Malark v. RBC Capital Markets, LLC
Filing
273
AMENDED OPINION AND ORDER: Plaintiff Maria Malark's motion for partial summary judgment 121 is GRANTED. Defendant RBC Wealth Management's motion for summary judgment 161 is GRANTED with respect to Plaintiff's entitlement and discr imination claims under the FMLA (Counts I and II), sex-plus discrimination claims under Title VII and the MHRA (Counts IV, VII), familial status discrimination claim under the MHRA (Count VIII), associational disability discrimination claim under the ADA (Count V), and reprisal claim under the MHRA (Count IX). Defendant RBC Wealth Management's motion for summary judgment 161 is DENIED with respect to Plaintiff's sex discrimination claims under Title VII and the MHRA (Counts III and VI). (Written Opinion). Signed by Judge Eric C. Tostrud on 10/14/2020. (RMM)
CASE 0:18-cv-03179-ECT-TNL Doc. 273 Filed 10/14/20 Page 1 of 42
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Maria Malark,
File No. 18-cv-3179 (ECT/TNL)
Plaintiff,
v.
AMENDED OPINION
AND ORDER
RBC Capital Markets, LLC
d/b/a RBC Wealth Management,
Defendant.
________________________________________________________________________
James H. Kaster, Laura Farley, and Michelle L. Kornblit, Nichols Kaster, PLLP,
Minneapolis, MN, for Plaintiff Maria Malark.
Melissa Raphan, Marilyn J. Clark, Andrew T. James, and Trevor C. Brown, Dorsey &
Whitney LLP, Minneapolis, MN, for Defendant RBC Capital Markets, LLC d/b/a RBC
Wealth Management.
Plaintiff Maria Malark alleges that Defendant RBC Wealth Management violated
federal and Minnesota state laws forbidding discrimination on the basis of sex and other
characteristics when, in October 2017, it terminated her employment as RBC’s Director of
Operations for U.S. Wealth Management. RBC has moved for summary judgment, and its
motion will be granted in part. A jury reasonably could determine that RBC discriminated
against Malark on the basis of sex in violation of Title VII and the Minnesota Human Rights
Act (“MHRA”). Malark has failed, however, to identify record evidence from which a jury
might find in her favor with respect to essential elements of her claims under the Family
and Medical Leave Act (“FMLA”), the Americans with Disabilities Act (“ADA”), and for
other forms of discrimination under Title VII and the MHRA.
CASE 0:18-cv-03179-ECT-TNL Doc. 273 Filed 10/14/20 Page 2 of 42
I
A
Malark began working for RBC in 2000, when RBC acquired her then-employer,
Dain Bosworth. Malark Decl. ¶ 2 [ECF No. 190]. Malark received full credit for her tenure
at Dain Bosworth and, in 2005, RBC promoted Malark to Director of Operations for U.S.
Wealth Management. Id. ¶¶ 2–3. In that role, Malark “was responsible for delivering
operations services to RBC’s business lines in accordance with the firm’s strategic
priorities and regulatory policies” and oversaw approximately 350 employees. Id. ¶¶ 4–5.
In 2010, Malark began reporting to Ingrid Versnel, RBC’s Global Head of Wealth
Management Operations and Technology, who was based in Toronto. Versnel Decl. ¶¶ 1–
3 [ECF No. 165]; Second Kornblit Decl., Ex. 1 at 19:1–20, 27:22–23, 45:13–15 (“Versnel
Dep.”) [ECF No. 191-1] and Ex. 3 at 39:8–11 (“Malark Dep.”) [ECF No. 191-2]. Malark
also had a local supervisor—from 2010–2016, her local supervisor was John Taft; from
2016–2017, Kristin Kimmel; and from 2017 until her termination, Brett Thorne. Malark
Dep. at 40:4–15.
According to Versnel, Malark “had a strong performance history” and “generally
performed well against the measurable performance objectives,” all of which was reflected
in her “positive performance reviews.” Versnel Dep. at 24:24; Versnel Decl. ¶ 4; see
Second Kornblit Decl., Exs. 9, 11–16 [ECF Nos. 191-7, 191-9–191-14]. Versnel typically
completed mid-year and year-end performance evaluations of Malark, with the evaluation
year ending in October. See Versnel Dep. at 45:16–19, 80:21–25. The format of the
evaluations allowed for performance ratings in specific categories (including things like
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strategy, leadership, and collaboration), an overall performance rating, and comments. See
Second Kornblit Decl., Exs. 9, 11–16. Throughout the time she was supervised by Versnel,
Malark received only “High Performance” or “Outstanding” ratings, both in individual
categories and overall, which were the third and second highest of five possible ratings.
Id.; see Versnel Dep. at 47:19–48:17.1 During her deposition, Versnel testified that a rating
of high performance was equivalent to “average” or “meets expectations.” Versnel Dep.
at 48:13–25. Malark also received an annual bonus. Id. at 113:8–17. Versnel further
testified that Malark was never given a formal written or verbal warning or put on a formal
performance improvement plan during the time she supervised Malark. Id. at 111:11–
112:7; see Second Kornblit Decl., Ex. 5 at 49:4–22, 54:5–55:5 (“Sorenson Dep.”) [ECF
No. 195]
Even so, Malark and RBC’s human resources department received negative
feedback from Malark’s direct reports, RBC employees, and RBC business partners
concerning her behavior and interactions with them. Versnel Decl. ¶¶ 4–5; First Kornblit
Decl., Ex. 4 at 7–8 [ECF No. 125-2]. As a result, Versnel decided it would be helpful for
Malark to work with an executive coach, Karen Lanson. Versnel Decl. ¶¶ 5–6; Versnel
Dep. at 61:15–17. Three of Versnel’s male direct reports also received executive coaching
at various times. Versnel Dep. at 60:16–61:7. Malark began working with Lanson in 2013,
focusing on a list of “development needs” prepared by a senior human resources employee,
Joe Gasik, as well as on the improvement of her relationship with Versnel. Versnel
1
It is uncertain whether Versnel completed her written mid-year and year-end
assessments of Malark in 2014. See Second Kornblit Decl., Exs. 11, 12; Versnel Dep. at
77:4–81:1–10.
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Decl. ¶ 6–7, Ex. A [ECF No. 165-1]. Lanson provided Versnel, Gasik, and Lisa Sorenson,
the Director of Human Resources for RBC U.S. Wealth Management, with updates on
Malark’s progress. Id. ¶¶ 5, 8; First Clark Decl., Exs. 1, 5 [ECF Nos. 167-1, 167-5]. Malark
showed improvement on her coaching objectives but also continued to receive negative
feedback. See Versnel Decl. ¶ 8; First Clark Decl., Exs. 2–4, 6–9 [ECF Nos. 167-2–1674, 167-6–167-9]; Second Kornblit Decl., Exs. 7 [ECF No. 191-5], 9, 10 [ECF No. 191-8];
Versnel Dep. at 63:3–9, 81:11–19; Sorenson Dep. at 67:13–71:12. Malark continued to
receive coaching from Lanson until the spring of 2015. Versnel Decl. ¶ 8; see First Clark
Decl., Ex. 10 [ECF No. 167-10]; Versnel Dep. at 62:24–63:2.
In May 2015, results from an employee opinion survey showed that Malark made
“significant” gains from 2014 in every measured category. Second Kornblit Decl., Ex. 17
[ECF No. 197]. Versnel testified that the survey is conducted annually and “used to
understand and take a measurement of the sentiment of the employees across the
organization” and that although it “includes some questions about an employee’s manager,
it is not a targeted evaluation of the individual manager.” Versnel Dep. at 91:2–5; Versnel
Suppl. Decl. ¶¶ 6–7 [ECF No. 248]. Malark also received an overall performance rating
of “Outstanding” from Versnel at year-end in 2015. Second Kornblit Decl., Ex. 14.
Despite continuing concerns about Malark, Versnel Decl. ¶ 8, in 2016, Versnel increased
both Malark’s responsibilities and the number of employees under her management,
Malark Decl. ¶ 5; Versnel Dep. at 96:22–97:17. Versnel subsequently gave Malark overall
performance ratings of “High Performance” at mid-year in 2016 and “Outstanding” at yearend in 2016. Second Kornblit Decl., Ex. 15. In her overall comments, Versnel wrote,
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among other things, that “[f]eedback from business partners, functional partners and
colleagues in other business groups on Maria’s contribution is inconsistent with respect to
her partnering and collaboration. Some groups are receiving the benefit of Maria’s
extensive knowledge, expertise and problem solving skills. Other groups find this to be an
area for improvement.”
Id.
Versnel noted that “capacity constraints” could be a
contributing factor. Id. At mid-year in 2017, Versnel gave Malark an overall rating of
“High Performance” but did not complete the rest of the evaluation. Id., Ex. 16; Versnel
Dep. at 140:5–25. The results of an employee opinion survey conducted in spring 2017
showed year-over-year improvement by Malark in a majority of the measured categories.
