Opinion
Civil No. 99-1565 (DSD/JMM)
July 23, 2001
Frederick L. Neff, Esq., Theresa A. Freeman, Esq. and Neff Law Office, Bloomington, MN, counsel for plaintiff.
William H. Leary III, Esq., Ann D. Bray, Esq. and Geraghty, O'Loughlin Kenney, St. Paul, MN, counsel for defendant.
ORDER
This matter is before the court on defendant's motion for summary judgment (Docket No. 21). Based on a review of the file, record, and proceedings herein, the court grants defendant's motion.
BACKGROUND
This employment lawsuit is filed by Ruth Madrid, a young El Salvadoran immigrant, against her former employer, Amazing Pictures. Amazing Pictures was a novelty shop located in the Mall of America which specialized in taking photographs of customers and transferring the image onto t-shirts, cups, mugs, magazine covers and other novelty items. Madrid alleges that during her 8-month tenure at the store she was subjected to a hostile work environment and was discriminated against based on her gender, race and national origin. She also raises numerous state law employment-related claims against her former employer.
In January 2000, Amazing Pictures sublet its retail space to an independent entity and no longer employs, manages or otherwise controls the operation of the store.
On November 13, 1998, Madrid was hired to work as a sales associate at Amazing Pictures. She was 17 years old and still attending high school at the time she was hired, therefore she worked part-time hours which varied from 20-32 hours per week.
The Amazing Pictures store was small and was typically staffed by a manager and 1-2 employees at any given time. Store managers were responsible for store operations and employment training, however all employment-related decisions, including disciplinary actions, were required to be approved by district level management and human resources personnel. District managers were based out-of-state but were available daily by phone and fax.
Shortly after Madrid's hire, John Rogne was promoted from sales associate to store manager. Approximately two weeks after Madrid was hired, while working a shift with Madrid, Rogne allegedly told her that she had a "huge butt." Madrid had received a copy of the store's employee handbook and sexual harassment policies at the time of her hire and knew that the store issued a clear directive to employees to report all incidents of inappropriate conduct to store or district management. (Bray Aff. Exh. 2 — Madrid dep. at 30-32.) However, she did not report the incident with Rogne. Instead, she simply told Rogne that she did not like his comment and told him to stop. (Id. at 35-40.)
Several weeks later, in December 1998, Madrid reported to work and told Rogne that she had just come from school after "working out hard." Rogne allegedly replied that if she worked out any harder, her "pants wouldn't fit." Madrid reminded Rogne of his promise to refrain from such comments. Rogne apologized and again Madrid chose not to report the incident to district management. (Id. at 42-45.)
No further incidents occurred until spring 1999. On March 12, 1999, Amazing Pictures hired Miles Kalina as a sales associate and candidate for assistant manager. After a background check revealed that Kalina had been convicted of a felony. Kalina admitted to Debbie Wegrzyn, the district manager, that he had been convicted of criminal sexual conduct and had served time in prison for the offense. He expressed remorse for his conduct and management agreed to "give him a chance." (Bray Aff., Exh. 2 — Wegrzyn dep. at 28-29, 36.)
One day in early May 1999, Rogne, Kalina and Madrid were working together and Madrid overheard Rogne and Kalina commenting on the bodies of women passers by. At one point, Rogne compared one of the women to Madrid, commenting that the woman had a "huge butt" like Madrid. Kalina allegedly responded "She does." Madrid voiced her objection to the men about their comments. (Exh. 2 at 49-52.) Kalina denied saying anything and announced that he was going to call district management to report Rogne's comment about Madrid. Madrid objected and Kalina initially agreed not to report Rogne. However, several days later, Wegrzyn contacted Madrid to discuss the incident, so Madrid realized that Kalina had contacted Wegrzyn. (Id. at 54-56; Exh. 12.) Madrid told Wegrzyn that she did not want to get Rogne in trouble and that Rogne's comments had stopped after Kalina confronted him. (Bray Aff., Exh. 10; Exh. 3 at 82-82.) Madrid said nothing about Kalina's participation in the commentary.
On May 13, 1999, Rogne was formally reprimanded for his comment and a counseling report was placed in his personnel file. (Exh. 12.) On May 31, 1999, after an incident in which he locked himself out of the store, he was demoted based on his ongoing failure to competently perform his duties as manager. (Id.) Rogne reacted negatively to the demotion and on June 1, 1999, he was terminated for insubordination. (Id.)
