4-1700-10177-2

                                                                                                            ER19941375

 

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE MINNESOTA DEPARTMENT OF HUMAN RIGHTS

 

 

Lynne Dale,                                 Complainant,   vs.   Metropolitan Training and Consulting,                                 Respondent.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

            The above-entitled matter came on for hearing before Administrative Law Judge Bruce H. Johnson on November 18, 19, and 20, 1996, on March 18, 19, and 20, 1997, and on April 9, 10, and 11, 1997 at the Office of Administrative Hearings, 100 Washington Square - Suite 1700, Minneapolis, Minnesota.  The record closed on July 30, 1997, when all of the parties’ post-hearing memoranda were to be received.

 

            J. Thomas Church, Attorney at Law, 133 West Baker Street, St. Paul, Minnesota 55107, appeared on behalf of the Complainant, Lynne Dale (hereinafter “Ms. Dale”).  Harold LeVander, Jr., Attorney at Law, Maun & Simon, 2300 World Trade Center, 30 East 7th Street, St. Paul, Minnesota 55101-4904 appeared on behalf of the Respondent, Metropolitan Training and Consulting  (hereinafter “MT&C”).

 

 

NOTICE

 

            Pursuant to Minn. Stat. § 363.071, subd. 2 and 3 (1996), this Order is the final decision in this case.  Under Minn. Stat § 363.072 (1996), the Commissioner of Human Rights or any party aggrieved by this decision may seek judicial review in accordance with Minn. Stat. §§ 14.63 to 14.69 (1996).

 

 

STATEMENT OF THE ISSUES

 

            Whether MT&C discharged Ms. Dale or otherwise discriminated against her in the terms and conditions of her employment because of her sex in violation of Minn. Stat § 363.03, subd. 1 (1996); and if so, what damages or other relief, if any, Ms. Dale is entitled to receive.

 

 

            Based upon all of the records, files, and proceedings herein, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:

 

 

FINDINGS OF FACT

 

            1.         Ms. Dale was born and raised in Michigan.  She matriculated at the University of Michigan, but she was married while there to a graduate of that University’s law school.  They moved to Minneapolis, and she spent the succeeding twelve years raising a family of five children.  Ms. Dale has resided in the Twin Cities metropolitan area for virtually all of her adult life.  (Testimony of Lynne Dale)

 

            2.         In the mid to late 1970’s Ms. Dale and her husband were divorced, and she entered the job market.  She obtained her commercial real estate license and in the late 1970s became employed as a sales person for CB Commercial, a commercial real estate company.  She stayed with CB Commercial for a couple of years and then started her own commercial real estate business, specializing in the leasing of renovated buildings.  She operated that business until 1984.  (Testimony of Lynne Dale)

 

            3.         From 1984 until 1988, Ms. Dale was employed as the Business Manager for Hopkins Honda, a Twin Cities metropolitan area automobile dealership.  In that capacity she was responsible for the transactions that transferred ownership of vehicles from the dealership to its customers.  Her job consisted in part of selling dealer financing packages, services agreements, etc. to customers.  She was compensated with commissions based on the sales she made of those services and received a monthly draw against commissions earned.  (Testimony of Lynne Dale)

 

            4.         In 1988 Ms. Dale left Hopkins Honda to work in her brother’s real estate development and home building business in Honolulu.  There Ms. Dale was responsible for working with buyers on the interior design of their new homes – for example, she purchased appliances and interior design elements from vendors in accordance with the home buyers’ specifications.  After Ms. Dale had been employed there for one year, the company went out of business, and she returned to the Twin Cities metropolitan area to seek further employment.  Upon her return in 1989 she sought career counseling with Bernard Haldane Associates, a career counseling firm.  Ms. Dale ended up being employed by Bernard Haldane, first as a sales person and later as a career counselor.  It was during Ms. Dale’s employment as a career counselor that she met Ann Soltis, who was then seeking career counseling services.  (Testimony of Lynne Dale)

 

