Opinion
Civ. No. 03-1026 (RHK/AJB).
August 23, 2004
Gregg M. Corwin and Amanda R. Cefalu, Gregg M. Corwin Associates Law Office, PC, St. Louis Park, Minnesota, for Plaintiff.
Marko J. Mrkonich and Stephanie D. Sarantopoulos, Littler Mendelson, Minneapolis, Minnesota, for Defendant.
MEMORANDUM OPINION AND ORDER
Introduction
Plaintiff Xuelin Zhuang was employed by Defendant Datacard Corporation ("Datacard") as a computer software tester and designer from May 1997 until she was laid off in September 2002. During her employment, Zhuang alleges that she suffered unlawful discrimination on the basis of her race, national origin, sex and age and was retaliated against for making a charge of discrimination. Datacard has moved for summary judgment on each of Zhuang's claims. For the reasons set forth below, the Court will grant Datacard's motion.
Background
I. The PartiesDatacard is a Minnetonka, Minnesota, based manufacturer of secure identification cards and credit cards. Datacard's operations revolve around two separate work groups — Software Developers ("Developers") and Software Test Engineers ("Testers"). Developers write computer codes for various products; while Testers test the computer codes to ensure that they operate as intended. (Pothast Dep. Tr. at 10-11; Johnson Dep. Tr. at 42-43; Zhuang Dep. Exs. 6, 7.) Although the skills required for each position overlap, Developers and Testers are separate positions. (Pothast Dep. Tr. at 11.) For example, the job description for Developers specifies that they "[d]esign, develop, test, and document software products and/or components that meet internal or external customer specified requirements in a timely fashion (meeting schedule commitments) and with a high level of quality (defect free when released to customers)." (Zhuang Dep. Ex. 6.) The job description for Testers specifies that they "[t]est product functionality and process consistency of systems and solutions, including software and hardware, to ensure specifications are met and are acceptable to the customer." (Id. Ex. 7.) Both positions require a bachelor of science degree and three to five years experience. (Id. Exs. 6, 7.)
Zhuang, a 47-year-old woman of Chinese descent, worked at Datacard from May 1997 until she was laid off in September 2002. (Zhuang Aff. ¶¶ 1, 2; Zhuang Dep. Ex. 55.) During her tenure at Datacard, Zhuang worked as a Tester and as a Designer. Before joining Datacard, Zhuang received a bachelor of science degree in electrical engineering from the University of Shanghai and a masters degree in software engineering from the University of St. Thomas. (Zhuang Aff. Ex. 1.) Zhuang's prior experience included developing computer software test code for a Shanghai manufacturer and designing and testing computer software as an intern for a Saint Paul, Minnesota, company. (Id.)
Datacard has moved to strike Zhuang's Affidavit on the ground that it contradicts her deposition testimony. (Doc. No. 32.) As will be seen below, however, given the result of the summary judgment motion, Datacard's Motion to Strike is moot.
II. Zhuang Begins Work As a Tester
On May 19, 1997, Zhuang was hired by Datacard as a Tester. (Zhuang Dep. Ex. 19.) She held that position from May 1997 until August 1998. (Zhuang Aff. ¶¶ 4, 5.) During this period, she was initially supervised by Dan Gawarecki and, later, by Michelle Pokrzywinski. (Id.) In Zhuang's April 1998 performance review, Gawarecki noted that she "meets/exceeds" expectations. (Id. Ex. 2.) In Zhuang's May and September 1998 performance reviews, Pokrzywinski rated her overall performance level as "meets/exceeds" expectations. (Id. Exs. 3, 4.) In the May 1998 review, Pokrzywinski also noted that
Xuelin makes very good comments and suggestions both in team meetings and in informal discussion. She is very good about requesting clarification when she doesn't understand something. Xuelin is soft-spoken and this often results in other team members interrupting her or dominating the conversation. She needs to find a way to minimize the occurrence of this which should also work to resolve the perception that she is shy or quiet.
(Id. Ex. 3.)
III. Zhuang Transfers to a Developer Position
In August 1998, Zhuang, with the encouragement of Pokrzywinski, applied for and received a transfer to a Developer position. (Zhuang Dep. Tr. at 185-86; Zhuang Aff. ¶ 6, Exs. 5, 6.) Her supervisor was Jay Nelson. (Id.) Although Zhuang had transferred to a Developer position, Nelson initially asked her to perform Tester responsibilities. (Zhuang Aff. ¶ 7.) In Zhuang's March and April 1999 performance reviews, Nelson indicated that she "meets/exceeds" expectations. (Id. Exs. 7, 8.) In the March 1999 review, Nelson observed the following regarding Zhuang's communication skills:
In the coming year I would like Xuelin to work on two areas in regards to communications. The first area of focus should be written communications. Xuelin's documents are well thought-out and complete, but the language used is sometimes difficult to follow. While it is technically correct, it does not have the feel of most documents. This will come with more exposure to other developers work. The last area of emphasis should be in the volume of her communications. While Xuelin's decisions have been correct, some of them should have been communicated to her project manager. An example of this would be the development of test cases for IMP [Image Management Platform]. The reasons they could not be developed as early as we expected were valid, but it would have been helpful for [the manager] if Xuelin had communicated this more directly to him earlier.
(Id. Ex. 7.) IV. The Zenith Project
In March 2000, Zhuang began developing software for the Zenith Project and worked under a new supervisor, Karen Kensok. (Zhuang Aff. ¶¶ 10-11.) The Zenith Project was a software program intended to make Datacard's products operate more efficiently. (Pothast Dep. Tr. at 8.) As part of the Zenith Graphical User Interface ("GUI") team, Zhuang helped develop the part of the software program that the customer would look at in order to use the product. (Zhuang Aff. ¶ 11.) In Zhuang's May 2000 performance review, Kensok indicated that she "meets" expectations. (Zhuang Dep. Ex. 33.) With regard to computer programming, the review noted that Zhuang "needs to continue increasing her OO [Object Oriented] design, Java, JFC, and COBRA expertise. Assignments on the Zenith project will undoubtedly assist in this development." (Id.) The review also commented that "Xuelin has good ideas and should participate and speak up more in meetings." (Id.) In Zhuang's November 2000 performance review, Kensok again indicated that her performance "meets" expectations. (Zhuang Dep. Ex. 35.)