After Rogne's termination Kalina was promoted to the position of store manager and Elvena Williams, a 31-year old female sales associate who had been hired in mid-May 1999, was promoted to assistant manager effective June 14, 1999. Rogne was upset at his firing and told Madrid and Williams that Kalina should not be promoted because he was gay and had allegedly assaulted a 14-year old boy. (Bray Aff., Exh. 8 — Williams dep. at 44-45; Exh. 2 at 141.) Kalina was away from work ill from June 1 through June 9, 1999, and when Wegrzyn came to the store to cover his schedule, Madrid complained to her about Kalina's gay lifestyle. (Exh. 3 at 80, 105; Exh. 6 — Froslie dep. at 21.) Wegrzyn advised Madrid that any such comments about Kalina were inappropriate. (Exh. 3 at 80-81; Exh. 8 at 90.) Wegrzyn also counseled Madrid about her repeated failure to observe the store's dress code. (Exh. 3 at 76-79.)
Madrid's disregard for the dress code was one of several recurring performance issues that Madrid faced during her tenure at Amazing Pictures. Madrid was also verbally warned about punctuality problems and her habit of allowing her boyfriend to remain inside the store at closing. (Exh. 3 at 89-91.) Reports in her personnel file reflect that during Rogne's tenure as manager she was counseled about her failure to observe proper procedures for accepting checks and closing out the store register and was also reprimanded for general performance issues, such as making many too many personal telephone calls from work and leaving the store to visit a friend at another store. (Exh. 10.)
Kalina focused on these same general performance issues during his tenure as manager, however, Madrid complains that after Kalina became manager, he began scrutinizing her work more closely than that of her coworkers. She alleges that he unfairly criticized and penalized her for small infractions of store policy, called her a "bitch," assigned her menial tasks, denied her breaks and engaged in a program of falsely complimenting her work performance to Wegrzyn in order to make his "false" complaints to Wegrzyn about her work performance appear more credible. (Exh. 2 at 69, 80.) Williams confirmed that Kalina called Wegrzyn on a daily basis and frequently complained to Wegrzyn about Madrid's work performance. (Exh. 8 at 57.) Gordon Froslie, a sales associate who was hired in early June 1999, also noted that Kalina was particularly critical of Madrid's work performance. (Exh. 6 at 28.) Neither Froslie nor Williams believed Kalina's complaints about Madrid were always justified, but Williams characterized the situation as "head butting." (Exh. 8 at 54-55, 66.)
Madrid also complains that Kalina continued to make comments on a daily basis about the physical appearance of customers and passers by. Sometimes the comments were directed at features such as hairstyle or weight, but other times, Kalina would make comments of an overtly sexual nature. On one occasion in June 1999, Kalina commented to Madrid about a customer's flabby breasts, which he said were unlike Madrid's "small and perky" breasts. (Exh. 2 at 66.) Madrid also alleges that Kalina would frequently point out male passers by with whom he would like to have sex. (Id. at 66-67.) In addition, on three separate occasions, he described to Madrid how large his genitals were, (Id. at 85-86), and he once told her that he thought "Hispanic women are so sexy" and that he would like to date Madrid's mother, whom he felt he could "satisfy." (Id. at 67, 88.)
Kalina also made comments to Williams about male passers by, and approximately once or twice a week, he would describe for her his latest sexual encounter, including details about his sex acts. (Exh. 8 at 104-105.) Williams also recalled a conversation in which Kalina discussed the size of either his own or his partner's genitals. (Id. at 105.) Williams was not offended by Kalina's comments, however Madrid told Kalina that she would report his comments to Wegrzyn. (Exh. 2 at 71.) It appears she did not follow through on this threat. However, Madrid frequently complained to Williams that Kalina was excessively criticizing her and would not let her go to the bathroom or take breaks. Madrid testified that she complained to Williams with the expectation and understanding that Williams would speak with Kalina and, if need be, to district management. (Id. at 128-131, 203.) Williams promised Madrid she would handle the matter. (Exh. 8 at 94; Exh. 2 at 204.)
It is difficult to confirm from the record whether Madrid actually did contact Wegrzyn, or if so, what she discussed with her. Madrid testified at her deposition that she would "sometimes call Debbie" (Exh. 2 at 69), but that she eventually stopped because she thought Wegrzyn thought she was lying, (Id. at 80). However, she also testified that she never contacted Wegrzyn about the Kalina's comment on her "small and perky" breasts, (Id. at 81), and further noted that the first time she spoke directly with Wegrzyn about Kalina's conduct was during a meeting scheduled at the store by Wegrzyn on July 6, 1999. (Id. at 88.) Her answers to interrogatories indicate that she did not report any incidents to Wegrzyn until July 1999. (Bray Aff., Exh. 21.) This is confirmed by Wegrzyn (Bray Aff, Exh. 19.). Thus, the bulk of the evidence strongly suggests that Madrid did not initiate a complaint to Wegrzyn about Kalina's conduct until July 3, 1999.
