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applying modified analysis to discrimination claim, but retaining unmodified McDonnell Douglas framework with respect to retaliation claim
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Civ. No. 02-4737 (RHK/AJB)
May 27, 2004
Dorene R. Sarnoski, Dorene R. Sarnoski Law Office, Minneapolis, Minnesota, for Plaintiff
Teresa M. Thompson and Lindsay J. Beck, Parsinen Kaplan Rosberg Gotlieb, PA, Minneapolis, Minnesota, for Defendants
MEMORANDUM OPINION AND ORDER
Introduction
Plaintiff Sheila Peterson ("Peterson") worked as a corrections officer for Scott County, Minnesota. In this suit, Peterson alleges claims of sex and age discrimination and retaliation against Scott County, the Scott County Sheriff's Department, William J. Nevin, its Sheriff, and Tom Helmrich, its Jail Administrator (collectively, "Defendants"). Peterson summarizes her claims as follows: (1) she was not initially hired to a full time permanent position because of her sex and age; (2) she was then not promoted to a full time temporary position because of her sex and age; (3) she suffered a hostile work environment on account of her sex and age; and (4) she was retaliated against for opposing sex and age discrimination. (See Pl.'s Mem. in Opp'n at 1.) Defendants have moved for summary judgment on all claims. For the reasons set forth below, the Court will grant the Defendants' motion.
Background
I. Peterson is Hired By Scott County
Responding to a notice posted by the Scott County Sheriff's Department, Peterson applied for a correctional officer position on May 15, 2001. (Thompson Aff. Exs. B, C.) Peterson, then 51 years old, had previously worked nine years as a correctional officer in a state correctional facility located in Lino Lakes, Minnesota. (Id. Ex. A (Peterson Dep. Tr. at 10-11).) Shortly thereafter, she was notified that she met the position's minimum qualifications, which included high school equivalency, a drivers' licence, and one year experience as a corrections officer or two years of college in a corrections-related field. (Id. Exs. B (Peterson Dep. Ex. 1), D (Peterson Dep. Ex. 3).)
Over 100 others also applied. (Huss Aff. ¶ 5.)
By August 2001, 60 applicants had met the position's minimum qualifications. (Huss Aff. ¶ 5.)
On June 12, 2001, Peterson interviewed for the position with Lieutenant Louis Steinhoff. (Steinhoff Aff. ¶ 2.) On that same day, Steinhoff also interviewed Kellace McDaniel, Marc Ravenholdt, and Gregg Krinke, (id.), each of whom was younger than Peterson. Steinhoff considered McDaniel the best suited for the position and viewed Ravenholdt, Krinke, and Peterson as identically qualified; Ravenholdt and Krinke interviewed better, while Peterson had state correctional officer experience. (Id. ¶ 3.) Finding all qualified, Steinhoff recommended background checks for each. (Helmrich Aff. ¶ 4.)
She was one of nineteen applicants granted an interview. (Huss Aff. ¶ 5.)
In Scott County, a background check is a prerequisite to any offer of employment. (Id. ¶ 3.) David Einertson, a part-time Deputy Sheriff, and Tom Busch, a case worker, conduct background checks for the Sheriff's Department. (Thompson Aff. Ex. U (Einertson Dep. Tr. at 7; Busch Aff. ¶ 1.) Einertson completed Peterson, McDaniel, and Ravenholdt's background checks; while Busch completed Krinke's. (Sarnoski Aff. Exs. 2-5.) The background check begins with a short interview. (Thompson Aff. Ex. U (Einertson Dep. Tr. at 20).) The applicant is then given a background packet, which asks for information concerning, inter alia, education, past employment, and criminal history. (Id. Ex. U (Einertson Dep. Tr. at 20-21, 24); see Sarnoski Aff. Ex. 5 (Peterson's background).) The investigator then searches the applicant's criminal history, financial records, and employment references. (Thompson Aff. Ex. U (Einertson Dep. Tr. at 20-21).) After this information is compiled, the background investigator writes a summary of the applicant's education, military service, financial condition, and criminal history. (Id. Ex. U (Einertson Dep. Tr. at 22); Sarnoski Aff. Ex. 5 (Peterson's background).) The amount of time it takes to complete this process is "going to vary," but Einertson, who considered himself "faster than most," testified that it could take as little as 45 days and that two months "would be the maximum normally." (Thompson Aff. Ex. U (Einertson Dep. Tr. at 31-32).)
When this process is completed, the investigator presents the information to Helmrich, who makes hiring and firing recommendations to the Chief Deputy Sheriff, Mike Busch. (Thompson Aff. Ex. U (Einertson Dep. Tr. at 23); Helmrich Aff. ¶ 2.) Although Helmrich typically relied upon the investigator's written summary, due to the County's desire to fill open positions quickly in 2001, he was prepared to make job offers before the summary was written if he received verbal confirmation from the investigator that the background check was complete and free of concerns. (Helmrich Aff. ¶¶ 5-6; Thompson Aff. Ex. J (Helmrich Dep. Tr. at 85-86).)
Based on such verbal confirmations for McDaniel, Ravenholdt, and Krinke, whose background checks were completed before Peterson's, Helmrich offered full time positions to each of them. (Helmrich Aff. ¶¶ 5-6.) By the time Peterson's background check was completed, however, all of the full time positions had been filled. (Thompson Aff. Ex. A (Peterson Dep. Tr. at 57-58).) As a result, Helmrich offered Peterson an intermittent officer position in early September 2001, which she accepted. (Id. Exs. A (Peterson Dep. Tr. at 68), G (Peterson offer letter).) While Peterson received a job offer 79 days after she returned her background packet, Ravenholdt was offered a job in 19 days, McDaniel in 36 days, and Krinke in 56 days. (See id. Ex. K; Sarnoski Aff. Exs. 2-5).) In addition, while Peterson was hired as an intermittent officer after her summary was written, Ravenholdt, McDaniel, and Krinke were hired as full time officers before their background summaries were written. (Thompson Aff. Ex. K; Sarnoski Aff. Exs. 2-5.) Despite taking many days to receive an offer, and despite receiving the offer only after her summary was written, Peterson did not believe that her background check was done improperly. (Thompson Aff. Ex. A (Peterson Dep. Tr. at 149-50).) She testified:
In the Scott County jail system, there are three kinds of correctional officers-full time permanent, full time temporary, and intermittent. (Thompson Aff. Ex. J (Helmrich Dep. Tr. at 41-42).) Intermittent officers differ from full time officers in that intermittent officers are called in to staff positions not filled by full time officers due to vacation or sick leave and primarily work in the jail annex with minimum security work release inmates, (Id. Ex. J (Helmrich Dep. Tr. at 38-39); Helmrich Aff. ¶ 11.)
Q: Ms. Peterson, do you allege your background check performed by Scott County was somehow conducted improperly?
A: Do I think it was done improperly?
Q: Are you alleging in this lawsuit that somehow your background check was conducted improperly?
A: Not that I'm aware of, no.
(Id.) Peterson began working the 4:00 p.m. to midnight shift at the Scott County jail annex on September 11, 2001. (Thompson Aff. Ex. A (Peterson Dep. Tr. at 68).) II. Peterson is Denied Promotions
Scott County maintains a main jail in Shakopee, Minnesota, a jail annex in Jordan, Minnesota, and a juvenile facility also in Jordan, Minnesota. (Id. Ex. B (Peterson Dep. Ex. 1).) The main jail houses both male and female offenders, while the annex houses only male offenders. (Id. Ex. P (Lenz Dep. Tr. at 22).)
After she began working, Peterson was twice denied promotions to full time positions in favor of Justin Lane and Todd Langevin. With respect to the first promotion, Lane was promoted to a full time permanent position on September 28, 2001. (Huss Aff. ¶ 7.) Prior to his promotion, Lane had been hired as an intermittent officer in December 2000 and was later assigned to a full time temporary position in April 2001. (Id.) Lane did not meet the minimum experience qualifications for a full time permanent position until the Sheriff's Department changed its qualifications after September 11, 2001 to include military service. (Id.) The change was made, in part, because the Department viewed those with military experience as more mature. (Thompson Aff. Ex. J (Helmrich Dep. Tr. at 74-76).) Because Lane had served in the military, he was re-rated as qualified and received his promotion on September 28, 2001. (Huss. Aff. ¶¶ 7.) His promotion was based, in part, on his Scott County experience. (Steinhoff Aff. ¶¶ 4.) In making hiring recommendations, Helmrich places "significantly more value on Scott County correctional experience than any other correctional experience." (Helmrich Aff. ¶ 4.) At the time of Lane's promotion, Peterson had worked for Scott County less than three weeks.