Second Kornblit Decl., Exs. 22, 23 [ECF No. 199, 201]. In 2016 and 2017, Malark ranked
in the “second cohort,” or quartile, on RBC’s ranking of manager effectiveness, as
compared to other managers, which was based on information from employee opinion
surveys. Id., Exs. 18, 19, 24 [ECF Nos. 191-15–191-16, 191-19]; Versnel Dep. at 97:24–
98:10. A “9 Box Assessment,” viewed by Malark in April 2017, showed her positioning
within RBC as it related to her “performance and potential” as an “Expert,” someone with
“high performance and low potential.” Malark Decl. ¶ 9; see Second Kornblit Decl., Ex.
21 [ECF No. 191-18]. The “9 Box Assessment” is a tool RBC uses to provide feedback to
an individual “related to their performance and potential in their current role” as part of
“talent succession planning.” Sorenson Dep. at 86:7–89:16. Versnel did not provide any
input on Malark’s 2017 “9 Box” rating. Versnel Suppl. Decl. ¶ 9.
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B
Malark was one of four female directors who reported directly to Versnel. Malark
Decl. ¶ 8. Around 2015, one of those directors, Lisa Norton, transferred to a different
department, and another, Catherine Patterson, retired. Versnel Dep. at 57:18–22. Versnel
testified in her deposition that, between January 2014 and the time of her deposition, two
of her male direct reports left RBC involuntarily, one transferred to another role and
eventually left RBC, and two others were reassigned to report to other managers. Id. at
52:3– 56:19.
During her deposition, Malark recalled that Norton shared concerns with her about
“being successful as a woman working for [Versnel]” and that Patterson had told her that
Versnel scrutinized Patterson’s deliverables. Malark Dep. at 22:5–26:20. Malark also
testified that two male directors shared concerns with her about reduction of their roles and
career advancement under Versnel. Id. Malark testified that she brought concerns to
Sorenson on numerous occasions between 2015 and 2017 that Versnel was treating female
directors poorly and showed a preference for male directors. Id. at 14:4–18:10; 26:21–
29:1, 30:6–16, 31:9–11. For example, Malark testified it was her experience that Versnel
assigned more stringent deliverables and tighter deadlines to female directors than male
directors. See id. at 15:17–14, 22:5–7, 114:7–10. During her deposition, Sorenson did not
recall Malark raising concerns “about working with [Versnel] as a woman at RBC” or that
Malark’s concerns about other employees or her own success working for Versnel were
“gender related.” Sorenson Dep. at 42:8–45:20.
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According to Malark, by mid-2017, she was the only female director reporting to
Versnel. Malark Decl. ¶ 8. However, Versnel provided conflicting deposition testimony
as to whether another female director, Irina Brinza, was reassigned to report to a male peer
in June or July of 2017 or at the end of 2017. Versnel Dep. at 52:15–23, 56:20–57:3, 57:8–
58:20, 121:1–10. During her deposition, Malark testified that she “felt as if [Versnel] was
slowly going through the ranks of her women that worked for her and somehow getting
them to move on or move out.” Malark Dep. at 72:20–22. Malark “felt like that was
starting to happen to [her]” as well. Id. at 72:13–73:14, 297:25–298:1. In an August 4,
2017 email, Malark complained to Thorne about Versnel’s micro-managing and that
Versnel’s actions were “making the work environment unacceptable.” Second Kornblit
Decl., Ex. 32 [ECF No. 207]. Thorne forwarded this email to Sorenson, adding that he
wanted Sorenson “to see it in light of our discussions.” See Sorenson Dep. at 126:18–
127:20. Malark also expressed concerns to Sorenson that Versnel was increasingly
scrutinizing her work and putting “new demands” on her. Malark Dep. at 83:11–16, 85:5–
13; see Sorenson Dep. at 99:15–100:21. As of the end of 2017, there were no women
reporting directly to Versnel, though one female director began reporting to Versnel at the
end of 2018. Versnel Dep. at 58:18–20, 59:6–60:15.
C
During the spring of 2017, with direction from the Boston Consulting Group, RBC
undertook a “Cultural Transformation” initiative that involved the adoption of a new
“Leadership Model.” Versnel Decl. ¶ 9. Versnel testified in her deposition that the intent
of the initiative was “to look at RBC as an organization and determine whether or not the
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way that we operated within the company and used the desired leadership behaviors was
sufficient to make us successful on a long-term basis in the future.” Versnel Dep. at
115:17–21. Under the model, RBC employees in leadership positions would be assessed
on “how they approached and interacted with their teams and business partners in
completing their work,” not simply on their performance results. Versnel Decl. ¶ 9; see
First Clark Decl., Exs. 17–19 [ECF Nos. 167-17, 168, 169]. The original timeline for the
initiative provided that any changes in employment status as a result of the transformation
would be communicated to employees on June 14 and 15, 2017. First Clark Decl., Ex. 17
[ECF No. 167-17 at 12].
In May 2017, Versnel advised Malark that U.S. Wealth Management Operations
would be part of the initiative. Versnel Decl. ¶ 10. According to Sorenson, Malark
“struggled” with organizational change, but she could not recall any specific concerns
Malark had with the cultural transformation. Sorenson Dep. at 92:20–98:25. Malark and
others were asked to prepare and present organizational restructuring proposals. See First
Clark Decl., Ex. 23 [ECF No. 167-23]; Malark Dep. at 119:19–120:9 (stating she was
“cautious” about “designing and presenting an organizational structure”). On June 1, 2017,
Versnel emailed Malark to thank her for her efforts and wrote that Malark had “made a
great start” and was “definitely living up to the leadership model.” Second Kornblit Decl.,
Ex. 29 [ECF No. 191-22]. In her deposition, Versnel testified that her email was an
acknowledgement that Malark “finally delivered” her work “[a]fter a long struggle to get
Maria to participate and deliver against the expectations of the cultural transformation
program.” Versnel Dep. at 134:13–135:15. Katherine Kliszcz, an HR representative in
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RBC’s Toronto office, also emailed Malark that Versnel was “very pleased” and “very
impressed” with Malark’s work and “encouraged by [Malark’s] long term view.” Id., Ex.
28 [ECF No. 191-21].
D
In early 2017, Malark’s then-teenage daughter began experiencing serious health
issues. Malark Dep. at 159:19–20 [ECF No. 194]. In April and May, Malark began to
miss work to care for her daughter. Id. at 148:10–13. On June 5, Malark emailed Versnel
and Thorne that she would need to take some time away from the office “over the next
couple of weeks” because her daughter had been admitted to a hospital as an inpatient.
First Kornblit Decl., Ex. 5 [ECF No. 125-3]. Versnel responded that Malark should “take
the time to take [care] of [her] family and [he]rself.” Id. Thorne also told Malark to “[b]e
there for [her] daughter” and offered to assist her if needed. Second Clark Decl., Ex. 3
[ECF No. 183]. Versnel later testified that she understood it to be a “serious situation” and
that Malark “anticipated the need to have time off” but that “[d]etails were not provided.”
Versnel Dep. at 35:25–36:4, 138:25–139:2, 179:11–15.
In late summer 2017, Malark notified Sorenson that she was having personal issues
with her daughter and needing to be in and out of the office. Sorenson Dep. at 101:5–
102:8. On August 14, Malark emailed Thorne to let him know she would be “on and offline” the next day as her daughter “took a major step back.” First Kornblit Decl., Ex. 7
[ECF No. 132]. Thorne responded, “No worries. Good luck with your daughter. I hope
things improve.” Id. On September 6, Malark emailed Versnel to let her know that she
was at the hospital with her daughter and would be out for the morning. Id., Ex. 8 [ECF
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No. 134]. Versnel responded, “No worries about meetings etc. Take care of your family
and yourself[,]” and offered support. Id. Versnel also forwarded Malark’s email to
Sorenson, writing that she was “concerned for [Malark]” as Malark had not “shared
anything further” and “the health issues with her daughter are continuing.” Id., Ex. 9 [ECF
No. 136]. Sorenson and Versnel discussed Malark’s situation further, and Sorenson
informed Versnel that “from a U.S. law perspective that we have an obligation to provide
her notice through our FMLA group.” Sorenson Dep. at 102:18–104:20. In her personal
notes dated September 7, Versnel wrote, “MM – there is a requirement to notify FMLA.”
Versnel Decl., Ex. D [ECF No. 165-4 at 12].
On September 15, Sorenson emailed Jessica Hawley, RBC’s Manager of
Accommodations and Leaves of Absence, and requested that she forward FMLA
paperwork to Malark. First Kornblit Decl., Ex. 10 [ECF No. 138]. Three days later,
Hawley emailed Malark to discuss whether she might need a leave of absence. Id., Ex. 12
[ECF No. 142]. Malark then called Hawley to discuss her daughter’s situation and FMLA
leave. Second Kornblit Decl. Ex. 36 at 49:7–51:16 (“Hawley Dep.”) [ECF No. 191-25];
see First Kornblit Decl., Ex. 13 [ECF No. 144]. Hawley explained, among other things,
that “in order to be counted, so to speak, as an FMLA day,” Malark would need to be “a
hundred percent out of the office” and reportedly stated, “And, Maria, when does that ever
happen? When has that ever happened?” Malark Dep. at 70:13–71:17. During the call,
Malark expressed that she was “[c]oncerned about potential retaliation from [Versnel]” if
she were to take time off. Hawley Dep. at 71:6–13; Malark Decl. ¶ 13.