Williams did not immediately contact Wegrzyn, (Exh. 3 at 95). In fact, she testified that she "did not want to be involved." (Exh. 8 at 108, 169.) However, she was troubled by 9 the bad work relations and wanted to find a solution to the conflict so that no one would lose their jobs. (Id. at 94.) For that reason, she confronted Kalina about his conduct and expressed to him the opinion that he and Madrid were "acting like kids." (Id. at 94.)
In late June, Madrid, Williams and Kalina were working together when Kalina motioned to Madrid from a corner of the store. He pantomimed the act of lifting up his shirt and told Madrid that if she would lift her shirt, she would sell more merchandise. (Exh. 2 at 93-94.) Williams witnessed the incident, but neither Madrid nor Williams contacted district management. On or about July 3, 1999, Kalina called Wegrzyn to complain about Madrid's refusal to stop sitting on the counters at the store. When Wegrzyn asked to speak to Madrid, Madrid got on the phone and began complaining to her about the shirt incident. (Exh. 3 at 87-88.) Wegrzyn called Williams to confirm the story, and Williams reported to her that it was a joke which no one found offensive. (Id.) Wegrzyn called Kalina back and verbally reprimanded him, (Exh. 18), however no report was placed in his file, (Exh. 13).
Wegrzyn believed that Madrid was satisfied with her response, however within one to two days, Madrid phoned David Roth, the assistant district manager, to again voice her concern over the shirt incident. (Exh. 2 at 98.) Based on Madrid's call to Roth, Wegrzyn scheduled a meeting with Kalina, Williams and Madrid for July 6, 1999. (Exh. 18). Wegrzyn attended by telephone and advised the three employees that Kalina's inappropriate conduct and behavior would not be tolerated nor would Madrid's comments about Kalina's homosexuality. She also advised that the "tattling" telephone calls to her office had to cease. (Exh. 2 at 101-04; Exh. 18; Exh. 3 at 101-103.) The group pledged to improve work relations, but after the meeting, Kalina told Williams that he did not like Madrid and wanted her out of Amazing Pictures. (Exh. 8 at 98, 108-09.) When Williams told Madrid what Kalina had said, Madrid was upset. (Exh. 2 at 104.) Williams consulted Froslie about the ongoing problems between Kalina and Madrid, and Froslie advised her to contact Wegrzyn. (Exh. 8 at 94-95.) Williams then suggested to Madrid that she write her complaints down so they could take them to district management. (Id.)
Williams called Wegrzyn a day or so later to advise her that conflict was still brewing (Exh. 3 at 107-108), but before Wegrzyn could reach Madrid, Madrid called her during a work shift to complain that Kalina was yelling at her for putting away inventory which sales associates were not supposed to do. Wegrzyn could hear Kalina yelling and could tell that Madrid was very upset, so she told Madrid to go home and they could discuss the problem later after Madrid had calmed down. (Id. at 114-15.) Madrid was off work the next day. The following day, July 11, 1999, Madrid reported to work but walked out of the store during her shift and did not return.
On July 12, 1999, Madrid composed a letter cataloging her work-related complaints and faxed the letter to the Human Resources Department at Amazing Pictures. The HR manager contacted Wegrzyn who immediately called and left a message for Madrid to call her. Madrid never called back and never returned to work at Amazing Pictures. (Exh. 13.)
During the same time that Madrid and Kalina's conflict was coming to a head, Froslie had become aware that Kalina was meeting men over the Internet and inviting them to meet him at the store. (Exh. 6 at 19.) Kalina was also passing out calling cards to passers by identifying himself as a single gay male and soliciting other gay men. Froslie believed that on one occasion Kalina had given free merchandise to a young foreign exchange student in exchange for sex. (Exh. 13.) On July 15, 1999, Froslie called Wegrzyn to describe what he had observed. (Exh. 6 at 82; Exh. 13.) After speaking with Froslie, Wegrzyn called Williams and asked her to obtain an exemplar of Kalina's solicitation cards. (Exh. 13.) Wegrzyn also interviewed Kalina, who admitted he had acted inappropriately. On July 22, 1999, Wegrzyn obtained the consent of the Human Resources representative to fire Kalina. (Id.) On July 23, 1999, Kalina was terminated. (Id.)
Madrid later filed this lawsuit alleging that she was subjected to a sexually hostile work environment and discrimination based on her gender, race and national origin. She also brings claims of reprisal, negligent hiring, retention and supervision, breach of contract, promissory estoppel and intentional infliction of emotional distress. Amazing Pictures moves for summary judgment on all counts.
DISCUSSION
Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the burden of demonstrating to the court that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is material only when its resolution affects the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual 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 250.