Scott County required a minimum of one year experience as a corrections officer or two years of college in a corrections-related field. (Thompson Aff. Ex. B.)
With respect to the second promotion, Langevin was promoted to a full time temporary position in November 2001. Langevin initially started as an intermittent officer in June 2001 and was hired as a full time temporary officer in July 2001. (Huss Aff. ¶ 6; Thompson Aff. Exs. K; I (Langevin Dep. Tr. at 27).) In October 2001, another full time temporary position was vacated due to an officer's military leave. (Helmrich Aff. ¶ 7.) Peterson and Langevin were interested. (Id.) On October 18, 2001, Peterson inquired about the temporary position, but Helmrich could not make a decision at that time because he did not know her very well and he needed the feedback of his sergeants and lieutenants. (Id. Exs. A (Peterson Dep. Tr. at 157-58); J (Helmrich Dep. Tr. at 60-61).)
Langevin remained a full time temporary officer until February 2003 and is currently an intermittent officer. (Thompson Aff. Exs. K; I (Langevin Dep. Tr. at 7, 31).)
Also on October 18, 2001, Langevin applied for a full time permanent position, but was not hired because he was not considered qualified. (Sarnoski Aff. Ex. 5 (Langevin Background); Thompson Aff. Ex. I (Langevin Dep. Tr. at 22-23).)
On November 1, 2002, the supervising officers held their monthly meeting and discussed Peterson and Langevin's job performances. (Id. Exs. J (Helmrich Dep. Tr. at 128-31); P (Lenz Dep. Tr. at 91-92); W (Mike Busch Dep. Tr. at 26-29).) Overall, the supervisors felt that Langevin was a better fit because he had more Scott County experience and knew the inmate booking system better. (Id. Exs. J (Helmrich Dep. Tr. at 128-29), W (Mike Busch Dep. Tr. at 26-28); Helmrich Aff. ¶ 7.) Some supervisors also expressed concerns with Peterson's performance and attitude. For example, Sgt. Deb Lambright told Helmrich that Peterson was rude; Sgt. Randy Lenz told Helmrich that she had problems relating to others; Sgt. Kevin Nelson told Helmrich that Peterson was difficult to work with; and Helmrich was told that Peterson once let an inmate out of jail before his work release pass allowed him out. (Id. Exs. J (Helmrich Dep. Tr. at 57, 58, 127-28, 137-38), P (Lenz Dep. Tr. at 98-99).) Helmrich also learned that sometimes when Peterson was told to do something, she would respond by saying, "no, that's not the way we did it in the other place, why do you do it like that here[?] It was a constant argumentative-type thing. She had difficulty following it, disagreed with it and at times didn't follow it." (Id. Ex. J (Helmrich Dep. Tr. at 137-38).)
Helmrich recalls Tom Busch telling him about this incident at the meeting. (Thompson Aff. Ex. A (Helmrich Dep. Tr. at 138).) Sgt. Lenz, however, recalls that Scott Cassidy had told him about the same incident. (Id. Ex. P (Lenz Dep. Tr. at 57-59).)
On November 5, 2001, Sgt. Lenz emailed Helmrich reiterating that Peterson had let an inmate out early and had tried to tell Tom Busch and Scott Cassidy how to do their jobs; stating that Peterson had repeatedly called caseworker Tom Busch about an inmate's pass and that this was not the jail's practice; and asserting that she had destroyed a receipt concerning inmate funds. (Sarnoski Aff. Ex. 9.) Peterson admits destroying the receipt, but she denies letting the inmate leave early. (Thompson Aff. Ex. A (Peterson Dep. Tr. at 161, 168-69).) Although Tom Busch remembers Peterson's one phone call about the pass, and remembers reporting it to Sgt. Lenz, he has "[n]o concrete memory" of multiple phone calls. (Sarnoski Aff. Ex. A (Tom Busch Dep. Tr. at 48, 50).) In addition, when he was asked if had problems with Peterson telling him how to do his job, Busch testified:
Q. Did you ever have problems with Sheila Peterson trying to dictate to you how your job should be done?
A. Other than the incident with [the inmate's pass], no.
Q. And in that instance, did she try to dictate to you how to do your job?
A. Well, those aren't my words there, so —
Q. I'm asking you, did that happen?
A. No.
(Sarnoski Aff. Ex. A (Tom Busch Dep. Tr. at 53-54).) When asked the same question, Cassidy could not recall Peterson dictating to him how to do his job. (Id. Ex. B (Cassidy Dep. Tr. at 28).)
Based on the information he was provided, Helmrich told Peterson that she was not going to get the full time temporary position. (Id. Ex. 10 (Helmrich calendar entry for 11/9/01); Thompson Aff. Ex. J (Helmrich Dep. Tr. at 62-63).) Helmrich discussed Peterson's performance and attitude problems and her lack of training and experience at the main jail. (Sarnoski Aff. Ex. 10; Thompson Aff. Exs. A (Peterson Dep. Tr. at 160, 162); J (Helmrich Dep. Tr. at 62-63).) During the conversation, Helmrich found Peterson "very argumentative," "difficult," and "constant[ly] bickering." (Thompson Aff. Ex. J (Helmrich Dep. Tr. at 62-63).) Helmrich ultimately recommended Langevin based on "his Scott County jail experience, job performance, education, attitude[,] working relationships," and the positive feedback from the jail supervisors. (Helmrich Aff. ¶ 7.)
Upon Peterson's request for more training, Helmrich instructed Sgt. Lenz to set up shifts to train her at the jail, which Lenz did. (Id. Exs. J (Helmrich Dep. Tr. at 132), A (Peterson Dep. Tr. at 163).)
III. Sex or Age-Related Comments
Peterson also claims that she was the focus of sex or age-related comments by two male officers — Sgt. Dumbleton, a supervisor, and Tom Bloedow, an intermittent officer. According to Peterson, Sgt. Dumbleton made the following comments: (1) when she asked him for training on booking inmates, he said that "it was too hard to train older women;" (2) he called Peterson an "old lady"; (3) he told her that she should "put [her] glasses on so [she] could hear"; and (4) after she requested more hours, he told her that she "didn't have the right parts" and that he needed "peepees," meaning men, to conduct male strip searches and urine analyses. (Thompson Aff. Ex. A (Peterson Dep. Tr. at 92-94, 98, 182-83).) Also according to Peterson, Bloedow responded to her request for assistance in releasing three inmates by screaming, "shut the fuck up," and "that's why women aren't needed here because [they] are lazy." (Id. Ex. A (Peterson Dep. Tr. at 101, 134).)
IV. Peterson Complains of Discrimination
Peterson complained about these sex or age-related comments that were directed at her and about not working full time. On November 20, 2001, after calling in sick because she feared being humiliated, Peterson made three telephone calls in which she lodged several complaints. (Id. Ex. A (Peterson Dep. Tr. at 175-76).) First, she left a voice mail message with Pam Johnson in Scott County Employee Relations expressing her concerns about not being hired full time despite her experience, about Dumbleton's comments on not having the "right parts," and about the officers making fun of her complaints. (Id. Ex. A (Peterson Dep. Tr. at 195-96).) Johnson did not return her call. (Id. Ex. A (Peterson Dep. Tr. at 200).)
In addition to her November 20, 2001 complaints, Peterson also complained to Helmrich on October 18, 2001 and to Lenz on November 2 and 5, 2001 about Dumbleton and Bloedow's comments. (Thompson Aff. Ex. A (Peterson Dep. Tr. at 136-37, 157-58), Sarnoski Aff. Exs. 7a, 7b).)