Datacard asserts that Zhuang began working on the Zenith project in March 2001, not March 2000. (Def.'s Mem. in Supp. at 6 (citing Zhuang Dep. Tr. at 41).) However, it is not clear that the record citation it relies upon supports its position. In any event, when Zhuang started on the project is not material to the disposition of this Motion.
In early 2001, Jay Nelson became the Zenith Project Manager and Steve Pothast became the manager of the Zenith GUI team. (Zhuang Aff. ¶ 13; Zhuang Dep. Tr. at 42; see Pothast Dep. Tr. at 5-8, Ex. 1.) On the Zenith GUI team were four Datacard employees — Terry Wahl, James Walsh, Rob Willrett, and Zhuang — and five outside contractors — Dan Bednarski, Dale Mensh, Jason Strehlow, Dan Syrstad, and Kim Ward. (Pothast Dep. Tr. at 9, Ex. 1.) Datacard hired the contractors because they were relatively inexpensive and they had knowledge of the "Java" computer programming language. (Id. at 34, 41.) With the exception of Zhuang, all Zenith GUI team members were Caucasian. (Id. at 13.)
Also in early 2001, Datacard implemented a new manufacturing scheduling process called the Critical Chain Management System (the "System"). (Id. at 16-17; Zhuang Dep. Tr. at 41-42.) The System tracked the progress of Datacard's projects in order to achieve timely completion. (Pothast Dep. Tr. at 17; Zhuang Dep. Tr. at 197.) As part of the System, Datacard would give stuffed toy monkeys to those team members who were the farthest behind in completing their tasks. (Pothast Dep. Tr. at 21; Zhuang Dep. Tr. at 41-43, 201.) The use of toy monkeys were in reference to the phrase "monkey on [your] back." (Nelson Dep. Tr. at 35-36.) During her time at Datacard, Zhuang never received a monkey. (Zhuang Dep. Tr. at 43.)
As the Zenith Project progressed, many team members, including Zhuang, fell behind on the System's schedule. (Id. at 106; Pothast Dep. Tr. at 23-24; Syrstad Aff. ¶ 6.) Developers had difficulty keeping on schedule for a variety of reasons, including problems with the software packaging systems, code integration, and unfamiliarity with the "Java" programming language. (Pothast Dep. Tr. at 25-28, 34, Exs. 3, 4; Syrstad Aff. ¶ 2.) Also contributing to the delay was the complexity of the project and the fact that very few people understood all the details. (Syrstad Aff. ¶ 4.) Based on the System schedule and feedback from others, Pothast observed that Zhuang was having difficulty completing her tasks on time. (Pothast Dep. Tr. at 29-30, 36-37.) Pothast also heard from team members who expressed their concerns that Zhuang did not understand her work assignments. (Id. at 30.)
According to Daniel Syrstad, a contractor on the team, Zhuang's "tasks were occasionally behind, just like everyone else in the group, but her tasks never held up other members of the development group from completing their tasks." (Syrstad Aff. ¶ 6.) Syrstad had some concerns about Zhuang's communication skills and he found her "grasp on the project and her task assignment was average, equivalent to that of [team members] James Walsh or Terry Wahl." (Id. ¶ 4.) In Zhuang's June 2001 review, Kensok rated her performance as "meets" expectations and commented that Zhuang "needs opportunities for more interaction with team members in order to gain communication and leadership skills," but that she "has done an excellent job working with marketing, tech pubs, and others in engineering to help define requirements and complete design." (Zhuang Aff. Ex. 11.)
On July 30, 2001, Zhuang was informed by Pothast that he was assigning Jason Strehlow, a contractor whom he believed had experience in the "Java" programming language, to work with her as a mentor. (Id. ¶ 27; Pothast Dep. Tr. at 41; Zhuang Dep. Tr. at 205.) Beginning in August 2001, Strehlow was instructed to "mentor assist Xuelin in several areas," including troubleshooting skills, computer programming, gaining confidence in asking questions, and "understand[ing] `why' things are done, not just do the quick fix." (Zhuang Dep. Ex. 40.) On August 10, 2001, Zhuang received a letter from Pothast detailing these same areas of improvement. (Zhuang Dep. Ex. 38.) The letter, which Zhuang calls a "letter of expectation," states that she needed improvement in "1. Troubleshooting skills[;] 2. Object Oriented (OO) and Java knowledge[;] 3. Confidence in asking questions[; and] 4. Dig and understand "why" things are done, not just the quick fix." (Id.) During the mentoring relationship, Zhuang also contributed to Strehlow's development by teaching him about the Datacard production process, Zhuang's part of the software code project, and the Zenith Project. (Zhuang Aff. ¶ 37.)
V. Zhuang Becomes a Zenith GUI Tester
After Zhuang received six to eight weeks of mentoring, Pothast concluded that she was not developing the skills necessary for her position. (Pothast Dep. Tr. at 52-53.) Pothast determined that the Developer position "wasn't a good job fit" for her because the "skill set she had did not match a software developer position at that level." (Id. at 52.) Because it was uneconomical to have two people doing a one-person job, Pothast searched for a new position for her. (Id. at 52-53.) With assistance from Datacard's human resources department, Pothast examined "what her skill set was and where she had been successful, and basically created a position in the test group where there was a need." (Id. at 53.)
On October 4, 2001, Pothast told Zhuang that her upcoming performance review would not be positive, that she would "`get the big monkey every week if the company removed Jason [Strehlow] as [her] mentor and Jay [Nelson] does not want to see you get [a] monkey,'" that "`you will not be a successful developer, you do not have potential for improvement,'" and that "`I don't think technical training will help you.'" (Zhuang Aff. ¶ 40.)
On October 5, 2001, Pothast approached Zhuang with two options for continued employment. Zhuang's first option was to stay in her current role as a Developer on the Zenith Project; but if her performance did not improve, she would be placed on a "performance improvement plan" which would be followed by a sixty day probation. (See Zhuang Dep. Tr. at 209-10; Pothast Dep. Tr. at 53-54; Zhuang Aff. ¶ 42.) Her second option was to transfer to the Zenith GUI test team as a Tester. (See Pothast Dep. Tr. at 53; Zhuang Dep. Tr. at 209-10.) Zhuang recounts Pothast's proposal:
Q. Did Mr. Pothast tell you that, because you had done well on your previous test engineering role, instead of going through a probationary process in development, you could go back to a test role? Were you given that choice?