On a motion for summary judgment, the court views the evidence in a light most favorable to the non moving party, giving that party the benefit of all reasonable inferences without assessing credibility. See Miller v. National Cas. Co., 61 F.3d 627, 628 (8th Cir. 1995). The Eighth Circuit has counseled that "summary judgment should seldom be used in employment-discrimination cases." Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994). However, the non moving party may not rest upon mere denials or allegations in the pleadings, but must set forth specific facts sufficient to raise a genuine issue for trial. See Celotex, 477 U.S. at 324. Moreover, if a party cannot support each essential element of its claim, summary judgment must be granted because a complete failure of proof regarding an essential element necessarily renders all other facts immaterial. See id. at 322-23. With this standard at hand, the court considers defendant's motion for summary judgment.
I. Sexual Harassment — Hostile Work Environment
Title VII forbids sexual harassment in the workplace and imposes liability upon employers who tolerate a hostile work environment. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986). A plaintiff asserting a hostile work environment claim must show that: (1) she belongs to a protected group or class, (2) she has endured unwelcome sexual harassment, (3) the harassment was based upon gender, (4) the harassment affected a term, condition, or privilege of employment, and (5) her employer knew or should have known about the harassment and failed to take proper remedial action. Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269 (8th Cir. 1993). Harassment affects a term, condition, or privilege of employment if it is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor, 477 U.S. at 67).
Amazing Pictures contends that the conduct about which Madrid complains was neither gender-based nor severe and pervasive. With respect to the question of whether the alleged discrimination is "based upon gender," the proper inquiry is whether "members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Harris, 510 U.S. at 25 (Ginsburg, J., concurring); Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1326 (8th Cir. 1994). As the Supreme Court emphasized in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998),
Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at "discriminat [ion] . . . because of . . . sex." We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. "The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Harris, supra, at 25, 114 S.Ct., at 372 (GINSBURG, J., concurring).
Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted "discrimina[tion] . . . because of . . . sex."523 U.S. at 80 (emphasis added).
In this case, where the record involves both sexually explicit and sexually neutral conduct, a heterosexual male supervisor and a homosexual male supervisor, a female subordinate and a male subordinate, it bears emphasizing that the fact finder's task is to determine whether the offensive conduct of which Madrid complains was directed at her because she is a woman. In other words, the court must determine here whether Madrid has established sufficient evidence that she was subjected to offensive conduct to which she would not have been subjected if she were a man. Kopp, 13 F.3d at 269-70 (evidence that members of one sex were the primary targets of the harassment is sufficient to show that the conduct was gender-based for purposes of summary judgment). After conducting a careful review of the record, the court concludes that Madrid has met her burden in this regard.
The court notes at the outset that much of the allegedly unwelcome commentary and conduct does not qualify as gender-based. For example, Madrid complains that Kalina frequently pointed out male passers by to whom he was sexually attracted. However offensive one might find Kalina's immodest comments, there is no indication that such comments were directed at Madrid because she is a woman. Specifically, there is no evidence that the comments were either sexual come-ons or expressions of a generalized hostility toward women. Similarly, there appears to be nothing gender specific to Kalina's use of the term "bitch" because Madrid testified that Kalina used the term with equal force during conflicts with John Rogne. (Exh. 2 at 52, 152.)
The court recognizes its duty to examine the totality of circumstances when reviewing a hostile work environment claim. Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 965 (8th Cir. 1993). However, the Supreme Court has emphasized that while Title VII prohibits sexual discrimination, it is not a "general civility code." Oncale, 523 U.S. at 80. Therefore, absent some evidence that Kalina directed the above-noted comments at Madrid based on her status as a woman, such conduct does not satisfy Madrid's burden of establishing that Kalina's conduct was gender-based.
Madrid also complains that Kalina was unduly critical of her work performance and denied her breaks because she is a woman. However, the evidence indicates that Kalina was a demanding manager who subjected all of his staff to harsh criticism. Froslie, a male sales associate who Kalina frequently reprimanded, noted that Kalina was "really gungho about having everything in order." (Exh. 6 at 60-61.) Williams asserted, "Miles was just having problems with everybody." (Exh. 8 at 156.) Although both Froslie and Williams agree that Kalina was particularly critical of Madrid, Madrid had demonstrated performance problems, including repetitive dress code and punctuality violations. The court also notes that it was Kalina who recommended Williams, a woman, for promotion to assistant manager, and when he recommended that Madrid receive "retraining" after the "clean slate" meeting, he extended the directive to Froslie as well. (Exh. 6 at 45.) These facts regarding Kalina's supervisory conduct toward other male and female employees significantly undercut Madrid's theory that Kalina's actions were motivated by gender-based animus.