On the previous day, November 19, Peterson was told by an inmate and an unidentified officer that on November 3, a day after her complaint to Lenz about Bloedow's comments, some officers were mimicking and making fun of her. (Id. Ex. A (Peterson Dep. Tr. at 196-98).) According to Peterson, Steinhoff hit Officer Amy Danielson with a fly swatter in front of Bloedow, asked her if that was harassment, and laughed and said Peterson's name. (Id.)
Johnson has no record, or memory, of receiving a phone message from Peterson. (Johnson Aff. ¶ 5.)
Second, she called Deputy Sheriff Mike Busch and told him that she was humiliated by the age-related comments, upset about not being hired to a full time position, and concerned over the lack of training she was receiving at the jail. (Id. Ex. A (Peterson Dep. Tr. at 108-10).)
Deputy Sheriff Busch does not recall speaking to Peterson. (Thompson Aff. Ex. W (Mike Busch Dep. Tr. at 24, 40).)
Finally, she called Helmrich and told him about Dumbleton and Bloedow's comments (see id. Ex. A (Peterson Dep. Tr. at 98, 101-102, 165) and about her unhappiness over Langevin's promotion to the full time temporary position (id. Ex. J (Helmrich Dep. Tr. at 63-64). Helmrich testified:
Q. And the November 20th meeting, I think you referred to?
A. It was a phone call.
Q. Tell me about that.
A. Ms. Peterson called and again said, I'm not happy with the fact I didn't get the full-time position. I tried to explain it to her, shared with her some of the reasons for it. Ms. Peterson kept constantly badgering, for lack of a better term. I told her after five, ten minutes I was terminating the phone call. I found her to be very rude, and I terminated the phone call.
Q. You said she was referring to an individual and you were referring to an individual. Who was that individual?
A. It was a gentleman — a corrections officer name[d] Todd [Langevin].
(Id. Ex. J (Helmrich Dep. Tr. at 63-64).) Although not specifying on which date she expressed her concerns, Peterson testified:
Q. Did you express concern that you were not given a full-time position and you had nine years of experience and other male, less qualified individuals were given those positions?
A. On a few occasions, I did express my concern that male officers were given positions, full-time positions.
Q. To whom did you raise these concerns?
A. Everybody during the whole time?
Q. Right.
A. Captain Helmrich, Lieutenant Steinhoff, Mike Busch, a couple of the co-workers. . . .
(Id. Ex. A. (Peterson Dep. Tr. at 165).) Helmrich told Peterson that if she was unhappy, "then maybe you should be somewhere else" (id. Ex. J (Helmrich Dep. Tr. at 139)) and noted in his calendar for November 20, "Call Pam Johnson/ER . . . INTR-Dismissal" (Sarnoski Aff. Ex. 10).
The day after Peterson called in sick, November 21, 2001, she was unable to work. (Thompson Aff. Ex. A (Peterson Dep. Tr. at 173-75, 181).) On November 27, 2001, according to an email from Sgt. John Erickson to Sgt. Lenz, Peterson had agreed to cover a shift, but then later said that she could not. (Thompson Supplemental Aff. Ex. 1.) Sgt. Erickson's email stated:
On 11/27/2001 Nick Adler called in sick for 2400-0800 11/28/2001 and Sheila Peterson was called to see if she wanted the shift. She told Serena Lambright she would cover the shift. I made the schedule adjustments and approximately 20 minutes later she called and stated that she could not cover the shift.
(Id.) Peterson, however, denies that she agreed to cover that shift. (Thompson Aff. Ex. A (Peterson Dep. Tr. at 190).) She testified:
Q: [D]o you recall being contacted . . . and asked to take a shift?
A: Yes I do.
Q: Did you later — did you take that shift?
A: No, I could not. I had the grandchildren.
Q: Did you take it and then call back and said you couldn't take it?
A: No, I did not.
Q: So it's your position that you never took that shift?
A: No, I did not.
(Id.) On December 4, 2001, Peterson was terminated. (Id. Exs. A (Peterson Dep. Tr. at 204-05), H (Peterson Dep. Ex. 14).) This suit followed.
Standard of Decision
Summary judgment is proper if, drawing all reasonable inferences favorable to the non-moving party, 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The moving party bears the burden of showing that the material facts in the case are undisputed. See Celotex, 477 U.S. at 322;Mems v. City of St. Paul. Dep't of Fire Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). The court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the nonmoving party. See Graves v. Arkansas Dep't of Fin. Admin., 229 F.3d 721, 723 (8th Cir. 2000); Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116 (8th Cir. 1997). The nonmoving party may not rest on mere allegations or denials, but must show through the presentation of admissible evidence that specific facts exist creating a genuine issue for trial. See Anderson, 477 U.S. at 256; Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995); Elayaperumal v. Medtronic. Inc., Civ. No. 02-860 (RHK/SRN), 2003 WL 21402602, at *6 (D. Minn. June 17, 2003).
Analysis
As noted above, Peterson summarizes her claims of sex and age discrimination as follows: (1) she was not initially hired to a full time permanent position; (2) she was then not promoted to a full time temporary position; (3) she suffered a hostile work environment; and (4) she was retaliated against for opposing discrimination. (See Pl.'s Mem. in Opp'n at 1.) Before addressing Peterson's claims, however, the Court must first address how they are impacted by the Supreme Court's decision in Desert Palace. Inc. v. Costa, 539 U.S. 90 (2003).
Peterson's seven-count Complaint alleges: (1) sex discrimination and hostile work environment in violation of Title VII, 42 U.S.C. § 2000e-2 (Compl. ¶¶ 17-19); (2) age discrimination in violation of the Age Discrimination in Employment Act ("ADEA") (id. ¶¶ 20-23); (3) sex and age discrimination in violation of the Minnesota Human Rights Act ("MHRA"), Minn. Stat. § 363.03, subd. 1(2) (id. ¶¶ 24-26); (4) retaliation in violation of Title VII, 42 U.S.C. § 2000e-3 (id. ¶¶ 27-28); (5) retaliation in violation of the ADEA, 29 U.S.C. § 623(d) (id. ¶¶ 29-30); (6) retaliation in violation of the MHRA, Minn. Stat. § 363.03, subd. 7 (id. ¶¶ 31-32); and (7) deprivation of the equal protection of the laws in violation of 42 U.S.C. § 1983 (id. ¶¶ 33-34).
I. Consequences of Desert Palace, Inc. v. Costa
Prior to Desert Palace, it was clear that discrimination claims proceeded in one of two ways, depending on whether the plaintiff supported her claims with circumstantial or direct evidence. In cases, such as this one, where the plaintiff relied on circumstantial evidence of discrimination, the McDonnell Douglas burden-shifting framework would be applied. See Mohr v. Dustrol. Inc., 306 F.3d 636, 639-40 (8th Cir. 2002),abrogated by Desert Palace, 539 U.S. at 95; Brown v. Westaff (USA). Inc., 301 F. Supp.2d 1011, 1016 (D. Minn. 2004). Under McDonnell Douglas, the plaintiff is first required to establish a prima facie case of discrimination. The burden of production then shifts to the defendant to assert a legitimate, non-discriminatory reason for the allegedly discriminatory action. If the defendant is able to do so, the burden shifts back to the plaintiff to establish that the asserted legitimate reason was not true and was merely a pretext for discrimination. See Mohr, 306 F.3d at 639-40; Brown, 301 F. Supp.2d at 1016. In contrast, where a plaintiff offered direct evidence of discrimination, the Court would proceed under an alternative analysis derived from Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Mohr, 306 F.3d at 640. Under Price Waterhouse, the plaintiff could advance a "mixed-motive" theory — i.e., that although defendant's asserted reason for its conduct was true, the action was also taken because of an unlawful reason such as sex. Id.; see Brown, 301 F. Supp.2d at 1016. Under this analysis, once the plaintiff shows that discrimination was a motivating factor, the burden shifts to the employer to prove that the employment decision would nevertheless have been made for legitimate, nondiscriminatory reasons. Mohr, 306 F.3d at 640.
