Deering v. Lockheed Martin Corporation et al

Filing 164

ORDER granting in part 123 Motion for Summary Judgment; denying 128 Motion for Partial Summary Judgment. (Written Opinion) Signed by Judge David S. Doty on 8/30/2022. (DLO)

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 1 of 23

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CIVIL NO. 20-1534(DSD/BRT)
Daniel’la Deering,
Plaintiff,
ORDER

v.
Lockheed Martin Corporation,
Defendant.

Clayton D. Halunen, Esq. and Halunen Law, 1650 IDS Center, 80
South Eighth Street, Minneapolis, MN 55402, counsel for
plaintiff.
Michael S. Burkhardt, Esq. and Morgan, Lewis & Bockius LLP,
1701 Market Street, Philadelphia, PA 19103, counsel for
defendant.
This matter is before the court upon the motion for summary
judgment by defendant Lockheed Martin Corporation and the motion
for partial summary judgment by plaintiff Daniel’la Deering. Based
on a review of the file, record, and proceedings herein, and for
the following reasons, Lockheed Martin’s motion is granted in part
and Deering’s motion is denied.

BACKGROUND
This employment discrimination action arises from plaintiff
Daniel’la Deering’s termination from Lockheed Martin.
an African-American female attorney.

Deering is

Before joining Lockheed

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 2 of 23

Martin, Deering had approximately eight years of legal experience
and six additional years of other professional work experience.
Deering Decl. ¶ 1.

Lockheed Martin hired Deering in 2002 as an

attorney in its Rotary and Mission Systems (RMS) division.
that

capacity,

contracts,

Deering

corporate

acquisitions,

worked

governance,

employment

contracting,

complex

on

and

domestic
real

estate,

labor,

litigation,

and

and

In

international
environmental,

securities,

government

regulatory

compliance.

Deering Decl. ¶ 2; id. Ex. A.
Maryanne Lavan, formerly a defendant is this case, is the
general counsel for Lockheed Martin, and was responsible for making
hiring, firing, and promotion determinations within the Lockheed
Martin legal department.

Lavan Decl. ¶ 1.

Kenneth Bastian, also

originally named as a defendant, was, at relevant times, the vice
president and associate general counsel of RMS and Deering’s direct
supervisor.
Martin,

Bastian Decl. ¶¶ 1-2.

through

African-American

Lavan,

who

applicants

elevating white candidates.

Deering alleges that Lockheed

is
and

white,

discriminated

employees

by

only

against

hiring

and

At times relevant to this case, there

was only one African-American vice president, Susan Dunnings, who
was appointed by Lavan’s successor.
In

2010,

Deering

was

given

Dunnings Dep. at 153:16-18.
the

title

of

Deputy

General

Counsel, which she understood to be a “stepping stone” to becoming
2

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 3 of 23

a vice president in the legal department.

Deering Decl. ¶ 6.

In

2012, Lockheed Martin promoted Deering to Director and Associate
General Counsel, Labor & Employment for RMS.

Bastian Decl. ¶ 3.

Bastian, a white male, created the role for Deering after Lockheed
Martin eliminated her previous position.
26:12; Bastian Decl. ¶ 3.

Bastian Dep. at 225:22-

Deering was displeased that her focus

would be solely on labor and employment matters, but she took on
the role anyway.

Deering Decl. ¶ 7.

From 2014 to 2016, Bastian evaluated Deering’s performance
favorably, giving her an “exceeds expectations” rating each year.
Bastian Decl. ¶ 4.

That rating is the second highest possible

rating and, in 2016, was among the highest rating Bastian gave to
any of his direct reports.

Jacobs Decl. Ex. 7, at 5.

In 2017,

Bastian gave Deering an “Achieved” expectations rating due to her
management of a jury trial that resulted in a $51.6 million jury
verdict against Lockheed Martin. 1
Decl. Ex. 14, at 7. 2

Bastian Decl. ¶¶ 5, 6; Jacobs

As her supervisor, Bastian also received a

In 2015, one of Deering’s other cases (Balderrama) resulted
in an unexpectedly adverse jury award. Deering Dep. at 215:1716:13. That award was overturned on appeal, however, and did not
affect Deering’s performance evaluation. See Jacobs Decl. Ex. 9,
at 2-5.
1

In that case (Braden), Deering hired Tamika Newsome, who
is also African American, as outside counsel. Newsome Decl. ¶ 11.
Deering and Newsome worked together many times over the years
(including on Balderrama), to mostly positive results for Lockheed
Martin.
See id. ¶¶ 7-8.
According to Newsome, Lavan openly
3
2

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 4 of 23

lower-than usual performance evaluation that year, as both were
deemed responsible for the adverse verdict.

