12-1700-10150-2
ER19950274
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN RIGHTS
|
Sharon Groves,
Charging Party,
v.
Fingerhut Corporation,
Respondent. |
ORDER PARTIALLY GRANTING RESPONDENT'S MOTION FOR SUMMARY DISPOSITION |
The above-entitled matter came before Administrative Law Judge Steve M. Mihalchick on Respondent's motion for summary disposition. A hearing on this motion was held at the Office of Administrative Hearings, 100 Washington Square, Minneapolis, Minnesota, on July 16, 1996. The record on this motion closed at the end of the hearing.
Thomas J. Conley, Leonard, Street & Deinard, 150 South Fifth Street, Suite 2300, Minneapolis, Minnesota 55402, appeared on behalf of Respondent, Fingerhut Corporation. Karen L. Tingstad, Mesaba Law Office, 1539 Grand Avenue, St. Paul, Minnesota 55105, appeared on behalf of Charging Party, Sharon Groves.
Based upon the arguments and memoranda submitted by the parties, all of the filings in this case, and for the reasons set out in the memorandum which follows, the Administrative Law Judge makes the following:
ORDER
IT IS HEREBY ORDERED that:
1. Respondent’s motion for summary disposition is GRANTED as to claims of sexual discrimination through disparate treatment and hostile environment occurring before December 26, 1993.
2. Respondent’s motion for summary disposition is DENIED regarding claims of sexual discrimination through hostile environment and disparate treatment in training on or after December 26, 1993, and as to claims of reprisal, after February 21, 1994.
Dated: August 15, 1996.
____________________________
STEVE M. MIHALCHICK
Administrative Law Judge
MEMORANDUM
Respondents have moved for summary disposition, asserting that Charging Party was not subject to disparate treatment, a hostile environment, or reprisal. An additional basis for summary disposition is asserted by Respondent on the reprisal claim, that the conduct Charging Party engaged in is not protected under the Human Rights Act and therefore, no reprisal is possible. Charging Party maintains that genuine issues of material fact remain for hearing and summary disposition is inappropriate on any of the claims made in this matter.
Summary disposition is the administrative equivalent to summary judgment. Minn. R. 1400.5500K. Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Sauter v. Sauter, 70 N.W.2d 351, 353 (Minn. 1955); Louwagie v. Witco Chemical Corp., 378 N.W.2d 63, 66 (Minn. App. 1985); Minn. R. Civ. P. 56.03. The Office of Administrative Hearings has generally followed the summary judgment standards developed in judicial courts in considering motions for summary disposition regarding contested cases. See Minn. R. 1400.6600.
It
is well established that, it order to successfully resist a motion for summary
judgment for the purpose of holding a hearing, the non-moving party must show
that specific facts are in dispute which have a bearing on the outcome of the
case. Hunt v. IBM Mid America
Employees Federal Credit Union, 384 N.W.2d 853, 855 (Minn. 1986). The existence of a genuine issue of material
fact must be established by the non-moving party by substantial evidence;
general averments are not enough to meet the non-moving party’s burden under
Minn. R. Civ. P. 56.05. Id.; Murphy v. Country House, Inc.,
307 Minn. 344, 351-52, 240 N.W. 2d 507, 512 (1976); Carlisle v. City of
Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1988). Summary judgment may be entered against the
party who has the burden of proof at the hearing if that party fails to make a
sufficient showing of the existence of an essential element of its case after
adequate time to complete discovery. Id.
To meet this burden, the party must offer “significant probative
evidence” tending to support its claims.
A mere showing that there is some “metaphysical doubt” as to material
facts does not meet this burden. Id.
The facts in this matter are hotly contested. Where there has been a disagreement, the Judge has viewed the disputed facts in the light most favorable to the Charging Party, as the nonmoving party.
Charging Party was hired by Respondent as a Systems Operator on August 8, 1988. She works in Respondent’s Mora facility. After five years, Charging Party was promoted to Senior Systems Operator. Larry Butenhoff was Charging Party’s immediate supervisor. The work performed in the Mora facility involves preparing graphics, including photographs, for use in catalogs and other publications. The work is technical in nature and outcome-oriented. As part of the working relationship at Respondent’s facility employee suggestions (known as the IMPACT or FOCUS suggestions) are taken and, if acted upon, result in recognition and awards.