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After the call, Hawley sent Malark a form email with additional information about
FMLA. Hawley began the email by stating, “On September 18, 2017, I was notified of
your request for Intermittent Family and Medical Leave Act (FMLA).” First Kornblit
Decl., Ex. 14 [ECF No. 146]. Several documents were attached to the email, including a
Notice of Eligibility, which stated that Malark was eligible for FMLA leave for the leave
year of 9/18/17 to 9/17/18, a Certification of Health Care Provider form to be completed
by her daughter’s physician and returned within 15 calendar days of Malark’s first day
missed, and an Intermittent Leave Guide. See id., Exs. 15–18 [ECF Nos. 148, 150, 152,
and 154]. Hawley also emailed Versnel to notify her that Malark had “requested an
intermittent [FMLA] leave of absence.” Id., Ex. 19 [ECF No. 156]. However, Malark
never submitted any FMLA paperwork. Malark Dep. at 68:14–16. On October 6, Hawley
emailed Josette Kauffeld, an HR manager, to follow up about Malark’s need for FMLA
leave. Hawley Dep. at 17:1–18:10. Kauffeld informed Hawley that she didn’t need to
follow up with Malark because Malark was going to be terminated. See id. at 19:13–16;
First Kornblit Decl., Ex. 13.
E
The timing of the decision to terminate Malark’s employment with RBC is
somewhat unclear. During her deposition, Versnel first testified that she made the decision
to remove Malark from her position “by late May of 2017” after assessing “whether or not
[Malark] represented [the] skills and capabilities” emphasized in RBC’s cultural
transformation and that she discussed the decision with her supervisor, Doug Guzman, at
that time. Versnel Dep. at 20:20–21:2, 21:17–22:9; 22:23–23:9, 25:22–26:5; 28:1–3; see
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Versnel Decl. ¶¶ 12–13; Guzman Decl. ¶ 4–5 [ECF No. 246]. Versnel also testified that
she told Thorne of her decision at that time, but Thorne could not recall specifically when
he became aware of Versnel’s intention to remove Malark from her role. Versnel Dep. at
114:4–20; Thorne Decl. ¶ 7 [ECF No. 164]; First Clark Decl., Ex. 26 at 19:16–22:16
(“Thorne Dep.”) [ECF No. 173]. Versnel further testified that, in her assessment, Malark
had “[d]ifficult relationships with colleagues, peers, [and] staff members, didn’t
demonstrate strategic thinking about potential for improvement in the environment for the
future, demonstrated reactive planning as opposed to proactive strategic formulation, [and]
demonstrated resistance to change.” Versnel Dep. at 43:2–7. Versnel’s personal notes
dated May 5, 2017, refer to an “MM succession plan,” but Versnel testified that there was
not, to her knowledge, any documentation of her assessment of Malark or her decision.
Versnel Decl., Ex. B [ECF No. 165-2 at 2]; Versnel Dep. at 21:3–9, 23:10–20; 28:4–7.
Versnel testified that “[s]uccession planning is a continuous process” and that “[g]enerally
the responsibility of the manager is to have succession plans in place for key positions
within the team,” and agreed that “the idea of having a succession plan in place does not
mean that the person’s performance is somehow wanton.” Versnel Dep. at 74:6–11, 74:17–
20, 126:14–21; see Sorenson Dep. at 82:9–10 (“Succession planning was a general part of
talent at RBC.”). Versnel’s personal notes from May 19 indicate that she planned to meet
with Malark to “provide honest feedback,” “acknowledge [her] contribution and effort,”
and tell Malark that she “need[ed] to examine future capabilities for success and indicators
are gaps may be too big to address in time needed.” Versnel Decl., Ex. B. Versnel’s
personal notes from June 2 refer to “Brett [Thorne] and Lisa [Sorenson] re U.S. operating
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replacement.” Id. However, Versnel testified that there was “no specific document that
[she] recall[ed]” to “suggest that a decision to terminate [Malark] was made before June
5th,” the date Malark first informed Versnel and Thorne of her daughter’s health issues.
Versnel Dep. at 36:10–13.
As of May 2017, “it was a possibility” that Malark could be placed in an alternate
role within RBC. Id. at 26:6–8. Versnel testified that, at some point, she “discuss[ed] the
possibility of exploring other opportunities” with RBC’s human resources personnel,
specifically Sorenson. Id. at 26:9–14, 30:22–31:5, 33:19–35:10. According to Versnel,
Sorenson reported “likely in June or July” that human resources had not identified any
alternate positions that would be appropriate for Malark. Id. at 49:25–50:8, 51:10–19;
Versnel Decl. ¶ 15. But Sorenson testified in her deposition that, to her knowledge, Malark
was not considered for any other positions at RBC and she did not recall anyone asking her
to look into alternative positions. Sorenson Dep. at 37:11–38:15. Sorenson did recall,
however, that “the conversation was that there wasn’t a senior enough role to put [Malark]
into.” Sorenson Dep. at 116:15–118:10. Thorne also recalled a conversation about the
possibility of Malark moving to a new role and that his position was that it would be “too
disruptive.” Thorne Dep. at 19:16–21:8. Versnel scheduled several meetings in July and
August concerning a “development plan” for Malark and testified at her deposition that a
development plan would indicate Malark was staying with RBC. See Second Kornblit
Decl., Exs. 53–55 [ECF Nos. 191-36–38]; Versnel Dep. at 146:13–18. However, Versnel
also testified that she may have used the descriptor of a “development plan” in order to
“protect the privacy and the confidentiality of the subject matter” rather than referring to
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an “exit plan or succession plan.” Versnel Dep. at 145:19–146:8. Versnel provided
conflicting testimony as to when she decided to terminate Malark’s employment with RBC,
stating at various points that she made the decision in June, July, or August of 2017. Id. at
51:10–19, 149:4–23; Versnel Decl. ¶ 15.
During July and August of 2017, Versnel consulted Thorne and two senior
executives, Michael Armstrong and Tom Sagissor, about Malark, each of whom supported
the decision to terminate her employment. Versnel Decl. ¶ 18, Ex. D; Thorne Decl. ¶¶ 6–
7. Versnel’s personal notes dated August 9 include the entry “Maria M. decision” with no
further explanation. Versnel Decl., Ex. D. Also during that time, human resources
employees prepared a list of candidates to take over Malark’s position; interviews were
conducted, and Versnel ultimately selected Greg Schwab, RBC’s Managing Director of
Global Technology Infrastructure. Id. ¶ 20, Ex. D; First Clark Decl., Ex. 13 [ECF No. 16713]; Second Kornblit Decl., Ex. 57 [ECF No. 191-40]; Versnel Dep. at 165:4–6. According
to Sorenson, Schwab had been suggested as a replacement by both Armstrong and Sagissor.
Sorenson Dep. at 112:10–17. Armstrong reportedly thought Schwab “would be a great
candidate for the operations role given his late-night career conversations” and that “he
was a religious man” and Sagissor and Schwab “had a personal relationship.” Id. at 113:6–
114:3. Schwab “did not have an extensive operations background,” but Versnel selected
him “based on his strong leadership history with RBC.” Versnel Decl. ¶ 20; see Versnel
Dep. at 41:11–16; Second Kornblit Decl., Ex. 48 [ECF No. 224] (email from Schwab
stating “[w]hile I don’t know anything about Ops(lol) I know how to engage team
members.”); see generally Second Kornblit Decl., Ex. 45 (“Schwab Dep.”) [ECF No. 19114
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31]. Schwab is also a father, but the record does not reflect whether anyone other than
Malark was aware of this fact. See Malark Decl. ¶ 16.
“[S]ometime prior to September of 2017,” before offering the position to Schwab,
Versnel, Armstrong, and Sagissor spoke with Sorenson. Sorenson Dep. at 27:17–37:9,
206–07; see id. at 144–48; Versnel Decl. ¶ 17. Sorenson supported the decision to
terminate Malark but raised potential risks: that given Malark’s “performance history . . .
it was a risk to terminate her and hire a man that was over 40 into that role,” that “Schwab
did not have operations experience at RBC,” and that the exit of another senior female
employee might not reflect well on RBC. Id. at 29:8–11, 33:1–2, 145:10–15; Versnel Dep.
at 155:18–24; see Second Kornblit Decl., Ex. 60 ¶ 6 [ECF No. 230]. In her deposition,
Sorenson testified that she noted Malark’s “performance in the written documentation
overall was good” and that “some behavioral components of her performance . . . were not
included in the performance reviews.” Sorenson Dep. at 31:8–9, 32:5–9. According to
Versnel, the concern about senior female employees leaving “was raised around the U.S.
wealth management business under Michael Armstrong,” not in the context of her group.