Bastian Decl. ¶ 5;

Lavan Decl. ¶ 2; Lavan Dep. at 230:10-25; Jacobs Decl. Ex. 17, at
8.

Lavan was particularly disappointed that Deering did not

properly assess the risks of the case and failed to conduct a mock
jury before trial.

Lavan Dep. at 39:11-40:10, 48:19-50:10.

Deering acknowledges that Lavan’s criticism regarding the
case was “equally doled out” to her and Bastian.
303:17-304:1.

Deering Dep. at

She claims, however, that her less-than-glowing

review was due to racism rather than actual performance issues.
She bases this claim on her belief that Lockheed Martin - and Lavan
in

particular

-

does

not

fairly

consider

African-American

attorneys for promotion to vice president positions.

She asserts

that between 2010 and 2018, Lavan elevated seven white attorneys
and no African-American attorneys to vice president. Deering Decl.
¶ 12; Lavan Dep. at 99:8-17.

Lavan acknowledges considering, but

not selecting, at least three African Americans in succession

berated her and Deering for the Braden verdict in ways she would
not have had they been white attorneys. Id. ¶ 18. She believes
that Lavan’s “venom” and “hostility” towards them was due to
“discriminatory animus,” rather than concern over the adverse
verdict. Id. ¶¶ 16, 18, 19. Balderrama and Braden were Deering’s
only two trials when Lavan was general counsel. Deering Dep. at
216:17-17:19.
4

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 5 of 23

planning within the legal department.
18:15.

Deering was not among them.

Lavan Dep. at

111:22-

See Lavan Decl. ¶ 6.

Deering asserts that Lavan never bothered to inquire as to
her

qualifications

for

vice

president,

despite

her

extensive

experience at Lockheed Martin and her previous roles outside the
company.

According to Lavan, Deering simply lacked the kind of

legal experience she was looking for in each of the vice president
roles she filled between 2016 and 2018.

Lavan Decl. ¶¶ 5-14.

Lavan also believed that Deering’s adverse jury verdicts in 2015
and 2017 reflected a lack of judgment that disqualified her from
being considered for a vice president position.

Lavan Decl. ¶ 6.

Deering argues that Bastian failed to recommend her for a
vice president role even though he routinely gave her positive
reviews, save the 2017 review at issue, due to discriminatory
animus.

Deering also provides a recitation of previous race

discrimination allegations brought by or on behalf of employees
against Lockheed Martin over the years, and what she deems Lockheed
Martin’s discriminatory practices.

See ECF No. 156, at 6-8.

The

court will not set forth those assertions in detail, as they do
not tend

to

support

Deering’s

claim

discriminated against due to her race.

5

that

she

was

personally

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 6 of 23

In May 2018, Deering filed an internal appeal of her 2017
performance review. 3
Deering

attached

See ECF No. 137-1.

documents

that

To support her appeal,

included

communications

with

internal business partners and lawyers, outside counsel, and human
resources personnel.

Deering Decl. ¶ 26.

those

included

communications

She acknowledges that

“business-related/non-privileged”

and “law-related/privileged” information.

Id.

She believed that

the communications, including those that were privileged, were the
“best evidence to refute the claims of poor performance alleged in
[her] 2017 performance rating and to support [her] performancebased claims of discrimination.”

Id.

Deering was unaware of any

internal policy prohibiting her from using privileged documents to
support a performance review appeal.

Id. ¶ 27.

In August 2018, Deering’s counsel, William Egan contacted
Lavan to notify her of Deering’s claim of race discrimination and
to discuss a resolution.

Egan Decl. ¶ 3.

On September 17, 2018,

Egan submitted a settlement demand to counsel for Lockheed Martin,
which heavily referenced Deering’s 2017 performance review appeal.
Id. ¶ 5.

