Opinion
Civil No. 02-4779 (JRT/FLN).
August 31, 2004
Paul W. Iversen, WILLIAMS IVERSEN, Roseville, MN, for plaintiff.
Karen G. Schanfield, Sara G. McGrane, and Donald G. Heeman, FELHABER, LARSON, FENLON VOGT, Minneapolis, MN, for defendant.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Darlene K. Privette brought this lawsuit against her former employer, SPX Corp. ("SPX"), alleging disability and gender discrimination under the Americans with Disabilities Act ("ADA"), Title VII, and the Minnesota Human Rights Act ("MHRA"). Defendant moves for summary judgment, arguing that even assuming all the facts in the light most favorable to plaintiff, she has failed to state a cause of action. For the reasons discussed below, defendant's motion for summary judgment is granted, and plaintiff's complaint is dismissed with prejudice.
Plaintiff also brought a claim for age discrimination, which she is not pursuing.
BACKGROUND
Plaintiff began working for SPX in October of 1990 as an environmental engineer. She was promoted to manufacturing engineer, and then in August of 1997, she was promoted to the position of "Facilitator," which was a supervisory position. Her supervisor in the "Facilitator" position was Jeff Hankins. In November of 2000, plaintiff was transferred out of the supervisory position to a position of "Supply Quality Engineer." She had no supervisory tasks in this position.Plaintiff suffers from depression, and has suffered from periods of panic attacks and "social phobia." Her depression began in 1996 — about the same time she was going through a divorce and shortly before Hankins became her supervisor. Plaintiff was the only female Facilitator reporting to Hankins, and she claims he treated her differently than the male employees. For example, she claims that he joked around with the male Facilitators, and discussed non-work related issues with them, but he was uncomfortable around plaintiff, and in some instances, she claims he would not even look at her.
Plaintiff performed well in her first two positions at SPX. In the position of Facilitator, however, she struggled. She recognized she had trouble in this role, and discussed that with Hankins. She claims that, unlike the male Facilitators, she did not receive adequate "process engineering support." She asked for this engineering support, and was involved in hiring an individual who was supposed to fill that role. Plaintiff claims that his work was inadequate, and not helpful to her. In the early summer of 2000, plaintiff continued to struggle in her position. She discussed her supervisory performance problems with SPX's Director of Human Resources.
Plaintiff also claims she asked for additional help from her employer on several occasions. Instead of getting the help she requested, plaintiff claims that she was "micromanaged" and required to give Hankins daily updates on her progress on various matters. She also claims that she discussed with Hankins how perfectionism was related to depression, and how that made it difficult for her to complete projects on time. She claims that she specifically asked for Hankins assistance with a particular large project (relating to obtaining approval for a significant plant improvement). She claims that Hankins did not respond to these requests for help, and instead required plaintiff to complete additional tasks that were not required of male employees (such as reporting to him on a daily basis).
There is a dispute regarding plaintiff's alleged refusal to turn over, or help recreate, environmental documents following her transfer. SPX was about to undergo an environmental audit. In plaintiff's position as Facilitator, she was responsible for creating or gathering multiple documents related to this audit. When plaintiff was transferred, she admits that she retained the documents, and refused to turn them over to her replacement. Plaintiff indicated that she decided not to turn the documents over until she was confident that her replacement understood the significance of the documents. After management told plaintiff to turn over the documents, she and her boyfriend claim that they placed the documents on a chair in her old office. Plaintiff claims that they moved the documents on a Sunday, and that she had permission to move them on Sunday because of her panic attack issues. The documents were not found in her old office, and some time later, management asked plaintiff where the documents were. She could not produce them (because she claimed to have turned them over). Management asked her to help recreate them, and she allegedly refused.
It was this disagreement that led to plaintiff's termination. Plaintiff and management met to discuss the documents. According to defendant, plaintiff responded to the request to help find the documents or help recreate them by saying, "I'm out of here" and abruptly leaving the meeting. Plaintiff suggests that when she said this, she was talking to herself, and essentially meant, "they're going to fire me" because plaintiff knew she could not produce the documents. Plaintiff also states that during the meeting, she was asked directly if she was quitting, and she said "No."