Charging Party made an IMPACT suggestion on February 2, 1994, that was denied. Groves Deposition, at 116. This suggestion later appeared to be used in color processing. Id. No credit for the idea has been given to Charging Party. Id. at 116-117. On February 21, 1994, Charging Party filed a grievance with her collective bargaining representative alleging that training, hiring, layoff, and work decisions regarding her were being made on the basis of discrimination. Groves deposition at 163-4. Hamann Affidavit, Exhibit 1. She did not specify the type of discrimination. Robiner Affidavit, Exhibit B. Subsequently, Charging Party filed an additional grievance in February that indicated sexually oriented acts of harassment occurred in the workplace. Id. Exhibit C. The only date of an incident identified is August, 1993, when Charging Party asserted a coworker put a broom handle between Charging Party’s legs and pinched her breast. Another coworker, Tim Olson, is identified in the grievance as witnessing the pinching portion of the broom handle incident. The other conduct identified is name calling, writing on calendars, and altering Charging Party’s name tag. The hiring complained of occurred in November 1993. Sather Affidavit, Exhibit 3.
Greg
Sather, Graphics Manager of the Respondent’s Mora facility, was informed of
Charging Party’s grievance on either February 25 or February 28, 1994. Sather Affidavit, at 1. Sather commenced an investigation of the
background to the matters grieved and treated the grievance as a report of
sexual harassment under the Respondent’s sexual harassment policy. Id.
at 2. The investigation included
interviewing participants in the hiring process, supervisors, the persons
identified in the grievance, and persons responsible for processing employee
suggestions. The investigation revealed
that several IMPACT statements from Charging Party and other employees had been
misfiled. Id. at 5.
Charging Party received a gift certificate in the amount of $60.00 on March 11, 1994, for IMPACT suggestions received from her. Sather Affidavit, Exhibit 6. The March 24, 1994, IMPACT meeting memorandum lists six implemented projects suggested by Charging Party. Id. Two of the four projects that had been closed out were identified as originating with Charging Party. Id. Mary Kay Nash sent Charging Party a memorandum advising that one suggestion Charging Party made would not be implemented and the other was routed to the appropriate department. Id. On March 29, 1994, two employees responded to one of Charging Party’s suggestions. Id. Sather issued a written apology to Charging Party on April 7, 1994. Sather Affidavit, Exhibit 5. The apology was for misfiling project suggestions made by Charging Party. Id. On April 8, 1994, the IMPACT committee responded to another of Charging Party’s suggestions. Sather Affidavit, Exhibit 6.
On February 23, 1994, Mark Murray, a supervisor, suggested to another person who told Charging Party that Charging Party's suggestions might be better received if submitted under someone else's name. Sather Affidavit, Exhibit 4. That employee told Charging Party of the suggestion. On May 5, 1994, Respondent issued a written warning to Murray to not advise any employee to file productivity suggestions under another name. Sather Affidavit, Exhibit 4. On May 24, 1994, the IMPACT committee meeting memorandum identified a suggestion from Charging Party had been implemented in the FOCUS program and resulted in savings of $8,265. Sather Affidavit, Exhibit 6. Charging Party received a memorandum dated August 11, 1994, from the IMPACT committee advising that one of her project suggestions had been closed out with savings of $3,658. Id.
The September 28, 1994, IMPACT committee memorandum identified Charging Party as being one of 43 employees each awarded a $25 gift certificate. Sather Affidavit, Exhibit 6. On November 16, 1994, Charging Party received a memorandum from the IMPACT committee explaining why one of her suggestions was not being implemented. Id. On November 17, 1994, Charging Party received a memorandum from Mary Kay Nash explaining that another of Charging Party’s suggestions would not be acted upon as it was not an original idea. Id.