According to Deering, Egan did not include the documents

that Deering attached to her appeal in the letter, as they were

It appears that Deering may not have fully pursued the
appeal given that the review process for 2018 was set to begin
soon. See Egan Decl. Ex. 2, at 1.
6
3

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 7 of 23

too

voluminous,

discrimination.

but

he

did

reference

ECF No. 146, at 11.

them

as

evidence

of

The parties negotiated a

possible settlement over the next couple of months but were unable
to reach agreement.
During the negotiations, Egan notified Lockheed Martin that
he intended to file a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC) if they could not reach
agreement.

Egan Decl. Ex. 2.

He sent a draft of the EEOC charge,

which included “a reference” to the performance review appeal, but
it does not appear that he provided or specifically mentioned any
documents that were attached to the appeal.

Id. ¶ 7; id. Ex. B.

At no time during the appeal process or the negotiations did
Lockheed Martin warn Deering not to use the privileged documents
she included in the appeal in her EEOC charge.

Id. ¶¶ 6, 8-11;

id. Exs. 2, 3.
On November 13, 2018, Egan filed an EEOC charge on Deering’s
behalf in which she alleged race discrimination as exhibited by
her allegedly lower than warranted reviews – including those in
which she was rated as exceeding expectations. 4

See Jacobs Decl.

Deering claims that her performance routinely warranted
the highest rating – “significantly exceeded” expectations – a
rating she never received.
4

7

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 8 of 23

Ex. 6-1.

She also based on her charge on discrimination in pay,

promotion (or lack thereof), and working conditions.

Id. at 6-7.

Deering submitted the documents that she attached to her appeal to
the EEOC, including the privileged documents at issue.

Lavan Dep.

at 135:14-23; Dunnings Dep. at 214:19-15:1; Deering Dep. at 63:1016. 5
Among other things, the documents included emails between inhouse lawyers at Lockheed Martin (including Deering) and Lockheed
Martin’s outside counsel regarding a legal matter in Romania
involving a personnel issue.
analysis and advice.

Those communications included legal

See ECF No. 132, Ex. 18.

The documents also

included other communications between Lockheed Martin’s in-house
and outside counsel on other matters.
redact

or

otherwise

indicate

Deering Dep. at 26:2-23.

the

See id.

documents

Deering did not
were

privileged.

Rather, she simply took documents from

her desk that she believed would show that she was better at her
job than her evaluation indicated, and gave them to Egan.
80:13-25.

Id. at

Deering testified that she did not need to ask Lockheed

Martin for permission to provide the documents to her counsel, and
later the EEOC, because she was “using the documents properly in
the course of [her] employment.”

Id. at 64:14-16.

In this case, Lockheed Martin listed the documents on a
privilege log, without objection from Deering.
8
5

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 9 of 23

It appears to be undisputed that this is the first time a
Lockheed Martin lawyer disclosed privileged information to a third
party.

Midgley Decl. ¶ 13; Dunnings Dep. at 91:17-92:3; Lavan

Dep. 166:17-25, 325:9-23; Deering Dep. at 86:1-9, 88:18-90:6,
299:3-19.

Deering argues that Lockheed Martin lacks training and

policies

regarding

identifying

and

protecting

privileged

information, so she should not be held responsible for providing
any such information to the EEOC.
Deering Decl. ¶ 27.

Deering Dep. at 299:8-13;

She also argues that she was entitled to use

the documents to support her claim because they were in her work
files.

Lockheed Martin responds that, as an attorney, Deering

knew or at least should have known that it was improper and a
violation

of

her

professional

responsibilities

to

share

the

documents with third parties.
Lockheed Martin referred the matter to its RMS Disciplinary
Review Committee (DRC) to determine whether Deering’s disclosure
of privileged information warranted disciplinary action.
Decl. ¶ 4.

Midgley

Bastian was a participant on the committee but was not

a decisionmaker in the review.

Id. ¶¶ 7-8.

The DRC determined

that although Deering had a right to file an EEOC complaint, she
did not have the right to disclose privileged or other sensitive
and confidential information to the EEOC.

Id. ¶ 10; see also Lavan

Dep. at 145:23-47:8 (“[Deering] had an absolute right to submit an
9

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 10 of 23

EEOC complaint, what she didn’t have the right to do was attach
attorney-client privileged communication.”).
that

she

took

no

steps

to

information from disclosure.

redact

or

It also concluded

otherwise

Midgely Decl. ¶ 11.

protect

the

Given Deering’s

role as corporate lawyer, the DRC also concluded that she “held a
special position of trust to protect Lockheed’s privileged and
confidential materials” which made her disclosures “even more
egregious.”