            5.         In 1991 Ms. Dale left Bernard Haldane Associates and established  an independent consulting business, which she operated until she became employed by MT&C in the fall of 1992.  (Testimony of Lynne Dale)

 

            6.         During the fifteen years prior to her employment with MT&C, Ms. Dale acquired general experience in sales and participated in several sales training programs.  She did not, however, acquire any specific experience or training in the selling of training services and programs.  (Testimony of Lynne Dale)

 

            7.         The Respondent, Metropolitan Training & Consulting, Inc. (hereinafter “MT&C”) is a Minnesota Subchapter S corporation organized in 1992 to provide management training and consulting services to the general business community.  MT&C’s President and chief executive officer is Thomas Grossman (hereinafter “Mr. Grossman”); he is also Metropolitan’s majority shareholder.  During the times relevant to this proceeding, the principal place of business for MT&C, as well as certain other corporations in which Mr. Grossman had a controlling interest, was 7625 Metro Boulevard, Minneapolis, Minnesota 55439.  (Testimony of Thomas Grossman; Exhibit D)

 

            8.         Mr. Grossman has been in business in the Twin Cities’ area for over 25 years and during the times relevant to this proceeding was the majority shareholder of, and operated, a number of corporations, all of which were related to, or grew out of, his automobile dealership businesses.  In addition to MT&C, Mr. Grossman owned and operated: several automobile dealerships; Metropolitan Financial Services, Inc., a financial services company; Phoenix Management, Inc., a management company; and Metropolitan Corporation, a holding company.  (Testimony of Thomas Grossman)

 

            9.         The car dealerships represented the core of Mr. Grossman’s business interests and preceded the formation of his other companies.  During the times relevant to this proceeding, the corporations which Mr. Grossman controlled had 550 employees in the aggregate and approximately $16.7 million per year in annual gross revenues.  The car dealerships accounted for about 90 percent of those employees and about 95 percent of those annual gross revenues.  The financial services company had ten employees and accounted for about four to five percent of those annual gross revenues; the management company had about fifteen employees and accounted for something less than one percent of the annual gross revenues; and MT&C had an average of about seven employees and accounted for about one-half of one percent of those annual gross revenues.  (Testimony of Thomas Grossman)

 

            10.       Richard A. Conlow, who eventually became Vice President of MT&C, has an undergraduate degree in education.  After graduating from college, he taught in the Anoka Hennepin School District for a year, and from 1982 through 1991 he taught continuing education business courses at North Hennepin Community College and other community colleges on a part-time basis.  In 1988 Mr. Conlow began putting a program of management training seminars, called “Excellence in Management,” together with three community colleges.  The program began with a series of six seminars, each four to eight hours long and covering different management topics; it was eventually expanded to nine seminars, or modules.  (Testimony of Richard Conlow)

 

            11.       Mr. Grossman hired Mr. Conlow in 1986 for assistance in improving customer satisfaction at Mr. Grossman’s automobile dealerships.  Mr. Conlow later was made Manager of Customer Satisfaction and Training at Metropolitan Corp., Mr. Grossman’s holding company.  While working in that capacity, Mr. Conlow developed, organized and personally presented internal customer satisfaction and management training programs for the personnel employed at the Grossman automobile dealerships, and he was able to make significant improvements in customer satisfaction at those dealerships.  (Testimony of Richard Conlow and Thomas Grossman)

 

            12.       Because of the success Mr. Conlow’s programs were achieving in improving the customer satisfaction and profitability of the automobile dealerships, Mr. Grossman concluded that the programs that Mr. Conlow had created and was presenting were of sufficient quality to be marketable to the general business community.  (Testimony of Thomas Grossman)  In 1989 Mr. Conlow and Mr. Grossman began discussing the possibility of organizing a separate corporation to market Mr. Conlow’s concepts and programs to other businesses.  Those discussions became serious in 1991.  (Testimony of Richard Conlow)  In 1992 Mr. Grossman organized MT&C as a separate corporation to engage in the business of creating and developing training programs for businesses, marketing the training programs previously developed by Mr. Conlow and any programs subsequently created by Mr. Conlow or others, and presenting the training programs purchased by MT&C’s customers.  (Testimony of Richard Conlow and Thomas Grossman)

