Sims v. Met Council et al

Filing 60

ORDER granting 47 Motion for Summary Judgment: IT IS HEREBY ORDERED that: Defendants Motion for Summary Judgment (Docket No. 47) is GRANTED; and this matter is DISMISSED with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY.(Written Opinion) Signed by Judge Paul A. Magnuson on 8/22/2019. (JEP)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Stephanie Sims,

Civ. No. 18-484 (PAM/SER)
Plaintiff,

v.

MEMORANDUM AND ORDER

Met Council, and Metro
Transit Authority,
Defendants.
This matter is before the Court on Defendants’ Motion for Summary Judgment. For
the following reasons, the Motion is granted.
BACKGROUND
Plaintiff Stephanie Sims was a bus driver for Defendant Metro Transit from
September 2013 until July 2017. (Sims Dep. (Ellingstad Decl. Ex. 1) (Docket No. 49-1) at
43.) On Wednesday, January 18, 2017, she walked into the drivers’ lounge at one of Metro
Transit’s bus garages. (Id. at 81.) Playing on the television was a Netflix series called
“Luke Cage.” Sims observed nudity on the screen and demanded that the other drivers
stop playing the show. (Id. at 81, 84.) She claims that her co-workers argued with her
briefly before turning off the television. (Id. at 85-87.) She also contends that she left the
lounge and returned, and the show was again playing on the television. (Id. at 90-91.) Her
co-workers turned it off after she again complained. (Id. at 111.) It is undisputed that the
program in question contained two scenes with nudity, each lasting less than a minute.
(Ellingstad Decl. Ex. 2 at 16.)

Sims now contends that when she arrived at work on the day of the incident, she
also overheard a conversation between two other employees, one of whom used the word
“boner.” (Sims Dep. at 70.) She does not dispute that the conversation was not about her
or directed toward her, nor does she dispute that when she complained to a manager, the
employee was immediately counseled about his use of language. (Id. at 73, 74.) She
contends that another employee referred to his “johnson” in her presence that day as well
but admits that the manager present for that alleged conversation immediately told the
employee to stop. (Id. at 76-77.)
Sims reported the TV-show incident to several managers, all of whom told her they
would address the situation. (Id. at 99-101.) They immediately ensured that the television
in the lounge was no longer able to connect to the streaming device and that the streaming
device was ultimately removed from the garage. (Hill Dep. (Ellingstad Aff. Ex. 3) at 21.)
In addition, a manager invited Sims into her office and provided her with Met Council
policies regarding sexual harassment and the Union’s phone number. (Sims Dep. at 101.)
Moreover, the manager of the employee who brought the streaming device counseled him
in a one-on-one session, and the other employees present were spoken to about respectful
workplace policies and the prohibition on retaliation. (Bailly Dep. (Ellingstad Aff. Ex. 7)
at 55.)
Sims contends that a co-worker called her at home that evening and told her that the
drivers in the lounge were angry with her and planned to confront her. (Sims Dep. at 127.)
Sims worked without incident on Thursday, but on Friday two of her co-workers again
reported that other employees had threatened Sims and were mad at her. (Id. at 145-148.)
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She reported the alleged threats to her supervisor, who offered Sims several suggestions to
help her feel safe. (Id. at 158.) Sims rejected all of the suggestions, and eventually
submitted a doctor’s note that she could not have any contact with any Metro Transit
employees.

(Ellingstad Aff. Ex. 14.)

As a result, Metro Transit terminated her

employment. This lawsuit followed.
Sims raised six causes of action against Defendants Metro Transit, the Met Council,
and Amalgamated Transit Union Local No. 1005. In October 2018, the Court granted the
Union’s motion to dismiss and dismissed Sims’s claims against the Union with prejudice.
(Docket No. 29.) Thus, the only two remaining Defendants are Metro Transit and the Met
Council.
Count I of the Complaint claims termination in violation of the MHRA and Title
VII against Metro Transit and the Met Council. Count II claims retaliation, but does not
list the statutory basis for the claim or the Defendants against whom it is brought. Count
III alleges “negligence infliction of emotional distress” against “Defendants and Metro
Transit.” Count IV claims respondeat superior liability against Metro Transit and the Met
Council. Count V claims vicarious liability as to all three Defendants, arguing that
“Defendants” acted within the scope of their employment so their actions should be
imputed to Metro Transit and the Met Council. Count VI claims that Defendants were
negligent in handling her complaint. Plaintiff’s opposition brief does not mention either
her negligence claim or her vicarious liability claim, appearing to concede that Defendants’
Motion should be granted as to these claims.

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DISCUSSION
Summary judgment is proper if there are no disputed issues of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The Court
must view the evidence and inferences that “may be reasonably drawn from the evidence
in the light most favorable to the nonmoving party.” Enter. Bank v. Magna Bank of Mo.,
92 F.3d 743, 747 (8th Cir. 1996). The moving party bears the burden of showing that there
is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party opposing a properly supported
motion for summary judgment may not rest on mere allegations or denials, but must set
forth specific facts in the record showing that there is a genuine issue for trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
A.