Id. ¶ 12.

by a company lawyer.

The DRC was unaware of any similar conduct

Id. ¶ 13.

The DRC determined that Deering’s

conduct was so serious that it merited termination and, on December
27, 2018, Lockheed Martin informed her that she was terminated
“for inappropriately disclosing to external third parties Lockheed
Martin confidential and sensitive information as well as company
attorney client privileged information.” Egan Decl. Ex. C; Midgely
Decl. ¶ 15.
Deering asserts that Lockheed Martin failed to follow company
policy in the DRC review.

She specifically argues that the DRC

did not interview her as part of the process to assess any
mitigating
problem.

circumstances

or

Deering Decl. ¶ 21.

her

willingness

to

correct

the

She also takes issue with Bastian’s

role on the DRC, even if he was not a decisionmaker, because she
believes he was biased given her accusation of discrimination.
With respect to comparators, she provides numerous examples of
10

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 11 of 23

other employees who disclosed confidential or sensitive documents
to third parties but were not terminated.
32.

See Jacobs Decl. Ex.

It is undisputed, however, that none of those employees were

lawyers and that none disclosed privileged information.
After her termination, Deering filed an amended charge of
discrimination and retaliation with the EEOC.
1.

See Egan Decl. Ex.

On July 8, 2020, Deering commenced this action alleging race

discrimination in violation of federal and state law (Counts IIII), retaliation in violation of federal and state law (Counts
IV-VI), violation of the Equal Pay Act (EPA) (Count VII), aiding
and abetting discrimination in violation of state law (Count VIII),
defamation (Count IX), and intentional infliction of emotional
distress (Count X).

The court granted defendants’ motion to

dismiss Counts VII through X of the complaint and dismissed Lavan
and Bastian from the case.
remaining

defendant,

retaliation

and

now

ECF No. 46.
moves

discrimination

for

Lockheed Martin, the

summary

claims

and

judgment

Deering

on

the

moves

for

partial summary judgment as to liability on her retaliation claim.

DISCUSSION
I.

Standard of Review
“The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the
11

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 12 of 23

movant is entitled to judgment as a matter of law.”

Fed. R. Civ.

P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

A dispute is genuine if the evidence is such that it could

cause a reasonable jury to return a verdict for either party.

See

id. at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
Id. at 255.
denials

or

The nonmoving party, however, may not rest upon mere
allegations

in

the

pleadings,

but

must

set

forth

specific facts sufficient to raise a genuine issue for trial.
Celotex, 477 U.S. at 324.

A party asserting that a genuine dispute

exists - or cannot exist - about a material fact must cite
“particular parts of materials in the record.”
56(c)(1)(A).

Fed. R. Civ. P.

If a plaintiff cannot support each essential element

of a claim, the court must grant summary judgment because a
complete

failure

of

proof

regarding

an

necessarily renders all other facts immaterial.

essential

element

Celotex, 477 U.S.

at 322-23.
A plaintiff in an employment action may survive a motion for
summary judgment through direct evidence or through an inference
of

unlawful

discrimination

under
12

the

burden-shifting

analysis

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 13 of 23

of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973).
Direct

evidence

shows

“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 employer’s decision.”

Humphries

v. Pulaski Cnty. Special Sch. Dist., 580 F.3d 688, 692 (8th Cir.
2009) (citation

and

internal

quotation

marks

omitted).

Under McDonnell Douglas, a plaintiff must first establish a prima
facie case of discrimination.

See id.

The burden then shifts to

the employer to articulate a legitimate, nondiscriminatory reason
for its actions.

See id. at 692–93.

such

the

a

reason,

plaintiff

If the employer puts forth

then

must

produce

evidence

demonstrating that the employer’s reason is pretext for unlawful
discrimination.
II.

See id. at 693.

Retaliation Claim (Counts IV, V, and VI)
Deering

bases

her

retaliation

claim

on

her

belief

Lockheed Martin terminated her for filing an EEOC complaint.

that
She

does not appear to claim that she was retaliated against due to
her race.
To establish a prima facie case of retaliation under federal
and Minnesota law, Deering must show (1) she engaged in protected
conduct, (2) she suffered an adverse employment action, and (3)
there is a causal connection between the two.
13

See Higgins v.