A. This is I have to go. It's not good choice.
Q. Did Mr. Pothast meet with you and offer you two options in October of 2001?
A. Yes. He said if you stay here, give you performance improvement program.
Q. That hurt your feelings?
A. Of course.
Q. And then he offered you the opportunity to go to a test job?
A. That's also hurt me.
Q. That hurt your feelings too?
A. Of course.
Q. And why did those options hurt your feelings?
A. Because I was forced to leave my developer job and make me look very bad, only ask me to leave.
(Zhuang Dep. Tr. at 209-10.) If she decided to stay in her Designer position, Pothast informed her that he could not guarantee her employment. (Zhuang Aff. ¶ 42.)
On October 9, 2001, Zhuang met with Scott Kohler in Datacard's Human Resources Department, and complained that: (1) when she was initially hired as a Developer in 1998 she was asked to do Tester duties; (2) that Nelson had provided false information about her work history and that she was given higher expectations based upon that information; and (3) that Pothast humiliated her by saying, "`you will not be a successful developer,'" "`technical training will not help you,'" "`go to ESL training class,'" and "`you are just different from other people.'" (Id. ¶ 43.)
In mid-October 2001, Zhuang transferred to the Tester position: "Q. . . . What choice did you make, Ms. Zhuang? Did you do the performance improvement or transfer? A. Transfer." (Zhuang Dep. Tr. at 210; see id. Exs. 41, 42.) Her salary, job rank and benefits remained the same, but she had different responsibilities in that she tested software instead of designing it. (Id. at 211, Ex. 41.) As a Tester on the Zenith GUI team, Zhuang worked under Connie Johnson, a female Tester who was training as a Team Leader. (Id. at 103, 224-26; Johnson Dep. Tr. at 44-46.) Although Zhuang received her work assignments from Johnson, Johnson had less education. (Johnson Dep. Tr. at 13.)
Zhuang's October 29, 2001 review, in which Pothast evaluated her work as a Designer, indicated a number of performance deficiencies. (See Zhuang Aff. Ex. 23.) Those deficiencies included troubles in maintaining her schedule, heavy dependence upon others, difficulty working independently, inability to solve problems, and waiting too long to seek necessary help. (See id. Ex. 44.) Pothast also observed that,
Clearly, Xuelin is a hard worker with a desire to do her very best. Although she did not meet some of the objectives for the position, this was due to a lack of fit of her current skills and experience to the job. The aggressive project dates and technical complexity were something she simply wasn't ready for.
(Id.) Overall, Zhuang was rated as "requires development." (Id.) She objected to these observations and told Pothast that it was unfair. (Id.) In April 2002, due to a corporate reorganization, all Testers at Datacard were divided into two groups — hardware testers and software testers. Pothast moved from the Zenith team to become manager of the software testers, which included Zhuang. (Pothast Dep. Tr. at 63; Goodland Dep. Tr. at 35-36.)
VI. Zhuang Files Her First Discrimination Charge
On April 8, 2002, Zhuang filed her first discrimination charge with the Equal Employment Opportunity Commission ("EEOC"). (Zhuang Aff. Ex. 29.) In her Charge, Zhuang indicated that she had been discriminated against on the basis of race, sex, national origin, and age. (Id.) For her factual basis, she wrote:
I. I have worked for the Respondent since May 1997. During my employment, I have been subjected to different terms and conditions of employment than White, young, American employees are subjected to. My supervisor, Steve Pothast, gave me 4-areas of expectation to comply with and I was told that Jay Nelson told him that I have worked as a Developer before.
I was forced to transfer into the position of Tester. I have never been left in my own job class long enough to be evaluated as a Developer and only worked in that position for a short time, between March 2000 and October 2001.
At one point, in October 2001, Stev[e] Pothast, Supervisor, stated to me that "No amount of technical training would help" me and stated to me, "The key point is: You will not be a successful Developer." I am treated as though I am absent of intellect.
II. RESPONDENT'S REASON(S) FOR ADVERSE ACTION: Nothing specific given.
III. I believe I have been subjected to different terms and conditions of employment and a hostile work environment because of my age, 47, in violation of the Age Discrimination in Employment Act of 1967, as amended, and because of my race, Asian, my national origin, Chinese, and my gender, female, in violation of Title VII of the Civil Rights Act of 1964, as amended.
(Id.)
On June 20, 2002, Zhuang participated in an EEOC mediation session with, among others, Karmen Nelson, Datacard's human resources consultant and employee resources manager. (Zhuang Aff. ¶ 69; Nelson Dep. Tr. at 5.) At the mediation, Zhuang signed a tentative agreement to settle her claims, but she cancelled the agreement one week later on June 27, 2002. (Zhuang Aff. ¶¶ 69, 70.)
VII. Zhuang Is Laid Off
In mid-2002, Datacard directed Jim Goodland, the Vice President of Software Development, to reduce his staff as part of a company-wide restructuring. (Goodland Dep. Tr. at 14-15.) Due to financial concerns, Datacard had been through a series of lay offs over the previous five years. (Nelson Dep. Tr. at 5, 58.) As Karmen Nelson explained:
The company was facing difficulty, had not been meeting its budget for actually quite some time. There had been, in fact, a series of ongoing reductions in force for just about the entire time I was employed by the organization. Many, many, many employees had been let go in the preceding time frame and in this and, frankly, subsequent to this. So, the company was not doing well.
(Id. at 58.) In July or August, 2002, Goodland and Karmen Nelson discussed which employees to lay off. (See Goodland Dep. Tr. at 28; Nelson Dep. Tr. at 59-60.) In their discussions, they considered Datacard's current and future business needs, employee performance, and the skill sets of the employees it would need going forward. (Nelson Dep. Tr. at 60-62.) With respect to Zhuang, in addition to discussing her performance and skill set, they discussed the fact that she had filed an EEOC charge. (Id. at 62-63.)
In arriving at their decision, Goodland and Karmen Nelson also utilized a "skills matrix" in which Datacard employees were evaluated in nine areas: (1) performance trend, (2) leadership, (3) technical skills, (4) specific knowledge, (5) communications and teamwork, (6) productivity, (7) work quality, (8) meeting commitments, and (9) knowledge of how the customer works. (Goodland Dep. Tr. at 8-13, Ex. 1.) To arrive at Zhuang's "skills matrix" ranking, they reviewed, among other things, performance evaluations that Pothast had written, but Pothast did not otherwise participate in the lay off selection. (Goodland Dep. Tr. at 25-26; Nelson Dep. Tr. at 62, 82.) In the end, Zhuang was ranked near the bottom of the "matrix"; Connie Johnson was ranked higher. (Goodland Dep. Ex. 1.)
