cannot keep
up with the demands of her desk so something needs to be done.
(Emmons Decl. Ex. 27.)
8
Previously, on August 19, 2016, Guse emailed Alice Owens, Keith Frohlicher, and
Mehsikomer, suggesting that instead of immediately terminating McKey, U.S. Bank give
her 30 days to find a new role at U.S. Bank or externally. (Emmons Decl. Ex. 27.) On
September 13, 2016, McKey met with Mehsikomer, Guse, and Frohlicher. (McKey Dep.
230:5‐233:24.) They told McKey that due to her additional errors, she had 30 days to
secure a job, and that if she could not find a job within 30 days, she would no longer be
employed at U.S. Bank. (McKey Dep. 230:5‐234:25, 253:3‐254:4.)
VI.
McKey’s Job Search within U.S. Bank
McKey applied for seven positions at U.S. Bank but was not interviewed for any.4
(McKey Dep. 248:13‐249:14; Ex. 32; Guse Dep. 30(b)(6) 11:17‐22.) McKey had one
screening phone call with a U.S. Bank recruiter, but it was not regarding a current open
position. (McKey Dep. 254:10‐255:24.) Ultimately, McKey left U.S. Bank’s employment on
October 13, 2016. (McKey Dep. 253:3‐7; Mehsikomer Dep. 149:5‐17; Ex. 35.)
In September 2017, McKey brought suit against U.S. Bank for age discrimination
and retaliation in violation of the MHRA. On November 8, 2017, U.S. Bank timely
removed the case to this Court. McKey claims that U.S. Bank treated her differently,
terminated her, and refused to hire her into another position due to her age. McKey also
McKey asserts that she applied for nine different positions with U.S. Bank. [See ECF No.
76 (“Pl. Mem. in Opp’n”) at 16 n.4.]
4
9
claims that U.S. Bank retaliated against her by terminating her and refusing to hire her
into another position after she reported age discrimination.
ANALYSIS
I.
Standard of Review
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party 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 litigation under the governing
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Further, a dispute
over a fact is “genuine” only if “the evidence is such that a reasonable jury could . . .
return a verdict for [the non‐movant].” Baucom v. Holiday Co., 428 F.3d 764, 766 (8th Cir.
2005) (citing Anderson, 477 U.S. at 248).
In considering a motion for summary judgment, the court must resolve factual
disputes in favor of the nonmoving party. See Lomar Wholesale Grocery, Inc. v. Dieter’s
Gourmet Foods, Inc., 824 F.2d 582, 585 (8th Cir. 1987). To avoid summary judgment, the
nonmovant must present enough facts “to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Where the
record taken as a whole could not lead a rational trier of fact to find for the non‐moving
10
party, there is no ‘genuine issue for trial,’” and summary judgment must be granted.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). “The mere
existence of a scintilla of evidence in support of the Plaintiff’s position will be
insufficient;” rather, “there must be evidence on which the jury could reasonably find for
the Plaintiff.” Anderson, 477 U.S. at 252. Put another way, the nonmoving party cannot
create a genuine dispute of fact by relying upon conclusory allegations, speculation or
general assertions, but must produce sufficient probative evidence in the record
demonstrating a genuine issue for trial. See id. at 256; Davenport v. Univ. of Ark. Bd. of Trs.,
553 F.3d 1110, 1113 (8th Cir. 2009); Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir.
1995).
II.
McKey’s MHRA claims
The MHRA prohibits an employer from “discharg[ing] an employee” or
“discriminat[ing] against a person with respect to hiring, tenure, compensation, terms,
upgrading, conditions, facilities, or privileges of employment” because of age. Minn. Stat.
§ 363A.08, subd. 2(2) & (3).
A.
Age discrimination: Decision to terminate
Where, as here, the plaintiff does not have direct evidence of discrimination, the
Court applies the McDonnell Douglas burden‐shifting analysis to MHRA claims. Chambers
v. Metropolitan Property & Cas. Ins. Co., 351 F.3d 848, 855 (8th Cir. 2003) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)); see also Friend v. Gopher Co., 771 N.W.2d 33,
11
37–40 (Minn. Ct. App. 2009). Under this well‐established framework, McKey must first
establish a prima facie case of age discrimination. Chambers, 351 F.3d at 855. To do so, she
must meet her burden of production demonstrating that: (1) she was a member of a
protected class; (2) she was qualified for the position; (3) she was discharged; and (4) age
was a factor in the employer’s decision to terminate her. Id.; Grant v. City of Blytheville,
Arkansas, 841 F.3d 767, 773 (8th Cir. 2016). Replacement by a younger person is ordinarily
sufficient circumstantial evidence to demonstrate that age was a factor in termination.