Versnel Dep. at 156:4–9; see Sorenson Dep. at 145:16–146:9 (testifying the female leaders
at issue were supervised by Armstrong and Sagissor). Sorenson testified that female senior
leaders had previously left RBC because they “were treated differently” and “didn’t look
the same as the candidates that senior executives wanted to put in the positions,” but that
she “did not believe that was the case with [Malark] . . . because [she] understood the
performance issues that were in place[.]” Sorenson Dep. at 147:16– 148:12.
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Though Versnel testified it was her decision to terminate Malark, it was Sorenson’s
understanding, despite not being involved in the “ultimate conversation,” that “it was a
combination of [Versnel] with Michael Armstrong and Tom Sagissor that made the
decision.”
Id. at 27:7–13, 35:2–17, 119:17–121:18.
Human resources created a
communications plan for Malark’s termination on approximately September 12, 2017, and
a revised plan soon after. Second Kornblit Decl., Exs. 59, 61 [ECF Nos. 228, 232].
According to the revised plan, a “consensus” was reached regarding “the decision to exit
[Malark] and move forward with Greg Schwab” on September 25, 2017.
Id., Ex. 61.
Schwab accepted the position on September 29. Id.
The initial plan provided that Malark would be notified of her termination on
October 17, but a revised timeline provided for earlier notification. Id., Exs. 59, 61. On
October 5, 2017, Versnel flew from Toronto to Minneapolis for the purpose of terminating
Malark’s employment. Versnel Dep. at 162:8–14. Malark was out of the office that day
because her daughter had been taken by ambulance to the hospital. First Kornblit Decl.,
Ex. 20 [ECF No. 158]. At approximately 11:30 a.m., Malark emailed Thorne to let him
know that she would not be able to attend a scheduled meeting because she was “working
on a serious home issue.” Second Kornblit Decl., Ex. 42 [ECF No. 191-29]. An hour later,
Versnel emailed Malark, requesting that she call her. First Kornblit Decl., Ex. 20. When
Malark called Versnel to explain the situation, Versnel told Malark that she and Thorne
needed to meet with Malark in person as soon as possible and requested that Malark call
back within the hour. See Second Kornblit Decl., Exs. 43, 44 [ECF Nos. 191-30, 220]. At
approximately 2:20 p.m., Malark emailed Versnel that she was available for a call. First
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Kornblit Decl., Ex. 20. Versnel, along with Sorenson and Thorne, then called Malark and
terminated her employment. Malark inquired as to the reason for her termination and
Versnel responded that Malark’s “skills and capabilities were not sufficient to manage the
group going forward with respect to leadership model behaviors, capacity to strategically
design a future for the group, [and] to manage change.” Versnel Dep. at 166:8–167:3;
Malark Dep. at 300:19–25. Versnel denied that the termination was related to Malark’s
need to care for her daughter. Versnel Dep. at 167:9–12.
In preparation for notifying RBC Wealth Operations managers and staff of Malark’s
termination, a “communications plan” was developed. One of the anticipated questions
addressed by the plan was, “How will [Schwab] be able to address Operations issues given
that he does not come from an Operations background?” Second Kornblit Decl., Ex. 47
[ECF No. 222]. On October 6, RBC issued a written announcement that Malark would be
leaving RBC and that Schwab would be replacing her. First Kornblit Decl., Ex. 2 [ECF
No. 126]. The announcement stated that Malark’s “down-to-earth style made her an
authentic leader” and that she had been “a key contributor to the success of [RBC].” Id.
Malark continued to work until October 31 to assist in the management transition. Id.; see
Second Kornblit Decl., Ex. 49 [ECF No. 191-33]. Malark was the only person terminated
from Versnel’s direct reporting group as part of RBC’s cultural transformation. Versnel
Dep. at 178:14–20.
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On November 14, 2018, Malark commenced this lawsuit. In her complaint,2 Malark
alleges that RBC terminated her employment because she sought and attempted to exercise
family medical leave to care for her daughter’s serious illness and associated symptoms.
Compl. ¶¶ 34–55, 61–72 [ECF No. 1]. Malark also alleges that RBC “maintained a pattern
and practice of discriminating against women” and unlawfully discriminated against her as
both a woman and a mother. Id. ¶¶ 73–85, 93–109. She further alleges that RBC “denied
equal benefits and opportunity” to her and retaliated against her based on her daughter’s
disability. Id. ¶¶ 86–92, 110–14.
II
A
Malark asserts both an “entitlement claim” and a “discrimination claim” against
RBC under § 2615(a) of the FMLA. Pl. Mem. in Opp’n at 43 [ECF No. 188]. Section
2615(a) reads:
(a) Interference with rights
(1) Exercise of rights
It shall be unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to
exercise, any right provided under this subchapter.
(2) Discrimination
It shall be unlawful for any employer to discharge or in
any other manner discriminate against any individual
2
Malark asserts nine claims: (I) Interference with Protected Leave in violation of the
FMLA; (II) Retaliation in violation of the FMLA; (III) Sex Discrimination in violation of
Title VII of the Civil Rights Act; (IV) Sex-Plus Discrimination in violation of Title VII of
the Civil Rights Act; (V) Discrimination in violation of the ADA; (VI) Sex Discrimination
in violation of the MHRA; (VII) Sex-Plus Discrimination in violation of the MHRA; (VIII)
Familial Status Discrimination in violation of the MHRA; and (IX) Reprisal in violation of
the MHRA. Compl. ¶¶ 61–114.
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for opposing any practice made unlawful by this
subchapter.
29 U.S.C. § 2615(a). Our Eighth Circuit Court of Appeals “has recognized three types of
claims arising under these two subsections. The first type, arising under § 2615(a)(1),
occurs where an employer refuses to authorize leave under the FMLA or takes other action
to avoid responsibilities under the Act.” Pulczinski v. Trinity Structural Towers, Inc., 691
F.3d 996, 1005 (8th Cir. 2012). “An employee proceeding on this theory need not show
that an employer acted with discriminatory intent.” Id. Though the Eighth Circuit
previously has described this type of claim as one for “interference” with FMLA rights,
e.g., Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006), it more recently
declared that “what we formerly described as ‘interference’ claims henceforth shall be
called ‘entitlement’ claims.” Bosley v. Cargill Meat Solutions Corp., 705 F.3d 777, 780
(8th Cir. 2013) (citing Pulczinski, 691 F.3d at 1005). The second type of claim is one for
“retaliation.”
Pulczinski, 691 F.3d at 1005–06.
A retaliation claim arises under
§ 2615(a)(2) and occurs when an employee opposes any practice made unlawful under the
FMLA. Id. The third type of claim is one for “discrimination.” Id. at 1006. A
discrimination claim “arises when an employer takes adverse action against an employee
because the employee exercises rights to which he is entitled under the FMLA.” Id.; see
also Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149, 1157–58 n.5
(8th Cir. 2016) (noting “unresolved difference of opinion” in the Eighth Circuit as to
whether a discrimination claim arises under § 2615(a)(1) or (a)(2)). “In this scenario, the
employer does not prevent the employee from receiving FMLA benefits. Rather, it is
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alleged that after the employee exercised his statutory rights, the employer discriminated
against him in the terms and conditions of employment.” Pulczinski, 691 F.3d at 1006.
“An employee making this type of claim must prove that the employer was motivated by
the employee’s exercise of rights under the FMLA.” Id.
1
An employee who brings an entitlement claim under the FMLA “claims the denial
of a benefit to which he [or she] is entitled under statute.” Bosley, 705 F.3d at 780 (quoting
Pulczinski, 691 F.3d at 1005). An employee must show not only that she is eligible for
FMLA coverage, but also that she “gave [her] employer adequate and timely notice of [her]
need for leave.” Chappell v. Bilco Co., 675 F.3d 1110, 1116 (8th Cir. 2012) (quoting
Rynders v. Williams, 650 F.3d 1188, 1196 (8th Cir. 2011)). Malark seeks partial summary
judgment on the notice element; she argues that a reasonable juror could find only that she
gave RBC notice of her need for FMLA leave. Pl. Mem. in Supp. at 16–19, 21 [ECF No.
123]; Pl. Mem. in Opp’n at 43. RBC does not dispute that Malark was eligible for FMLA
coverage; RBC argues that fact disputes preclude the entry of summary judgment in
Malark’s favor with respect to the notice element and, regardless, that no reasonable juror
could find that RBC denied Malark any benefit to which she was entitled under the FMLA.
Def. Mem. in Supp. at 27–28 [ECF No. 162].
Start with the notice question. FMLA regulations regarding notice require an
employee to “provide at least verbal notice sufficient to make the employer aware that the
employee needs FMLA-qualifying leave, and the anticipated timing and duration of the
leave.” 29 C.F.R. § 825.302(c) (describing notice requirements for foreseeable FMLA
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leave); see also id. § 825.303(b) (“An employee shall provide sufficient information for an
employer to reasonably determine whether the FMLA may apply to the leave request.”)
(describing notice requirement for unforeseeable FMLA leave). “Depending on the
situation, such information may include . . . whether the employee or the employee’s family
member is under the continuing care of a health care provider . . . [or] if the leave is for a
family member, that the condition renders the family member unable to perform daily
activities[.]” Id. §§ 825.302(c), 825.303(b). The regulations also provide that “[w]hen an
employee seeks leave for the first time for a FMLA-qualifying reason, the employee need
not expressly assert rights under the FMLA or even mention the FMLA.” Id. “An
employer may require an employee to comply with the employer’s usual and customary
notice and procedural requirements for requesting leave, absent unusual circumstances.”