Sather
relied upon the Human Resources Manager's interview with the two employees
(other than Charging Party) present at the broom handle incident. Sather Affidavit, at 5. The interviewer indicated that both
employees denied the incident
occurred. Id. The investigation
confirmed that at least one employee had a calendar written upon with sexual
content. Id. That employee was
upset, but asked for no supervisory involvement. Sather Affidavit, Exhibit 2.
No other evidence was uncovered concerning sexually-oriented conduct
directed toward Charging Party. Id. at 5.
Sather informed Charging Party of the results of the grievance process on April 14, 1994. Sather Affidavit, at 6, Exhibit 7; Groves Deposition, at 39-41. The results identified all of the complaints made in the two grievance filings and addressed the issues raised by the Charging Party. Regarding a hostile work environment, the conclusion was that “inappropriate behaviors may be going on.” Sather Affidavit, Exhibit 7. Charging Party was urged to bring reports of any such behavior “to management’s attention immediately.” Id.
On May 17, 1994, management at the Respondent’s Mora facility determined that some telephones had outside line capacity. Sather Affidavit, Exhibit 8. On May 18, 1994, the telephone in Charging Party’s area was removed. Id. The telephone in the supervisor’s office was not removed. Id.
Charging Party filed a grievance on May 23, 1994, asserting that the removal of the telephone in her area was done as a reprisal for her earlier grievance. Sather Affidavit, at 6. Sather responded that all telephones not being used for their intended purpose were removed at the same time. Id., Exhibit 8. The grievance was denied. In October, 1994, Charging Party was informed by her union steward that the union would take no further action on her grievance regarding the telephone issue or sexual harassment. Groves Deposition, at 154-157.
In opposing the Respondent’s motion for summary disposition, Charging Party has identified a number of incidents that are cited as supporting the existence of a hostile environment or reprisal. The incidents identified that are not time-barred are:
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March 2, 1994 |
Dallas Pullen said “Hi Trouble” to Charging Party. |
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March 3, 1994 |
Two female coworkers asked if Charging Party needed to “hold her hand” or “wipe my butt too.” |
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March 10, 1994 |
Bob Haugen’s name came up (the man with the broomstick) and roomful of employees began laughing and staring at Charging Party. |
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March 18, 1994 |
Coworker said “Hi Sharon Stone, how are you doing.” |
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April 29, 1994 |
Photographs of people wearing lingerie which were to be air brushed were pulled. The men in the department made jokes concerning chairs being wet after a male coworker had done the airbrushing. |
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May 4, 1994 |
Charging Party found a note in her desk saying “Help! I’m talking and I can’t SHUT UP.” |
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May 17, 1994 |
Telephones in Charging Party’s area and an unused work area removed. Telephones in stripping, desktop, and vault areas (all with outside line capacity) remained in place. |
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July 13, 1994 |
Charging Party complained to union representative “that management has been watching me” and such behavior occurred several times per day. |
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August 3, 1994 |
Male coworker called Charging Party “the right man for the job” and referred to her as man again later that day. |
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August 5, 1994 |
Dispute arose over use of equipment. |
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August 17, 1994 |
Coworker said “Hello Big Mama, did you find any scans with the wrong resolution. |
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August 19, 1994 |
Coworker said “Hello Sharon Stone. |
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August 24, 1994 |
Coworker repeated the “Big Mama” remark, even after Charging Party asked him not to. |
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October 15, 1994 |
Nash (third shift supervisor) prohibited listening to comedy recording Charging Party had brought to work, when other comedy recordings had been allowed. |
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October 17, 1994 |
Charging Party questioned her supervisor about limited role in project and prohibition of comedy recordings. Butenhoff instructed “no more joke tapes.” Later in that week, management announced that there had been an incident the prior week regarding comedy recordings and such recordings would no longer be allowed. |
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October 19, 1994 |
Charging Party was being denied use of more advanced computers used by coworkers |
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October 20, 1994 |
Coworker told Charging Party that Nash had said a project was too complicated for Charging Party. |
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October 21, 1994 |
Charging Party filed a grievance over nonparticipation in project, alleges female operators have been bypassed for special projects in favor of male operators. |
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October 29, 1994 |
Nash limited Charging Party’s use of equipment and Charging Party was the only member of her job class so limited. |
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February 2, 1994 |
Charging Party was told by a coworker that another coworker had told her that a fourth coworker “talks very bad about women and had has been warned about this.” |
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February 13, 1994 |
Charging Party denied training in Toronto and denied opportunity to take training in lieu of layoff. |
Groves Affidavit, at 1-19.