Chambers, 351 F.3d at 855‐56. If McKey succeeds in her prima facie case, the burden of
production shifts to U.S. Bank to articulate a legitimate, nondiscriminatory reason for its
conduct. Id. at 856. And if U.S. Bank offers such a reason, to avoid summary judgment,
McKey must then demonstrate that the proffered reason is pretext for unlawful
discrimination. Id.
1.
Prima facie case
McKey alleges a prima facie case of age discrimination by indirect proof: she was
a member of the protected class; she was qualified to perform her duties as a Securities
Specialist, but fired despite that fact; and she was replaced by employees that were
approximately thirty years younger, leading to an inference of discrimination. U.S. Bank
does not argue with the first and third elements of McKey’s prima facie case—that she is
a member of a protected class and that she was discharged. The second and fourth factors
require the Court’s analysis.
12
As to the second element, U.S. Bank argues that McKey was not qualified for the
position she held. In support of this argument, U.S. Bank proffers the case of Richmond v.
Bd. of Regents of Univ. of Minnesota, 957 F.2d 595, 598 (8th Cir. 1992). In Richmond,
“defendants produced abundant documentation, covering approximately eighteen
months, that [plaintiff’s] performance was unsatisfactory, that she ignored progressive
warnings and discipline, and that her performance did not improve.” Id. While the record
contains abundant documentation of McKey’s performance issues, it also contains proof
that McKey completed her Action Plan. McKey argues that a reasonable factfinder could
find that she was qualified for the Securities Specialist position based upon her years of
service and her performance reviews. While this case presents a factual circumstance
similar to that described in Richmond, when the Court evaluates the evidence in the light
most favorable to McKey, it concludes that McKey met the minimum qualifications for
her job. Correspondingly, then, McKey has met her burden under the second step of
McDonnell Douglas.
McKey argues that she meets the fourth element of her prima facie case because
she was, she asserts, replaced by younger individuals. U.S. Bank disagrees, asserting that
it never hired a permanent replacement for McKey’s position, but that her duties were
disseminated throughout the Global Corporate Actions team. (See Mehsikomer Dep.
160:24‐161:1; Owens 30(b)(6) Dep. 14:14‐15:3.) McKey’s proffered evidence includes that
after she was terminated three individuals (ages 25, 27, and 33) were hired to the team
13
(though not for her position). The evidence in the record indicates that U.S. Bank has not
hired a permanent replacement for McKey, which leads to the conclusion that McKey has
not met the fourth element of her prima facie case. See Nash v. Optomec, Inc., 849 F.3d 780,
784 (8th Cir. 2017) (affirming summary judgment where district court determined that
temporary assignment of departing employee’s workload among team members did not
meet the fourth element of the prima facie case). Without more, McKey has failed to
establish that age was a motivating factor in U.S. Bank’s decision to terminate her
employment, and thus she has failed to establish a prima facie case of age discrimination,
thus requiring summary judgment for U.S. Bank.
2.
Pretext
Even if the Court were to determine that McKey established a prima facie case,
summary judgment would still be appropriate. U.S. Bank has met its burden to provide
a legitimate, nondiscriminatory reason for its termination of McKey—namely, McKey’s
poor performance, as outlined in her Action Plan, and her continued errors after the
Action Plan was completed. Poor performance is of course a legitimate, non‐pretexual
reason for adverse employment action. See, e.g., Henthorn v. Capitol Communications, Inc.,
359 F.3d 1021, 1028–29 (8th Cir. 2004); Ramlet v. E.F. Johnson Co., 464 F. Supp. 2d 854, 862
(D. Minn. 2006), aff’d, 507 F.3d 1149 (8th Cir. 2007).
The next step in the analysis is pretext, which “merges with the ultimate burden
of persuading the court that [the employee] has been the victim of intentional
14
discrimination.” Tex. Depʹt of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). McKey can
demonstrate pretext by showing that U.S. Bank’s explanation for its termination is
unworthy of credence because it is without basis in fact, or by persuading the court that
discrimination is the more likely motivating factor behind her termination. Torgerson v.
City of Rochester, 643 F.3d 1031, 1047 (8th Cir. 2011); see also Aase v. Wapiti Meadows
Community Technologies & Services, 832 N.W.2d 852, 859 (Minn. Ct. App. 2013). “Either
route amounts to showing that a prohibited reason, rather than the employerʹs stated
reason, actually motivated the employerʹs action.” Torgerson, 643 F.3d at 1047. Showing
pretext requires more substantial evidence than the evidence required to make a prima
facie case because evidence of pretext is viewed in light of the employerʹs justification.