29 C.F.R. §§ 825.302(d), 825.303(c).
Eighth Circuit cases articulate essentially the same rules as these regulations. To
satisfy the notice requirement, “an employee must provide [her] employer with enough
information to show that [she] may need FMLA leave.” Woods v. DaimlerChrysler Corp.,
409 F.3d 984, 990 (8th Cir. 2005); see also Murphy v. FedEx Nat’l LTL, Inc., 618 F.3d
893, 900 (8th Cir. 2010) (“Before an employee can claim FMLA protection, . . . the
employee must put the statute in play[.] (citing Scobey v. Nucor Steel-Arkansas, 580 F.3d
781, 787 (8th Cir. 2009))). Employees “have an affirmative duty to indicate both the need
and the reason for the leave, and must let employers know when they anticipate returning
to their position[s].” Woods, 409 F.3d at 990–91 (quotation omitted); see also Bosley, 705
F.3d at 780–81 (categorizing this as a “rigorous notice standard”). “An employee need not
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invoke the FMLA by name in order to put an employer on notice that the Act may have
relevance to the employee’s absence from work.” Thorson v. Gemini, Inc., 205 F.3d 370,
381 (8th Cir. 2000). “The adequacy of an employee’s notice requires consideration of the
totality of the circumstances, e.g., Scobey, 580 F.3d at 787, and is typically a jury question,
Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir. 2008).” Murphy, 618 F.3d at 903.
However, non-specific information that does not indicate a need for leave necessitated by
a serious health condition of the employee or employee’s family member is insufficient to
provide notice. See id. at 903 (citing cases in which summary judgment was granted to
employer when employee simply called in sick); Rask v. Fresenius Med. Care N. Am., 509
F.3d 466, 472–73 (8th Cir. 2007) (holding employee’s statement to employer that she had
been diagnosed with depression, absent any additional details, was insufficient to constitute
notice as a matter of law because not all “variations” of depression would qualify as
serious); Woods, 409 F.3d at 992–93 (concluding doctor’s notes stating employee should
not work without a diagnosis or additional detail did not give sufficient notice); cf. Wages
v. Stuart Mgmt. Corp., 798 F.3d 675, 680 (8th Cir. 2015) (affirming determination that
doctor’s note referencing the need and reason for leave was adequate notice as a matter of
law); Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 1000 (8th Cir. 2011) (concluding
employer was on notice of need for FMLA leave based on inquiries made by both pregnant
employee and her supervisor about employee’s FMLA rights); Phillips, 547 F.3d at 910–
11 (finding reasonable jury could conclude employee provided adequate notice in light of
evidence that the employee informed her employer she was attending a doctor’s
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appointment related to a prior accident that could result in a need for additional time off
and that employer printed FMLA paperwork for employee to complete).
As a matter of law, Malark gave RBC enough information to meet the FMLA’s
notice requirement. In her June 5, 2017 email to Versnel and Thorne, Malark explained
that her daughter had been admitted to a hospital as an inpatient3 and that she would need
time away from the office over the “next couple of weeks.” First Kornblit Decl., Ex. 5.
On September 6, Malark told Versnel that she would need to miss work that day because
she was at the hospital with her daughter. Second Kornblit Decl., Ex. 8. And on September
18, in response to Hawley’s e-mail, Malark called Hawley to discuss FMLA leave,
disclosed that she had been missing work intermittently to care for her daughter, and
explained her daughter’s health issues in detail. First Kornblit Decl., Ex. 13; Hawley Dep.
at 49:7–51:16.4 Considered separately, each of these communications is indisputably
sufficient to meet FMLA’s notice requirement. It is fairly debatable whether other of
Malark’s communications met or contributed to meeting the FMLA’s notice requirement.
3
The Parties do not dispute that Malark’s daughter suffered from a serious health
condition. A serious health condition “means an illness, injury, impairment, or physical or
mental condition that involves— (A) inpatient care in a hospital, hospice, or residential
medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C.
§ 2611(11). The conditions for which Malark’s daughter received inpatient treatment meet
this definition.
4
Malark also points to the email she received from Hawley after their phone
conversation, to which Hawley attached FMLA paperwork, as evidence that RBC
understood Malark to have provided adequate notice. However, the law imposes an
affirmative duty on Malark to meet the notice requirements regardless of RBC’s
perception. See Adams v. Scalzo Hosp., Inc., No. 13-cv-154 (ADM/SER), 2014 WL
1234496, at *7 (D. Minn. Mar. 25, 2014) (stating employer’s decision to send FMLA
packet “should not serve to excuse [employee] from her responsibilities to communicate
with [her employer]”).
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For example, during a telephone call with Sorenson “during late summer of 2017,” Malark
communicated only that she was having “personal issues” with her daughter that required
her to be in and out of the office. Sorenson Dep. at 101:5–104:6. Malark provided no
details, leaving Sorenson uncertain whether Malark was missing work to care for her
daughter. Id. at 101:5–102:8. But on this record, the possible insufficiency of some of
Malark’s communications does not undo or cast doubt on the legal sufficiency of other
communications. In other words, the record does not justify the conclusion that Malark’s
less-specific communications, or some subset of them, contradict or inject vagueness into
the specificity and adequacy of others. RBC argues that two facts—that Malark failed to
review or complete the FMLA paperwork she received from Hawley, and that Malark told
Hawley she had been making up missed time—at least create a fact dispute as to the
sufficiency of Malark’s notice. See Malark Dep. at 290:6–291:21; Hawley Dep. at 50:10–
18. The argument seems to be that Malark’s failure to exercise FMLA leave undermines
the sufficiency of her notice. This is not correct. Giving FMLA notice and exercising
FMLA leave are different issues. Regarding notice, it seems worth repeating that the law
requires an employee to communicate that she may need leave so that an employer is aware
of the possibility that FMLA leave could be needed. See Phillips, 547 F.3d at 910 (noting
employee was terminated before turning in any FMLA paperwork). As a matter of law,
Malark met this notice standard.5
To prevail on her entitlement claim, however, Malark must also show that RBC
“refuse[d] to authorize leave under the FMLA or [took] other action to avoid
5
RBC does not argue that Malark failed to comply with its FMLA-notice policy.
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responsibilities under the Act.” Pulczinski, 691 F.3d at 1005. Interference includes “not
only refusing to authorize FMLA leave, but discouraging an employee from using such
leave.” Stallings, 447 F.3d at 1050. “An employer’s action that deters an employee from
participating in protected activities constitutes ‘interference’ or ‘restraint’ of the
employee’s exercise of [her] rights.” Id. An employee must show actual deterrence.
Pulczinski, 691 F.3d at 1007 (rejecting plaintiff’s argument that he need only show that an
employee of ordinary firmness would have been discouraged).
Malark did not submit the FMLA paperwork she received from Hawley, so she
cannot claim that RBC took adverse action in response to a formal application for FMLA
leave. See Malark Dep. at 68:14–16. Instead, Malark’s entitlement claim is based on the
assertion that Hawley actually deterred her from taking FMLA leave by “portray[ing] the
FMLA as offering no benefit to Malark.” Pl. Mem. in Opp’n at 46–47. As support for this
assertion, Malark identifies a single telephone call she had with Hawley concerning FMLA
leave. In her deposition, Malark testified that during this call, Hawley explained the FMLA
process, including specifically that Malark first would have to use her PTO and, once that
was exhausted, FMLA leave would be unpaid. Malark Dep. at 67, 70, 289. Hawley
explained that Malark could take intermittent leave—that leave “didn’t have to be
consecutive days.” Id. at 291. According to Malark, Hawley explained that, “if [she] was
ever on a conference call, in order to be counted, so to speak, as an FMLA day that [Malark]
[was] required to be a hundred percent out of the office” to the point of not participating in
conference calls or other office communications, and then said: “‘And, Maria, when does
that ever happen? When has that ever happened?’” Id. at 70–71; see also id. at 289.
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According to Malark, Hawley’s rhetorical questions concerning whether it might be
realistic for Malark to be “a hundred percent” disconnected prompted Malark to conclude
there would be no benefit to FMLA leave and thus unlawfully discouraged her from
applying for it. Id. at 290–91.
No reasonable juror could find that Hawley’s comments unlawfully deterred Malark
from seeking FMLA benefits. That conclusion cannot reasonably be drawn from the
record. Malark testified that she understood the FMLA leave process, id. at 66–67, that
after their call Hawley sent her the FMLA paperwork, id. at 71, that neither Hawley nor
any other RBC employee prevented her from completing the forms, id. at 72, and that no
RBC employee ever threatened her with punishment if she applied for FMLA leave, id. at
72. Malark identifies nothing factually or legally incorrect about the guidance Hawley
provided during their telephone call. That seems important. It’s hard to understand how
FMLA guidance that is factually and legally accurate—or at least that has not been shown
to be factually or legally inaccurate—might give rise to an entitlement claim. Regardless,
Malark acknowledged that it was “[her] choice” whether to take FMLA leave. Id. at 71.