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 14 of 23

Gonzales, 481 F.3d 578, 589 (8th Cir. 2007) (Title VII); Bahr v.
Capella Univ., 765 N.W.2d 428, 433 (Minn. Ct. App. 2009) (MHRA). 6
To establish a causal connection, plaintiffs must present evidence
that gives rise to an inference of retaliatory motive.

Kipp v.

Mo. Hwy. & Trans. Comm’n, 280 F.3d 893, 897 (8th Cir. 2002).
Moreover, an employee must show that “the desire to retaliate was
the

but

for

cause

of

her

termination

—

that

is,

that

the

unlawful retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the [defendant].”
St.

Vincent

Health

Sys.,

730

F.3d

732,

737

(8th

Wright v.
Cir.

2013)

(citation and internal quotation marks omitted).
A person engages in protected conduct when she opposes acts
that

she

has

a

“good-faith,

reasonable

belief”

violate Title VII or the MHRA.

Barker v. Mo. Dep’t of Corr., 513

F.3d 831, 834 (8th Cir. 2008).

There is no dispute that Deering

engaged in protected conduct by filing an EEOC complaint alleging
race

discrimination.

Nor

is

there

any

dispute

that

Deering

suffered an adverse consequence when she was fired after filing
her EEOC complaint.

And, for purposes of this motion, Lockheed

The court applies the same analysis to claims under Title
VII, § 1981, and the MHRA when, as here, the claims depend on
identical facts and theories.
See Torgerson v. City of
Rochester, 605 F.3d 584, 594 (8th Cir. 2010) (Title VII and
MHRA); Takele v. Mayo Clinic, 576 F.3d 834, 838 (8th Cir.
2009) (Title VII and § 1981).
14
6

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 15 of 23

Martin does not dispute that Deering has established the requisite
causal connection between the EEOC complaint and her firing.
No. 125, at 24 n.12.
a

connection

between

ECF

Indeed, in a very practical sense, there is
the

two

events

because

Lockheed

Martin

terminated Deering’s employment given the content of her EEOC
complaint.
The burden then falls on Lockheed Martin to articulate a
legitimate,
actions.

nondiscriminatory

reason

Humphries, 580 F.3d 688, at 692–93.

for

its

It has done so here

by stating that it terminated Deering, not because she filed an
EEOC

complaint,

attorney-client
complaint.

but

because

privileged

she

disclosed

documents

in

confidential

support

of

and

her

EEOC

See Niswander v. Cincinnati Ins. Co., 529 F3d 714,

(727-28) (6th Cir. 2008) (holding that an employee’s delivery of
confidential

company

documents

to

her

counsel

served

as

a

“legitimate nondiscriminatory reason” for the company to terminate
the employee’s employment).
evidence

demonstrating

As a result, Deering must produce

that

Lockheed

is

Martin’s

terminating

her

pretext

discrimination.

Humphries, 580 F.3d 688, at 693.

reason

for

for

unlawful

The court finds

that there is genuine issue of material fact on this point.
The

court

confidential

and

is

satisfied

that

attorney-client
15

Deering

privileged

improperly
documents

to

gave
her

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 16 of 23

attorney, who then provided those documents to the EEOC. 7

See

Nesselrotte v. Allegheny Energy, Inc., No. 06-cv-1390, 2008 WL
2858401, at *8 (W.D. Pa. July 22, 2008) (“[T]he proper avenue for
a former employee (even an attorney) to obtain privileged and/or
confidential documents in support of his or her claims is through
the discovery process as set forth in the Federal Rules of Civil
Procedure, not by self-help.”); Hellman v. Weisberg, No. 06-cv1465, 2007 WL 4218973, at *3–5 (D. Ariz. Dec. 3, 2007) (holding
that

Title

VII

appropriation,

does

not

copying,

protect
and

an

employee’s

dissemination

of

unauthorized
confidential

documents without a showing that disclosure was necessary to
preserve the documents; “[a] contrary rule would allow an employee
to immunize his unreasonable and malicious [acts] simply by filing
a discrimination complaint with a government agency.”) (citation
and

internal

quotation

marks

omitted);

see

also

Kidwell

v.