 

            13.       Since it was Mr. Conlow who had prior expertise in the training and consulting business and since Mr. Conlow’s services would be the primary product that MT&C would be marketing, Mr. Grossman hired Mr. Conlow as MT&C’s vice president and general manager.  In fact, when MT&C began conducting business in the summer of 1992, Mr. Conlow was its only employee and was solely responsible for developing MT&C’s products, selling those products, planning, budgeting and hiring.  At the outset, MT&C’s main product was the nine “Excellence in Management” training seminars that Mr. Conlow had created for continuing education programs at community colleges, and the community colleges at which Mr. Conlow was presenting those seminars were MT&C’s major customers and sources of leads for other business.  (Testimony of Richard Conlow)

 

            14.       Soon after MT&C’s formation, Mr. Conlow began to hire the other staff that would be necessary for the company to conduct its business successfully, including a sales force.  The basic compensation package that was offered to all fifteen of the sales consultants hired by MT&C, including Leonard Erickson (hereinafter “Lenny Erickson” or “Mr. Erickson”) and Lynn Dale, amounted to $2,500 per month, plus a five percent commission on all sales actually made.  (Testimony of Richard Conlow, Thomas Grossman, Lynne Dale, Lenny Erickson, Stanley Lock; Exhibits 2 and B)

 

            15.       It was the policy of MT&C not to provide its sales consultants with a monthly draw against commissions unless specifically requested during initial employment negotiations and, even then, only when Messrs. Grossman and Conlow concluded that offering a draw was necessary to attract an individual they specifically wished to hire as a sales consultant.  (Testimony of Richard Conlow and Thomas Grossman)

 

            16.       In February of 1992, Mr. Conlow contacted Mr. Erickson and indicated that he and Mr. Grossman were contemplating creating a corporation to market the “Excellence in Management” program and other training programs to the general business community.  Mr. Conlow asked Mr. Erickson, who had recently resigned as sales manager of one of Mr. Grossman’s automobile dealerships, if he would be interested in being employed as a sales consultant for such a corporation.  Mr. Erickson was skeptical that Messrs. Grossman and Conlow were prepared to make the commitments necessary for such a venture to be successful and indicated that he was not interested in such employment at that time.  (Testimony of Lenny Erickson)

 

            17.       Mr. Erickson had an undergraduate degree in marketing and had previously worked at Mr. Grossman’s automobile dealerships as a sales manager and as a trainer.  Mr. Erickson had also operated his own training and consulting business for four years, specializing in customer service training in the automobile industry.  (Testimony of Lenny Erickson)

 

            18.       In August of 1992, after MT&C had been organized and established, Mr. Conlow again contacted Mr. Erickson to determine whether he might be interested in employment as a sales consultant.  (Testimony of Lenny Erickson)  Thereafter, Mr. Conlow and Mr. Erickson entered into employment negotiations during the course of which Mr. Erickson specifically requested and bargained for a monthly wash-out draw of $500 against commissions earned in addition to the offered compensation, as a condition of his acceptance of employment.  The kind of draw that Mr. Erickson requested is commonly called a “wash-out draw” – that is, if the commissions he made were not equal to or greater than the amount of the draws he obtained, then Mr. Erickson would owe MT&C the difference.  (Testimony of Richard Conlow, Lenny Erickson and Steven Huston; Exhibit B)

 

            19.       Mr. Conlow discussed Mr. Erickson’s proposal with Mr. Grossman, and they decided to agree to the request for the draw.  (Testimony of Richard Conlow and Thomas Grossman)  In August of 1992, Mr. Conlow hired Mr. Erickson as an at-will corporate sales consultant for MT&C.  His compensation was established at $2,500 per month plus a five percent commission on the sales he made.  As he requested, the terms and conditions of his employment also included a $500 per month wash-out draw against commissions earned.  (Testimony of Lenny Erickson; Exhibit B)