After the meeting, plaintiff went back to her cubicle, and some time later that day, her manager and a human resources employee came to her cubicle. Plaintiff assumed, from seeing other terminations, that the two were there to escort her out. Plaintiff claims that neither her manager nor the human resources person said anything, and finally she asked for a box to collect her things.
Later that day, an SPX manager called plaintiff. The content of the call is disputed. SPX claims that plaintiff was told she did not have to leave if she would help locate or recreate the documents. Plaintiff claims that she reiterated that she had not quit, and asked if she could come back to work. Plaintiff claims that the manager told her that she could not return to work, and that she no longer had a job at SPX.
ANALYSIS
I. STANDARD OF REVIEWRule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith 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." Only disputes over facts that might affect the outcome of the lawsuit under the governing substantive law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not appropriate if the dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. Summary judgment is to be granted only where the evidence is such that no reasonable jury could return a verdict for the nonmoving party. Id.
Employment discrimination cases, such as the case before the Court, often "turn on inferences rather than direct evidence," and therefore, this Court heeds the Eighth Circuit's repeated warning that "the court must be particularly deferential to the party opposing summary judgment." Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999); accord Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1205 (8th Cir. 1997); Webb v. Garelick Mfg. Co., 94 F.3d 484, 486 (8th Cir. 1996); Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994).
II. DISABILITY DISCRIMINATION
The burden shifting method set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), as modified by Desert Palace, applies to plaintiff's ADA and MHRA disability claims. See Burchett v. Target Corp., 340 F.3d 510, 516 (8th Cir. 2003) (citing Wilking v. County of Ramsey, 153 F.3d 869, 872 (8th Cir. 1998)). Plaintiff first has the burden of establishing a prima facie case by demonstrating "1) that she has a disability within the meaning of the ADA or the MHRA (or that her employer thinks she does); 2) that she is qualified to perform the essential functions of her job, with or without reasonable accommodation; and 3) that she has suffered an adverse employment action as a result of her disability." Burchett, 340 F.3d at 516 (citing Wilking, 153 F.3d at 872). If plaintiff establishes a prima facie case, then the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Id. at 516-17. The next step requires the plaintiff to show that her disability was a "motivating factor" in the adverse employment action. Ordahl v. Forward Tech. Indus., Inc., 301 F. Supp. 2d 1022, 1026-27 (D. Minn. 2004); Brown v. Westaff (USA), Inc., 301 F. Supp. 2d 1011, 1017-18 (D. Minn. 2004).
In Desert Palace, the United States Supreme Court decided that circumstantial evidence was as acceptable as direct evidence in a "mixed-motive" case brought under Title VII. Desert Palace v. Costa, 539 U.S. 90 (2003). The Eighth Circuit has yet to discuss in any detail the impact of Desert Palace on the summary judgment burden. See Allen v. City of Pocahontas, 340 F.3d 551, 558 n. 5 (8th Cir. 2003) ("Without reaching the issue as to 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, the result in this case remains the same."); see also Raytheon Co. v. Hernandez, 124 S. Ct. 513 (2003) (noting that McDonnell Douglas is properly applied to disparate treatment cases under the ADA); Peebles v. Potter, 2004 WL 35070 (8th Cir. 2004) (same).
A. Disabled or perceived as disabled
The first step in plaintiff's prima facie case is to establish that a reasonable fact-finder could conclude that she is disabled or perceived as disabled. 42 U.S.C. § 12102(2) (defining "disability" as either: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment); see also Curry v. Hon Co., No. Civ. 4:02-CV-10233, Slip Copy, 2004 WL 691245 *5 (S.D. Iowa, Feb. 26, 2004) ("Regardless of Desert Palace's true impact . . . all ADA plaintiffs must first establish they are disabled."). Plaintiff suffers from depression, and defendant does not dispute that depression can be a disability.