She understood that if she wanted to allow herself “the most time away from work,” she
would need to use her PTO and then take FMLA leave. Id. at 67. But as Malark also
acknowledged, she was “an exempt employee [who] could come and go as [she] wanted.”
Id. at 86. Against these facts, Hawley’s comments cannot reasonably be understood to
convey that FMLA leave had no benefit or otherwise to actually deter Malark from seeking
FMLA benefits. Id. at 289–90.
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2
To establish an FMLA discrimination claim, an employee must show that her
employer “discriminated against [her] in the terms and conditions of employment” and
“was motivated by [her] exercise of rights under the FMLA.” Pulczinksi, 691 F.3d at 1006.
When, as here, an employee does not provide direct evidence of discrimination, an FMLA
discrimination claim is evaluated “under the McDonnell Douglas burden-shifting
framework that is applied in Title VII cases.” Id. at 1007. To establish a prima facie case
of FMLA discrimination, the employee must show that she (1) engaged in activity
protected under the Act, (2) suffered a materially adverse employment action, and (3) that
there is a causal connection between her action and the adverse employment action. Brown
v. Diversified Distrib. Sys., LLC, 801 F.3d 901, 908 (8th Cir. 2015). “A causal connection
exists when the plaintiff shows that a discriminatory motive played a part in the adverse
employment action.” Hasenwinkel v. Mosaic, 809 F.3d 427, 433 (8th Cir. 2015) (internal
quotations omitted). The burden of showing a prima facie case is “minimal.” Logan v.
Liberty Healthcare Corp., 416 F.3d 877, 881 (8th Cir. 2005) (quotation omitted). If the
plaintiff meets this burden, the burden then shifts to the employer “to articulate some
legitimate, nondiscriminatory reason” for its action. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). If the employer meets this burden, then the plaintiff must
demonstrate that her employer’s purportedly legitimate, nondiscriminatory reason was
pretextual or discriminatory in its application. Id. at 807.
Malark satisfies the first two elements of the McDonnell Douglas framework.
Whether Malark engaged in protected activity is settled. She did. The Eighth Circuit, in
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line with several other circuits, has held that “notifying an employer of the intent to take
FMLA leave is protected activity.” See Hager v. Arkansas Dep’t of Health, 735 F.3d 1009,
1016–17 (8th Cir. 2013) (quoting Wehrley v. Am. Fam. Mut. Ins. Co., 513 F. App’x 733,
742 (10th Cir. 2013) (citing cases from the Third, Sixth, and Eleventh Circuits)). The
earlier determination that, as a matter of law, Malark gave RBC enough information to
meet the FMLA’s notice requirement, see supra at 20–24, requires determining that, as a
matter of law, Malark engaged in protected activity. No doubt Malark’s termination was
a materially adverse employment action. Wages v. Stuart Mgmt. Corp., 798 F.3d 675, 678
(8th Cir. 2015) (“Termination is unequivocally an adverse employment action.”).
Malark has not identified record evidence establishing a triable issue with respect
to the third element. “To establish a causal link between her exercise of FMLA rights and
termination, Malark points to the temporal proximity between her protected activity and
termination.” Pl. Mem. in Opp’n at 44. “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) (citation omitted). Temporal proximity alone may suffice only if
it is “very close.” Hite v. Vermeer Mfg. Co., 446 F.3d 858, 866 (8th Cir. 2006) (citation
omitted). In determining the temporal relationship between the two events, the Eighth
Circuit “looks to the date an employer knew of an employee’s use (or planned use) of
FMLA leave, not the date it ended.” Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th
Cir. 2012) (citation omitted). Without “something more,” a gap of more than two months
between the date the employer knew of the employee’s planned use of FMLA leave and
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the adverse action “is too long” to show a causal connection between the two. Id. at
901 (citations omitted). Here, Malark first notified RBC that she may need FMLA leave
on June 5, 2017. First Kornblit Decl., Ex. 5. Her employment was terminated October 5,
2017, or four months later. Versnel Dep. at 166:8–167:3; Malark Dep. at 300:19–25.
Under Eighth Circuit precedent, this timing permits no inference of a causal connection
between the two.6
B
Malark asserts several discrimination claims against RBC: sex and sex-plus
discrimination claims under Title VII and the MHRA, a familial status discrimination claim
under the MHRA, and an associational disability discrimination claim under the ADA.
Compl. ¶¶ 73–109. She also asserts a reprisal claim against RBC under the MHRA based
on disability association. Id. ¶¶ 110–14. Because Malark points to no direct evidence of
discrimination or reprisal,7 her claims must be analyzed under the McDonnell Douglas
6
Malark’s opposition brief suggests a second causation theory. In her deposition,
Malark testified that, after she “declared” her need to take time off to care for her daughter,
Versnel “started to scrutinize everything that [Malark] did,” refused to give “approval for
things, . . . started sending emails about this is unacceptable, put[] new projects on, new
demands.” Pl. Mem. in Opp’n at 45 (citing Malark Dep. at 363:21–364:7). Malark seems
to suggest that this testimony creates a triable issue as to whether Versnel’s scrutiny,
criticism, and work assignments were an adverse employment action. It does not. As a
rule, the Eighth Circuit has held that “alleged mistreatment by [] supervisors, includ[ing]
holding [an employee] to a higher standard than other [employees], subjecting her to a
negative performance evaluation, [or] scrutinizing her work more closely” do not, “without
evidence of tangible injury or harm,” “rise[] to the level of a materially adverse
employment action.” Hasenwinkel, 809 F.3d at 434 (internal quotation omitted). Malark’s
deposition testimony does not differentiate her claim from this general rule.
7
Direct evidence of discrimination entails “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
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burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1044 (8th Cir. 2005) (applying
McDonnell Douglas framework to ADA claims); Hoover v. Norwest Private Mortg.
Banking, 632 N.W.2d 534, 542, 548 (Minn. 2001) (applying McDonnell Douglas
framework to both discrimination and reprisal claims under the MHRA). To establish a
prima facie case of discrimination, a plaintiff must show that: (1) she is a member of a
protected group; (2) she was qualified to perform her job; (3) she suffered an adverse
employment action; and (4) the circumstances give rise to an inference of
discrimination. McDonnell Douglas, 411 U.S. at 802; Kennedy v. Heritage of Edina, Inc.,
No. 13-cv-71 (DSD/JJG), 2014 WL 3828167, at *5 (D. Minn. Aug. 4, 2014) (stating
plaintiff must show that her employer knew that she had a relative or associate with a
disability to establish a prima facie case for an ADA associational disability claim).
Similarly, to establish a prima facie case for a reprisal claim under the MHRA, a plaintiff
must show “(1) statutorily-protected conduct by the employee; (2) adverse employment
action by the employer; and (3) a causal connection between the two.” Hubbard v. United
Press Int’l, Inc., 330 N.W.2d 428, 444 (Minn. 1983). If the plaintiff establishes a prima
facie case, the defendant bears the “non-onerous” burden of production to offer a
legitimate, non-discriminatory (or non-retaliatory, in the case of a reprisal claim) reason
employment action.” Russell v. City of Kansas City, Mo., 414 F.3d 863, 866 (8th Cir. 2005)
(quotation omitted). It includes “comments or statements indicating discriminatory intent,
where those comments are made by people with decision-making authority.” Hutton v.
Maynard, 812 F.3d 679, 683 (8th Cir. 2016). Whether evidence of discrimination is direct
or indirect depends on “the causal strength of the proof, not whether it is ‘circumstantial’
evidence.” Lors v. Dean, 746 F.3d 857, 865 (8th Cir. 2014) (quotation omitted).
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for her termination. Montes v. Greater Twin Cities Youth Symphonies, 540 F.3d 852,
857–58 (8th Cir. 2008) (quotation and citations omitted). If the defendant does so, the
burden of proof then shifts back to the plaintiff to show that the defendant’s reason for the
employment action was a pretext for intentional discrimination (or reprisal). Id. at 858. At
all times, the burden of proving that the employer’s conduct was because of unlawful intent
remains with the plaintiff.8 See Torgerson v. City of Rochester, 643 F.3d 1031, 1046 (8th
Cir. 2011) (en banc).
It is undisputed that Malark can satisfy the first three elements of the prima facie
case for her discrimination claims and the first two elements of the prima facie case for her
reprisal claim. Def. Mem. in Supp. at 21; Pl. Mem. in Opp’n at 30–31. RBC argues that
it is entitled to summary judgment because Malark cannot establish the final element of
her prima facie case for any of her claims nor carry her ultimate burden of showing that
8
Under Title VII, “an unlawful employment practice is established” when a plaintiff
demonstrates that his or her membership in a protected group “was a motivating factor for
any employment practice, even though other factors also motivated the practice.”
