Opinion
Civil No. 99-1891 ADM/AJB
November 2, 2001
Eric D. Satre, Esq., Connor, Satre Schaff, LLP, Minneapolis, Minnesota, appeared for and on behalf of the Plaintiff.
Bradley J. Betlach, Esq., Halleland, Lewis, Nilan, Sipkins Johnson, P.A., Minneapolis, Minnesota, appeared for and on behalf of the Defendant.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On September 12, 2001, the undersigned United States District Judge heard Defendant Home Depot Corporation's ("Home Depot") Motion for Summary Judgment [Doc. No. 13]. Defendant seeks summary judgment on Plaintiff Allan C. Pape's ("Pape") claims of discrimination based on age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621-34, and the Minnesota Human Rights Act ("MHRA"), Minn.Stat. § 363.03. For the reasons set forth below, Defendant's motion is granted.
While Plaintiff's name in this case is captioned as "Allan C. Poppe," at his deposition, Plaintiff spelled his name "P-a-p-e." See Pape Dep., at 4. Moreover, in the briefs both parties spell his name "Allan C. Pape." See Pl.'s Mem. in Opp'n., at 1; Def.'s Mem. in Supp., at 1.
II. BACKGROUND
As required in the summary judgment context, the following facts are reviewed in the light most favorable to Pape. On May 8, 1998, Home Depot hired Pape as a garden department sales associate at its Burnsville, Minnesota, store. See Pape Dep., at 16. At that time, Pape was 45 years old. Id. at 10. Pape is a high school graduate. Id. at 23-24. Immediately prior to his employment at Home Depot, Pape worked as a store manager for Champion Auto Parts. Id. at 19. From 1981 through 1995, Pape owned and operated Pape Feed Seed, a farm supply store. Id. at 19-22.
Pape's starting wage with Home Depot was $10.50 per hour. Pape Dep., at 35. Matt Wahl, the assistant store manager who interviewed and hired Pape, told him that Home Depot could not pay his requested starting salary, $14.50 per hour, because most of Pape's prior relevant experience was self-employment. Id. at 34-35. Pape alleges that Wahl agreed to raise Pape's wages after 90 days if his performance merited it. Id. Home Depot generally does not give raises to employees at their 90-day review. Id. at 56.
Home Depot did not give Pape a wage increase at his 90-day review. Id. at 52-54. After Wahl transferred to another store, the new assistant store manager, Brian Majewski, told Pape he would attempt to secure a raise for Pape after his six-month review. See Pape Dep., at 53, 60-62. Typically, Home Depot does not give raises to employees at the six-month review. Id. at 62-64. Pape does not believe Home Depot's wage decisions to this point in time were related to his age. See id. at 46, 58, 64-66.
Pape's six-month review passed. He did not receive a raise. The new assistant store manager, Matt Girard, enrolled Pape in Home Depot's Department Supervisory Training Program to enable him to seek a promotion. Id. at 70-71. In December, Pape threatened to quit if Home Depot did not give him a raise. Id. at 73. Girard requested Pape to stay and said he would attempt to obtain a wage increase for Pape. Id. Pape testified that he did not believe he suffered age-based discrimination during Girard's tenure. See id. at 75.
In early January 1999, Kirk Stirens replaced Girard as the assistant store manager responsible for the Garden Department. See Pape Dep., at 79-80. Stirens informed Pape that the process of securing a raise for him was underway. Id. at 80-81. Further, Pape learned that Home Depot would consider him for a promotion to garden department supervisor. Id. at 81-83.
Near the end of January 1999, Home Depot chose Dave Larson as the new garden department supervisor. See Tesvich Aff. ¶ 3. Home Depot made this decision based on Larson's prior managerial experience. Id. Larson had been working as the front-end supervisor for Home Depot for more than a year. Id. ¶ 2. Home Depot believed Larson possessed the experience and skills necessary for managing large numbers of Home Depot employees. Id. Furthermore, Larson previously had owned a landscaping business and was generally familiar with garden department concepts. Id. Home Depot's management believed that "Dave [knew] Home Depot" better than Pape. See Tesvich Aff. ¶ 2; Pape Dep., at 86. Home Depot asked Pape to be the "lead" associate to Larson, the department supervisor. See Pape Dep., at 88.