Although the discussions regarding her lay off occurred in July or August, 2002, Zhuang has produced a May 2, 2002 e-mail from Mary Kohman, Datacard's Senior Payroll Clerk, containing Zhuang's name under the subject heading "TERMINATION NOTIFICATION (CONFIDENTIAL)." (Zhuang Aff. Ex. 37; Kohman Dep. Tr. at 5.) Kohman testified that this e-mail was not made on May 2 and that she did not learn Zhuang was to be terminated until late August 2002. (Kohman Dep. Tr. at 22, 50-51.) As she explained, the May 2 e-mail was a template she created on that date. It contained the e-mail addresses of Datacard personnel that she had to notify about departing employees. (Id. at 6-11, 12.) On September 3, 2002, Kohman entered Zhuang's name into the template e-mail, printed a copy with the May 2 date for her file, and then sent the e-mail — which reflected the actual date, September 3 — to the appropriate people. (Id. at 21-22, 24; see Hynes Aff. ¶¶ 3-6, Ex. 1.)
The September 3, 2002 e-mail and the affidavits of Mary Kohman and Matthew Hynes, which were submitted with Datacard's June 18, 2004 reply memorandum, are the subject of a Motion to Strike by Zhuang. (Doc. No. 40; see Pl.'s Mem. in Supp. of Pl.'s Mot. to Strike Affidavits and Exhibits Filed by Def. on June 18, 2004.) This issue is addressed below. See infra n. 9.
On July 11, 2002, Karmen Nelson created a "CHECKLIST FOR EMPLOYEE RELATIONS TERMINATIONS" for Zhuang. (Nelson Dep. Ex. 26.) This "CHECKLIST" triggered Datacard's termination procedure and the human resources department would use this document to process final pay checks and to provide benefits information. (Id. at 86.)
On August 6, 2002, Zhuang was notified that she was one of forty Datacard employees who were being laid off effective September 3, 2003. (Zhuang Dep. Tr. at 173, 237-38, Ex. 55; Goodland Dep. Tr. at 27; Nelson Dep. Tr. at 58.) On August 13, 2002, Zhuang met with Goodland about her impending lay off. (Zhuang Aff. ¶ 73.) He told her that "`this is not a thing Steve [Pothast] and I enjoy doing'" and stated that "`the company needs positive high-energy people.'" (Id.) Goodland did not view Zhuang as negative or low-energy. (Goodland Dep. Tr. at 30.)
VIII. Zhuang Files Her Second Discrimination Charge and the Instant Lawsuit
On November 5, 2002, Zhuang filed a second discrimination charge with the EEOC. (Zhuang Aff. Ex. 34.) In addition to race, sex, national origin, and age discrimination, she indicated that she was retaliated against. (Id.) For her factual basis, she wrote:
I. I began working for the above named Respondent in May 1997. I believe that I was discriminated against on the basis of my sex/female, race/Asian, national origin/Chinese and age/47. On April 8, 2002, I filed a Charge of Discrimination . . . against the Respondent. On August 6, 2002, I received notice that I would be laid off from my position. My lay-off was in reprisal for my Charge of Discrimination. Further, I was selected for layoff on the basis of my sex, race, national origin and age.
I worked in the Test Group from October 2001 until my lay-off. In that group, I was assigned a mentor, Connie Johnson/White. To my knowledge, Johnson and I are similarly qualified for the Test Engineer position. The Respondent's decision to assign her as my mentor adversely impacted my career development, while it positively affected Johnson's career opportunities.
In April 2002, Steve Pothast, the manager whom I charged with discrimination in my prior EEOC charge, returned to manage me in my new position.
In August 2002, when I learned of my lay-off, I was also informed that my position was to be eliminated. However, the Respondent has hired young White male contractors to take over my job duties. . . .
II. Respondent's reason for adverse employment action: I was informed that the lay-off was due to business reasons.
III. I believe that I have been retaliated against for filing a Charge of Discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act of 1967. I further believe that I have been discriminated against on the basis of my sex/female, race/Asian and national origin/Chinese in violation of Title VII of the Civil Rights Act of 1964, as amended, and on the basis of my age/47 in violation of the Age Discrimination in Employment Act of 1967.
(Id.)
On February 5, 2003, Zhuang filed the instant lawsuit. In her Amended Complaint, filed May 12, 2003, she alleges: discrimination in violation of Title VII of the Civil Rights Act (Count I); discrimination in violation of the Minnesota Human Rights Act (Count II); age discrimination (Count III); and retaliation (Count IV). The instant motion followed.
Standard of Review
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
Zhuang's claims break down into three categories: (1) discrimination on the basis of race, sex, national origin and age; (2) hostile work environment; and (3) retaliation. (See Pl.'s Mem. in Opp'n at 16, 28, 29.) The Court will examine each in turn.
I. Race, Sex, National Origin and Age Discrimination
A. The Applicable Law
Zhuang asserts claims for racial, national origin, sex, and age discrimination under Title VII, the Age Discrimination in Employment Act ("ADEA") and the Minnesota Human Rights Act ("MHRA"). (Pl.'s Mem. in Opp'n at 16.) Specifically, she contends that "similarly situated young white males within the Zenith GUI development group were treated more favorably than her." (Id.) Under Title VII, it is unlawful for an employer to "discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race . . . sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Under the ADEA, it is unlawful 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," provided that the individual is at least forty years old. 29 U.S.C. §§ 623(a)(1), 631(a). And under the MHRA, it is unlawful to "discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment" because of that person's "race . . . national origin, sex . . . or age." Minn. Stat. § 363A.08, subd. 2(c).
A claim under Title VII may proceed on the basis of either direct or circumstantial evidence. Where, as here, the evidence of discrimination is circumstantial, the Court applies a modified version McDonnell Douglas framework applicable after Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Under this modified framework, the plaintiff must first present a prima facie case of discrimination. Where she does, "the employer must rebut the presumption of discrimination that her prima facie case raises by articulating a legitimate, nondiscriminatory reason for the adverse employment action."Burkett v. Glickman, 327 F.3d 658, 661 (8th Cir. 2003) (citation omitted). If the employer makes that showing, the plaintiff must show that either (1) the defendant's reason is false and a pretext for discrimination, or (2) the defendant's reason, while true, is only one of the reasons for its conduct, and another "motivating factor" was the plaintiff's protected characteristic. Peterson v. Scott County, Civ. No. 02-4737 (RHK/AJB), 2004 WL 1179368, at *9 (D. Minn. May 27, 2004) (Kyle, J.). Either showing may be made with direct or circumstantial evidence. Id.