Charging Party identified a number of comments by coworkers and actions by management that occurred after February 22, 1995. Most of the comments identified consist of being referred to as “Sharon Stone” or an occasional joke directed towards female anatomy. Groves Affidavit, at 19-28. The management actions identified are denial of training opportunities and reserving jobs for male coworkers. Id.
On
August 8, 1994, Charging Party discussed the “right man for the job” comment, a
work assignment issue, and the August 5, 1994 equipment dispute with Butenhoff,
her supervisor. Butenhoff was to talk
to the affected employee on the
equipment dispute and Charging Party was to confront the coworker on the “man”
comments. Groves Affidavit, at 10. When Charging Party ran into that coworker
on August 17, 1994, Charging Party did not confront the coworker on the
issue. Id.
Charging Party confronted a coworker over being called “Big Mama” on August 24, 1994. The next day Charging Party indicated:
I had a meeting with Larry Butenhoff about Al Huf calling me “Big Mama.” Larry told me I didn’t need to take that and anytime I felt he should talk to him, he would. I told him that I told Al to quit calling me that and would let him know if it happened again. I did not tell Larry not to confront Al. I felt it was his obligation to do this.
Groves Affidavit, at 11.
Charging Party heard from another coworker that Butenhoff talked to Huf about his conduct toward another female employee. Groves Affidavit, at 11. Huf apologized to Charging Party on October 10, 1994, for anything he said that might be upsetting. Id.
Charging Party filed a charge of discrimination with the Department on February 16, 1995. The charge alleged that the male hired for the position of Color Separation Specialist was less well qualified; that a male coworker engaged in unwelcome sexual conduct toward her (broom handle incident); and unwelcome comments related to sex were made by coworkers on personal calendars, in conversations, and on her name tag. The charge also alleged that Charging Party was subjected to “a variety of reprisals” for grieving the dispute, including the removal of a telephone in her work area, closer management supervision of her conduct relative to other employees, and impact statements not properly processed. Robiner Affidavit, Exhibit A. The reprisal allegation expressly mentions the suggestion to submit Charging Party’s ideas under another name. Id.
On June 28, 1995, Charging Party complained to Butenhoff about criticism of female employees by Jeff Keogh that was not repeated when he discovered a male coworker had actually been responsible. Groves Affidavit, at 20-21. On June 29, 1995, Charging Party “complained to my Supervisor Larry Butenhoff about the incidents of harassment that had been occurring.” Id. at 21.
The Department did not make a finding of probable cause in this matter within 180 days of the filing of the charge and the matter was referred by request of the Charging Party to the Office of Administrative Hearings on November 2, 1995, pursuant to Minn. Stat. § 363.071, subd. 1a.
Time-barred Claims
Minn. Stat. § 363.06, subd. 3, requires that any charge be filed within one year of the conduct complained of to be considered under the MHRA. That one-year period is tolled by participation in alternative dispute resolution processes, including grievance procedures. Charging Party filed a grievance with the collective bargaining representative on February 21, 1994, alleging that disparate training, hiring, and working conditions were present at the workplace. Charging Party also asserted that her IMPACT ideas were being disregarded, she was being called “troublemaker”, and other harassment was occurring. Robiner Affidavit, Exhibit B. None of the harassment was identified as creating a hostile environment due to sex. A separate statement was made later in February, 1994, that alleged a hostile environment based on sex and cited the broom handle incident, name calling (e.g. “Sharon Stone” and “Sharing Peters”), and sexually oriented comments written on employees’ calendars.