However, Desert Palace calls into question the viability of these two different analyses. Peterson argues that after Desert Palace she need only make out a prima facie showing of discrimination or retaliation to survive summary judgment — at least with regard to her Title VII claims. (Pl.'s Mem. in Opp'n at 23.) For the reasons stated below, the Court disagrees.
In Desert Palace, the Supreme Court considered what effect two provisions contained in the 1991 Civil Rights Act had on jury instructions in mixed-motive cases. 539 U.S. at 98. The first provision provides that, "[a]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." Id. at 94 (quoting 42 U.S.C. § 2000e-2(m)). The second provides that, with respect to "a claim in which an individual proves a violation under section 2000e-2(m)," the employer has a limited affirmative defense that does not absolve it of liability, but restricts the remedies available to the plaintiff. Id. (quoting 42 U.S.C. § 2000e-5(g)(2)(B)). The available remedies include only declaratory relief, certain types of injunctive relief, and attorney's fees and costs, provided that the employer "demonstrat[es] that [it] would have taken the same action in the absence of the impermissible factor." Id. at 94-95 (quoting 42 U.S.C. § 2000e-5(g)(2)(B)).
The Supreme Court explained the issue presented by the 1991 Act:
Since the passage of the 1991 Act, the Courts of Appeals have divided over whether a plaintiff must prove by direct evidence that an impermissible consideration was a "motivating factor" in an adverse employment action. See 42 U.S.C. § 2000e-2(m). Relying primarily on Justice O'Connor's concurrence in Price Waterhouse, a number of courts have held that direct evidence is required to establish liability under § 2000e-2(m). See, e.g. Mohr v. Dustrol, Inc., 306 F.3d 636, 640-641 (C.A. 8 2002). . . . In the decision below, however, the Ninth Circuit found otherwise.Id. at 95. The Supreme Court affirmed the Ninth Circuit and concluded that a Title VII plaintiff need not present direct evidence of discrimination in order to obtain a mixed motive jury instruction. Id. at 101-02.
Following this decision, courts have attempted to discern the broader impact of Desert Palace, but "[t]he results, even within this Circuit, have not been uniform." Brown, 301 F. Supp.2d at 1016 (citing cases). Although Desert Palace only addressed when a plaintiff is entitled to a mixed-motive instruction, some courts have reasoned that the elimination of the direct-versus-circumstantial evidence distinction spells the demise of the McDonnell Douglas burden-shifting paradigm. See Dare v. Wal-Mart Stores. Inc., 267 F. Supp.2d 987, 990-93 (D. Minn. 2003). Others have determined that Desert Palace requires McDonnell Douglas to be modified, but not abandoned. See Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285 F. Supp.2d 1180, 1194-96 (N.D. Iowa 2003); Brown, 301 F. Supp.2d at 1017; Walker v. Northwest Airlines. Inc., Civ. No. 00-2604 (MJD/JGL), 2004 WL 114977, at *5 (D. Minn. Jan. 14, 2004).
The Eighth Circuit has twice declined to reach the issue of whetherDesert Palace alters the McDonnell Douglas burden-shifting analysis. First, in Alien v. City of Pocahontas, 340 F.3d 551 (8th Cir. 2003), the court specifically declined to decide "whether the Supreme Court's refocus on the statutory language of the Civil Rights Act of 1991 alters the burden-shifting analysis of McDonnell Douglas, " finding that the result in the case before it would not be affected. Alien, 340 F.3d at 558 n. 5 (age and sex discrimination). This was so because the plaintiff "provided no evidence, direct or circumstantial, from which a reasonable jury could logically infer that age or gender was a motivating factor in her termination." Id. In Trammel v. Simmons First Bank of Searcy, 345 F.3d 611 (8th Cir. 2003), the court again declined to decide the issue, but assumed that even if Desert Palace applied, "we do not believe that this helps [plaintiff] because he has presented insufficient evidence to support a finding that his age was a 'motivating factor' in the decision to discharge him." Trammel, 345 F.3d at 615 (age discrimination).
Far from dead, however, both the Supreme Court and the Eighth Circuit continue to apply McDonnell Douglas after Desert Palace. See Raytheon Co. v. Hernandez, — U.S. —, 124 S.Ct. 513, 518 (2003) (utilizing theMcDonnell Douglas framework in post-Desert Palace case without comment);Cherry v. Ritenour School Dist., 361 F.3d 474, 478 (8th Cir. 2004); Wheeler v. Aventis Pharmaceuticals, 360 F.3d 853, 857 (8th Cir. 2004). This Court concludes that while Desert Palace necessarily impacts the McDonnell Douglas framework, it does not necessitate abandoning it altogether.
The Court notes that the court in Dare did not have the benefit ofDunbar, Brown, Walker, Alien, Trammel, Cherry, Wheeler, or Raytheon when it issued its decision.
One reason that the McDonnell Douglas framework survives is because it is simply a "sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination." Shannon v. Ford Motor Co., 72 F.3d 678, 682 (8th Cir. 1996) (citation and internal quotations omitted). "Put differently, the framework is a helpful tool, but it is still just a tool." Id. The first step, the prima facie case, "'eliminates the most common nondiscriminatory reasons for the plaintiff's rejection,' creating a presumption of discriminatory treatment that the defendant may rebut in the second step." Brown, 301 F. Supp.2d at 1017 (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-56 (1981)). Plaintiff at all times, however, "retains the burden of 'persuading the trier of fact that the defendant intentionally discriminated against the plaintiff"Id. (citing Burdine, 450 U.S. at 253)). The third step in the McDonnell Douglas framework addresses the plaintiff's ability to carry her burden.Id. It is only this third step that, after Desert Palace, must be modified. Id., Dunbar, 285 F. Supp.2d at 1197-98; Walker, 2004 WL 114977, at *5.
Under such a modified framework, to prevail on a Title VII discrimination claim after the defendant produces a legitimate, nondiscriminatory reason for its conduct, the plaintiff must prove by the preponderance of the evidence either that (1) the defendant's reason is not true, but is instead a pretext for discrimination ("the pretext alternative"); or (2) the defendant's reason, while true, is only one of the reasons for its conduct, and another "motivating factor" is the plaintiff's protected characteristic ("the mixed motive alternative").Dunbar, 285 F. Supp.2d at 1197-98 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); 42 U.S.C. § 2000e-2(m)); see Brown, 301 F. Supp.2d at 1017-18; Walker, 2004 WL 114977, at *5. Either showing may be made with direct or circumstantial evidence, even if the plaintiff only asserts a single motive claim. Dunbar, 285 F. Supp.2d at 1195-96, 1198; Brown, 301 F. Supp.2d at 1017, 1017 n. 6.
Even though the Supreme Court declined to decide when, if ever, the 1991 amendments apply outside of mixed motive cases, Desert Palace, 539 U.S. at 94 n. 1, its reasoning applies equally to single motive cases. As Dunbar observed: "Thus, it follows from Desert Palace and § 2000e-(2)(m) that the question on summary judgment is not whether the case is a 'single-motive' case or 'mixed motive' case, or whether the case involves 'direct' or 'circumstantial' evidence, but whether the plaintiff has presented 'evidence, direct or circumstantial, from which a reasonable jury could logically infer that [a protected characteristic] was a motivating factor in [the defendant's adverse employment action against the plaintiff].'" 285 F. Supp.2d at 1195-96 (emphasis and alterations in original) (citing Allen, 340 F.3d at 557 n. 5).