Like other federal courts, the District of Minnesota has grappled with the extent to which Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), alters the traditional McDonnell Douglas burden-shifting framework. The results are not uniform. Compare, e.g., Dare v. Wal-Mart Stores, Inc., 267 F. Supp. 2d 987, 990-93 (D. Minn. 2003) (Magnuson, J.), with Walker v. Northwest Airlines, Inc., Civ. No. 00-2604 (MJD/JGL), 2004 WL 114977, at *5 (D. Minn. Jan. 14, 2004) (Davis, J.). The undersigned recently dealt with this matter in some detail, see Peterson v. Scott County, Civ. No. 02-4737 (RHK/AJB), 2004 WL 1179368, at *6-11 (D. Minn. May 27, 2004) (Kyle, J.), and will not repeat that analysis here. Let it suffice to say that, in this instance, the Court would reach the same conclusion under any reading of Desert Palace reached by courts in this District.
In contrast, ADEA and MHRA claims supported by circumstantial evidence continue to proceed under the unmodified McDonnell Douglas framework. Id. This is the case under the MHRA because Minnesota law has not incorporated the holding of Price Waterhouse or the relevant portions of the 1991 Civil Rights Act. See Brown v. Westaff (USA), Inc., 301 F. Supp. 2d 1011, 1020 (D. Minn. 2004); Dare v. Wal-Mart Stores, Inc., 267 F. Supp. 2d 987, 992 (D. Minn. 2003); 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 to ADEA claims "in large part because, when Congress enacted the [Act] in response toPrice 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).
B. The Prima Facie Case
To establish a prima facie case of discrimination, Zhuang must show that: (1) she was a member of a protected group, (2) she was meeting the legitimate expectations of her employer, (3) she suffered an adverse employment action, and (4) there are facts that permit an inference of discrimination. See Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 478 (8th Cir. 2004); see Breeding v. Arthur J. Gallagher and Co., 164 F.3d 1151, 1156 (8th Cir. 1999).
Datacard contends, inter alia, that Zhuang has not shown an adverse employment action. (Def.'s Mem. in Supp. at 16-17.) An adverse employment action
is a tangible change in working conditions that produces a material employment disadvantage. . . . Termination, reduction in pay or benefits, and changes in employment that significantly affect an employee's future career prospects meet this standard . . . but minor changes in working conditions that merely inconvenience an employee or alter an employee's work responsibilities do not.Duncan v. Delta Consol. Indus., Inc., 371 F.3d 1020, 1026 (8th Cir. 2004) (citations omitted). It is well settled that "[c]hanges in duties or working conditions that cause no materially significant disadvantage . . . are insufficient to establish the adverse conduct required to make a prima facie case." Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994) (citations omitted). It is equally well settled that "[a] transfer involving only minor changes in working conditions and no reduction in pay or benefits will not constitute an adverse employment action." Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997); see Brown v. Lester E. Cox Med. Ctrs., 286 F.3d 1040, 1045 (8th Cir. 2002) (citing Ledergerber and holding, in an Americans with Disability Act case, that "a transfer from one job to another is not an adverse employment action if it involves only minor changes in the employee's working conditions with no reduction in pay or benefits").
Zhuang responds that she suffered two adverse employment actions. First, relying on Kim v. Nash Finch, 123 F.3d 1046, 1060 (8th Cir. 1997), Zhuang asserts that the circumstances leading up to her October 2001 transfer constituted a "pattern of negative employment actions." (Pl.'s Mem. in Opp'n at 19-20.) This pattern was comprised of being assigned a "mentor" and receiving a "letter of expectations" or other negative personnel reports. (Id. at 20.) In Nash Finch, the Eighth Circuit found that defendant retaliated against plaintiff for filing a discrimination charge by reducing his duties, lowering his performance evaluations by thirty points, papering his employment file with negative reports that plaintiff alleged were fabricated, and demanding plaintiff undergo special remedial training. 123 F.3d at 1060; see Jones v. Fitzgerald, 285 F.3d 705, 715 (8th Cir. 2002) (describing Nash Finch). The court did not decide whether each act in itself constituted an adverse employment action because it found that the defendant had "systematically" retaliated against plaintiff. Nash Finch, 123 F.3d at 1060.
Zhuang also suggests that a third adverse employment action — her lay off — was the result of race, sex, national origin, and age discrimination. (Pl.'s Mem. in Opp'n at 22-23.) She similarly asserts that her lay off was in retaliation for filing a discrimination charge. (Id. at 29-33.) Datacard responds to both allegations with the same argument: her lay off was part of a legitimate, non-discriminatory reduction in force. (Def.'s Mem. in Supp. at 26-28; Def.'s Reply Mem. at 7.) Given the similarity of Zhuang's claims and Datacard's responses, and given the greater weight that Zhuang appears to place on her retaliation claim, the Court will consider both claims together below. See infra Analysis Part III (Retaliation).
Nash Finch is distinguishable. In contrast to the plaintiff in Nash Finch, Zhuang (1) did not receive a substantial reduction in duties prior to her transfer; (2) was put at no "material employment disadvantage" by being assigned a "mentor,"Duncan, 371 F.3d at 1026; and (3) was not required to undergo special remedial training. To the extent she was given a "letter of expectations" and other negative personnel reports prior to her transfer, "poor performance rating[s] do not in [themselves] constitute . . . adverse employment action[s]."Spears v. Missouri Dep't of Corrections and Human Resources, 210 F.3d 850, 854 (8th Cir. 2000). In sum, Zhuang's allegations do not rise to the level of the "systematic" discrimination that Nash Finch held as constituting an adverse employment action.
Although Zhuang alleges that Pothast once told her to "go to ESL [English as a Second Language] training" (Pl.'s Mem. in Opp'n at 24 (citing Zhuang Aff. ¶ 25)), she admits that Pothast based his remark on information provided to him by Kensok, a former supervisor whom Zhuang considered "reasonable," and that she was never required to get such training. (Zhuang Dep. Tr. at 27, 41, 53.)