Sprenger v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1111 (8th Cir. 2001).
McKey has parsed her arguments into seven. She argues pretext by seeking to
establish that: (1) U.S. Bank’s proffered reason has no basis in fact; (2) U.S. Bank shifted
its explanation for termination; (3) McKey has a long history of good performance and
received a favorable review before being fired; (4) younger, similarly‐situated employees
were treated more favorably; (5) U.S. Bank deviated from its own policies; (6)
Mehsikomer had a preference for younger workers, and (7) McKey’s managers made
ageist remarks. [ECF No. 76 (“Pl. Mem. in Opp’n”) at 21.) Each of these arguments fails
to establish a genuine issue of material fact precluding summary judgment.
15
First, U.S. Bank’s non‐discriminatory explanation for terminating McKey is firmly
rooted in the record. McKey had a long history of well‐documented performance issues,
including making errors on the job both before and after her Action Plan. McKey
admitted to struggling with the XSP/SWIFT technology and took longer to complete tasks
than other employees in her team. McKey argues that one of her coworkers, Nathan
Caswell, believed her general performance was good and was not aware of anything
leading up to her termination that would be an issue. (Caswell Dep. 16:20‐17:7, 15:20‐21.)
But there is nothing in the record suggesting that Caswell would have been party to
management discussions or meetings about McKey’s performance.
Second, McKey argues that U.S. Bank has shifted its explanation for termination.
Indeed, substantial changes over time in the employerʹs proffered reason for its
employment decision support a finding of pretext. Kobrin v. Univ. of Minnesota, 34 F.3d
698, 703 (8th Cir. 1994); see also Briscoe v. Fredʹs Dollar Store, Inc., 24 F.3d 1026, 1028 (8th
Cir. 1994). But McKey’s argument finds no support in the record. U.S. Bank has
maintained a consistent reason for McKey’s termination—her well‐documented poor
performance. (See e.g. Emmons Decl. Ex. 14.)
Third, McKey argues that she has a long history of good performance and received
a favorable review before being fired. Again, the record belies this description. The Court
has discussed McKey’s poor performance leading up to her Action Plan and subsequent
termination at length. McKey fails to show pretext on this basis.
16
Fourth, McKey argues that younger, similarly‐situated employees who made
errors were treated more favorably than her. Comparator evidence may be used to prove
pretext, but the test for determining whether an employee is similarly situated to a
plaintiff is “a rigorous one.” Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 955 (8th Cir.
2012.) McKey must show that she and the employees outside of her protected group were
similarly situated in all relevant respects. Id. at 956. The employees must have “dealt with
the same supervisor, have been subject to the same standards, and engaged in the same
conduct without any mitigating or distinguishing circumstances.” Hervey v. Cnty of
Koochiching, 527 F.3d 711, 720 (8th Cir. 2008) (quoting Clark v. Runyon, 218 F.3d 915, 918
(8th Cir. 2000)). McKey has the burden to demonstrate that employees outside her
protected class were not disciplined as she was for comparable conduct. See e.g. Doucette
v. Morrison Cty., 763 F.3d 978, 983 (8th Cir. 2014).
McKey alleges that a number of employees received comparatively less‐favorable
performance reviews yet were not terminated. The record establishes that these
employees either voluntarily resigned, had dissimilar job duties or positions, or were
terminated as well. [ECF No. 117 “Reply Br.” at 8‐9.] None of these employees is a proper
comparator.
17
McKey also alleges that several employees were given lesser discipline for conduct
that was more significant than hers.5 These employees are also not proper comparators
because their circumstances (including job duties and employment issues) were all
different from McKey’s performance issues. These employees are not proper
comparators, and the discipline they experienced does not show pretext.
Fifth, McKey argues that with her termination, U.S. Bank deviated from its policies
and practices for terminating employees. McKey appears to be arguing that Mehsikomer
should have issued her a written warning or moved her to another team prior to
recommending that she be terminated. (Pl. Mem. in Opp’n at 37.) McKey cites to no policy
requiring progressive discipline, and U.S. Bank employees are at‐will. (See Mehsikomer
164:5‐6.) Additionally, McKey understood that she was an at‐will employee and that her
employment depended on her maintaining certain standards as laid out in her Action
Plan. McKey fails to show pretext on this basis.