Plaintiff must also show that her depression causes a substantial (or material) impact on a major life activity. An individual is "substantially limited" by an impairment if the impairment "prevents or severely restricts" his ability to accomplish a major life activity, as compared to the way in which unimpaired individuals normally accomplish the same major life activity. Fenney v. Dakota, Minnesota Eastern R. Co., 327 F.3d 707, 714-15 (8th Cir. 2003) (citation omitted). Under Minnesota law, an individual must establish a "material" impairment. A "material" limitation is different from and less stringent than the "substantial" limitation required by the ADA. Hoover v. Norwest Private Mortg. Banking, 632 N.W.2d 534, 543 (Minn. 2001) (citing Sigurdson v. Carl Bolander Sons, Co., 532 N.W.2d 225, 228 n. 3 (Minn. 1995)); Liljedahl v. Ryder Student Transp. Services, Inc., 341 F.3d 836, 841 n. 3 (8th Cir. 2003). Plaintiff claims she was severely limited in the major life activities of sleeping, interacting with others, and concentration. The Court addresses each of these claimed limitations.
Defendant takes issue with plaintiff failing to specify in her complaint how she was limited in "major life activities." For the purposes of this decision, the Court assumes the complaint satisfies the "short plain statement" rule, and defendant is now on notice of the full extent of her claimed disabilities.
The extent of the evidence regarding sleeping is plaintiff's statement in her affidavit that "because of my depression, I had difficultly sleeping, and lack of sleep affected my work and personal life" and her deposition testimony that she had difficulty sleeping. This is insufficient, as a matter of law, to establish that plaintiff is substantially or materially limited in the major life activity of sleeping. See, e.g., Swanson v. Univ. of Cincinnati, 268 F.3d 307 (6th Cir. 2001) (assuming that sleeping is major life activity, and finding plaintiff not substantially limited in the major life activity of sleeping where plaintiff was getting less than five hours of sleep per night; noting that this amount of sleep "is not optimal" but "it is not significantly restricted in comparison to the average person in the general population"); E.E.O.C. v. Sara Lee Corp., 237 F.3d 349, 352-53 (4th Cir. 2001) (noting that "[m]any individuals fail to receive a full night of sleep" and affirming summary judgment for employer where the employee "failed to prove that [the employee's] lack of sleep was worse than the quality of sleep of the general population"); Pack v. K-Mart Corp., 166 F.3d 1300, 1306 (10th Cir. 1999) (noting that "in order to establish that [plaintiff] was substantially limited in the major life activity of sleeping, [plaintiff] was required to establish that she was unable to sleep or was significantly restricted as to the condition, manner, or duration of her ability to sleep as compared to the average person in the general population); Rojina v. City of Chanhassen, 2002 WL 1461815 *4 (Minn.Ct.App. July 9, 2002) (applying Minnesota law and determining that not getting a proper amount of sleep not considered a major life activity). See also Miller v. Centennial State Bank, 472 N.W.2d 349, 351 (Minn.Ct.App. 1991) (sleep apnea rendered plaintiff disabled because it caused her to drop off to sleep uncontrollably during the work day, and reasonably could be considered a respiratory disorder or a substantial impairment since it impedes her performance and advancement in her job). Plaintiff also has not alleged that her sleep problems were severe, long-term, or had permanent impact. Pack, 166 F.3d at 1306.
In sum, plaintiff's conclusory statement in her affidavit is insufficient to establish a material question of fact on the issue of whether her sleeping problems impacted a major life activity. Heisler v. Metropolitan Council, 339 F.3d 622, 628 (8th Cir. 2003) (affirming summary judgment to employer where plaintiff's assertions that she has difficulty sleeping were too conclusory to meet her burden of coming forward with evidence that her depression substantially limited her ability to sleep and noting "bald assertions that one is limited in a major life activity are insufficient to withstand summary judgment").
Plaintiff also claims that she suffered from "social phobia" and submits an affidavit from her boyfriend suggesting that at the time she was having difficulties at work, plaintiff would not leave her house except to go to work. He avers that he had to do all activities that would result in interaction with others.