Respondent’s management met with Charging Party on April 14, 1994 and discussed what would be done in response to her grievance. Corrective action on the IMPACT/FOCUS statements had already taken place. The burden of going forward with some other action was placed on Charging Party at that point. Charging Party asserts that the filing deadline is tolled during the grievance process and that the process took until October, 1994, to resolve. The only action that took place in October was the union steward’s informing Charging Party that the union would not pursue the retaliation or sexual harassment grievances further. The tolling provision does not reward undue delay. For the purpose of tolling the filing deadline, the grievance process concluded on April 14, 1994 when Respondent informed Charging Party what would be done in response to her grievance and Charging Party took no further action regarding the grievance. From February 21, 1994, to April 14, 1994, is 52 days.
To determine what claims are timely, the one year prior to the date of filing the charge must be extended by length of time of the period during which the grievance process took place. One year prior to the charge filing date is February 16, 1994, and 52 days prior to that is December 26, 1993. Therefore, the tolling provision preserves claims for conduct that occurred on or after December 26, 1993. The disparate treatment claim that arises from the hiring of a Color Separation Specialist earlier in 1993 is beyond the one year and 52-day filing period and is time-barred. None of the incidents cited in the grievance as supporting the finding of a hostile environment are identified as occurring after December 26, 1993. One item in the charge, improper processing of IMPACT statements, has an incident alleged on February 9, 1994, which is not time-barred. The other specific allegations of disparate treatment and hostile environment contained in the charge are time-barred.
Reprisal Charge
The charge alleges a hostile environment based on sex, identifying incidents that occurred prior to February 21, 1994. Robiner Affidavit, Exhibit A. The charge also identifies reprisals “including but not limited to” removal of a telephone, closer management supervision of Charging Party compared to other workers, IMPACT statements being improperly processed, and being told to submit IMPACT statements under another name. Except for the IMPACT statement filed on February 2,1994, the claim regarding IMPACT statements cannot be reprisal, because the conduct pre-dated Charging Party’s grievance. The other actions, removal of telephones and management observation occurred after the grievance and can constitute reprisal.
Respondent cites Holman v. CPT Corp., 457 N.W.2d 740 (Minn.App. 1990), as holding that participating in a union grievance process is not protected conduct and therefore reprisal cannot be substantiated for filing a union grievance. Respondent's Memorandum, at 16. Reprisal can occur through participation in the statutory process to resolve discrimination complaints or through opposition to discriminatory practices. Minn. Stat. § 363.03, subd. 7(1). Filing of a union grievance has been held to be protected conduct in Title VII actions. Senter v. General Motors Corp., 383 F.Supp. 222 (S.D. Ohio 1974), aff’d, 532 F.2d 511, cert. denied, 429 U.S. 870 (1976). Concerning retaliation, the Court in Holman stated:
Holman claims the retaliation by CPT was in response to her grievance regarding her salary. Holman did not specifically raise this issue before the trial court; therefore, it is questionable whether it is properly before us. See Plowman v. Copeland, Buhl & Co., Ltd., 261 N.W.2d 581, 583 (Minn. 1977). Nevertheless, because Holman's pursuit of her grievance was not statutorily-protected conduct, Holman's claim must fail.
Holman, 457 N.W.2d 740, 744.
The dispute in Holman was whether commissions should have been paid. There was no allegation in that case that illegal discrimination was the cause of the failure to pay commissions. Filing a union grievance regarding disparate treatment or hostile environment is action in opposition to discrimination within the meaning of Minn. Stat. § 363.03, subd. 7(1). Charging Party engaged in statutorily-protected conduct that is covered by the reprisal provisions of the MHRA.
Conduct Identified Post-Charge
Respondent asserts that the conduct not identified in the charge cannot properly be the basis of this matter since there has not been adequate notice of the conduct complained of as violative of the MHRA. Respondent also maintains that the training and work assignment allegations are not identified as being motivated by gender and thus cannot support a claim of disparate treatment.
The Human Rights Act specifies that, except under limited circumstances, it is an unfair employment practice for an employer to discriminate against an employee because of gender with respect to "hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment." Minn. Stat. § 363.03, subd. 1(2) (1992). Respondent has an ongoing obligation to eliminate sexual harassment and disparate treatment based on gender. The filing of a charge under the MHRA does not change the obligation of an employer to comply with the Act. With the reporting of the conduct to Charging Party’s supervisor, there was notice to Respondent of the problem perceived by Charging Party.