42 U.S.C. § 2000e–2(m). The Eighth Circuit has applied the same “motivating factor”
standard to ADA discrimination claims. See Chalfant v. Titan Distrib., Inc., 475 F.3d 982,
991 (8th Cir. 2007). However, in Gross v. FBL Fin. Servs., Inc., the United States Supreme
Court declined to apply the burden-shifting framework to claims brought under the Age
Discrimination in Employment Act (“ADEA”) and interpreted “because of” in the ADEA
to require a plaintiff “to establish that age was the ‘but-for’ cause of the employer’s adverse
action.” 557 U.S. 167, 173–78 (2009). The Eighth Circuit subsequently questioned
whether the “motivating-factor” standard continues to apply to ADA discrimination claims
in light of Gross or whether the use of “because of” in the ADA also implicates the more
rigorous “but-for” standard. Pulczinksi, 691 F.3d at 1002. But the Eighth Circuit has since
applied a mixed-motive standard to an ADA discrimination claim in the same decision in
which it applied a “but-for” standard to an ADA retaliation claim. Oehmke v. Medtronic,
Inc., 844 F.3d 748, 755–59 (8th Cir. 2016). Likewise, Minnesota courts have not yet
addressed whether the “but-for” causation standard that applies to Title VII retaliation
claims also applies to reprisal claims under the MHRA. Liles v. C.S. McCrossan, Inc., 851
F.3d 810, 819 (8th Cir. 2017).
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RBC’s stated reason for her termination was a pretext for unlawful action. Def. Mem. in
Supp. at 20–26.
1
Title VII and the MHRA prohibit employers from “discharg[ing] any individual” or
otherwise “discriminat[ing] against any individual with respect to [her] compensation,
terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42
U.S.C. § 2000e-2(a)(1); Minn. Stat. § 363A.08, subd. 2. A plaintiff can establish an
inference of sex discrimination “in a variety of ways, such as by showing more-favorable
treatment of similarly-situated employees who are not in the protected class” or “by
showing biased comments by a decisionmaker.” Grant v. City of Blytheville, Ark., 841
F.3d 767, 774 (8th Cir. 2016) (quoting Pye v. Nu Aire, Inc., 641 F.3d 1011, 1019 (8th Cir.
2011)); see Young v. Warner-Jenkinson Co., Inc., 152 F.3d 1018, 1022 (8th Cir. 1998)
(stating comparative evidence is not the “exclusive means by which a plaintiff may
establish an inference of discrimination”). Though “evidence of pretext is normally
considered at the last step of the McDonnell Douglas analysis, pretext can also satisfy the
inference-of-discrimination element of the prima-facie case.” Young v. Builders Steel Co.,
754 F.3d 573, 578 (8th Cir. 2014). “At the inference-of-discrimination stage, “[a] plaintiff
may show pretext, among other ways, by showing that an employer (1) failed to follow its
own policies, (2) treated similarly-situated employees in a disparate manner, or (3) shifted
its explanation of the employment decision.” Id.
A reasonable jury could find that Malark suffered discrimination on the basis of sex.
Malark advances three arguments to support her position on this issue. She first asserts
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that Versnel treated her differently from similarly situated male directors.9 Second, Malark
asserts that Versnel exhibited a pattern of treating female direct reports poorly as compared
with male direct reports.10 Third, Malark asserts that she was replaced by a less qualified
male employee. If Malark’s first two assertions were insufficient to raise a triable issue of
discrimination—questions not decided here—her third contention does the job. Proof that
a plaintiff was replaced by an individual outside the protected class is not required to make
a prime facie case of discrimination, but it is sufficient to satisfy the McDonnell Douglas
9
“To create an inference of discrimination based upon disparate treatment, the
plaintiff must show she was treated differently than similarly situated persons who are not
members of the protected class.” Faulkner v. Douglas Cty., Neb., 906 F.3d 728, 732 (8th
Cir. 2018) (citing Bennett v. Nucor Corp., 656 F.3d 802, 819 (8th Cir. 2011)). Comparators
must be similarly situated in all relevant aspects, meaning that “the individuals used for
comparison 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.” Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 994 (8th Cir. 2011)
(quoting Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 479 (8th Cir. 2004)).
10
“A plaintiff may indeed rely upon discriminatory conduct toward others in an
attempt to show [s]he was the victim of discrimination h[er]self” so long as the plaintiff
shows that “the circumstances are substantially similar to the other alleged victims of
discrimination.” Nemec v. Wal-Mart Assocs., Inc., No. 14-cv-4450 (RHK/LIB), 2015 WL
8492040, at *7 (D. Minn. Dec. 10, 2015) (citing Quigley v. Winter, 598 F.3d 938, 951 (8th
Cir. 2010)); see also Erickson v. Farmland Indus., Inc., 271 F.3d 718, 727 (8th Cir. 2001)
(“Evidence of a discriminatory attitude in the workplace, though it may not rise to the level
of direct evidence, may also tend to show that the employer’s proffered explanation for the
action was not the true reason for the discharge.”). But instances of possible discrimination
cannot simply be aggregated to establish probable discrimination. Heisler v. Nationwide
Mut. Ins. Co., 931 F.3d 786, 797 (8th Cir. 2019). The number of female-versus-male
employees “alone is insufficient to show discriminatory animus.” Wittenburg v. American
Exp. Fin. Advisors, Inc., 464 F.3d 831, 841 (8th Cir. 2006). “Factors to be considered
include whether the other alleged discriminatory behavior is close in time to the events at
issue in the plaintiff’s case; whether the same decisionmakers were involved; whether the
other employee and the plaintiff were treated in a similar manner; and whether the
employee and the plaintiff were otherwise similarly situated.” Nemec, 2015 WL 8492040,
at *7.
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test’s fourth element. Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 944 (8th
Cir. 1994). Here, Malark was replaced by Schwab, and Malark has identified record
evidence that raises a genuine fact issue as to whether Schwab was less qualified for the
position than Malark. Versnel acknowledged that Schwab “did not have an extensive
operations background,” but was selected “based on his strong leadership history with
RBC.” Versnel Decl. ¶ 20; see Versnel Dep. at 41:11–16; Second Kornblit Decl., Ex. 48
(email from Schwab stating “[w]hile I don’t know anything about Ops(lol) I know how to
engage team members.”). After he started in Malark’s former position, RBC required
Schwab to pass a licensing exam necessary to enable him to supervise certain transactions;
in his deposition, Schwab conceded that passing the examination was important to his
performance in the role. Schwab Dep. at 11:21–14:6; see Malark Decl. ¶ 6 (stating she had
held such a license). At the time of his deposition, Schwab had failed the examination
twice, though he had recently attempted the examination a third time, and he did not know
whether his performance on the examination might impact his RBC employment. Id.
The Parties do not dispute that RBC has proffered a facially legitimate, nondiscriminatory reason for Malark’s termination—that she did not satisfy the criteria of
RBC’s new leadership model. To defeat RBC’s summary-judgment motion, Malark “must
present sufficient evidence that [RBC] acted with an intent to discriminate, not merely that
the reason stated by [RBC] was incorrect.” Pulczinski, 691 F.3d at 1003. “A plaintiff
generally may show that a proffered justification is pretextual in two ways,” Fiero v CSG
Sys., Inc., 759 F.3d 874, 878 (8th Cir. 2014):
First, a plaintiff may rebut the factual basis underlying the
employer’s proffered explanation, thereby demonstrating that
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the explanation is unworthy of credence. Second, a plaintiff
may show that the employer’s proffered explanation was not
the true reason for the action, but rather that the impermissible
motive more likely motivated the employer’s action. In either
case, the plaintiff must point to enough admissible evidence to
raise genuine doubt as to the legitimacy of the defendant’s
motive.
Id. (internal quotations and citations omitted). A plaintiff must show more substantial
evidence to prove pretext than is required to make a prima facie case “because evidence of
pretext is viewed in light of [the employer’s] proffered justification.” Id. “[A] genuine
issue of fact regarding unlawful employment discrimination may exist notwithstanding the
plaintiff’s inability to directly disprove the defendant’s proffered reason for the adverse
employment action.” Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011, 1017–18 (8th
Cir. 2005).
Malark has identified record evidence from which a reasonable jury could conclude
that RBC’s proffered reason for her termination was pretextual. RBC and Versnel’s
contemporaneous documentation of Malark’s performance is sufficiently inconsistent with
RBC’s stated reason for her termination. It is true that Malark was the subject of
complaints from employees who reported to her and her colleagues about aspects of her
behavior as a manager and that she received coaching to remedy the areas of complaint.
But the record also reflects that Malark consistently received positive performance reviews
from Versnel. See Strate, 398 F.3d at 1020 (“[E]vidence of a strong employment history
will not alone create a genuine issue of fact regarding pretext and discrimination. However,
such circumstantial evidence can be relevant when considering whether the record as a
whole establishes a genuine issue of material fact.”). The record also shows that Versnel
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increased Malark’s responsibilities and the number of employees under her supervision,
and that Malark made “significant” gains on employee opinion surveys in 2015 and 2017,
ranking in the second quartile of managers at RBC. Versnel also commended Malark
specifically for living up to the new leadership model only months before her termination.
Versnel’s differing characterizations of this evidence during her deposition highlight the
existence of genuine factual disputes material to the credence of RBC’s proffered reason
for Malark’s termination.