The Eighth Circuit has assumed that interaction with others is a major life activity. Heisler, 339 F.3d at 628-29 (citing Moysis v. DTG Datanet, 278 F.3d 819, 825 (8th Cir. 2002) (approving of the Seventh Circuit's treatment of interacting with others and concentrating as activities that "feed into the major life activities of learning and working")). The Eighth Circuit has not determined whether interaction with others is properly treated "as a separate major life activity or a subset of the broader activities of learning or working." Heisler, 339 F.3d at 628. The extent to which an individual must be isolated, however, in order to meet the "substantially limited in a major life activity" standard appears quite high. For example, in Heisler, the plaintiff failed to meet her burden to survive summary judgment because she "failed to provide sufficient evidence that her major depressive disorder has substantially limited her ability to interact with others or caused her to experience `high levels of hostility, social withdrawal, or failure to communicate when necessary.'" Id. at 628-29 (citing Doyal v. Okla. Heart, Inc., 213 F.3d 492, 496 (10th Cir. 2000) (holding that assertions that plaintiff stopped visiting with friends was insufficient to meet burden in summary judgment, where employer introduced uncontroverted evidence that employee interacted normally at work)).
Plaintiff, in her affidavit, states, "Because of my depression, I was unable to socialize with friends and family as others did." In Heisler, the Court held similar claims insufficient to establish disability under the ADA. 339 F.3d at 628 (plaintiff's claims of "feelings of great sadness and isolating [her]self and not talking to anybody or calling anybody" insufficient). The plaintiff in Heisler, however, also testified that she was able to do her job, which included supervising employees. Id. In contrast, in this case, plaintiff Privette claims that outside of work, she spent most of her time in her room and could not perform any personal errands for her daily needs — she claims she could not do anything that required leaving home and interacting with others. Importantly, unlike the plaintiff in Heisler, Privette had trouble interacting with others at work and there is evidence that she was unable to perform her supervisory duties because of her inability to interact with others.
Despite these distinctions, plaintiff does not provide any evidence or argument that her "social phobia" is permanent or long lasting. Heintzelman v. Runyon, 120 F.3d 143, 145 (8th Cir. 1997). It is undisputed that plaintiff is no longer receiving medical care for social phobia or depression and has not taken any medication for depression for over two years. There is no evidence, medical or otherwise, regarding whether medication eased plaintiff's social phobia. Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) (holding that corrective and mitigating measures should be considered in determining whether individual is disabled under ADA). Other than plaintiff's affidavit and the affidavit of her fiancé, both filed after defendant's motion for summary judgment, there is no record evidence regarding plaintiff's social phobia.
Plaintiff also raises the issue of concentration. There is very little evidence to support her suggestion that her inability to concentrate amounted to substantial or material interference with a major life activity. As with social interaction, the Eighth Circuit has assumed that the ability to concentrate is a major life activity. Heisler, 229 F.3d at 629. Again, however, conclusory statements of an inability to concentrate do not suffice to meet a plaintiff's burden in opposing a summary judgment motion. Id. at 629 (holding that plaintiff's "conclusory statements that she has difficulty concentrating, coupled with her own testimony that she could perform her job, does not suffice to establish that her major depressive disorder significantly restricted her ability to concentrate — either in and of itself or as a subset of learning or working — as compared to the general population").
Plaintiff's claims regarding sleeping and concentration clearly do not suffice to meet her burden of establishing a disability as that term is defined under either the ADA or the MHRA. Her claims regarding her inability to interact with others might suffice to meet her burden, though barely so. However, given the paucity of evidence regarding the duration of the social phobia, or the impact of medication on her symptoms, and the fact that the Eighth Circuit has not spoken definitively about what is required for social phobia to constitute a disability, the Court is somewhat reluctant to find plaintiff disabled. For the purposes of this motion, however, the Court will assume without deciding that plaintiff is disabled due to social phobia. The Court turns to whether plaintiff was qualified to perform the essential functions of her job.