Case law developed through Title VII cases brought before the U.S. Equal Opportunity Commission limits the expansion of claims not contained in the EEOC charge to matters “which can reasonably be expected to grow out of the charge of discrimination.” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970); see also Wyrick v. TWA Credit Union, 804 F.Supp. 1176, (W.D. Mo. 1992). In this matter, the charge details sexually oriented behavior, expressly claims that a hostile environment exists in Charging Party’s workplace, and indicates that disparate treatment in hiring decisions is present based on gender. Inclusion of postcharge allegations is permissible where the allegations arise out of the conduct alleged in the charge or are related to that conduct. See Larson, Employment Discrimination, § 76.06 [1][d] (2nd Ed., 1995). The relationship of hostile environment claims arising after the charge to the conduct in the charge is extremely close. Much of the conduct alleged as supporting a hostile environment is identical. The disparate treatment through discrimination in hiring is similar to discriminatory denial of training opportunities. The inclusion of those allegations in this matter is appropriate, particularly since Charging Party made those training issues a part of her grievance, filed in February, 1994.
Prima Facie Case of Discrimination
Minnesota courts have often relied upon federal case law developed in discrimination cases arising under Title VII of the Civil Rights Act of 1964 in interpreting the Human Rights Act. Relevant Minnesota case law establishes that plaintiffs in employment discrimination claims arising under the Human Rights Act may prove their case either by presenting direct evidence of discriminatory intent or by presenting circumstantial evidence in accordance with the analysis first set out by the United States Supreme Court in McDonnell Douglas Corp, v. Green, 411 U.S. 792, 802-03 (1973). Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 710 and n. 4 (Minn. 1992); Sigurdson v. Isanti County, 386 N.W.2d 715, 719 (Minn. 1986); Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978).
The approach set forth in McDonnell Douglas consists of a three-part analysis which first requires the complainant to establish a prima facie case of disparate treatment based upon a statutorily-prohibited discriminatory factor. Once a prima facie case is established, a presumption arises that the respondent unlawfully discriminated against the complainant. The burden of producing evidence then shifts to the respondent, who is required to articulate a legitimate, nondiscriminatory reason for its treatment of the complainant. If the respondent establishes a legitimate, nondiscriminatory reason, the burden of production shifts back to the complainant to demonstrate that the respondent's claimed reasons were pretextual. McDonnell Douglas, 411 U.S. at 802-03; see also Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 623 (Minn. 1989); Hubbard v. United Press International Inc., 330 N.W.2d 428 (Minn. 1983).
Indirect proof of discrimination is permissible to show pretext, since "'an employer's submission of a discredited explanation for firing a member of a protected class is itself evidence which may persuade the finder of fact that such unlawful discrimination actually occurred.'' Haglof v. Northwest Rehabilitation Inc., 910 F.2d 492, 494 ( 8th Cir. 1990), quoting MacDissi v. Valmont Industries Inc., 856 F.2d 1054, 1059 (8th Cir. 1988). The burden of proof remains at all times with the complainant. Fisher Nut Co. v. Lewis ex rel. Garcia, 320 N.W.2d 731 (Minn. 1982); Lamb v. Village of Bagley, 310 N.W.2d 508, 510 (Minn. 1981).