It is true that "`[i]ntimidation and hostility toward women because they are women can obviously result from conduct other than explicit sexual advances.'" Burns, 989 F.2d at 964 (quoting Hall v. Gus Const. Co., 842 F.2d 1010, 1014 (8th Cir. 1988)). However, even when the evidence in this case is viewed in a light most favorable to Madrid, a reasonable juror would not likely infer that Kalina's manner of supervising, training and disciplining Madrid was driven by a generalized hostility toward women. Schoffstall v. Henderson, 223 F.3d 818, 827 (8th Cir. 2000) (no evidence that supervisor lost his temper with plaintiff, swore at her, intimidated her or pounded on his desk because plaintiff was woman); Gartman v. Gencorp Inc., 120 F.3d 127, 131 (8th Cir. 1997) (evidence of a personal dislike between supervisor and employee points to personal dislike as motive behind swearing and insults, and not gender.)
Nevertheless, it is undisputed that Madrid's managers commented on her body shape, including the "big butt" comments made by Rogne and the "small and perky" breasts comment made by Kalina. Kalina also told Madrid that he found Hispanic women sexy, that he had large genitalia and that wanted to date her mother and believed he could satisfy her mother better than her father does. Finally, Kalina perpetrated the shirt-lifting incident, in which he intimated to Madrid that her sales would increase if she exposed her breasts to customers.
These comments evince a classic hostile work environment: the comments are directed by a male supervisor to a female employee, the supervisors repeat the comments despite objection from the female employee, the comments or conduct carry sexual overtones and there is no evidence that the male supervisor directed similar sexually charged comments to male employees.
Therefore, the court must conclude that even though a significant amount of the conduct complained of is not actionable, Madrid has provided sufficient evidence that at least some of the offensive conduct is directed to her "based on gender."
Having determined which conduct is actionable under the gender-based prong of the statute, the court must also determine whether Madrid has provided sufficient evidence that the alleged illegal conduct was severe or pervasive. The court may consider "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23.
Further, there must be evidence that the employee subjectively perceives the harassment as sufficiently severe and pervasive to alter the terms or conditions of employment, and this subjective perception must be objectively reasonable. Oncale, 523 U.S. at 81-82.
Based on the court's determination that only a portion of the offensive conduct is actionable as sexual harassment, Madrid cannot establish that the illegal conduct was severe and pervasive. As the Supreme Court has ruled, "`simple teasing,' offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment.'" Faragher v. City of Boca Raton, 524 U.S. 775. 788 (1998) (citations omitted). Similarly, the Eighth Circuit has held that for sexual harassment to be sufficiently severe or pervasive to create a hostile working environment, "more than a few isolated incidents are required." Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 573 (8th Cir. 1997) (citing Meritor, 477 U.S. at 67).
In this case there were no incidents of physical contact or other offensive touching, nor did either manager solicit sex with Madrid. Instead, the offensive conduct was comprised of three "big butt" comments by Rogne, one off-hand comment about Madrid's breasts, the shirt-lifting incident and several suggestive references by Kalina that he had large genitals and would be a good sexual partner to Madrid's mother. While the court does not minimize the inappropriateness of this workplace behavior, particularly on the part of Kalina, cases finding actionable sexual harassment have invariably presented far more hostile or abusive circumstances. See, e.g., Bailey v. Runyon, 167 F.3d 466, 470 (8th Cir. 1999) (repeated sexual advances); Hathaway v. Runyon, 132 F.3c 1214, 1222 (8th Cir. 1997) (physical contact followed by eight months of daily intimidating snickers).
Finally, the court concludes that Madrid's failure to take advantage of the anti-discrimination policies put in place by Amazing Pictures requires dismissal of her sexual harassment claim. First, Madrid repeatedly chose not to report the offensive conduct to district management and minimized Rogne's conduct when Wegrzyn broached the subject of his conduct with her. (Exh. 12.) Madrid's apparent lack of concern suggests that at least some of the allegedly offensive conduct did not pass the "subjective" unwelcomeness test by "altering her ability to perform her work when viewed in the global setting of her sex discrimination claim." Callahan v. Runyon, 903 F. Supp. 1285, 1298 (D.Minn. 1994).
On this issue of welcomeness, the court also notes that when given the opportunity to create a work sample using her own photograph, Madrid chose to superimpose her face not on a mug or mousepad, but on a pseudo-magazine cover featuring a bikini-clad female. (Exh. 2 at 120.) This fact, like Madrid's failure to report Rogne's comments, leads to a possible inference that the comments about Madrid's body may not have been entirely unwelcome. See Burns, 989 F.2d at 964 (noting that while the plaintiff's choice to pose for a nude magazine outside work hours was not material to the issue of whether plaintiff found her employer's work-related conduct offensive, evidence that plaintiff posed in provocative and suggestive ways at work might be relevant to the issue of unwelcomeness).