B. Qualified to perform the essential functions of her job
Plaintiff must next show that she is qualified to perform the essential functions of her job, with or without reasonable accommodation. Benson v. Northwest Airlines, 62 F.3d 1108, 1112 (8th Cir. 1995). The ADA defines a qualified person with a disability as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of his or her job. 42 U.S.C. § 12111(8). The determination of qualification must be based on the individual's capabilities at the time of the employment decision. Duda v. Board of Educ. of Franklin Park Pub. Sch. Dist, No. 84, 133 F.3d 1054, 1059 (7th Cir. 1998) (citing 29 C.F.R. § 1630.2(m) (1997)). Plaintiff bears the burden of proving that she could perform all the essential functions of her job at the time of the adverse employment action. Benson, 62 F.3d at 1112. "Reasonable accommodations" may include "job restructuring, part-time or modified work schedules, reassignment to a vacant position . . . and training materials or policies." 42 U.S.C. § 12111(9)(B). Although there is no precise test for what constitutes a reasonable accommodation, "an accommodation is unreasonable if it either imposes undue financial or administrative burdens, or requires a fundamental alteration in the nature of the program." Buckles v. First Data Res., Inc., 176 F.3d 1098, 1101 (8th Cir. 1999) (citation and internal quotations omitted).
Plaintiff has not met her burden to show that she was qualified to perform the duties required in her supervisory position (the Facilitator position). She claims she asked for accommodations, and none were provided to her. The record does not support this assertion; instead, the record reflects that plaintiff requested engineering support, and her employer hired an individual to provide that support. Plaintiff argues that the individual was not qualified, however, she participated in the decision to hire him, and neither the ADA nor the MHRA requires the defendant to hire multiple assistants to accommodate the plaintiff. Further, regardless of what engineering support was or was not provided, it is clear that plaintiff could not perform the supervisory functions, because she had trouble interacting with her supervisees.
Although plaintiff has not established that she was qualified to be a Facilitator, whether she could perform the essential functions of the job to which she was transferred presents a closer question. Defendant argues that plaintiff is not qualified because she was insubordinate. While it is true that "[t]he ADA is not a license for insubordination in the workplace," Reed v. LePage Bakeries, Inc., 244 F.3d 254, 262 (1st Cir. 2001), it is not clear that plaintiff's alleged insubordination is properly analyzed in this step, or if it is more logically discussed in connection with whether plaintiff's disability was a cause of the adverse employment action.
C. Adverse Employment Action
To satisfy the third element of her prima facie case, plaintiff must "put forth evidence to demonstrate that she suffered an adverse employment action because of her disability." Burchett v. Target Corp., 340 F.3d 510, 520 (8th Cir. 2003). Plaintiff suggests that the transfer from Facilitator to quality engineer was an adverse action, and also that the termination constituted an adverse employment action and the termination was because of her disability. Defendant argues that the transfer does not constitute "adverse employment action" sufficient to implicate the ADA and/or MHRA. Defendant also argues that plaintiff quit; she was not terminated.
"To establish an adverse employment action an employee must show a tangible change in duties or working conditions that constituted a material employment disadvantage." Burchett v. Target Corp., 340 F.3d 510, 518 (8th Cir. 2003) (internal quotations omitted).
1. Transfer
"Acts short of termination may constitute adverse employment actions," however, "[l]oss of status and prestige alone do not rise to the level of an adverse employment action." Meyers v. Nebraska Health Human Servs., 324 F.3d 655, 659 (8th Cir. 2003). The standard has been phrased by the Eighth Circuit as whether the change constituted "a material change in the terms or conditions of her employment." Id. (citing Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997)); see also Fisher v. Pharmacia Upjohn, 225 F.3d 915, 919 (8th Cir. 2000) (holding a transfer or reassignment may rise to the level of an adverse employment condition if it is "a significant change in working conditions.").
Plaintiff was transferred from a position in which she supervised over thirty employees, to a position with no supervisory responsibilities. Her pay was not changed, and it does not appear that any other benefit was changed, though her office moved from a location on the "floor" (where the manufacturing took place) to a quieter area away from the production floor.
Plaintiff suggests that a reasonable jury could find that the transfer was an adverse employment action because her supervisory responsibilities were removed, and she no longer had an office, and instead worked in a cubicle. In addition, she claims she was relieved of environmental responsibilities and also notes she had significantly fewer overall responsibilities. Plaintiff's argument that some of these factors were adverse is undercut by her deposition testimony. For example, she testified that her office space was equivalent in the new job (Privette depo. at 33-38) and that she retained some environmental responsibilities in her new job. ( Id. at 39.) There is also testimony that she did not express a preference for the Facilitator position. ( Id. at 36-38.)