 

            20.       As was the case with MT&C’s other sales consultants, Mr. Erickson’s duties were to seek out and identify other businesses which might be interested in contracting for the training programs that Mr. Conlow was presenting on behalf of MT&C, to market MT&C’s programs to those other businesses, and to obtain contracts with them for MT&C services.  (Testimony of Richard Conlow)

 

            21.       In the summer of 1992, Ms. Dale came into contact with Ann Soltis, who had been a career counseling client of Ms. Dale’s, when she had worked at Bernard Haldane Associates.  Ms. Soltis had attended a seminar taught by Mr. Conlow, was considering seeking employment at MT&C, and recommended to Ms. Dale that she contact Mr. Conlow in the course of her search for employment.  (Testimony of Ann Soltis)  Subsequently, Ms. Dale contacted Mr. Conlow by telephone, and during the course of their conversation Mr. Conlow provided her with some employment leads and also discussed the creation of MT&C.  (Testimony of Lynne Dale)

 

            22.       Ms. Dale called Mr. Conlow again in late August of 1992.  During that second telephone conversation Mr. Conlow indicated that he had a corporate sales consultant position available at MT&C, and Ms. Dale asked to be interviewed for the position.  (Testimony of Lynne Dale)  She was thereafter given employment interviews with Mr. Conlow, Mr. Grossman, and Ann Hoeschen, personnel manager for the Grossman companies (hereinafter Ms. Hoeschen”).  (Testimony of Lynne Dale)

 

            23.       In September of 1992, when Ms. Dale was negotiating with Mr. Conlow regarding employment as a sales consultant with MT&C, she was offered the basic compensation package, described in paragraph 14, above – the same package that was offered to Mr. Erickson and to all other MT&C sales consultants.  (Testimony of Lynne Dale and Richard Conlow; Exhibit 2)  During the course of her employment negotiations with Mr. Conlow, Ms. Dale did not specifically request or bargain for any draw against commissions earned.  (Testimony of Lynne Dale and Richard Conlow)

 

            24.       In December of 1992, more than three months after Ms. Dale was hired, she learned that Mr. Erickson had received a $500 per month draw against commissions.  She then asked Mr. Conlow to give her the same kind of draw that Mr. Erickson had.  (Testimony of Lynne Dale and Richard Conlow)  After consulting with Mr. Grossman, Mr. Conlow advised Ms. Dale that MT&C was not willing to provide her with a monthly draw.  (Testimony of Lynne Dale, Richard Conlow, and Thomas Grossman)

 

            25.       Of the fifteen sales consultants employed by MT&C, Mr. Erickson and Nick Buff were the only two who received a monthly draw against commissions, and both specifically requested and bargained for a monthly draw during the course of their initial employment negotiations.  (Testimony of Richard Conlow)

 

            26.       Ms. Dale and Mr. Erickson received sales leads identifying potential customers from three major sources.  Each of them had acquired names of potential customers from their own personal acquaintances.  Both were also expected to make “cold calls” – that is, random calls to potential customers identified from telephone books, newspapers, trade publications, etc. – and to send out mass mailings.  But the major source of productive sales leads was the lists of attendees at the seminars Mr. Conlow conducted at community colleges and elsewhere.  (Testimony of Lynne Dale, Richard Conlow, and Lenny Erickson)

 

            27.       Initially, the sales leads Mr. Conlow obtained were distributed to Ms. Dale and Mr. Erickson more or less in accordance with particular market areas, such as banking, manufacturing, health care, etc., that had been assigned to each of them.  (Testimony of Richard Conlow)

 