The unmodified McDonnell Douglas framework, however, continues to apply to Title VII retaliation claims based on circumstantial evidence. This result becomes apparent when the plain language of Title VII's retaliation provision, 42 U.S.C. § 2000e-3(a), and its "motivating factor" provision, 42 U.S.C. § 2000e-2(m), are compared. The retaliation provision states that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice" under Title VII. 42 U.S.C. § 2000e-3(a). The "motivating factor" provision, which was at issue in Desert Palace, provides only that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice." 42 U.S.C. § 2000e-2(m). "[C]onspicuously absent from this section [ 42 U.S.C. § 2000e-2(m)] . . . is reference to retaliation claims." Norbeck v. Basin Elec. Power Cooperative, 215 F.3d 848, 852 (8th Cir. 2000) (citation and internal quotations omitted). Thus, the "motivating factor" provision — and the mixed motive analysis — is applicable only when "race, religion, sex or national origin was a motivating factor"; it is not applicable when retaliation was a motivating factor. See id.; see also Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000); Lewis v. Young Men's Christian Ass'n, 208 F.3d 1303, 1305-06 (11th Cir. 2000); Kubicko v. Qgden Logistics Servs., 181 F.3d 544, 552 n. 7 (4th Cir. 1999); McNutt v. Bd. of Trustees, 141 F.3d 706, 707-09 (7th Cir. 1998); Woodson v. Scott Paper Co., 109 F.3d 913, 933-35 (3d Cir. 1997); Tanca v. Nordberg, 98 F.3d 690, 681-85 (1st Cir. 1996). This plain language reading has not been affected by Desert Palace and, therefore, Title VII retaliation claims based on circumstantial evidence continue to proceed under the unmodifiedMcDonnell Douglas framework.
Likewise, Minnesota Human Rights Act ("MHRA") and Age Discrimination in Employment Act ("ADEA") claims supported by circumstantial evidence also proceed under the unmodified McDonnell Douglas framework. This is the case under the MHRA because Minnesota law has not incorporated the holding ofPrice Waterhouse or the relevant portions of the 1991 Civil Rights Act.See Brown, 301 F. Supp.2d at 1020; Dare, 267 F. Supp.2d at 992; Anderson v. Hunter. Keith. Marshall Co., Inc., 417 N.W.2d 619, 623 (Minn. 1988). This is so under the ADEA because it does not contain a "motivating factor" provision like Title VII. See Mereish v. Walker, 359 F.3d 330, 340 (4th Cir. 2004) (expressing doubt that the 1991 Civil Rights Act applies ADEA claims "in large part because, when Congress enacted the [Act] in response to Price Waterhouse, it amended only Title VII and did not pass a corresponding amendment to the ADEA").
The Eighth Circuit and courts in this District continue to analyze ADEA claims under the unmodified McDonnell Douglas framework. See, e.g.,Hitt v. Harsco Corp., 356 F.3d 920, 924 (8th Cir. 2004); Erenberg v. Methodist Hosp., 357 F.3d 787, 793 (8th Cir. 2004); Rabe v. City of Bemidji, Civ. No. 02-1698 (JRT/RLE), 2004 WL 741758, at *3, 3 n. 1 (D. Minn. Mar. 17, 2004); Beckman v. KPG Telecomm., Inc., Civ. No. 02-1261 (JNE/JGL), 2004 WL 533943, at *3-5 (D. Minn. Mar. 16, 2004).
In sum, Title VII discrimination claims are analyzed under the modifiedMcDonnell Douglas framework — i.e., at the third stage the plaintiff must show either that (1) the defendant's reason is not true, but is instead a pretext for discrimination ("the pretext alternative"); or (2) the defendant's reason, while true, is only one of the reasons for its conduct, and another "motivating factor" is the plaintiff's race, religion, sex or national origin ("the mixed motive alternative"). Title VII retaliation, MHRA, and ADEA claims supported by circumstantial evidence, in contrast, are analyzed under the unmodified McDonnell Douglas framework — i.e., at the third stage the plaintiff must show that the defendant's reason is not true, but is instead a pretext for discrimination. Having determined the consequences of Desert Palace, the Court now turns to Peterson's first claim.
II. Discriminatory Failure to Hire
Peterson argues that she was not initially hired to a full time position because of her sex and age. (Pl.'s Mem. in Opp'n at 19, 20-21, 24.) Title VII makes it unlawful for an employer to discriminate against an employee on the basis of the individual's sex. 42 U.S.C. § 2000e-2(a)(1); Breeding v. Arthur J. Gallagher and Co., 164 F.3d 1151, 1156 (8th Cir. 1999). The ADEA makes it unlawful for employers to discriminate on the basis of an individual's age if that individual is over 40 years old. 29 U.S.C. § 623(a)(1), 631(a);Breeding, 164 F.3d at 1156.
The MHRA makes it unlawful for an employer to discriminate on either the basis of sex or age. Minn. Stat. § 363.03, subd. 1(2) (renumbered as Minn. Stat. § 363 A.08, subd. 2). With the exception of the third stage of the McDonnell Douglas framework, see supra Analysis Part I, MHRA claims are analyzed in the same manner as Title VII and ADEA claims, see Cronquist v. City of Minneapolis, 237 F.3d 920, 926 (8th Cir. 2001); Chambers v. Metro. Prop. and Cas. Ins. Co., 351 F.3d 848, 855 (8th Cir. 2003).
To establish a prima facie case, Peterson must show that (1) she is within a protected class; (2) she was qualified to perform her job; (3) she suffered an adverse employment action; and (4) a nonmember of her class (persons under 40 in the ADEA context or of the opposite sex in the Title VII context) was not treated the same. Breeding, 164 F.3d at 1156. The Court will assume, without deciding, that Peterson has established a prima facie case of sex and age discrimination.
Consequently, Defendants have the burden to "'produc[e] evidence that the plaintiff was rejected, or someone else preferred, for a legitimate, nondiscriminatory reason.'" Reeves, 530 U.S. at 142 (quoting Burdine, 450 U.S. at 254). This is a burden of production, not persuasion, and "it can involve no credibility assessment." Id. (citation and internal quotations omitted). Here, defendants have met this burden by offering admissible evidence sufficient for the trier of fact to conclude that Peterson was not hired full time because her background check was not completed at the time the three younger men were hired and that when her background check was completed the full time positions were already filled. Therefore, "the McDonnell Douglas framework — with its presumptions and burdens — disappear . . . and the sole remaining issue [is] discrimination vel non." Id. at 142-43 (citations and internal quotations omitted). The question thus becomes whether Peterson can satisfy — or at least generate genuine issues of material fact on — the third stage of the McDonnell Douglas framework.
As explained above, Peterson must prove or generate genuine issues of material fact, either that (1) Defendants' proffered reason is not true, but is instead a pretext for sex or age discrimination ("the pretext alternative"); or (2) Defendants' reason, while true, is not the only reason for its conduct, and that another "motivating factor" is her sex ("the mixed motive alternative"). "[T]he ultimate burden of persuading the trier of fact that [Defendants] intentionally discriminated against [her] remains at all times with [Peterson]." Id. (citation and internal quotations omitted). Under either alternative, however, Peterson has not met her burden.
Peterson first argues that Defendants' reasons have changed over time and that this is sufficient to support a finding of pretext or that sex was a motivating factor. (Pl.'s Mem. in Opp'n at 23.) She asserts that Helmrich initially told her that she was not hired because the others had interviewed before her, but she was later told that it was because her background check was completed after the others. (Id.) Peterson's argument is without merit. Although "[s]ubstantial changes over time in the employer's proffered reason for its employment decision support a finding of pretext," Kobrin v. Univ. of Minnesota, 34 F.3d 698, 703 (8th Cir. 1994) (citation omitted), Peterson has not shown "[s]ubstantial changes" in Defendants' proffered reasons. It is wholly consistent for Defendants to tell Peterson that she was not initially hired because the others interviewed before her and because their background checks came in before hers.
Peterson next argues that the time it took for her to receive a job offer and the lack of a verbal confirmation that her background check was completed reveals intentional discrimination. (See Pl.'s Mem. in Opp'n at 24.) But despite these concerns expressed in her memorandum, Peterson testified that she does not believe that her background check was done improperly. (Thompson Aff. Ex. A (Peterson Dep. Tr. at 149-50).) In addition to her own testimony, the sequence of events leading to her ultimate hiring belies a finding of intentional discrimination: she was one of 100 applicants; then was one of 60 who met the minimum qualifications; then was one of 19 granted interviews; then was given a background check; and then was hired to an intermittent position. Peterson's relatively successful track record leading up to her hiring defies a finding of sex or age discrimination. With numerous opportunities to cast her application aside, Peterson cannot explain why Defendants would wait until the background check to discriminate.