A plaintiff's subjective view of an employment action is not the proper standard for determining whether a particular employment action is "materially adverse." In this case, viewing the transfer as an adverse employment action actually undermines the goals of the ADA and the MHRA. Plaintiff was not performing well in her supervisory position — and discussed that fact with human resources. Instead of terminating plaintiff, defendant transferred her to a position that had no supervisory responsibilities. Indeed, some employers face lawsuits for failing to transfer employees. See, e.g., Burchett v. Target Corp., 340 F.3d 510 (8th Cir. 2003).
Even assuming, however, that plaintiff establishes (or could establish) that the transfer was adverse, she must also point to evidence that would allow a reasonable fact finder to determine that the transfer was "because of disability." Plaintiff has not done that. It is clear from the record that plaintiff was an ineffective supervisor. Part of the reason for that ineffectiveness might have been plaintiff's disability, including panic attacks, and her discomfort around people. Her disability caused her to be ineffective as a supervisor; she was transferred because of that ineffectiveness. However, it does not appear that she would have been transferred because of her disability, had she not been ineffective as a supervisor. The causal link plaintiff argues is not adequate to make out a prima facie case of disability discrimination. Employers are allowed (indeed, encouraged) to transfer employees who are not qualified for a job because of disability to another job within the company. The evidence establishes that is what transpired in this case; no reasonable factfinder could conclude otherwise, and therefore plaintiff's transfer does not constitute an adverse employment action.
2. Termination
Viewing the facts in the light most favorable to plaintiff, it is fair to assume that plaintiff was terminated. It is difficult, however, to find the causal link between the termination and her disability. For the purposes only of this motion, the Court will assume that plaintiff turned over the disputed documents, and that management lost them.
D. Legitimate Nondiscriminatory Reason
Defendant articulates a legitimate, nondiscriminatory reason for the adverse employment action — namely, plaintiff's insubordination in refusing to either turn over or help recreate the environmental documents. This articulated reason satisfies defendant's burden at this stage. Reed v. LePage Bakeries, Inc., 244 F.3d 254, 262 (1st Cir. 2001).
E. Motivating Factor
Plaintiff must establish a causal connection between her disability and the adverse employment action. Plaintiff argues that because the purported reason for the termination — insubordination — was false, a reasonable fact finder could conclude that disability discrimination was the real reason for the termination. Though plaintiff argues that management was wrong in believing that she either had the documents or could help recreate them, she has not pointed to any evidence that such a belief was false. Plaintiff has pointed to nothing to substantiate the notion that her disability motivated the termination. This Court "is allowed to decide on a motion for summary judgment that the evidence is insufficient for a reasonable trier of fact to infer discrimination even though the plaintiff may have created a factual dispute as to the issue of pretext." Wilking v. County of Ramsey, 153 F.3d 869, 874 (8th Cir. 1998). In this case (even if the Court assumes plaintiff is disabled), plaintiff has failed to present sufficient evidence to permit a reasonable trier of fact to infer discrimination played a motivating role in the termination. Summary judgment is therefore proper in favor of defendant on plaintiff's claim of disability discrimination.
III. GENDER DISCRIMINATION
It is unlawful for an employer to discharge or otherwise discriminate against any individual because of an individual's sex. 42 U.S.C. § 2000e-2(a)(1); Tademe v. Saint Cloud State Univ., 328 F.3d 982, 990-91 (8th Cir. 2003); Minn. Stat. § 363A.08, subd. 2 (providing that it is an unfair employment practice "[f]or an employer, because of . . . sex . . . to discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment."). To establish her claim of gender discrimination, plaintiff must make a prima facie showing by demonstrating that she (1) is a member of a protected class, (2) was qualified to perform her job, (3) suffered adverse employment action, and (4) was treated differently than similarly-situated men. Schoffstall v. Henderson, 223 F.3d 818, 825 (8th Cir. 2000). The facts must also support an inference of unlawful discrimination. Simmons v. New Pub. Sch. Dist. No. 8, 251 F.3d 1210, 1214 (8th Cir. 2001); Herrero v. St. Louis Univ. Hosp., 109 F.3d 481, 483-484 (8th Cir. 1997) (plaintiff must produce "some additional evidence" that gender was a factor in the adverse employment action).