            28.       In September of 1992 and shortly after Ms. Dale was hired, Mr. Conlow hired Ann Soltis as a customer satisfaction assistant.  Among Ms. Soltis’ duties was the responsibility to compile sales information into weekly “Success Reports” which showed the active sales leads, proposals, contracts, and gross sales of both Ms. Dale and Mr. Erickson.  (Testimony of Ann Soltis; Exhibits 6(a) through 6(f))  In late 1992, Ms. Soltis expressed to Mr. Conlow her impression that Mr. Erickson was receiving more leads from Mr. Conlow than Ms. Dale was.  (Testimony of Ann Soltis)[1]  Ms. Soltis asked Mr. Conlow for and was given authority to establish a system under which Ms. Soltis would distribute leads alternately to Mr. Erickson and to Ms. Dale.  This system remained in effect from late 1992 or early 1993 until about late May of 1993.  (Testimony of Ann Soltis; Exhibit 9)

 

            29.       In about June of 1993, Ms. Soltis was transferred from her position as customer satisfaction assistant at MT&C to the clerical pool at Phoenix Management Company, which was providing clerical services to MT&C.  (Testimony of Ann Soltis)  It is uncertain how sales leads were distributed to sales consultants from the time of Ms. Soltis’ transfer until Stanley Lock (hereinafter “Mr. Lock”) was hired by MT&C in the early fall of 1993.

 

            30.       Mr. Lock was hired as a third sales consultant in early September of 1993.  When he arrived, sales leads were recorded on slips of paper and placed on the desks of the sales consultants.  The sales consultants shared with one another the names of the leads they were given and compared their respective leads to avoid calling on the same customers.  It was Mr. Lock’s impression that a sales consultant, regardless of gender, had a better chance of receiving leads if he or she was physically present when the leads were handed out.  (Testimony of Stanley Lock)

 

            31.       In April of 1993, Metropolitan Corporation, Mr. Grossman’s holding company, hired James Low on a part-time basis.  Mr. Low had previously worked in a management capacity in Mr. Grossman’s automobile dealerships.  Among Mr. Low’s duties were assisting Mr. Conlow in the management of MT&C and tracking sales leads for that company.  (Testimony of Richard Conlow and Steven Huston)  Mr. Low provided Ms. Dale with the names of the fleet managers at two of Mr. Grossman’s automobile dealerships as sources of potential sales leads and accompanied her to meetings with them.  Neither of those leads resulted in business for MT&C.  (Testimony of Richard Conlow; Exhibit 1)

 

            32.       Mr. Low also proposed to assign automobile dealership leads to Mr. Erickson, but Mr. Erickson refused to accept them.  (Testimony of Lenny Erickson)  Mr. Low only provided Mr. Erickson with one other sales lead, and that also did not result in any business for MT&C.  (Testimony of Ann Soltis)

 

            33.       Mr. Grossman assigned as sales leads to Ms. Dale two Twin Cities law firms, with which Mr. Grossman had been doing a considerable amount of business.  Ms. Dale personally believed that particular sales effort was not worthwhile and was unlikely to result in business for MT&C.  Despite a number of meetings between the management staff of the law firms and Mr. Grossman, Mr. Conlow, and Ms. Dale, neither law firm ended up doing business with the company.  (Testimony of Lynne Dale and Thomas Grossman)  Mr. Grossman believed that the reason why neither of these sales leads produced business was a failed sales effort on the part of Ms. Dale, and he criticized her for that.  (Testimony of Thomas Grossman)

 

            34.       Mr. Grossman also assigned the Minneapolis Star-Tribune, with which he was also doing considerable business, to Ms. Dale as a sales lead.  When Ms. Dale was unable to obtain a personal appointment at the Star-Tribune after several telephone calls, Mr. Grossman reassigned the lead to Mr. Erickson because believed that Mr. Erickson would be better able to make a sale.  Mr. Erickson was also unsuccessful in obtaining business from the Star-Tribune.  (Testimony of Lynne Dale and Thomas Grossman)  Mr. Grossman only provided Mr. Erickson with one other sales lead, which also did not result in business for MT&C.  (Testimony of Lenny Erickson)