Sixth, McKey argues that Mehsikomer generally prefers younger workers because
she hired and promoted younger employees. The record does not show such a preference:
two college recruits were promoted from junior roles as part of their college recruit
program, and Mehsikomer hired another employee, age 57, in the summer of 2016. See
See Rochel Decl. Ex. NN (warning for causing $34,000 loss); LL (warning for multiple
processing errors); Exs. CC‐DD (warning); Ex. GG at USB001206 (warning); Ex. II
(warning); Ex. Z at USB001234 & USB001240 (warning); Ex. JJ at USB001528‐29 (“write
up”); Ex. KK (warning for harassment).
5
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Noreen v. Pharmerica Corp., 118 F. Supp. 3d 1130, 1141 (D. Minn. 2015) (“Without knowing,
for example, whether [employer] passed up older applicants in favor of younger ones—
save for [plaintiff], . . . —It is impossible to draw any inference of age discrimination
simply from the ages of the persons hired.”). McKey fails to show pretext on this basis.
Seventh, McKey alleges that Mehsikomer made ageist comments. Specifically,
McKey asserts that Mehsikomer’s statement that “I want to point out that she has been
here longer than any of us and she is going to people who have been here just over a year.
This goes to show that Julie is in over her head and cannot keep up with the direction
Corp Actions is headed.” (Emmons Decl. Ex. 27.) At best, Mehsikomer’s statement is a
stray comment, not evidence of discrimination. The comment also refers not to age, but
to tenure with the company, and length of tenure, although it may correlate empirically
with age, is not synonymous with age. Erickson v. Farmland Indus., 271 F.3d 718, 725 (8th
Cir. 2001). Thus, the Court cannot find pretext on this basis either.
3.
Conclusion
All in all, even assuming that McKey has presented enough evidence to make out
a prima facie case of age discrimination, she has not demonstrated that U.S. Bankʹs
proffered termination rationale is mere pretext. See e.g., Stuart v. General Motors Corp., 217
F.3d 621, 635–36 (8th Cir. 2000) (finding that proof possibly sufficient to establish a prima
facie case was insufficient to establish pretext). Summary judgment on McKey’s age
discrimination claim is therefore required.
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B.
Age discrimination: Failure‐to‐hire
The elements for McKey’s termination and failure‐to‐hire claims are the same as
her age discrimination claim, the only difference being the nature of the adverse action
(termination versus failure‐to‐hire). See Chambers, 351 F.3d at 856; see also Tusing v. Des
Moines Independent Community School District, 639 F.3d 507, 515 (8th Cir. 2011) (listing
elements of age discrimination based on a failure to hire). With respect to McKey’s
failure‐to‐hire claim, U.S. Bank only argues lack of pretext. It is undisputed that McKey
did not make it to the interview phase for any of the positions to which she applied. (Guse
30(b)(6) Dep. 20:1‐8.)
In attempting to demonstrate pretext, McKey argues that Mehsikomer and Guse
did not assist her in trying to find jobs, informed the recruiters and hiring managers that
she was a poor performer, and caused her applications to be rejected. (Pl. Mem. in Opp’n
at 46‐47.) In support of this argument, McKey cites to three places in the record. First,
Guse’s 30(b)(6) deposition: “well, we were transparent in saying, you know, ‘She wasn’t
meeting expectations of the current, role but here are the strengths that she has.’ So it’s
common practice to provide well‐balanced feedback, I would say, through any transition,
because we want to make sure that it’s ultimately a good fit at the end of it.” (Guse
30(b)(6) Dep. 29:9‐30:7.) Next, Guse’s individual deposition testimony: “That was my
intent, was to try to knock down any barriers, such as being overqualified, appearing –
whether it was true or not, appearing to be overqualified for those roles.” (Guse Dep.
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103:1‐10.)6 Finally, an email exchange between Mehsikomer and Tammy Stockay: “I
know that [McKey] just applied for your open position. Did you get a chance to talk to
Jane about interviewing her?” to which Stockay responded, “I did speak briefly with Jane.
Is there a reason why she is looking to change to a position at a lower grade than she
currently is?” (Rochel Decl. Ex. SS.) Mehsikomer replied, “[McKey] is just keeping her
options open.” (Id.)
None of these interactions demonstrates pretext. None of the managers against
whom McKey alleges discrimination (Mehsikomer, Frohlicher, Owens, and Joers) was
responsible for interviewing or hiring for the seven positions to which she applied. (See
Emmons Decl. Ex. 33 (listing hiring managers); McKey 161:1‐18.) And the record clearly
shows that instead of discriminating against her, both Mehsikomer and Guse tried to help
McKey with her resumé and the application process. (Emmons Decl. Ex. 14; Guse Dep.