Her second, and principal, argument is that her transfer to a Tester position was an adverse employment action. (Pl.'s Mem. in Opp'n at 20.) Datacard asserts that the transfer was not actionable because it was voluntary and it did not reduce Zhuang's pay or benefits. (Def.'s Mem. in Supp. at 16-17.) Datacard is correct. It cannot be reasonably disputed that Zhuang voluntarily chose to transfer to the Tester position. As the testimony from both Zhuang and Pothast reveals, Zhuang was given two choices: (1) remain as a Developer on the Zenith project, but if her performance did not improve she would be put on a "performance improvement plan" which would be followed by a sixty day probation (see Pothast Dep. Tr. at 53-54; Zhuang Dep. Tr. at 209-10; Zhuang Aff. ¶ 42); or (2) transfer to the Zenith GUI test team as a Tester (see Pothast Dep. Tr. at 53; Zhuang Dep. Tr. at 209-10). Although Zhuang characterizes the situation as "not [a] good choice" (Zhuang Dep. Tr. at 209-10), it was nevertheless her choice to make.
Even if Zhuang's reassignment was involuntary, "[a] transfer involving only minor changes in working conditions and no reduction in pay or benefits will not constitute an adverse employment action." Ledergerber, 122 F.3d at 1144. It is undisputed that Zhuang suffered no diminution in job rank, benefits or salary. (Zhuang Dep. Tr. at 211.) The changes in her working conditions — going from designing computer software to testing it — can only be characterized as a minor alteration in her work responsibilities. Such an alteration is not an adverse employment action. Duncan, 371 F.3d at 1026. There is also no indication that at the time she transferred the "change in employment significantly affect[ed] [her] future career prospects." Id. To the extent Zhuang argues that she felt negatively about the transfer, that it made her "look very bad" (Zhuang Dep. Tr. at 210), or that other workers at Datacard saw the transfer as reflecting negatively on her, those issues are insufficient as a matter of law to constitute an adverse employment action. See Legergerber, 122 F.3d at 1144.
In asserting that her transfer was an adverse employment action, Zhuang relies on McGregory v. Crest/Hughes Techs., 149 F. Supp. 2d 1079 (S.D. Iowa 2001) and Myers v. Nebraska Health and Human Servs., 324 F.3d 655 (8th Cir. 2003). (Pl.'s Mem. in Opp'n at 21, 22.) In McGregory, the court found that plaintiff's transfer was an adverse employment action because the new position had "significantly reduced duties" such that plaintiff lost his supervisory status and had to receive semi-daily instructions concerning his tasks because he lacked a job description. 149 F. Supp. 2d at 1089. In Myers, the court found disputed facts as to whether plaintiff's transfer was an adverse employment action because the position required "a considerable downward shift in skill level," as the job had previously been done by someone with "far less education, training and experience," and it had a reduced work load. 324 F.3d at 660.
Zhuang's reliance on these cases is misplaced. Unlike the plaintiff in McGregory, Zhuang never lost a supervisory status (she was never a supervisor) and she never received semi-daily instructions on her tasks for lack of a job description. And unlike the plaintiff in Myers, Zhuang's Tester position did not require a "considerable downward shift in skill level" — i.e., Testers do not possess "far less" education, training or experience than Developers, as both require college degrees and three to five years experience (Zhuang Dep. Exs. 6, 7) — and she has not shown that she suffered a reduced work load. In contrast to the plaintiffs in McGregory and Myers, Zhuang's situation is more analogous to the plaintiff in Harlston. In Harlston, the court found plaintiff's reassignment to a different position without any reduction in title, salary or benefits, even though the new position involved fewer duties and was more stressful, did not constitute an adverse employment action. 37 F.3d at 382. Accordingly, because Zhuang has not demonstrated any adverse employment actions, the Court will grant Datacard summary judgment. II. Hostile Work Environment
Had the Court been called upon to reach the issue, it would have determined that Datacard's reasons for offering Zhuang the choice to transfer — namely, that she had difficulties in timely completing her tasks and that Datacard had access to the cheaper labor of contractors (Def.'s Mem. in Supp. at 17 (citing Pothast Dep. Tr. at 29-30, 41; Zhuang Dep. Tr. at 106)) — were legitimate and non-discriminatory. Zhuang has not shown these reasons to be false and a pretext for discrimination or that her protected status was a motivating factor in Datacard's decision. In fact, she admits having trouble completing her tasks on time. (Zhuang Dep. Tr. at 106.) As is often noted, "federal courts are not self-appointed personnel managers, and they may not second-guess the fairness or wisdom of an employer's nondiscriminatory employment decisions." Day v. Johnson, 119 F.3d 650, 657 (8th Cir. 1997) (citation omitted). The anti-discrimination laws prohibit only intentional discrimination "based on certain, discreet classifications; [they] do not prohibit employment decisions based on other factors, such as job performance, erroneous evaluations, personality conflicts, or even unsound business practices." Rose-Maston v. NMR Hosps., Inc., 133 F.3d 1104, 1109 (8th Cir. 1998) (citation omitted).
Zhuang next argues that she was subjected to a hostile work environment based on her race, national origin, sex, and age. (Pl.'s Mem. in Opp'n at 28.) To establish such a claim, she 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.
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," Zhuang 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).
Zhuang has not met her prima facie burden. As noted in her memorandum, her claim hinges on two statements allegedly repeated by her supervisor, Steve Pothast, on several occasions. (Pl.'s Mem. in Opp'n at 29.) She devotes the following solitary relevant sentence to this claim:
Plaintiff was subjected to continual harassment treatment by Pothast, who told her that she "had no potential for improvement" and that she was "just different from other people" on a number of occasions. See (Aff. Zhuang ¶¶ 25, 26, 34, 40, 43-44).
(Id.) Pothast's alleged comments neither indicate any connection to Zhuang's status in a protected group, nor are "severe nor pervasive enough to create a hostile work environment." Woodland v. Joseph T. Ryerson 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)). Conduct that may be viewed as far more hostile than alleged here has recently been held insufficient to make a hostile work environment claim. See, e.g., Jackson v. Flint Ink N. Am. Corp., 370 F.3d 791, 792-96 (8th Cir. 2004). Accordingly, the Court will grant Datacard summary judgment.