Second, Madrid's failure to take advantage of the detailed sexual harassment policy allows Amazing Pictures to assert the Faragher/Ellerth affirmative defense to liability. The defense comprises two necessary elements: (1) that the employers exercised reasonable care to prevent and promptly correct any illegal conduct; and (2) that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher, 524 U.S. at 807; Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). The defense is available only where the victimized employee suffered no adverse tangible employment action. Ellerth, 524 U.S. at 765.
Adverse employment actions are material or tangible changes in the terms and conditions of employment which represent a significant change in status or benefits, not merely an alteration of job responsibilities, or a minor change in work conditions. Ellerth, 524 U.S. at 761. Madrid claims that Kalina reduced her hours and either expressly or through scheduling denied her the opportunity to take breaks. The issue of hours reduction is only peripherally explored in the record, but it is clear from Madrid's testimony that any change in hours occurred after she submitted a two-week notice. (Exh. 2 at 199). Based on that statement, a jury is unlikely to conclude that she suffered an adverse employment action, or if she did, that it occurred because of discriminatory animus. Further, the act of limiting breaks does not constitute adverse employment action. Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir. 1996). In addition, Madrid's vague allegation that she was denied a promotion to assistant manager is facially deficient because she was not qualified to become assistant manager while still in high school. (Exh. 2 at 161-62.) Finally, as discussed below, no reasonable juror would conclude that she was constructively discharged. Therefore, Madrid has not established that she suffered from an adverse tangible employment action.
There is no dispute that Amazing Pictures promulgated and effectively disseminated a reasonable multi-level complaint procedure as part of its sexual harassment policy. The employee handbook specifically provides that if an employee believed she had been harassed, she could take the following steps:
! If you are comfortable doing so, tell the harasser that his/her behaviors or comments are offensive and unwelcome.
! If the harassment continues, tell you (sic) manager about it. The Company will investigate and take corrective action if appropriate.
! If the harasser is your manager, take your complaint to human resources.
(Bray Aff., Exh. 1.)
Madrid testified that at the time of her hire she read and understood the policy. (Exh. 2 at 30-33.) The fact that she was able to fax a detailed complaint letter to Human Resources immediately after quitting her job at Amazing Pictures indicates that she knew exactly how to put the policy into action.
Likewise, Froslie testified "I believe it was pretty well known that we could call Debbie with anything that you couldn't tell Miles." (Exh. 6 at 65.) Even with this clear understanding among the employees that the store maintained an open door policy and encouraged employees to report any incident of inappropriate conduct, Madrid did not initiate a single complaint to district management until after she left Amazing Pictures. She admits that she did not report either of Rogne's "butt" comments in the fall of 1998 and when Kalina contacted the district office to report Rogne's third comment, she minimized the incident and told Wegrzyn the matter had been resolved. The only report that Madrid ever made to Wegrzyn was the shirt-lifting incident, but even that report was not initiated by Madrid. Instead, it came up in conversation when Kalina called Wegrzyn to complain about Madrid's latest work infraction. (Exh. 3 at 86-87.)
Instead of contacting human resources as directed, Madrid relied on informal conversations with Williams. Madrid contends that once she complained to Williams about Kalina's conduct, the company was on notice and was obligated to take appropriate remedial measures. However, as the Eleventh Circuit has noted, "once an employer has promulgated an effective antiharassment policy and disseminated that policy and associated procedures to its employees, then `it is incumbent upon the employees to utilize the procedural mechanisms established by the company specifically to address problems and grievances." Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1300 (11th Cir. 2000) (quoting Farley v. American Cast Iron Pipe, 115 F.3d 1548, 1554 (11th Cir. 1997).
Williams had only been an employee of Amazing Pictures for one month before being promoted to assistant manager, and had been the assistant manager for approximately one week when the shirt-lifting incident occurred. The court notes Williams' reticence to respond to the situation developing before her, however, it appears that Williams, like Wegrzyn, focused initially on the rancorous and combative nature of the Kalina-Madrid relationship. As it became apparent that the workplace problems extended beyond that dynamic, Williams advised Madrid to prepare a formal complaint to district management. Although Williams could have responded more promptly and aggressively, the fundamental fact remains that she was not the person designated by the company to receive sexual harassment complaints. See Madray, 208 F.3d at 1300 (concluding that the store could not be considered to have been placed on notice of harasser's behavior by plaintiff's informal complaints to individuals not designated to receive or process the complaints.)