The record also contains materially conflicting evidence
regarding the timing of RBC’s decision to terminate Malark. The timeline for RBC’s
cultural transformation initiative provided that changes in employment status would be
communicated to affected employees in mid-June 2017, but Malark was not notified of her
termination until October 2017. Though Versnel testified that Malark was considered for
other positions in the organization before she made the termination decision, Sorenson
testified that she did not believe this occurred.
Versnel’s testimony about the
circumstances and timing of the decision is not clearly supported by her contemporaneous
notes or the testimony of other RBC representatives. Nor is it internally consistent. And
Versnel conceded in her deposition that there was not, to her knowledge, any
documentation of her assessment of Malark against RBC’s new leadership model.
Summary judgment on this record is not appropriate.
2
Title VII and the MHRA also are understood to prohibit “sex-plus” discrimination
against employees. Sex-plus discrimination occurs when an employer takes adverse action
against an employee because of both the employee’s sex and another immutable
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characteristic, though neither statute prohibits discrimination based on the additional
characteristic alone. See Phillips v. Martin Marietta Corp.¸ 400 U.S. 542, 544 (1971) (per
curiam); Knott v. Missouri Pac. R.R. Co., 527 F.2d 1249, 1250 (8th Cir. 1975) (“‘Sex-plus’
discrimination occurs when employees are classified on the basis of sex plus one other
seemingly neutral characteristic.”); Pullar v. Indep. Sch. Dist. No. 701, 582 N.W.2d 273,
276–77 (Minn. Ct. App. 1998) (recognizing a sex-plus-familial-status claim under the
MHRA prior to the addition of familial status as a protected status); see also 42
U.S.C. § 2000e-2(a)(1); Minn. Stat. § 363A.08, subd. 2.
“Interpreting § 2000e-2 to
proscribe this type of discrimination . . . means that similarly situated individuals of one
sex cannot be discriminated against vis-à-vis members of their own sex unless the same
distinction is made among those of the opposite sex.” Knott, 527 F.2d at 1251; see
Johnston v. U.S. Bank Nat’l Ass’n, 08-cv-296 (PJS/RLE), 2009 WL 2900352, at *8 (D.
Minn. Sept. 2, 2009) (“Sex-plus discrimination must, however, be discrimination based on
sex.”). For example, “an employer commits sex-plus discrimination if it treats men with
children better than women with children—and this is true even if the employer does not
treat women without children any worse than men without children (or, for that matter, any
worse than men with children).” Johnston, 2009 WL 2900352, at *8 (considering a sexplus-parental-status claim under the MHRA); see also King v. Trans World Airlines, Inc.,
738 F.2d 255, 259 (8th Cir. 1984) (“[A]n employer cannot have two interview policies for
job applicants with poor work records, poor attendance records, small children or some
other characteristic—one for men and one for women.”). “But an employer who treats
everyone with children poorly does not commit sex-plus discrimination” because the
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employer “is not treating women worse than men,” only “men and women with children
worse than men and women without children.” Johnston, 2009 WL 2900352, at *8.
Though courts historically have required sex-plus plaintiffs “to show unfavorable treatment
as compared to a matching subcategory of the opposite sex,” see Shazor v. Prof’l Mgmt.,
Ltd., 744 F.3d 948, 958 (6th Cir. 2014), the United States Supreme Court recently held in
Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1741 (2020), that the employment
discrimination inquiry is an individual one:
An employer violates Title VII when it intentionally fires an
individual employee based in part on sex. It doesn’t matter if
other factors besides the plaintiff’s sex contributed to the
decision. And it doesn’t matter if the employer treated women
as a group the same when compared to men as a group. If the
employer intentionally relies in part on an individual
employee’s sex when deciding to discharge the employee—put
differently, if changing the employee’s sex would have yielded
a different choice by the employer—a statutory violation has
occurred.
The Tenth Circuit Court of Appeals, the only circuit court to address sex-plus
discrimination post-Bostock, has held that “a female sex-plus plaintiff must show that her
employer treated her unfavorably relative to a male employee who also shares the ‘plus-’
characteristic,” but “does not need to show discrimination against a subclass of men[.]”
Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038, 1047 (10th Cir. 2020).
“[S]ex-plus plaintiffs must still specify the ‘plus-’ characteristic on which they premise
their claims” to allow a court “to assess whether an employer discriminated against a sexplus plaintiff relative to an employee of the opposite sex who shares the ‘plus-’
characteristic. Id. at 1050.
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Malark’s sex-plus discrimination claims are based on her status as a woman with
children.11 Malark has not, however, identified record evidence establishing a trial-worthy
issue with respect to causality. Malark says the fact that Versnel chose to terminate her
while she was at a hospital with her daughter permits an inference of sex-plus
discrimination. It does not. Without something more, it’s hard to understand how poor
(even cruel) timing permits an inference of discrimination. If that were enough, every
parent or care provider who suffered an adverse employment action while serving in that
role would have a claim. Malark points out that Schwab is a father, but the only record
evidence Malark cites to establish this fact is her declaration. See Malark Decl. ¶ 16.
Malark identifies no record evidence showing that the individuals who chose Schwab as
Malark’s replacement knew that fact. Finally, Malark cites to her deposition testimony
that, after learning of Malark’s need to care for her daughter, Versnel increased Malark’s
responsibilities and more closely scrutinized Malark’s work. See Malark Dep. at 363:21–
364:7. This evidence does not permit an inference of sex-plus discrimination. As
discussed, the assignment of additional responsibilities and added scrutiny are not a
materially adverse employment action. See supra at 29 n.6. If it did, Malark identifies no
evidence permitting the inference that Versnel treated her male employees with children,
or other employees without children, differently.
11
Malark’s discrimination claim based on familial status under the MHRA is
premised on the same facts and, therefore, will be considered together with her sex-plus
discrimination claims. See Minn. Stat. § 363A.08, subd. 2 (prohibiting employers from
discharging an employee because of “familial status”).
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3
Under the ADA, it is unlawful for an employer to “discriminate against a qualified
individual on the basis of disability in regard to . . . [the] discharge of employees[.]” 42
U.S.C. § 12112(a). Discrimination “against a qualified individual on the basis of disability
includes . . . excluding or otherwise denying equal jobs or benefits to a qualified individual
because of the known disability of an individual with whom the qualified individual is
known to have a relationship or association.” 42 U.S.C. § 12112(b)(4). Similarly, the
MHRA prohibits an employer from “intentionally engag[ing] in any reprisal against any
person because that person . . . associated with a person or group of persons who are
disabled[.]” Minn. Stat. § 363A.15, subd. 2.
To establish the final element of her prima facie case for her ADA and MHRA
reprisal claims, Malark relies on the temporal proximity between when she disclosed her
daughter’s health condition to Versnel and when she was terminated. Pl. Mem. in Opp’n
at 35–36. A temporal connection can show a causal link between an adverse employment
action and the employee’s association with a disabled person, but temporal proximity alone
is generally not enough to make a prima facie case under the ADA unless it is “very close.”
See E.E.O.C. v. Prod. Fabricators, Inc., 763 F.3d 963, 969 (8th Cir. 2014); Smith v. Allen
Health Sys., Inc., 302 F.3d 827, 832–33 (8th Cir. 2002) (concluding two weeks between
disclosure of potentially disabling condition and termination was “sufficient, but barely so,
to establish causation” for plaintiff’s prima facie ADA case). Likewise, the third element
of the prima facie case for an MHRA reprisal claim may be proven “by evidence of
circumstances that justify an inference of retaliatory motive, such as a showing that the
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employer has actual or imputed knowledge of the protected activity and the adverse
employment action follows closely in time.” Liles, 851 F.3d at 819 (quoting Dietrich v.
Canadian Pac. Ltd., 536 N.W.2d 319, 327 (Minn. 1995)); see, e.g., Hubbard, 330 N.W.2d
at 445 (concluding plaintiff’s termination two days after service of complaint was sufficient
to make prima facie case). Here, as noted, Malark’s superiors first learned of her daughter’s
disability on June 5, 2017, four months before her termination. See First Kornblit Decl.,
Ex. 5. That is too great a gap to permit a reasonable inference of discrimination.
ORDER
Based on the foregoing, and all of the files, records, and proceedings herein, IT IS
ORDERED that:
1.
Plaintiff Maria Malark’s motion for partial summary judgment [ECF No.
121] is GRANTED;
2.
Defendant RBC Wealth Management’s motion for summary judgment [ECF
No. 161] is GRANTED with respect to Plaintiff’s entitlement and discrimination claims
under the FMLA (Counts I and II), sex-plus discrimination claims under Title VII and the
MHRA (Counts IV, VII), familial status discrimination claim under the MHRA (Count
VIII), associational disability discrimination claim under the ADA (Count V), and reprisal
claim under the MHRA (Count IX); and
3.
Defendant RBC Wealth Management’s motion for summary judgment [ECF
No. 161] is DENIED with respect to Plaintiff’s sex discrimination claims under Title VII
and the MHRA (Counts III and VI).
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Dated: October 14, 2020
s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court
42
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