 

            35.       During the period from September 21, 1992, to September 20, 1993, Ms. Dale’s gross sales and commissions earned significantly exceeded the gross sales and commissions generated by Mr. Erickson.  A majority of the sales made by Ms. Dale while employed at MT&C came from sales leads provided to her, either directly or indirectly, by Mr. Conlow.  (Exhibits 6(a) through 6(f))

 

            36.       MT&C began its business operations in August of 1992 and terminated them in May of 1996.  (Testimony of Richard Conlow) Ms. Dale worked as a sales consultant for MT&C from September of 1992 until September of 1993 (Testimony of Lynne Dale; Exhibit A).  Mr. Erickson was employed as a sales consultant from August of 1992 until August of 1995.  (Testimony of Lenny Erickson; Exhibit B).  Stanley T. Lock (hereinafter “Mr. Lock”) was employed as a sales consultant from September of 1993 until February of 1994.  In addition to those three sales consultants, MT&C employed twelve other sales consultants from time to time during its corporate life, for a total of fifteen.  Ten of those fifteen sales consultants were men, and five were women.  (Testimony of Richard Conlow)

 

            37.       It was Mr. Grossman’s belief that none of the fifteen sales consultants employed by MT&C while it was actively engaged in business had performed adequately.  (Testimony of Thomas Grossman and Steven Huston)  Moreover, Mr. Grossman frequently behaved critically toward, and found fault with, employees whom he believed were performing inadequately or inappropriately.  (Testimony of Steven Huston)  Mr. Grossman treated Ms. Dale no differently than he did other MT&C employees in similar situations and circumstances.

 

            38.       Throughout its four-year business life, MT&C struggled with adopting a clear business strategy.  (Testimony of Thomas Grossman)  Marketing and selling the nine seminars of Mr. Conlow’s “Excellence in Management” program, as a group and without substantial tailoring for the customer, minimized MT&C’s costs because the syllabus and material had already been created.  But pursuing that strategy had the effect of limiting the market because there was only a limited number of businesses who were interested in purchasing the whole series “off-the shelf” without adaptation to their particular circumstances and needs.  On the other hand, offering parts of the program individually or in various combinations to customers enlarged the potential market for MT&C’s services, but it also had the effect of driving up its costs, since new syllabuses and materials would have to be tailored for each new customer.  (Testimony of Jeffrey Johnson)

 

            39.       The different views about what was the appropriate marketing strategy for MT&C produced a great deal of friction between sales staff and management and even among sales staff.  (Testimony of Lynne Dale, Lenny Erickson, Jeffrey Johnson, Stanley Lock, and Richard Conlow)  Mr. Grossman himself conceded that defining its market was always a problem for MT&C.  (Testimony of Thomas Grossman)  At times both Mr. Erickson and Ms. Dale were encouraged or permitted to market the individual components of “Excellence in Management” and at other times they were not.  (Testimony of Richard Conlow, Lynne Dale, and Jeffrey Johnson; Exhibits 6(a) through 6(f))  Whether MT&C’s sales consultants were or were not so encouraged depended on the view of market strategy in effect at the time.

 

            40.       In November of 1992, Ms. Dale worked on the Friday after Thanksgiving.  Ms. Soltis was excused from work on that day for a family holiday, and Mr. Erickson only worked for half a day.  Mr. Conlow was not in the office but called in.  (Testimony of Lynne Dale)  Later, in May of 1993, Ms. Dale commented to Mr. Conlow that in light of her experience with the Friday after Thanksgiving, there did not seem to be any point in having staff work on the Friday before Memorial Day.  (Testimony of Richard Conlow)

 

            41.       Mr. Conlow believed that Ms. Dale’s work required more supervision and control than Mr. Erickson’s – particularly during the first several months of her employment – because of her lack of specific experience in marketing and selling training services.  During weekly sales meetings, Mr. Conlow spent more time reviewing Ms. Dale’s sales techniques, debriefing her sales calls, and performing similar critiques of her work than he spent critiquing Mr. Erickson’s work.  (Testimony of Richard Conlow)