Despite Madrid's complaints that district level management had been "snowed" by Kalina, the evidence confirms that Amazing Pictures responded promptly to correct the alleged harassment once it did receive effective notice. When Wegrzyn learned of Rogne's comments he was reprimanded. (Exh. 12.) When Wegrzyn learned of the shirt-lifting incident she reprimanded Kalina and the harassment stopped. (Exh. 2 at 108.) When Madrid followed up with another complaint to David Roth, Wegrzyn immediately scheduled a meeting between Madrid, Kalina, Williams and herself. (Exh. 18.) Finally, when Froslie advised Wegrzyn of the depth of Kalina's inappropriate conduct, Wegrzyn immediately investigated the allegations and Kalina was fired within a week. (Exh. 6 at 67; Exh. 18.) Therefore, the court must conclude that Madrid unreasonably failed to take advantage of the company's preventive and corrective opportunities to her detriment and her claim of sexual harassment should be dismissed.
II. Gender, Race and National Origin Discrimination
Madrid's gender and racial discrimination claims are analyzed under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Madrid must first present a prima facie case of gender or racial discrimination: that she was a member of a protected class, that she was qualified to perform her job and that she suffered from an adverse employment action based on discriminatory animus. Johnson v. Baptist Med. Ctr., 97 F.3d 1070, 1072 (8th Cir. 1996) (gender); Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1108 (8th Cir. 1998) (race). In this case, Madrid's claims fails at this prima facie stage because Madrid has not established that she was subjected to adverse employment action or that she was treated differently because of her gender or race.
As outlined above, Madrid has failed to establish that she experienced an adverse employment action. Her claims that she suffered from undue criticism and was not allowed to take regularly scheduled work breaks are not actionable under Title VII, "[o]therwise every trivial personnel action that an irritable . . . employee didn't like would form the basis of a discrimination suit." Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997) (quoting Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996). Only the failure to promote claim constitutes the type of adverse employment decision actionable under Title VII and because Madrid was not qualified to become the assistant manager at the time the position came open, she cannot satisfy her prima facie burden. In addition, because the position was filled by Elvena Williams, she cannot demonstrate that she lost the opportunity to someone outside the protected class of women.
With respect to Madrid's race discrimination claim, Madrid has not only failed to establish adverse employment action, but also has not demonstrated that race played a negative role in the decision-making at Amazing Pictures. She claims that Kalina criticized her spelling and pronunciation errors, but such isolated comments do not support a race or national origin discrimination claim. Cariddi v. Kansas City Chiefs Football Club, Inc., 568 F.2d 87 (8th Cir. 1977). In addition, her personnel file reflects that David Roth, the individual who hired her, viewed her ability to speak Spanish as a positive attribute in the retail environment. (Bray Aff., Exh. 10.) On this record a jury would not conclude that Madrid had been discriminated against because she was a Spanish-speaking El Salvadoran.
Therefore, based on Madrid's failure to meet her prima facie burden, the court grants summary judgment as to Madrid's gender, race and national origin discrimination claims.
III. Constructive Discharge
Defendant also challenges Madrid's claim of constructive discharge. A constructive discharge occurs when an employer, through action or inaction, renders an employee's working conditions so intolerable that the employee is forced to terminate her employment. Kimzey v. Wal-Mart Stores, 107 F.3d 568, 574 (8th Cir. 1997). "If an employee quits because she reasonably believes there is no chance of fair treatment, there has been a constructive discharge." Id. (citing Winbush v. State of Iowa by Glenwood State Hosp., 66 F.3d 1471, 1485 (8th Cir. 1995)).
Although Madrid's working conditions were clearly less than ideal, the law requires an employee to grant her employer a reasonable opportunity to correct the intolerable condition before she terminates her employment. West v. Marion Merrell Dow, Inc., 54 F.3d 493, 498 (8th Cir. 1995). Madrid refused to report Rogne and minimized his conduct when district management became aware of a problem. She then refused to follow the procedures outlined for reporting Kalina's inappropriate workplace behavior, relying instead on her informal conversations with her new assistant manager to immediately resolve the problems. On this record no reasonable jury would find that she have given her employer a reasonable opportunity to correct the problem.
The court also notes that when she did finally submit a formal complaint letter after she quit her job, her allegations, together with the information provided by Gordon Froslie, were thoroughly investigated, and Kalina was fired shortly thereafter. Thus, Madrid's failure to effectively utilize the policies and procedures available to her prevent her from now claiming that she was constructively discharged. Accordingly, summary judgment as to her constructive discharge claim is granted.
IV. Retaliation
Madrid also claims that she suffered retaliation because she voiced her objection to Kalina's discriminatory conduct. To prevail on a retaliation claim Madrid must establish that she engaged in protected activity, she suffered an adverse employment action and there was a causal connection between her protected activity and the adverse action. See Cross v. Cleaver, 142 F.3d 1059, 1071 (8th Cir. 1998).