The law is clear that the three-part McDonnell Douglas analysis is to be applied in deciding summary judgment motions involving claims alleging disparate treatment in violation of the Human Rights Act. Albertson v. FMC Corp., 437 N.W.2d 113, 115 (Minn.App. 1989), citing Sigurdson v. Isanti County, 386 N.W.2d 715, 719-22 (Minn. 1986); see also Rademacher v. FMC Corp., 431 N.W.2d 879, 882 (Minn.App. 1988); Shea v. Hanna Mining Co., 397 N.W.2d 362, 368 (Minn.App. 1986). The U.S. Court of Appeals for the Eighth Circuit has cautioned that "[s]ummary judgments should be sparingly used [in cases alleging employment discrimination] and then only in those rare instances where there is no dispute of fact and where there exists only one conclusion ... All the evidence must point one way and be susceptible of no reasonable inference sustaining the position of the non-moving party." Johnson v. Minnesota Historical Society, 931 F.2d 1239, 1244 (8th Cir. 1991)(relying upon Hillebrand v. M-Tron Industries Inc., 827 F.2d 363, 364 (8th Cir. 1987), cert. denied 488 U.S. 1004 (1989); and Holley v. Sanyo Manufacturing, Inc., 771 F.2d 1161, 1164 (8th Cir. 1985).
The elements of a prima facie case of discrimination vary depending upon the type of discrimination alleged, and must be tailored to fit the particular circumstances. Ward v. Employee Development Corp., 516 N.W.2d 198, 201 (Minn.App. 1994). The Charging Party's claims in the present case fall into the two primary categories; hostile environment due to sexual innuendo and disparate treatment in working conditions taken against a female employee on the basis of gender. Although the alleged discrimination has not been so severe as to render intolerable her continuing in Respondent’s employ, the MHRA does not require constructive discharge before relief can be afforded. In order to demonstrate a prima facie case of gender discrimination in terms and conditions of employment, the Charging Party must show she is member of a protected class, she is qualified for the position she holds, an adverse action was taken against her, and that a male employee in that position was treated more advantageously. Id.
Based upon the application of the standards set forth above and construing the evidence in a light most favorable to the nonmoving party, the Administrative Law Judge concludes that Charging Party has presented sufficient evidence to support a prima facie case of gender discrimination. Assignments reserved for male employees, criticism directed at female employees and not at male employees similarly situated, and training opportunities distributed unevenly are evidence of disparate treatment.
The standards for what constitutes a hostile work environment are set forth in Klink v. Ramsey County, 397 N.W.2d 894, 901 (Minn.App. 1986). The hostile work environment arises when a member of a protected group is subjected to unwelcome harassment based on sex that is sufficiently pervasive to create an intimidating, hostile, or offensive environment, and that the employer knew or should have known of the harassment and failed to take appropriate remedial action. Id. at 901.
Respondent maintains that the incidents alleged do not amount to a hostile environment as a matter of law. Supporting this position, Respondent cites the granting of summary disposition where crass comments and occasional efforts to put an arm around a female coworker in the workplace were found not to constitute a hostile environment. Thompson v. Campbell, 845 F.Supp. 665, (D. Minn. 1994). Charging Party responded that the incidents she experienced in the workplace were more pervasive and frequent than in Thompson. The standard applied in that case is whether “a reasonable person would consider the offensive conduct sufficiently pervasive to create an abusive working environment.” Id. at 637. Respondent’s analysis relied upon there being only four incidents of alleged harassment. Respondent’s Memorandum, at 14. As discussed above, far more than four incidents are alleged and can be considered in this matter. Taking the facts in the light most favorable to the Charging Party a reasonable person could conclude that “an abusive working environment” existed at Respondent’s Mora facility.
Respondent asserts that it took appropriate remedial action after being informed of problems by Charging Party’s February, 1994 grievance. This remedial action is interposed as a defense to the claim of discrimination that requires summary disposition in Respondent’s favor. Taking facts in the light most favorable to the Charging Party, the remedial action taken was not effective in changing the working environment at the Mora facility. The Charging Party has alleged through affidavits of herself and coworkers, that working conditions that were and continue to be determined by gender. Name-calling of a sexual nature and sexually oriented jokes have resumed. Training is being afforded, but differences between male and female opportunities have been alleged and not rebutted. These objections have been reported to Charging Party’s supervisor with no apparent change. The effectiveness of any remediation regarding hostile environment is a genuine issue of material fact.
Respondent has shown that effective remediation was made regarding a number of IMPACT/FOCUS statements. The remediation does not include the IMPACT statement filed by Charging Party on February 9, 1984. Groves Deposition 116. Taking the facts in the light most favorable to Charging Party, the denial of action on that statement raises a genuine issue of material fact that the reason for the denial was discrimination or retaliation.