Pape was unhappy with Home Depot's decision. He contacted the store manager of Home Depot's new store at Eagan, Minnesota, to inquire about department supervisor positions there. Id. at 89. The store manager did not have any openings, but offered Pape a sales associate position with an immediate wage increase of $1.50 per hour. Id. at 89-90. Thereafter, Pape told Stirens that he was going to accept an offer to transfer to the Eagan Home Depot store after he received permission from his store manager at Burnsville. Id. at 92-93. Pape also expressed to Stirens that absent a raise, he was uninterested in assuming the "lead" associate position in the garden department supervised by Larson. Id. at 90-92. Pape "confronted" Stirens about Home Depot's choice of Larson for garden department supervisor and suggested it was based on Pape's age. Id. Pape believed Larson was less than 30 years old. Pape Dep., at 102.
On February 3, 1999, Pape telephoned D.J. Stephenson, Home Depot's EEO Specialist in Chicago, to express his concerns about unfair wages. Id. at 137-39. Stephenson returned Pape's call and they discussed Pape's belief that Home Depot compensated him unfairly based on what he had heard about other sales associates' wages. Id. at 139-40. Pape did not present any age discrimination concerns to Stephenson. Id. at 140. Nor did Pape raise age-related issues regarding his failure to be promoted to supervisor. Id. at 150-52.
By February 6, 1999, the store manager at the Burnsville Home Depot location granted Pape's request to transfer to the Eagan store, to be effective on March 1. See Pape Dep., at 111; Tesvich Aff. ¶ 3. During the interim, Home Depot temporarily assigned Pape to work at the Woodbury store. See Pape Dep., at 111; Tesvich Aff. ¶ 3. Pape's hourly wage remained the same at Woodbury as it had been at Burnsville. Pape Dep., at 125.
On April 1, 1999, at the time of Pape's yearly review, Home Depot increased Pape's wages to $11.50 per hour. Id. at 177. Later, Home Depot retroactively increased Pape's wages to $15.50 per hour. Id. at 155. In mid-May, Home Depot promoted Pape to department supervisor at its Eden Prairie store. Id. at 180-82. A raise of $1.00 per hour accompanied this promotion, resulting in an hourly wage of $16.50. Id.
Pape has since returned to work at the Eagan store. See Pape Dep., at 227-30. Home Depot has given him two additional raises. Id. Pape now earns $18.00 per hour. Id.
III. DISCUSSION
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The movant has the burden of showing that no genuine issue of material fact exists. See Celotex, 477 U.S. at 323. Once the movant meets its burden, the non-movant may not rest upon mere allegations or denials, but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The mere existence of a "scintilla of evidence" in support of the non-movant's position is insufficient; there must be evidence on which a jury could reasonably find for the non-movant. Anderson, 477 U.S. at 252. The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586.
A. Discrimination
The ADEA prohibits an employer from discriminating on the basis of a person's age, if such an individual is over 40 years old. See 29 U.S.C. § 631(a). The ADEA states in part that "[i]t shall be an unlawful employment practice for an employer [to] discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a). To establish a claim under the ADEA, Pape must show that Defendant intentionally discriminated against him. Ziegler v. Beverly Enterprises-Minnesota, Inc., 133 F.3d 671, 675 (8th Cir. 1998).
Where a plaintiff lacks direct evidence of intentional discrimination, the three-step McDonnell Douglas burden-shifting analysis applies. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993); Euerle-Wehle v. United Parcel Serv., 181 F.3d 898, 900 (8th Cir. 1999). Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Cronquist v. City of Minneapolis, 237 F.3d 920, 924 (8th Cir. 2001). Once a prima facie case is established, a rebuttable presumption shifts the burden to the employer to articulate a legitimate, nondiscriminatory reason for its employment action. Id. If the employer articulates such a reason, the presumption disappears and the plaintiff bears the burden of proving that the employer's proffered reason is merely a pretext for discrimination. Id.