Sybaritic, Inc., 784 N.W.2d 220, 233) (Minn. 2010) (Magnuson, J.
concurring) (“A lawyer may bring a whistleblower claim, but he or
she is not thereby relieved of the fiduciary obligations imposed
by the Rules of Professional Conduct, either before or after the
claim is brought.

Any disclosures of client confidences must be

The court has reviewed at least some of the documents, see
ECF No. 132, Ex. 18, and agrees that they contain legal advice
conveyed within Lockheed Martin and between Lockheed Martin and
outside counsel.
16
7

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 17 of 23

within the strict confines of the Rules of Professional Conduct.”).
The

question,

however,

is

whether

Lockheed

Martin

lured

Deering into providing the documents to third parties so that it
could terminate her employment.

The facts in the record are

sufficient to support such a theory.

First, Lockheed Martin was

aware that Deering believed the documents to be necessary to her
claims because she attached them to the appeal of her performance
review.

Second, Egan and Lockheed Martin negotiated a possible

resolution to Deering’s allegations of discrimination for months
before Deering filed her complaint.

During those negotiations, it

appears

confidential

that

Egan

referenced

the

and

privileged

documents as key evidence of discrimination. Yet, Lockheed Martin,
which knew the content of the documents, does not seem to have
cautioned Egan against using them in any possible future complaint.
Nor did Lockheed Martin take issue with the fact that Egan, a third
party, had access to its confidential and privileged documents.
It may well be that Lockheed Martin could not envision Deering, as
corporate counsel, attaching such sensitive documents to her EEOC
complaint, and thus did not feel it necessary to caution against
disclosure. 8

Whether that is so is subject to debate, however,

and an issue for the jury to decide.
Lockheed Martin’s position notably does not address its
silence as to Egan’s knowledge of and apparent access to the
17
8

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 18 of 23

Under these circumstances, there is a factual dispute as to
whether Lockheed Martin effectively drew the foul by not preventing
(or at least cautioning Deering against) including the documents
in her EEOC complaint.
the

case

and

whether

Only a jury can decide whether that was
Deering’s

termination

was

therefore

pretextual retaliation for filing her EEOC complaint.
III. Race Discrimination Claim (Counts I, II, and III)
Deering contends that Lockheed Martin discriminated against
her on the basis of race by (1) giving her a lower-than-warranted
performance review in 2017, (2) placing her in a limited role as
labor and employment counsel to limit her avenues for promotion,
and

(3)

failing

to

promote

her

despite

her

qualifications.

Lockheed Martin responds that there are no facts in the record to
support a finding that it bore any racial animus toward Deering.
The court agrees with Lockheed Martin. 9
An employer may not discriminate against an employee because
of her race.

See 42 U.S.C. § 2000e-2(m) (Title VII); 42 U.S.C.

§§ 1981, 1983 (Civil Rights Act of 1866); Minn. Stat. § 363A.08
subdiv. 2 (MHRA).

To establish a prima facie case of race

documents.

The court notes that even Deering is less than committed
to this claim, as she devotes only four pages of her forty-sevenpage brief to defending its merits. See ECF No. 156, at 44-47.
And rightly so, as the facts do not support her theories.
9

18

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 19 of 23

discrimination, Deering must show that she (1) is within the
protected class, (2) was qualified to perform the job, (3) suffered
an adverse employment action, and (4) has set forth facts that
give rise to an inference of discrimination.

Takele, 576 F.3d at

838.
There is no dispute that Deering is a member of a protected
class or that Lockheed Martin’s failure to promote her to vice
president and to accurately evaluate her performance, if true,
constitute adverse employment actions.
that Deering

was

qualified

for

her

Nor is there a dispute
position.

The

remaining

question, then, is whether the circumstances give rise to an
inference of discrimination.

They do not.

First, there are no facts to support Deering’s theory that
her 2017 performance review was lower than warranted based on
racial

animus.

Indeed,

the

record

firmly

establishes

that

Deering’s rating was based on the Braden verdict, in which Lockheed
Martin was ordered to pay $51.6 million to the plaintiff. Bastian,
her supervisor, was likewise subject to a lower-than-usual review
for the same reason, and Deering acknowledged that criticism for
the Braden verdict was “equally doled out.”