III. Retaliation
Finally, Zhuang alleges that she was terminated in retaliation for filing a charge of discrimination with the EEOC. (Pl.'s Mem. in Opp'n at 29.) Under Title VII, the ADEA, and the MHRA, it is unlawful for an employer to intentionally discriminate against an employee because she has made a charge of discrimination. 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d); Minn. Stat. § 363A.15. The unmodified McDonnell Douglas framework applies to all her retaliation claims. See Peterson, 2004 WL 1179368, at *9;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, Zhuang 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. It is undisputed that Zhuang engaged in statutorily protected activity when she filed a discrimination charge with the EEOC on April 8, 2002 and that she suffered an adverse employment action when she was identified to be laid off. The issue therefore is whether she has shown a causal connection between the two. Datacard contends that she has not met her burden. (Def.'s Mem. in Supp. at 25-26; Def.'s Reply Mem. in Supp. at 5-6.)
As an initial matter, the parties dispute when Zhuang was identified for termination. There has been much consternation concerning the May 2, 2002 e-mail, which Zhuang believes indicates when she was identified for the lay off. (See Pl.'s Mem. in Opp'n at 30.) The parties vehemently disagree over whether Zhuang was actually identified for termination on that date. The matter has gone so far as to have necessitated a Motion to Strike, additional depositions, and supplemental briefing. The dispute, however, appears to be severely overblown. All the testimony regarding the disputed e-mail points one way — it was not created on May 2, 2002. Goodland and Karmen Nelson, who were responsible for effectuating the lay-offs, testified that they did not discuss which employees were to be laid off until July or August 2002. (Goodland Dep. Tr. at 28; Nelson Dep. Tr. at 59-60.) Kohman, the payroll clerk who created the e-mail, testified that she did not create the e-mail on May 2 and that she did not even know that Zhuang was to be terminated until late August 2002. (Kohman Dep. Tr. at 22, 50-51.) Although the e-mail Zhuang has produced contains a May 2 date, Kohman testified that it was a template created on that date which she used to notify Datacard personnel about departing employees. (Id. at 5-11, 12.) On September 3, 2002, Kohman entered Zhuang's name into the template e-mail, printed a copy of the e-mail with the May 2 date on it for her file, and sent the e-mail. (Id. at 21-22, 24;see Hynes Aff. ¶¶ 3-6, Ex. 1.) Based on this uncontradicted testimony, no reasonable factfinder could find that Zhuang was identified for termination on May 2.
As noted above, see supra n. 3, Zhuang filed a Motion to Strike the September 3, 2002 e-mail and the affidavits of Kohman and Hynes, alleging that the September e-mail was not produced during discovery. (Pl.'s Mem. in Supp. of Pl.'s Mot. to Strike Affidavits and Exhibits Filed by Def. on June 18, 2004. at 1.) In light of this motion, the undersigned postponed oral argument and allowed Zhuang to take the depositions of Kohman and Hynes and to submit additional briefs. Those depositions were taken and Zhuang filed two supplemental memoranda. (See Pl.'s Supplemental Mem. in Supp. of Mot. to Strike and in Opp'n to Def.'s Mot. for Summ. J.; Pl.'s Resp. Mem. in Supp. of Mot. to Strike and in Opp'n to Summ. J.) Having provided Zhuang these opportunities to investigate the issue, and considering the totality of the circumstances in this case, the Court will deny her Motion to Strike.
Alternatively, Zhuang argues that she was identified for the lay off on July 11, 2002 when Nelson created a "CHECKLIST FOR EMPLOYEE RELATIONS TERMINATIONS" with her name on it. (Pl.'s Mem. in Opp'n at 32 (citing Nelson Dep. Tr. at 82-87, Ex. 26).) This "CHECKLIST" triggered the termination procedure whereby Datacard's human resources personnel would process final paychecks and provide benefits information. (Nelson Dep. Tr. at 86.) Viewing the evidence in a light most favorable to Zhuang, the Court will assume that Zhuang was identified for termination on July 11, 2002.
With all her attention focused upon Kohman's e-mail and, to a lesser extent, Nelson's "CHECKLIST," Zhuang primarily relies on the temporal proximity between her charge and her identification for the lay-off to establish a prima facie case of causation. "Generally, [however], more than a temporal connection . . . is required to present a genuine factual issue on retaliation."Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (citations omitted). The more than three months transpiring from April 8 (the date of her EEOC charge) to July 11, 2002 (the creation of the "CHECKLIST") is insufficient to establish a prima facie case of causation. See Kohler Co., 335 F.3d at 774 ("[T]emporal proximity rises in significance the closer the adverse activity occurs to the protected activity. The further in proximity the decision to terminate is from the protected activity, the less suspect the decision to terminate becomes.);Kipp v. Missouri Highway and Transp. Comm'n, 280 F.3d 893, 897 (8th Cir. 2002) ("[T]he interval of two months between the complaint and [plaintiff's] termination so dilutes any inference of causation that we are constrained to hold as a matter of law that the temporal connection could not justify a finding in [plaintiff's] favor on the matter of causal link."); Gagnon v. Sprint Corp., 284 F.3d 839, 851-52 (8th Cir. 2002) (finding that one month's time between response to EEOC claim and adverse action did not establish causation).
Even if Datacard decided to terminate Zhuang on May 2, the three weeks transpiring from April 8 to May 2, 2004 is also insufficient to establish causation. See Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002) (finding two weeks "barely" sufficient to establish causation in a prima facie case).
Beyond temporal proximity, Zhuang argues that Goodland's discussion of her charge with Nelson prior to selecting her for the lay-off is also evidence of a causal connection. (Pl.'s Mem. in Opp'n at 30-31.) For support, she relies upon the following testimony from Karmen Nelson:
Q. When you met with Jim Goodland about who was being selected for layoff, did you ever discuss the fact that Xuelin had filed a charge with the EEOC?
A Yes, we would discuss anything that we saw. You know, we would discuss individual by individual often on the list and any of their performance, whatever other things we might be aware of, skill sets.
Q. So you did discuss that with Jim Goodland?
A. He would have known, yes, that she had filed an EEOC charge.
(Nelson Dep. Tr. at 62-63.) Nothing in Nelson's testimony, however, reveals that Goodland (or Nelson) harbored any retaliatory motive towards Zhuang. Lacking evidence of a retaliatory motive, Zhuang cannot establish causation. See Kipp, 280 F.3d at 897 ("We now make explicit what we think was already implicit, namely, that evidence that gives rise to an inference of . . . a [retaliatory] motive is not only sufficient to prove the required causal link but is also necessary."); Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 n. 6 (8th Cir. 2002) ("[T]he kind of causal connection required for a prima facie case [of retaliation] is . . . a showing that an employer's `retaliatory motive played a part in the adverse employment action.'") (citingKipp)). Moreover, Nelson unequivocally testified that Zhuang's EEOC charge was not a factor in the decision to lay her off. (Nelson Dep. Tr. at 85.) In sum, Zhuang's scanty showing fails to provide any evidence of causation. Kipp, 280 F.3d at 897;Smith, 302 F.3d at 833 n. 6.