Analysis of discrimination claims under the MHRA is the same as that under the ADEA. See Ziegler, 133 F.3d at 675 (using the same analysis for claims under the ADEA and the MHRA); Todd v. Ortho Biotech. Inc., 175 F.3d 595, 599 (8th Cir. 1999) (noting that Minnesota courts frequently look to federal cases when interpreting the MHRA).
To establish a prima facie case of age discrimination, a plaintiff must demonstrate that: (1) he is within the protected class; (2) he was qualified to perform his job; (3) he suffered an adverse employment action; and (4) nonmembers of his class (persons under 40 in the ADEA context) were not treated the same. Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1156 (8th Cir. 1999).
There is no dispute that Pape is over 40 years old and within the protected class. However, neither Pape's wage-based claim nor his failure-to-promote claim set forth evidence sufficient to demonstrate other required elements of the prima facie case.
1. Wage discrimination
An age-based wage discrimination claim requires Pape to show that Home Depot paid him a lower wage than a younger employee who was performing equal work on a job which required equal skill, effort, and responsibility, and which was performed under similar working conditions. Lyoch v. Anheuser-Busch Cos., Inc., 139 F.3d 612, 616 (8th Cir. 1998). Pape has failed to set forth evidence that he was similarly situated to younger, higher paid associates. Pape merely asserts he heard that other, younger sales associates were hired at a higher wage rate than he was paid. This unsubstantiated hearsay does not suffice to meet his prima facie obligations.
During the relevant time period, the average starting wage of a Home Depot sales associate in Pape's department was $9.25 per hour, $1.25 less than Pape's starting wage. See Myers Aff. ¶ 4. For new sales associates recently graduated from high school, the average starting wage range was $8.00 to $9.50 per hour. Id. Of the 27 employees in Pape's department, only five received a starting wage higher than Pape's starting wage. Id. at ¶ 5. Two of those five employees were over 40 years old. Id. Another employee was paid 25 cents per hour more than Pape. Id. The other two employees, aged 31 and 36, were hired many months after Pape started.
Pape has failed to show that he was similarly situated to younger associates, who received higher wages. Indeed, Pape's own testimony demonstrates that he did not believe Home Depot's wage decisions were based on his age. See Pape Dep., at 46, 64-66, 75, 77. When Pape brought his wage complaints to Home Depot's EEO, he did not suggest that the problem was related to his age. See Pape Dep., at 140.
Moreover, the evidence establishes that Home Depot followed its compensation policies with regard to Pape's wages. See Kindred v. Northome/Indus. Sch. Dist. No. 363, 154 F.3d 801, 804 (8th Cir. 1998) (finding no adverse employment action where employer's salary decisions were consistent with its compensation policy). Home Depot's compensation policy is a legitimate, nondiscriminatory reason for Pape's wage rate. Pape has failed to set forth evidence sufficient to create a genuine issue of fact as to whether Home Depot's wage policy was a pretext for age discrimination. Pape's belief that Home Depot was not paying him as much as he felt he deserved is an insufficient basis for an age discrimination claim.
2. Failure to Promote
To establish a failure-to-promote claim, Pape must show that (1) he is a member of a protected group; (2) he was qualified and applied for a promotion to a position for which the employer was seeking applicants; (3) despite his qualifications, he was rejected; and (4) other employees of similar qualifications who were not members of a protected group were promoted at the time plaintiff's request for promotion was denied. See Lyoch, 139 F.3d at 614. There is no dispute that Pape was 45 years old and was denied the promotion. However, Pape has not shown that his qualifications were similar to those of Larson, the front-end supervisor who received the garden department supervisor position.