To the extent that Madrid did report illegal workplace conduct, first in admitting to Wegrzyn that Rogne said she had a "big butt" and then in complaining to Wegrzyn and Roth about the shirt-lifting incident, her right to complain without fear of reprisal is undeniable. However, the court's determination that she suffered no adverse employment action is dispositive of her claim that she was retaliated against for engaging in this protected activity.
Even assuming that she suffered adverse action, she has provided no evidence linking her complaints about Kalina to such action. For example, after Kalina's inappropriate conduct came to light in late June and the clean slate meeting occurred, Kalina's hours were changed to reduce the interpersonal conflict. Madrid acknowledges that any change in her hours occurred in response to her decision to submit a two-week notice and the store's need to train new personnel. Further, the court notes that when Kalina reported Rogne for sexual harassment, district management reacted positively to this action when later assessing Kalina's fitness to take over as store manager.
Therefore, absent any evidence to support Madrid's assertions that material actions were taken against her because of her reports of illegal workplace conduct, summary judgment as to the retaliation claim is appropriate.
V. Negligent Hiring, Retention and Supervision
The Minnesota Supreme Court has defined negligent hiring as the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of employment, it should have been foreseeable that the hired individual posed a threat of injury to others. Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 911 (Minn. 1983). A separate claim for negligent retention may arise when an employer becomes aware or should have become aware that an employee poses a threat and fails to take remedial measures to ensure the safety of others. Yunker v. Honeywell, Inc., 496 N.W.2d 419, 423 (Minn.Ct.App.), rev. denied (Minn. 1993). With respect to a negligent supervision claim, a plaintiff must prove that the employee's injurious conduct was foreseeable and that the employer failed to exercise ordinary care when supervising the employee. Oslin v. State, 543 N.W.2d 408, 415 (Minn.Ct.App. 1996) (citations omitted), rev. denied (Minn. Apr. 1, 1996). In addition, plaintiff must show that defendants owed her a legal duty to avoid the injuries. See Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982). Each of these claims focuses on a employer's duty to take appropriate steps to insure the physical safety of its employees. As such, all three of the claims require either the threat of physical injury or actual physical injury. Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 442-43 (Minn.Ct.App. 1996) (negligent retention and negligent supervision); Yunker, 496 N.W.2d at 422 (negligent hiring). There is no claim of that Madrid was physically assaulted and no evidence to suggest that she was at risk of being assaulted by either Rogne or Kalina. Thus, Madrid's claims are dismissed for failure to establish her prima facie case.
VI. Contract Claims
It is factually undisputed that Madrid was an at-will employee. Madrid alleges nonetheless that Amazing Pictures breached an employment contract with her. She has provided no evidence that any written or oral employment contract existed and no evidence that Amazing Pictures made any kind of promise that would support a claim of promissory estoppel. Instead, she alleges that the policies and procedures promulgated by Amazing Pictures to deal with inappropriate workplace conduct created a "total employment agreement." (Complaint at ¶¶ 85-86, 92 — check cite.) Courts have generally held that these preventative policies are too indefinite to support a breach of contract action or a claim for promissory estoppel. Elliot v. Montgomery Ward Co., 967 F.2d 1258, 1263-64 (8th Cir. 1992) (holding that a non-discrimination provision of an employee manual is nothing more than a general policy statement insufficient for create a contract); Eldeeb v. University of Minnesota, 864 F. Supp. 905, 912 (D.Minn. 1994) (employer's non-discrimination brochure was a statement of policy too general to create a contract). For these reasons, the court dismisses Madrid's breach of contract 34 and promissory estoppel claims.
VII. Intentional Infliction of Emotional Distress
To sustain a claim of intentional infliction of emotional distress, a plaintiff must establish the following elements: (1) the conduct must be extreme and outrageous; (2) the conduct must be intentional or reckless; (3) the conduct must cause emotional distress; and (4) the distress must be severe. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 438-39 (Minn. 1983). Summary judgment is proper if a party does not meet the high standard of proof needed for the claim. Strauss v. Thorne, 490 N.W.2d 908, 913 (Minn.Ct.App. 1992); Hubbard, 330 N.W.2d at 439 ("The law intervenes only where the distress inflicted is so severe that no reasonable [person] could be expected to endure it").
In this case, plaintiff has failed to sustain her burden of producing the requisite evidence of severe emotional distress. She claims that she suffered from crying jags and stomach aches, but has presented no medical records or other evidence to support her claim that her distress was severe. Mere averment is insufficient to withstand a motion for summary judgment, see DLH Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997), especially in view of the high standard required for a claim of intentional infliction of emotional distress, see Hubbard, 330 N.W.2d at 35 439. Therefore, plaintiff's claim of intentional infliction of emotional distress is dismissed.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that:
Defendant's motion for summary judgment (Docket No. 21) is granted.
Plaintiff's complaint (Docket No. 1) is dismissed with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.