B. Falsity and Pretext
Even if Zhuang had succeeded in establishing a prima facie case, she has not shown that Datacard's legitimate, non-discriminatory reason for her termination — a company-wide reduction in force (Def.'s Mem. in Supp. at 25, 27-28) — was false and a pretext for discrimination. Zhuang was one of forty employees who were laid off after Goodland and Karmen Nelson evaluated Datacard's current and future business needs and the skills it needed from employees to go forward. (See Nelson Dep. Tr. at 60-61; Goodland Dep. Tr. at 8, 26.) As far as the record reveals, none of the other forty employees who were laid off had engaged in protected activity. Although Zhuang was not to be part of Datacard's future, the anti-discrimination laws "do not authorize a court to judge the wisdom of a company's business decision to reduce its workforce in response to economic pressures," Yates v. Rexton, Inc., 267 F.3d 793, 799 (8th Cir. 2001) (citation omitted), and the Court does not "sit as a super-personnel department, second-guessing employment decisions," Ottman v. City of Independence, 341 F.3d 751, 757-58 (8th Cir. 2003) (citation and internal quotations omitted).
As in her causation argument, Zhuang primarily relies upon the temporal proximity of her charge and being identified for the lay-off to show that Datacard's reason was pretextual. Temporal proximity alone, however, is insufficient to show that her selection in the reduction in force was a pretext for discrimination. See Springer v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1113-14 (8th Cir. 2001); Smith, 302 F.3d at 832, 834.
Zhuang also suggests that Datacard's reason was pretextual because the July 11 "CHECKLIST" was drafted after she had rejected a tentative mediation agreement on June 27, 2002. (Pl.'s Mem. in Supp. at 32 (citing Zhuang Aff. ¶ 70).) As noted, temporal proximity alone is insufficient to establish pretext.See Springer v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1113-14 (8th Cir. 2001); Smith, 302 F.3d at 834.
Other than temporal proximity, Zhuang makes three arguments that she believes reveal pretext. First, she argues that Goodland's comment that Datacard needed "positive, high-energy people" reveals pretext. (Pl.'s Mem. in Opp'n at 32 (citing Zhuang Aff. ¶ 73).) This stray remark is taken out of context. As Zhuang recounts it, Goodland was discussing the lay offs when he told her that "`this is not a thing that Steve [Pothast] and I enjoy doing'" and that "`the company needs positive high-energy people.'" (Zhuang Aff. ¶ 73.) Put in context, Goodland is not taking a jab at Zhuang for making an EEOC charge; rather, he is expressing his displeasure at having to let Zhuang go. In fact, Goodland testified that he did not view Zhuang as negative or low-energy and he observed that "all companies need positive, high-energy people." (Goodland Dep. Tr. at 30.) Viewed in its entirety, his comment reveals no retaliatory animus.
As the Eighth Circuit has cautioned, "not every prejudiced remark made at work supports an inference of illegal employment discrimination." Rivers-Frison v. Southeast Missouri Community Treatment Ctr., 133 F.3d 616, 619 (8th Cir. 1998). Indeed, courts must "distinguish between [c]omments which demonstrate a discriminatory animus in the decisional process or those uttered by individuals closely involved in employment decisions, from stray remarks in the workplace. . . ." Id. (citations and internal quotations omitted) (last alteration in original).
Second, Zhuang contends that she has shown pretext because Pothast, whom she identified in her EEOC charge as having discriminated against her, provided input on her termination. (Pl.'s Mem. in Opp'n at 32.) While it is true that Goodland and Nelson used Pothast's evaluations of Zhuang in arriving at their decision to lay her off, Pothast was not otherwise involved in her selection. (Goodland Dep. Tr. at 25-26; Nelson Dep. Tr. at 62, 82.) Furthermore, there is nothing to indicate that Pothast's evaluation or Goodland and Karmen Nelson's ultimate decision were products of any discriminatory animus — whether it be retaliation or race, sex, national origin, and age discrimination. Because Zhuang'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).
Finally, Zhuang contends that Datacard's retention of Connie Johnson, who had less education, shows that Datacard's explanation that it selected individuals for lay offs based on business need was a pretext for retaliation. (Pl.'s Mem. in Opp'n at 32-33.) Although Johnson may have had less education than Zhuang, Datacard rated Johnson higher in nearly every area on the "skills matrix," including performance trend, leadership, technical skills, and communications and teamwork. (Goodland Dep. Tr. at 8-9, Ex. 1.) Zhuang's belief in her own relative competence is not particularly probative because "even capable employees are released when an employer is down-sizing." Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 779 (8th Cir. 1995); see Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1166 (8th Cir. 1985) ("[T]he mere termination of a competent employee when an employer is making cutbacks due to economic necessity is insufficient to establish . . . discrimination." (citation and internal quotations omitted)). Not to belabor the point, but it bears repeating: "[T]he employment-discrimination laws have not vested in the federal courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination." Kiel, 169 F.3d at 1136. Datacard may have been unwise or unfair, but this Court has no authority to review its decision because Zhuang has provided no evidence that Datacard's reason for her termination was false and a pretext for intentional discrimination.
As noted above, see supra n. 6, Zhuang also suggests that her lay off was based on her race, sex, national origin, and age. Like her retaliation claim, however, she has failed to show that Datacard's legitimate, non-discriminatory reason for her lay off (the reduction in force) was false and a pretext for discrimination or that her protected status was a motivating factor.
Accordingly, because Zhuang has failed to show a casual connection between her EEOC charge and her lay off, and because she has failed to provide any evidence that Datacard's reason for her lay off was false and a pretext for discrimination, the Court will grant Datacard summary judgment on Zhuang's retaliation claim.
Conclusion
Based on the foregoing, and all of the files, records, and proceedings herein, IT IS ORDERED that:
1. Defendant Datacard Corp.'s Motion for Summary Judgment (Doc. No. 15) is GRANTED and Plaintiff Xuelin Zhuang's Amended Complaint (Doc. No. 5) is DISMISSED WITH PREJUDICE;
2. Defendant Datacard's Motion to Strike Plaintiff's Affidavit (Doc. No. 32) is MOOT; and
3. Plaintiff's Motion to Strike (Doc. No. 40) is DENIED.