Larson had been employed by Home Depot much longer than Pape and he had already held a supervisory position at Home Depot. Pape had never held a supervisory position at Home Depot. Based on Larson's greater experience at the store, management believed that he was better qualified than Pape. See Tesvich Aff. ¶ 2; Pape Dep., at 86. Home Depot thus exercised its business judgment and promoted Larson. Courts should not act as a "super-personnel department," revisiting the wisdom or fairness of employment decisions, except when intentional discrimination is involved. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995); McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 511 (8th Cir. 1995) ("[E]mployers have wide latitude to make business decisions."). There is no evidence from which to infer intentional discrimination under the circumstances of this case.
B. Retaliation
An employer may not discriminate against an employee because the employee "has opposed any practice made an unlawful employment practice." 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII, Pape must show: (1) that he engaged in statutorily protected activity; (2) that he suffered an adverse employment action; and (3) a causal connection existed between the adverse employment action and the protected activity. Artis v. Francis Howell N. Band Booster Ass'n., Inc., 161 F.3d 1178, 1182 (8th Cir. 1998). Pape alleges that after he complained to Home Depot's EEO Specialist regarding his wages, Home Depot retaliated against him by transferring him to the Woodbury store. Pape's allegations are insufficient to present a prima facie case of retaliation.
To establish a prima facie case pursuant to Minn. Stat. § 181.932, a plaintiff must prove (1) good faith, statutorily-protected conduct; (2) an adverse employment action that results in a tangible job detriment; and (3) a causal connection between the two. See Michaelson v. Minnesota Mining Mfg. Co., 474 N.W.2d 174, 180 (Minn.Ct.App. 1991), aff'd., 479 N.W.2d 58 (Minn. 1992).
First, there is insufficient evidence showing Pape made a complaint of age-based discrimination. Pape did not even suggest to Home Depot's EEO that his wage complaint was related to his age. When he discussed wage issues with the EEO, Pape merely complained that he was underpaid in light of his experience. Thus, Pape did not oppose any actions he believed constituted age discrimination before his transfer to Home Depot's Woodbury location. He cannot avoid scrutiny of his retaliation claim by now claiming a belief that his employer's conduct was illegal. See Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997) (internal citations omitted).
Furthermore, Pape suffered no tangible adverse employment action. An adverse employment action must be demonstrated by a material employment disadvantage, such as a change in salary, benefits, or responsibilities. Bradley v. Widnall, 232 F.3d 626, 632 (8th Cir. 2000); Scusa v. Nestle USA Co., Inc., 181 F.3d 958, 969 (8th Cir. 1999). "[N]ot everything that makes an employee unhappy is an actionable adverse action." Montandon, 116 F.3d at 359. A plaintiff must establish a "materially adverse impact" on the terms or conditions of her employment. Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 684 (8th Cir. 2001). Working conditions that cause no materially significant disadvantage to the employee or disappointment with changes in one's employment situation do not rise to legally cognizable adverse employment actions. Id.
Pape suffered no diminution in his title, salary or benefits as a result of his temporary transfer to Home Depot's Woodbury store. The transfer merely lengthened his commute to work for three weeks. A transfer involving only minor changes in working conditions and no reduction in pay or benefits does not constitute an adverse employment action. See Spears v. Missouri Dept. of Corrections, 210 F.3d 850, 853 (8th Cir. 2000). Pape's temporary transfer may have been inconvenient, but it is not an actionable adverse employment action. See id. at 854; see also Hoffman v. Rubin, 193 F.3d 959, 964 (8th Cir. 1999).
Finally, there is no causal connection here. The record indicates that the decision-maker, Tesvich, did not know about Pape's unfair wage complaint when he decided to transfer Pape. See Tesvich Aff. ¶ 3. Pape has presented no evidence to impute knowledge to the decision-maker. The evidence in the record does not raise a genuine issue of material fact as to whether Home Depot's actions were causally connected to Pape's complaint. See Lyoch, 139 F.3d at 616.
No genuine issues of material fact as to essential elements of Pape's claims are present. Pape cannot wield the age discrimination laws against Home Depot's legitimate business decisions. Summary judgment is granted.
IV. CONCLUSION
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment [Doc. No. 13] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.