In any event, Peterson has provided no evidence demonstrating that either Einertson, her background investigator, or Helmrich, who recommended that she be hired, intentionally delayed her background check on account of her sex and age, only to complete the check later and hire her. "There is a strong inference that discrimination was not a motivating factor if the same person hired and fired the plaintiff within a relatively short period of time." Herr v. Airborne Freight Corp., 130 F.3d 359, 362-63 (citations omitted). "This inference arises because it is unlikely that the same supervisor would hire a woman, only to turn around and discharge her for that reason." Id. at 363 (citation omitted). This "strong inference" applies in this case: it is unlikely that Einertson would delay her background check because she is a woman over 40, only to complete it later; it is also unlikely that Helmrich would not hire Peterson for the full time position because she was a woman over 40, only to turn around and hire her for the intermittent position. See id. Because Peterson's theory is supported more by conjecture and speculation than evidence, it is insufficient to withstand summary judgment. Girten v. McRentals, Inc., 337 F.3d 979, 982 (8th Cir. 2003).
Peterson also takes issue with the manner in which Einertson and Helmrich investigated her past employment. (See Peterson's Mem. in Opp'n at 5-6.) She alleges that Einertson "never tried to contact anyone" at her former employer and that Helmrich "contacted a friend of his," but the friend "had never worked with" her. (Id. at 5.) Even if true, this conduct does not account for any discriminatory delay in processing her background check. To the contrary, such actions would seem to expedite the process.
III. Discriminatory Failure to Promote
Next, Peterson claims that she was twice denied promotions to full time positions, despite her qualifications, because of her sex and age. (Pl.'s Mem. in Opp'n at 21, 24.) The modified McDonnell Douglas framework applies to her Title VII sex discrimination claim, while the unmodified framework applies to her MHRA and ADEA claims. To establish a prima face case of a discriminatory failure-to-promote, Peterson must first show that: (1) she was a member of a protected group; (2) she was qualified and applied for a promotion to a position for which the employer was seeking applicants; (3) she was not promoted; and (4) a similarly qualified employee, not part of a protected group, was promoted instead.Austin v. Minnesota Mining and Mfg. Co., 193 F.3d 992, 995 (8th Cir. 1999) (age and sex discrimination) (citing Lyoch v. Anheuser-Busch Cos., 139 F.3d 612, 614 (8th Cir. 1998)): see Ottman v. City of Independence, 341 F.3d 751, 756-57 (8th Cir. 2003) (sex discrimination) (citing Ross v. Kansas City Power Light Co., 293 F.3d 1041, 1046 (8th Cir. 2002)).
Defendants argue that Peterson fails to show that she was similarly situated to those who were promoted — Lane and Langevin — because they had more Scott County experience and were full time temporary officers. (Defs.' Mem. in Supp. at 19, 19 n. 36.) Defendants assert these same arguments as legitimate, nondiscriminatory reasons for the decisions. (Id. at 21.) Peterson responds that her state correctional experience made her more qualified. (Pl.'s Mem. in Opp'n at 21.) She further asserts that Lane would not have met even the minimum qualifications for the position had the Sheriff's Department not included his miliary service. (Id.) She also claims that Langevin did not meet the minimum qualifications when he was hired. (Id.)
Assuming, without deciding, that Peterson has established a prima facie case, Defendants have offered legitimate, nondiscriminatory reasons for the decisions and Peterson has not offered sufficient evidence for a reasonable fact finder to determine either that (1) Defendants' reasons were pretextual, or (2) that her sex was a motivating factor in failing to promote her.
Although Peterson believed that she was more qualified than Lane and Langevin for the positions, she offers no evidence demonstrating that the Defendants did not believe that Lane and Langevin were more qualified because of their Scott County experience and full time temporary status. In fact, Peterson offers no evidence contradicting Defendants' affidavits that Lane and Langevin had more Scott County experience and that such experience was valued more. (Steinhoff Aff. ¶ 4; Helmrich Aff. ¶ 7.) While it is true that Langevin was not considered qualified for the full time permanent position he applied for in October 2001 (Sarnoski Aff Ex. 6), it is also true that he was considered qualified for the full time temporary position to which he was promoted (Helmrich Aff. ¶ 7). "Employers, not courts, are in the best position to determine the most qualified applicant for a given position." Ottman, 341 F.3d at 757. The Court does not "sit as a super-personnel department, second-guessing employment decisions." Id. at 757-58 (citation and internal quotations omitted). As Jail Administrator, who was responsible for making hiring recommendations, Helmrich "was entitled to exercise his independent judgment and select, from the certified pool, the applicant[s] he deemed most qualified." Id. at 758. There is nothing to suggest that the Defendants' preference for Scott County experience (or military service in the case of Lane's re-rating) discriminates on the basis of sex or age. See Ross, 293 F.3d at 1041 ("In the usual course of events, an employer will hire the most qualified candidate, and an employer, not a federal court, is in the best position to identify those strengths that constitute the best qualified applicant." (citation, internal quotations, and alterations omitted)). Accordingly, because Peterson has not met her burden, the Court will grant Defendants summary judgment on her failure to promote claims.
IV. Hostile Work Environment
Peterson also alleges that she was subjected to a hostile work environment. (Pl.'s Mem. in Opp'n at 30-32.) To establish such a claim, Peterson must show that: (1) she belongs to a protected group; (2) she was subject to unwelcome harassment; (3) a causal nexus exists between the harassment and the protected group status; (4) the harassment affected a term, condition, or privilege of employment; and (5) her employer knew or should have known of the harassment and failed to take proper action. Erenberg v. Methodist Hosp., 357 F.3d 787, 792 (8th Cir. 2004); Tademe v. Saint Cloud State Univ., 328 F.3d 982, 991 (8th Cir. 2003). Harassment which is severe and pervasive is deemed to affect a term, condition, or privilege of employment. Elmahdi v. Marriott Hotel Servs., Inc., 339 F.3d 645, 652 (8th Cir. 2003). The objectionable environment must be both objectively severe, as it would be viewed by a reasonable person, and subjectively severe, as it was actually viewed by the victim. Id.
Hostile work environment claims, whether based on sex or age, are analyzed under the same general framework. Weyers v. Lear Operations Corp., 359 F.3d 1049, 1056 n. 6 (8th Cir. 2004) (citing Breeding, 164 F.3d at 1158-59).
In determining whether sufficient evidence of a hostile work environment has been presented, the Court considers all of the attendant circumstances, including 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. Id. at 652-53. To satisfy the "high threshold of actionable harm," Peterson has to show her workplace was "permeated with discriminatory intimidation, ridicule, and insult." Id. at 653 (citation and internal quotations omitted). "[M]ere utterance of an . . . epithet which engenders offensive feelings in a[n] employee . . . does not sufficiently affect the conditions of employment" to implicate the anti-discrimination laws. Id. (citation and internal quotations omitted).
Peterson fails to show that the alleged sex and age harassment was sufficiently severe or pervasive to have affected a term, condition, or privilege of employment. Peterson alleges that the comments by Sgt. Dumbleton and Officer Bloedow show an age and sex hostile work environment. Sgt. Dumbleton allegedly: (1) said "it was too hard to train older women;" (2) called Peterson an "old lady"; (3) told her that she should "put [her] glasses on so [she] could hear"; and (4) told her that she "didn't have the right parts" and that he needed "peepees," meaning men, to conduct male strip searches and urine analyses. (Thompson Aff. Ex. A (Peterson Dep. Tr. at 92-94, 98, 182-83); see supra Background Part III.) Officer Bloedow allegedly screamed "shut the fuck up," and "that's why women were not needed because [they] are lazy," after Peterson asked him to assist her. (Id. Ex. A (Peterson Dep. Tr. at 101, 134); see supra Background Part III.)
These examples of sporadic sex or age-related comments, however, are "neither severe nor pervasive enough to create a hostile work environment." Woodland v. Joseph T. Rverson Son. Inc., 302 F.3d 839, 844 (8th Cir. 2002); see Wallin v. Minnesota Dept. of Corrections, 153 F.3d 681, 688 (8th Cir. 1998) ("Because the discrimination laws are not a general civility code, offhand comments (unless extremely serious) and isolated incidents . . . will not amount to discriminatory changes in the terms and conditions of employment." (citation and internal quotations omitted)). While Dumbleton and Bloedow's comments were certainly offensive, offensive conduct is not enough to sustain a hostile work environment claim absent the requisite effect on the terms or conditions of employment. Woodland, 302 F.3d at 843. "Title VII does not . . . create a cause of action for all unpleasant or abusive behavior in the workplace." Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir. 1997) (citation omitted). Accordingly, the Court will grant summary judgment on Peterson's hostile work environment claims.