Sexual Harassment
Title VII prohibits discrimination “against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).1
Prohibited discrimination can include “requiring people to work in a discriminatorily
hostile or abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). A
workplace is hostile or abusive when it is “permeated with ‘discriminatory intimidation,
ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the

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Sexual harassment and retaliation under Title VII are analyzed the same as those claims
brought under the MHRA. Portner v. CICA SA-BO, Inc., 357 F. Supp. 2d 1172,1177 (D.
Minn. 2005) (Davis, J.).
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victim’s employment and create an abusive working environment.’” Id. (quoting Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)). The “critical issue . . . is whether
members of one sex are exposed to disadvantageous terms or conditions of employment to
which members of the other sex are not exposed.” Id. at 25 (Ginsburg, J., concurring). The
severity of the harassment is judged both objectively and subjectively: “[s]o long as the
environment would reasonably be perceived, and is perceived, as hostile or abusive,” it is
actionable. Id. at 22.
Sims’s workplace-harassment claims fail for multiple reasons under these standards.
First, her exposure to two brief scenes of nudity on a television in the drivers’ lounge cannot
“reasonably be perceived . . . as hostile or abusive.” Id. There is no dispute that Sims
found the scenes offensive and believes that they created a hostile work environment, but
her subjective beliefs are only part of the equation. Considering all of the circumstances
in the light most favorable to Sims, and even taking as true her contentions regarding the
other unrelated comments she allegedly heard that day, she was simply not subject to severe
or pervasive harassment.
And even if the brief incidents at issue here could somehow arise to objectively
serious or pervasive harassment, Sims’s claim fails because there is no indication that she
was subject to something to which male drivers were not exposed. The TV was on for all
drivers, male and female, to see. The brief nude scenes were not directed at Sims because
she was a female. Poor taste does not amount to prohibited sexual harassment.
And finally, as Defendants point out, a Title VII plaintiff must also establish that
her employer failed to take prompt remedial action when informed of the allegedly
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harassing behavior. Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999). Sims
cannot make this showing here. The evidence, in fact, demonstrates the opposite: to a
person, Sims’s managers responded to her complaints, attempted to comfort her, and took
immediate action. Sims contends that Metro Transit was slow to respond to her complaints
that she felt threatened, but there is no dispute that Sims viewed the offensive material on
a Wednesday, she told managers about her co-workers’ alleged threats on a Friday, and
Metro Transit began investigating the following Monday. (Ellingstad Aff. Ex. 2 at 8.)
Defendants’ actions here comport with their duties under Title VII.
B.

Retaliation
To establish retaliation in violation of Title VII or the MHRA, Sims must

demonstrate that she engaged in protected activity and suffered an adverse employment
action as a result. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013)
(noting that Title VII retaliation plaintiff “must establish that his or her protected activity
was a but-for cause of the alleged adverse action by the employer”).
There is no dispute that Sims engaged in protected activity by complaining to her
supervisors about alleged sexual harassment and other conduct. Nor is there a dispute that
Sims ultimately suffered an adverse employment action in the form of her termination from
employment. But a retaliation claim requires more than this. To prevail, Sims must show
that her complaints caused her termination. She has again utterly failed to come forward
with any evidence in this regard.
Rather, the evidence shows that Sims was fired only after her psychologist opined
that Sims could have no contact with any Metro Transit employee and could not return to
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work. (Ellingstad Decl. Ex. 14.) Indeed, Metro Transit initially placed Sims on paid
administrative leave while it attempted to determine how she could return to work and feel
safe doing so. Metro Transit ultimately held Sims’s job open for months. There is no
evidence that Sims’s harassment complaint was the but-for cause of Metro Transit’s
decision. Her retaliation claim fails.
C.

Negligent Infliction of Emotional Distress
In her opposition to the Motion on her negligent-infliction claim, Sims relies on

Kansas law. But the law of other states is not relevant or even particularly persuasive when
evaluating a claim that arises under Minnesota law.
And Minnesota law is clear: a claim for negligent infliction of emotional distress
requires Sims to establish that she “(1) was within a zone of danger of physical impact; (2)
reasonably feared for her own safety; and (3) suffered severe emotional distress with
attendant physical manifestations.” K.A.C. v. Benson, 527 N.W.2d 553, 557 (Minn.1995).
The “zone of danger” means that the plaintiff is “in some actual personal physical danger
caused by defendant’s [conduct].” Id. at 558. Whether Sims was within a zone of danger
is an objective inquiry. Id.
Sims has not established that she was within a zone of danger of physical impact at
any time. The third-party related threats are not attributable to any Defendants’ actions or
lack thereof and in any event cannot form the basis of a claim for negligent infliction of
emotional distress. See id. at 559 (“[A] remote possibility of personal peril is insufficient
to place plaintiff within a zone of danger for purposes of a claim of negligent infliction of
emotional distress.”); see also Ihle v. MCC Behavioral Care, Inc., No. C0-97-170, 1997
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WL 471317, at *1 (Minn. Ct. App. Aug. 19, 1997) (yelling and threats do not satisfy zoneof-danger requirement). And the comments Sims’s fellow employees made to her when
she asked that the TV program be turned off are similarly not sufficient to have put Sims
in any actual personal physical danger—even in the light most favorable to her, the
evidence shows only that her fellow employees argued with her and one made a “chopping”
motion with her hand. Sims has utterly failed to raise a genuine issue of fact as to her
negligent-infliction claim.
CONCLUSION
Sims has failed to raise any genuine issues of material fact on any of her claims.
Accordingly, IT IS HEREBY ORDERED that:
1.

Defendants’ Motion for Summary Judgment (Docket No. 47) is GRANTED;
and

2.

This matter is DISMISSED with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: August 22, 2019

s/ Paul A. Magnuson
PAUL A. MAGNUSON
United States District Court Judge

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