Plaintiff's gender discrimination claims under the MHRA are analyzed using the McDonnell-Douglas burden shifting analysis. Cronquist v. City of Minneapolis, 237 F.3d 920, 926 (8th Cir. 2001). The Minnesota courts have not spoken on the implication of Desert Palace on claims brought pursuant to the MHRA. Nonetheless, because plaintiff's claim does not survive even under the less stringent post- Desert Palace analysis, the potential impact of Desert Palace is irrelevant to this decision.
If plaintiff makes this showing, the burden shifts to defendant to produce a legitimate, non-discriminatory reason for plaintiff's termination. Once defendant articulates a legitimate, non-discriminatory reason, the next step, as this Court discussed in Brown v. Westaff (USA), Inc., 301 F. Supp. 2d 1011 (D. Minn. 2004), requires a plaintiff to present sufficient evidence, of any type, for a jury to conclude that a protected characteristic was a motivating factor for the employment decision. Brown, 301 F. Supp. 2d at 1017-18 (citing Desert Palace v. Costa, 539 U.S. 90 (2003)).
A. Plaintiff's Prima Facie Case
It is undisputed that plaintiff is a member of a protected class, and for the purposes of this motion, the Court assumes that plaintiff suffered two adverse employment actions — the first when she was transferred, and the second when her employment ceased at SPX. As discussed infra, however, the Court has determined that plaintiff was not qualified for the job of Facilitator because she was not capable of effectively supervising others. The Court will assume that she was qualified for the non-supervisory position of Supplier Quality Engineer to which she was transferred.
Plaintiff must establish that she was treated differently than similarly-situated men. As support for this element, plaintiff suggests that her supervisor in the Facilitator position, Jeff Hankins, had a difficult time talking to her, and in some instances, looking at her. She also claims that he had better relationships with men that he supervised, and she claims that he required her to perform duties that were not required of the male Facilitators. As discussed above, however, plaintiff has not established that she was qualified for the Facilitator position. There is no indication that Hankins' behavior, even assuming it would support an inference of discrimination, continued once plaintiff was transferred. Similarly, there is no indication or argument that Hankins impacted plaintiff's position as Supplier Quality Engineer.
Plaintiff also complains that she was treated differently in the role of Supplier Quality Engineer. Specifically, she argues that she was terminated for her role in the "environmental documents turnover" incident, but two men involved in the incident, Virgil Jelsma and Salvador Neaves, were not terminated. "The test to determine if one is "similarly situated' varies at each stage of a McDonnell Douglas analysis. At the prima-facie stage it is `not onerous,' however at the third stage (proving pretext) it is `rigorous.'" Wheeler v. Aventis Pharm., 360 F.3d 853, 857 (8th Cir. 2004). Therefore, at this stage, the Court assumes that plaintiff has raised an inference of discrimination by claiming to have been treated differently from similarly situated employees also involved in the document dispute.
B. Legitimate, Nondiscriminatory Reason
If plaintiff were able to establish a prima facie case, defendant would be asked to articulate a legitimate, non-discriminatory reason for the adverse employment action. Defendant suggests that plaintiff's documented poor job performance satisfies this requirement. Henthorn v. Capitol Communications, Inc., 359 F.3d 1021, 1028-29 (8th Cir. 2004) (holding that plaintiff did not establish prima facie case, but even if she had, poor performance was legitimate, non-retaliatory reason for adverse employment actions and was not pretext); Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 298 (4th Cir. 2004) (poor work performance and rules infractions were legitimate, non-sex or age based reasons for terminating employee, and such reasons were not pretexts for sex or age discrimination); Engstrand v. Pioneer Hi-Bred Int'l, Inc., 946 F. Supp. 1390 (S.D. Iowa 1996). Defendant has articulated a legitimate, non-discriminatory reason for the adverse employment action.
C. Evidence of motivating factor
Having articulated a legitimate, nondiscriminatory reason for plaintiff's termination, the inquiry becomes whether there was sufficient evidence, either direct or circumstantial, from which a jury could conclude that defendant made its employment decision based on gender despite the defendant's proffered explanation. Cherry v. Ritenour School Dist., 361 F.3d 474, 479 (8th Cir. 2004); see also Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999) (en banc) ("[I]t is possible for strong evidence of a prima facie case to . . . present a factual issue on pretext.").