V. Retaliation
Peterson also contends that she was terminated in retaliation for her complaints about perceived sex and age discrimination. (Pl.'s Mem. in Opp'n at 1, 27-30.) Under Title VII, the ADEA, and the MHRA, it is unlawful for an employer to intentionally discriminate against an employee because she opposes employment practices made unlawful under the statutes. 42 U.S.C. § 2000e-3(a); Minn. Stat. § 363A. 15; 29 U.S.C. § 623(d). The unmodified McDonnell Douglas framework applies to all her retaliation claims. See supra Analysis Part I; see also E.E.O.C. v. Kohler Co., 335 F.3d 766, 772 (8th Cir. 2003) (applying McDonnell Douglas to Title VII retaliation claims); Bergstrom-Ek v. Best Oil Co., 153 F.3d 851, 859 (8th Cir. 1998) (applying McDonnell Douglas to MHRA reprisal claims); Kneibert v. Thomson Newspapers, Michigan Inc., 129 F.3d 444, 454-55 (8th Cir. 1997) (applying McDonnell Douglas to ADEA retaliation claims).
A. Prima Facie Case
To proceed on her claim, Peterson must first establish a prima facie case of retaliation by showing that (1) she engaged in statutorily protected conduct; (2) there was an adverse employment action; and (3) a causal connection between her conduct and the adverse employment action.See E.E.O.C., 335 F.3d at 772; Bergstrom-Ek; 153 F.3d at 859; Kneibert, 129 F.3d at 454. There is no doubt that Peterson suffered an adverse employment action — she was terminated December 4, 2001, Defendants argue, however, that she cannot show statutorily protected conduct or a causal connection. (Defs.' Mem. in Supp. at 25-29.) For the following reasons, the Court finds that Peterson has established a prima facie case.
To the extent Peterson asserts that she did not receive on-the-job training in retaliation, she fails to show a prima facie case because lack of training is not an adverse employment action. Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707, 715 (8th Cir. 2000) ("Employment actions which do not result in changes in pay, benefits, seniority, or responsibility are insufficient to sustain a retaliation claim." (citation omitted)).
1. Protected Activity
The prohibition against retaliatory discrimination "protects activities ranging from filing a complaint to expressing a belief that the employer has engaged in discriminatory practices." Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707, 714 (8th Cir. 2000) (applying this approach to retaliation claims under Title VII) (citing Wentz v. Maryland Cas. Co., 869 F.2d 1153, 1154-55 (8th Cir. 1989) (applying this approach to retaliatory discharge claim under the ADEA)). "A finding of unlawful retaliation, however, is not conditioned on the merits of the underlying discrimination complaint. . . . A plaintiff need not establish the conduct which she opposed was in fact discriminatory but rather must demonstrate a good faith, reasonable belief that the underlying challenged conduct violated the law." Id. (citations omitted).
Peterson argues that she "engaged in legally protected activity when she objected to disparate treatment." (Pl.'s Mem. in Opp'n at 27.) She asserts that she "complained to Helmrich about Dumbleton's age/gender comments, about not being assigned hours because she did not have the right parts, about being denied employment in favor of less qualified men, and about unfair performance criticisms." (Id.) She also asserts that she "took her complaints of disparate treatment to Human Resources and Deputy Sheriff Mike Busch." (Id. at 28.) She believed "that derogatory stereotype comments about 'old ladies' and women working at the jail . . . [and] that the failure to hire or promote a highly qualified wom[a]n in favor of less qualified younger men would be illegal discriminatory conduct." (Id.)
Defendants contend that Peterson's complaints are not protected activities because no reasonable person could find that the conduct which she opposed violated the law. (Defs.'s Mem. in Supp. at 26.) With respect to complaints about the sex or age-related comments, Defendants assert that "a reasonable person would not find them severe or pervasive enough to be afforded protection . . . [and] could not, in a reasonable person's eyes, create a severely hostile environment." (Id. at 26-27.) With respect to complaints about not being hired or promoted, Defendants assert that Peterson's "belief that she was more qualified simply because she had nine years of experience with a state agency does not provide a reasonable basis for her to believe that she was denied the full-time position because of her age and gender." (Id. at 26.)
Regarding Peterson's complaints about Dumbleton and Bloedow's sex or age-related comments, Peterson was not engaged in protected activities because no reasonable person could have found that the conduct she complained about created a hostile work environment. Curd v. Hank's Discount Fine Furniture, Inc., 272 F.3d 1039, 1041 (8th Cir. 2001) (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (per curiam)); see supra Analysis Part IV.
To the extent Peterson alleges that she was not promoted in retaliation for her complaints, she also fails to show that she engaged in protected activity because the only complaints she made prior to the promotions — to Helmrich on October 18, and to Lenz on November 2 and 5 — were about the same sex or age-related comments. See Curd, 272 F.3d at 1041.
Regarding her complaints to Helmrich about not being promoted, however, there is a genuine issue of material fact as to whether she engaged in protected activity. When questioned about the November 20 conversation he had with Peterson, Helmrich testified:
Q. And the November 20th meeting, 1 think you referred to?
A. It was a phone call.
Q. Tell me about that.
A. Ms. Peterson called and again said, I'm not happy with the fact I didn't get the full-time position. I tried to explain it to her, shared with her some of the reasons for it. Ms. Peterson kept constantly badgering, for lack of a better term. I told her after five, ten minutes I was terminating the phone call. I found her to be very rude, and I terminated the phone call.
Q. You said she was referring to an individual and you were referring to an individual. Who was that individual?
A. It was a gentleman — a corrections officer name[d] Todd [Langevin].
(Thompson Aff. Ex. J (Helmrich Dep. Tr. at 63-64).) While not specifying when she complained, Peterson testified:
Q. Did you express concern that you were not given a full-time position and you had nine years of experience and other male, less qualified individuals were given those positions?
A. On a few occasions, I did express my concern that male officers were given positions, full-time positions.
Q. To whom did you raise these concerns?
A. Everybody during the whole time?
Q. Right.
A. Captain Helmrich, Lieutenant Steinhoff, Mike Busch, a couple of the co-workers. . . .
(Id. Ex. A. (Peterson Dep. Tr. at 165).)
While the thrust of her complaint appears to be that she was better qualified than Langevin, and she did not specifically state that she felt discriminated against, a reasonable factfinder could infer that she was complaining about discrimination. See Anderson, 477 U.S. at 255. A reasonable factfinder could also find that she had a good faith, reasonable belief that the Defendants' decision not to promote her violated the law. Buettner, 216 F.3d at 714.
This is hardly overwhelming evidence, however, that Peterson was actually complaining about sex or age discrimination.
2. Causation
Peterson has also met her burden to establish a causal connection between her termination and her complaint to Helmrich. The timing of Peterson's December 4 termination in relation to her November 20 complaint to Helmrich — two weeks — raises an inference that she was terminated in retaliation. See Smith v. Alien Health Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002) (finding two weeks "sufficient, but barely so, to establish causation" in a prima facie case). Peterson has also shown slightly more than temporal proximity. For example, Helmrich's calendar entry for November 20, the day Peterson complained to him, states "Call Pam Johnson/ER . . . INTR-Dismissal." (Sarnoski Aff. Ex. 10.) Helmrich also testified that he told her that if she was unhappy "then maybe you should be somewhere else." (Thompson Aff. Ex. J (Helmrich Dep. Tr. at 63-64, 139).) When viewed in a light most favorable to Peterson, the temporal proximity, coupled with Helmrich's alleged conduct, "forms the basis for an inference that a causal connection existed between" Peterson's complaint and her termination. Kohler Co., 335 F.3d at 774.