The prima facie case of reprisal follows a different standard. To substantiate reprisal, there must be statutorily protected conduct followed by an adverse employment action with a causal connection between the first two elements. Hubbard v. United Press International, Inc., 330 N.W.2d 428, 444 (Minn. 1983). Respondent asserts that the causal connection element is missing from a prima facie case in this matter. Specifically, Respondent relies upon Charging Party being unable to know what motivated management observation or removal of telephones after the first grievance was filed. Respondent’s Memorandum, at 17. The deposition testimony cited to support Respondent’s contention was that Charging Party could not know that management was not checking to ensure that additional harassment was occurring. Groves Deposition, at 115-116. Respondent’s standard would require an employee to know the subjective motivation of an employer, regardless of the objective facts. Taking the facts in a light most favorable to Charging Party, stricter management scrutiny of the filer of a grievance is sufficient to establish a prima facie case of reprisal.
Exclusion of Affidavit
Respondent maintains that the affidavit of one of its supervisors should be excluded, since the affidavit was obtained without adhering to the requirements of Minnesota Rules of Professional Conduct Rule 4.2 regarding contact with a represented party. The application of the rule to the supervisor is disputed by Charging Party, since the supervisor is immediately above the line worker level and the supervisor does not have significant managerial authority. Charging Party disputes the applicability of the rule to this situation given the low level of the employee’s function and the contents of his affidavit.
The effect of a violation of Rule 4.2 was examined in State v. Ford, 539 N.W.2d 214 (Minn. 1995). The Minnesota Supreme Court considered the impact of police officers’ contact with a represented defendant in a criminal case. The Court stated:
Ford contends that pursuant to Lefthand [State v. Lefthand, 488 N.W.2d 799 (Minn. 1992)] the trial court should have suppressed his statements. We disagree. Contrary to Ford's contention, our decision in Lefthand did not create an automatic exclusionary rule for a violation of Rule 4.2, MRPC, by a prosecutor. Driving our decision in Lefthand, was our belief that the fair administration of justice had been compromised. Our determination that the material should be excluded in that case and future similar cases was not based solely on the violation of the Rules of Professional Conduct, but rather was based on the egregiousness of the government's action in total. The evidence was not excluded to insure compliance with the Rules of Professional Conduct. Rather, the evidence was excluded pursuant to our supervisory powers to insure the fair administration of justice in that case.
As we stated in Lefthand, statements taken in violation of Rule 4.2, MRPC, are "subject to exclusion"--exclusion is not required. 488 N.W.2d at 802. The facts in Lefthand were egregious. Less egregious violations do not require so severe a remedy. See Marc A. Schwartz, Prosecutorial Investigations and DR 7-104(A)(1), 89 Colum.L.Rev. 940, 943-46 (1989) (discussing various courts' approaches to violations of analogous ethical rule, none of which have suppressed evidence for a violation of the ethical rule); Roger C. Cramton & Lisa K. Udell, State Ethics Rules and Federal Prosecutors: The Controversies Over the Anti Contact And Subpoena Rules, 53 U.Pitt. L.Rev. 291, 327-28 (1992) (same). The facts in the present case do not consist of similarly egregious conduct by the government to that found in Lefthand, therefore we conclude that the trial court appropriately admitted Ford's statements.
Id. at 224-225.
Respondent asserts that the affidavit obtained by Charging Party is an “egregious violation of Rule 4.2” and, therefore, the affidavit should not be admitted. Respondent’s Reply Brief, at 13. There are no facts asserted that show an egregious violation here. The Affiant is not a high level employee and his impressions do not bind Respondent. Introducing the affidavit adds factual background for this motion and furthers the administration of justice. The affidavit is admitted.
A number of the claims in the charge are time-barred and are appropriately dismissed. Claims for reprisal, disparate treatment, and hostile environment on and after December 26, 1993, are not time-barred. Charging Party has shown that genuine issues of material fact are present and summary disposition is inappropriate on those issues.
S.M.M.