"Probably the most commonly employed method of demonstrating that an employer's explanation is pretextual is to show that similarly situated persons of a different race or sex received more favorable treatment." Cherry, 361 F.3d at 479 (quoting 1 Lex K. Larson, Employment Discrimination § 8.04 (2d ed. 2001) (additional citation omitted)). Plaintiff's claim of gender discrimination fails because she cannot demonstrate that similarly situated male employees were treated differently. "The test to determine whether employees are `similarly situated' to warrant a comparison to a plaintiff is a `rigorous' one.'" Id. (quoting EEOC v. Kohler Co., 335 F.3d 766, 775 (8th Cir. 2003) (additional quotation omitted)). "`Specifically, the individuals used for comparison must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.'" Id. (quoting EEOC v. Kohler Co., 332 F.3d at 776).
Plaintiff makes two claims of differential treatment. First, she claims that Hankins treated her differently because of her gender. She also argues that she was treated differently than other employees involved in the environment al document dispute. Neither claim survives this step of the analysis.
As an initial matter, because plaintiff was not qualified for the job of Facilitator, plaintiff is not able to demonstrate that gender discrimination caused the transfer. In addition, plaintiff's suspicions about Hankins' discriminatory motives are insufficient to create a jury question of gender discrimination. As the Eighth Circuit recently summarized, "although [plaintiff] does not have to provide direct proof that genuine issues of fact exist for trial, the facts and circumstances that she relies upon must attain the dignity of substantial evidence and not be such as merely to create a suspicion. In essence, the evidence must be `such that a reasonable jury could return a verdict for the nonmoving party.'" Taylor v. White, 321 F.3d 710, 715 (8th Cir. 2003) (quoting Anderson, 477 U.S. at 248) (additional internal quotation omitted).
Similarly, plaintiff's argument that all the other Facilitators were male is insufficient to sustain her claim of gender discrimination. See, e.g., Edmund v. MidAmerican Energy Co., 299 F.3d 679, 685 (8th Cir. 2002) (agreeing with the District Court that plaintiff's statistical evidence of the change in composition of the sex of the employees who reported directly to a particular supervisor and the composition by sex of the candidates available for the positions "does not pass beyond speculation to the realm of reasonable inference"); Bogren v. Minnesota, 236 F.3d 399, 406 (8th Cir. 2000) (noting that statistical evidence "in and of itself, rarely suffices to rebut an employer's legitimate, nondiscriminatory rationale for its decision") (citing Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1319 (10th Cir. 1999)). Plaintiff has provided no evidence or argument regarding who made the hiring decisions, whether women applied, or whether other women have held the position of Facilitator in the past. There mere fact of gender imbalance under a given supervisor, standing alone, is insufficient to create a triable issue.
Plaintiff's second argument is that she was treated differently than two male employees involved in the environmental document dispute. She argues that this differential treatment satisfied her burden on this step of the modified McDonnell Douglas analysis. The other employees, however, were "involved" in the document dispute in a way that differs markedly from plaintiff's involvement. Assuming plaintiff had already turned the documents over, as she claims she did, plaintiff nonetheless refused to help management recreate the documents. Plaintiff has submitted no evidence or argument that Jelsma or Neaves similarly refused to help management with the document problem. Plaintiff has failed to identify similarly situated employees who were treated differently, and she fails to establish a triable issue of pretext. See, e.g., Wheeler v. Aventis Pharm., 360 F.3d 853, 858 (8th Cir. 2004) (employee failed to establish non-terminated employee was "similarly situated" where plaintiff-employee violated the sexual harassment policy by grabbing the genitalia of male co-workers, and conduct of co-worker who exposed her breasts at work and was not terminated).
ORDER
Based upon the foregoing, the submissions of the parties, the arguments of counsel and the entire file and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendant's motion for summary judgment [Docket No. 12] is GRANTED.
2. Plaintiff's complaint [Docket No. 1] is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.