She has not met her burden to establish causation, however, with respect to her complaints to Johnson or Busch. She has offered no evidence that the substance of her complaints was ever communicated to Helmrich or that those complaints were in any way connected to her termination.
B. Legitimate, Nondiscriminatory Reason
Because Peterson has demonstrated a prima facie case of retaliation, Defendants must "'produc[e] evidence that the plaintiff was rejected, or someone else preferred, for a legitimate, nondiscriminatory reason.'"Reeves, 530 U.S. at 142 (quoting Burdine, 450 U.S. at 254). Here, defendants have met this burden by offering admissible evidence sufficient for the trier of fact to conclude that Peterson was terminated based on her attitude, performance, and refusing shifts or calling in sick. (Defs.' Mem. in Supp. at 19, 21); see infra Analysis Part V.C. The Eighth Circuit has
repeatedly held that insubordination and violation of company policy are legitimate reasons for termination. See Ward v. Proctor Gamble Paper Prods. Co., 111 F.3d 558, 560 (8th Cir. 1997) (employee terminated for striking a co-worker); Price [v. S-B Power Tool], 75 F.3d [362,] 365-66 [(8th Cir. 1996)] (employee terminated for excessive absenteeism); Lidge-Mvrtil [v. Deere Co.]. 49 F.3d [1308.] 1310-11 [(8th Cir. 1995)] (employee not chosen for promotion because of poor relationship with co-workers and violation of company policy); Miner v. Bi-State Dev. Agency, 943 F.2d 912, 913-14 (8th Cir. 1991) (employee terminated for insubordination and violating various company policies).Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999) (en banc). Therefore, the sole remaining issue is "discrimination vel non."Reeves, 530 U.S. at 142-43 (citations and internal quotations omitted).
C. Pretext
Peterson must now prove, or generate genuine issues of material fact, that Defendants' proffered reason is not true, but is instead a pretext for retaliation. Peterson, however, has not met her burden. It appears that she relies solely on her prima facie case to show pretext because she has produced no additional evidence of retaliation. (See Pl.'s Mem. in Opp'n at 27-30.) While "[i]t is possible for strong evidence of a prima facie case to establish pretext," Smith, 302 F.3d at 834, Peterson's prima facie case is far from strong. Although establishing "temporal proximity sufficed to create a prima facie case of [retaliation]," it does not suffice "to show that the [Defendants'] proffered reason was pretextual." Id. (citation omitted). Moreover, Helmrich's comment that "maybe you should be somewhere else" (Thompson Aff. Ex. J (Helmrich Dep. Tr. at 139)), was innocuous and does not establish pretext. Finally, although Helmrich's calendar for November 20 contains the notation "Call Pam Johnson/ER . . . INTR — Dismissal" (Sarnoski Aff. 10), it would be rank speculation to find this as evidence of pretext. Peterson has not established that she is the "INTR" mentioned or that Helmrich made the notation in response to her complaint. To survive summary judgment, Peterson must "substantiate [her] allegations with sufficient probative evidence [that] would permit a finding in [her] favor based on more than mere speculation, conjecture, or fantasy." Putnam v. Unity Health Sys., 348 F.3d 732, (8th Cir. 2003) (citation and internal quotations omitted). She has not done so.
Not only is her prima facie case especially weak, she has offered no other evidence that suggests that Defendants' reasons for termination — her attitude, performance, and refusing shifts or calling in sick — are false and a pretext for retaliation. In fact, the evidence supports Defendants' position.
First, Defendants have shown that some supervisors had concerns about Peterson's attitude. For example, during a conversation on November 9, Helmrich found her "very argumentative," "difficult," and "bickering." (Thompson Aff. Ex. A (Helmrich Dep. Tr. at 62-63).) Additionally, Sgt. Deb Lambright told Helmrich that Peterson was rude; Sgt. Randy Lenz told Helmrich that she had problems relating to others; Sgt. Kevin Nelson told Helmrich that Peterson was difficult to work with. (Id. Exs. J (Helmrich Dep. Tr. at 57, 58, 127-28, 137-38), P (Lenz Dep. Tr. at 98-99).) Others reported that Peterson tried to tell them that they should operate the jail like the State operated the Lino Lakes facility. (Id. Ex. J (Helmrich Dep. Tr. at 137-38).) While Peterson might view her conduct differently, she has not shown that these observations are false.
Second, Peterson admits destroying an inmate's funds receipt in violation of jail policy. (Id. Ex. A (Peterson Dep. Tr. at 161, 168-69).) While she disputes other performance issues, a violation of workplace policy is a legitimate reason for termination, Kiel, 169 F.3d at 1135, and she has not shown that the policy was enforced disparately.
Finally, Peterson admits calling in sick on November 20 and being unable to work on November 21. (Id. Ex. A (Peterson Dep. Tr. at 173-78, 181).) Although she denies accepting a shift on November 22, she was not available for it. (Id. Ex. A (Peterson Dep. Tr. at 190); Thompson Supplemental Aff. Ex. 1.) It is undisputed, however, that the role of an intermittent worker is to be available to work when needed. (Helmrich Aff. ¶ 11.) Importantly, Scott County has previously terminated three intermittent workers — including two males — for not being available to work. (Thompson Aff. Ex. J (Helmrich Dep. Tr. at 29-33).)
Peterson responds that, unlike her, Nick Adler and Todd Langevin were not terminated when they missed work. (Pl.'s Mem. in Opp'n at 21-22.) One way to show pretext is to demonstrate that "the employer meted out more lenient treatment to similarly situated employees . . . who did not engage in protected activity." Smith, 302 F.3d at 835 (citation omitted). "It is [Peterson's] burden, however, to prove that the compared employees were similarly situated in all relevant aspects." Id. (citation omitted). Here, Peterson has not demonstrated that either Adler or Langevin was similarly situated in all relevant aspects — she has not shown that they had similar performance and attitude problems or that they were intermittent officers.
With respect to Adler, while the jail system's calendar designated him as "Interm," and "Interm" can mean either intermittent officer or full time temporary officer, Sgt. Lenz testified that Adler was a full time temporary officer and Peterson has offered no evidence to contradict his testimony. (Thompson Aff. Exs. O; P (Lenz Dep. Tr. at 25, 41-42));see White v. McDonnell Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990) ("A district court is not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim.") With respect to Langevin, he was a full time temporary officer during the time in which Peterson alleges he missed work but was not terminated. (See Huss Aff. ¶ 6; Thompson Aff. Exs. K; I (Langevin Dep. Tr. at 7, 27, 31).)
Accordingly, because Peterson has not satisfied her burden to show that Defendants' reasons for terminating her were false and a pretext for discrimination, the Court will grant Defendants' summary judgment on her retaliation claims.
VI. Section 1983 Claims
Finally, Peterson sues Helmrich and Sheriff Nevin in their individual capacities under 42 U.S.C. § 1983. (Compl. ¶¶ 33-34; Pl.'s Mem. in Opp'n at 32-33.) "Section 1983 establishes no substantive rights but is merely the vehicle for seeking a federal remedy for violations of federally protected rights." Greenwood v. Ross, 778 F.2d 448, 454 (8th Cir. 1985) (citations omitted): see Alsbrook v. City of Maumelle, 184 F.3d 999, 1012 (8th Cir. 1999). Because none of Peterson's Title VII or ADEA claims — the only federally protected rights she alleges in her Complaint — survives summary judgment, the Court will grant Helmrich and Nevin summary judgment on her § 1983 claim as well.
On April 13, 2004, the undersigned received a letter from Peterson's counsel in which she asserts that at oral argument "Defendants submitted additional written argument to the Court" and "requests an opportunity for a brief written response." (Letter from Sarnoski to the undersigned of April 13, 2004.) On April 14, 2004, the undersigned received a response letter from Defendants' counsel in which she asserts that Peterson's counsel's "opportunity to object or respond to Defendants' demonstrative exhibits was during oral argument. Her opportunity has expired." (Letter from Thompson to the undersigned of April 14, 2004.) The Court agrees that Peterson's time for objecting or responding to Defendants' demonstratives was at oral argument. In any event, the demonstratives were given no more weight in resolving this matter than was given to the briefs, affidavits, exhibits, and oral arguments of both sides.