6 McKey fails to include Guse’s response to a prior question that clarifies her
answer, above, which was:
I offered my assistance to Julie throughout the 30‐day time frame, in terms
of happy to review your resumé and provide feedback. I’m happy to – if
you want to let me know what reqs you are – jobs you are applying to, if
you let me know what those are, I’m happy to reach out to those recruiters
to ensure that you are minimally considered for those positions. Julie
expressed concern to me that some of the positions she was applying to
were a grade level below her current grade level and that she was nervous
– she would not be looked at because she would – she would be viewed as
over qualified and not even considered.
(Guse Dep. 101:11‐103:10 (external quotations omitted)).
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101:11‐103:10.) McKey has not met her burden of showing pretext on her failure‐to‐hire
discrimination claim, and summary judgment on this claim is therefore required.
C.
Reprisal/Retaliation under the MHRA
McKey’s remaining claim is that U.S. Bank engaged in a course of retaliation and
reprisal against her by terminating her and failing to hire her after she complained about
possible age discrimination. The elements of a prima facie reprisal claim are: (1) McKey
engaged in statutorily protected activity; (2) she was subjected to an adverse employment
action; and (3) a causal connection existed between the two. Bahr v. Capella Univ., 788
N.W.2d 76, 81 (Minn. 2010). The elements of a retaliation claim are the same. See Evans v.
Kansas City, Mo. Sch. Dist., 65 F.3d 98, 100 (8th Cir. 1998).
The parties dispute and address only causation. “The causal connection prong
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.” Freeman
v. Ace Tel. Ass’n, 404 F. Supp. 2d 1127, 1141 (D. Minn. 2005), aff’d sub nom. Freeman v. Ace
Tel. Ass’n., 467 F.3d 695 (8th Cir. 2006) (citing Dietrich v. Canadian Pacific Ltd., 536 N.W.2d
319, 327 (Minn. 1995) (citation omitted) (analyzing reprisal claim under the MHRA)). The
relevant question before the Court is, therefore, is whether the record supports an
inference that by terminating McKey or failing to re‐hire her, U.S. Bank was retaliating
against McKey for raising the issue of age discrimination.
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U.S. Bank argues that there is no evidence that Mehsikomer, Frohlicher, or Owens
even had knowledge of McKey’s age discrimination allegation while she was still
employed with U.S. Bank, which is fatal to McKey’s termination retaliation claim. McKey
responds that Guse had knowledge of McKey’s report, was key to McKey’s termination,
and that a reasonable factfinder could find that Guse told Mehsikomer of McKey’s report.
McKey engages in significant speculation when interpreting the record before the
Court on the issue of causation. As noted by U.S. Bank and established in the record:
“Guse testified she never told Mehsikomer about the report, McKey testified she never
told Mehsikomer about the report, and Mehsikomer testified that she could not recall
when she learned about the report but that it was not while McKey was employed at U.S.
Bank.” (Reply Br. at 13‐14 (citing McKey Dep. 189:4‐15; Mehsikomer Dep. 64:19‐65:8, 69:1‐
10; Guse Dep. 36:2‐8.)) McKey reported age discrimination after being placed on the
Action Plan, and nearly four months before her termination.
Other than McKey’s speculation that Guse was a bad actor who disclosed McKey’s
age discrimination claim to Mehsikomer, McKey is left with temporal proximity to
support her retaliation claim. “The temporal proximity must be very close: a period of
more than two months between protected activity and adverse employment action is
generally too long to support causation without additional evidence.” Naguib v. Trimark
Hotel Corp., No. 15‐CV‐3966 (JNE/SER), 2017 WL 598760, at *7 (D. Minn. Feb. 14, 2017),
aff’d, 903 F.3d 806 (8th Cir. 2018) (internal quotations omitted). Here, four months lapsed
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between McKey’s report and the termination and failure to be re‐hired. Without
additional evidence, this time frame is too long to support causation. See Tyler v. Univ. of
Ark. Bd. of Trs., 628 F.3d 980, 986 (8th Cir. 2011) (“[O]nly in cases where the temporary
proximity is very close can the plaintiff rest on it exclusively.”); Freeman, 404 F. Supp. 2d
at 1142 (holding plaintiff had established temporal proximity but failed to produce
additional evidence). The record is devoid of any evidence linking McKey’s alleged
report of age discrimination with either her termination or the failure to hire. Summary
judgment on McKey’s retaliation claim is therefore required.
CONCLUSION
Based on the foregoing and on all the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1. Defendant’s Motion for Summary Judgment [ECF No. 49] is GRANTED; and
2. This action is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: July 12, 2019
BY THE COURT:
s/Nancy E. Brasel
Nancy E. Brasel
United States District Judge
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