Deering has presented

no evidence that any of her comparators were treated otherwise in
the face of such a significant verdict against Lockheed Martin.
The court is further unpersuaded by Newsome’s subjective belief
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CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 20 of 23

that Lavan’s criticism towards her and Deering after Braden was
racially motivated.
Second, there is no indication in the record that Deering’s
assignment to a labor and employment role was due to discrimination
and

designed

president.

to

thwart

her

desire

for

a

promotion

to

vice

Rather, Bastian created the role for Deering after her

previous position was eliminated.

Deering willingly accepted the

role rather than leave Lockheed Martin.

Deering proffers no facts

to even suggest that racial animus was behind Lockheed Martin’s
decision to place her in that position.

Moreover, any such claim

is time barred given that Deering moved to the labor and employment
role in 2012 and did not file her EEOC complaint until 2018.

See

42 U.S.C. § 2000e-5(e)(1) (stating that a Title VII “charge shall
be filed by or on behalf of the person aggrieved within three
hundred

days

after

the

occurred”); 28 U.S.C. §

alleged

unlawful

employment

practice

1658 (providing that § 1981 claims must

be brought within four years of the alleged misconduct); Minn.
Stat. § 363A.28(3)(a) (establishing that MRHA claims must be filed
within one year of the conduct at issue).
Third, Deering has failed to set forth facts showing that
others were promoted to vice president over her due to her race.
As an initial matter, any promotions that occurred before July 7,
2016, at the latest, are time barred under the authority set forth
20

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 21 of 23

above.

Further, Deering has presented no facts to establish that

she was more qualified for the vice president positions than the
candidates who were hired in her stead.

Instead, the record shows

that she did not have the breadth of experience preferred for the
job 10

and,

independently,

that

Lavan

was

concerned

judgment given the Balderrama and Braden verdicts.

about

her

Given those

facts, the decision not to elevate Deering to vice president was
legitimate and non-discriminatory.

There is no hint of racial

animus in the facts surrounding this issue.
As a result, Deering has failed to make a prima facie showing
of race discrimination.

Even if she had done so, however, the

record is devoid of any evidence of pretext.
Lockheed Martin has proffered legitimate, nondiscriminatory
reasons for its 2017 performance review, placement of Deering in
a labor and employment role, and for not promoting her to vice
president over other candidates.

Thus, the burden would shift

back

Lockheed

to

Deering

to

demonstrate

Martin’s

proffered

explanation is pretextual, and that discrimination is the true
reason for the adverse actions. Elnashar v. Speedway SuperAmerica,

The record also shows that Deering chose not to apply for
other roles (even lateral roles) within the company that could
have given her broader experience, thus increasing her chances of
being promoted to vice president. Bastian Dep. at 230:20-31:4;
Deering Dep. at 141:24-44:6.
21
10

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 22 of 23

LLC, 484 F.3d 1046, 1055 (8th Cir. 2007).
“There are at least two ways [Deering] may demonstrate a
material

question

of

fact

regarding

pretext.”

Guimaraes

v.

SuperValu, Inc., 674 F.3d 962, 975 (8th Cir. 2012) (citation and
internal quotation marks omitted).

“She may show that [Lockheed

Martin’s] explanation is unworthy of credence because it has no
basis in fact, or she may show pretext by persuading the court
that

discriminatory

Martin].”

animus

more

likely

Id. (citation omitted).

motivated

[Lockheed

“Either route amounts to

showing that a prohibited reason, rather than [the] stated reason,
actually

motivated”

the

adverse

actions.

Id.

(citation

and

internal quotation marks omitted).
Unlike Deering’s retaliation claim, there is no evidence of
pretext with respect to the alleged discriminator animus.

As

discussed, Lockheed Martin’s explanation as to why Deering was not
promoted to vice president is rational and worthy of credence,
particularly in the absence of any facts to the contrary or that
could even suggest racial bias.
discrimination

claim

fails

as

As a result, Deering’s race
a

dismissed.

22

matter

of

law

and

must

be

CASE 0:20-cv-01534-DSD-BRT Doc. 164 Filed 08/30/22 Page 23 of 23

CONCLUSION
Accordingly, based on above, IT IS HEREBY ORDERED that:
1.

Defendant’s motion for summary judgment [ECF No. 123] is

granted in part as set forth above; and
2.

Plaintiff’s motion for partial summary judgment [ECF No.

128] is denied.
Dated: August 30, 2022
s/David S. Doty
David S. Doty, Judge
United States District Court

23