 

            42.       During January or February of 1993, a dispute arose between Ms. Dale and Mr. Erickson regarding how and when they would collaborate to create a flyer for an upcoming “showcase” of MT&C’s training services.  As a result of that dispute, Mr. Erickson became sullen and refused to speak to Ms. Dale except when absolutely necessary for a period of a month to six weeks.  Ms. Dale complained to Mr. Conlow about Mr. Erickson’s behavior.  Mr. Conlow did not specifically and personally reprimand Mr. Erickson for behaving in that way.  Rather he told all staff at a staff meeting that they needed to work together as a team.  (Testimony of Lynne Dale, Ann Soltis, and Richard Conlow)

 

            43.       On May 11, 1993, Mr. Conlow met privately with Ms. Dale to discuss what he perceived as some negative behaviors on her part.  These included a recent argument between Ms. Dale and Ms. Hoeschen regarding a 401(k) plan and the comment Ms. Dale had made to the effect that it was pointless for the MT&C staff to work on Memorial Day based on Ms. Dale’s experience with working on the Friday after Thanksgiving.  Mr. Conlow also admonished Ms. Dale for making a comparison between Mr. Grossman and a mutual acquaintance who was known for his autocratic and volatile personality and for her apparent lack of enthusiasm for attempting to sell training services to the two law firms that Mr. Grossman had assigned to her.  (Testimony of Lynne Dale)

 

            44.       Mr. Conlow established a number of monetary sales goals for sales consultants from time to time during Ms. Dale’s employment.  (Testimony of Richard Conlow)  Those sales goals were often confusing and unrealistic.  (Testimony of Lynne Dale and Lenny Erickson)  It is uncertain whether Mr. Conlow ever established different sales goals for Ms. Dale and for Mr. Erickson.

 

            45.       Beginning in late 1992, Ms. Soltis began making complaints to Mr. Conlow about Mr. Erickson’s work habits – namely, her belief that Mr. Erickson was permitted to be out of the office more frequently than Ms. Dale was, that Mr. Erickson was frequently out of the office on personal business, and that Mr. Erickson was not generally working as hard as Ms. Dale.  (Testimony of Ann Soltis)

 

            46.       MT&C had an office policy that sales consultants were required to notify Mr. Conlow or the receptionist serving all of the Grossman companies whenever they would not be in the office during the business day.  It had another office policy that sales consultants were to sign in and sign out in a log maintained by the receptionist for the Grossman companies whenever they left or returned to the office during the work day.  (Testimony of Richard Conlow, Ann Soltis, and Michelle Draves)  These policies were enforced sporadically and unevenly.

 

            47.       In mid-May of 1993 and on her own initiative, Ms. Soltis began to make written notes of the times she observed Mr. Erickson leaving and returning to the office, as well as notes of her beliefs about Mr. Erickson’s whereabouts while he was out of the office.  Thereafter, Ms. Soltis requested Michelle Draves, the receptionist, to provide her with copies of the sign-in/sign-out log for May 17 – 20, 1993.  (Testimony of Michelle Draves and Ann Soltis)  Ms. Soltis then recorded her own comments on Mr. Erickson’s whereabouts on the copies of the logs and gave them to Mr. Conlow before a sales meeting on May 21, 1993, to support her belief that Mr. Erickson was misconducting himself and not properly accounting for his time during the work day.  (Testimony of Ann Soltis).

 

            48.       At the May 21, 1993, sales meeting, which was attended by Ms. Dale and Ms. Soltis and Messrs. Conlow, Low, and Erickson, Ms. Soltis directly accused Mr. Erickson of conducting personal business on company time and of failing to account for his time out of the office properly.  In response to Ms. Soltis’ accusations, Mr. Conlow made a general comment to all present that they were expected to be accountable for their time.  (Testimony of Ms. Dale, Ms. Soltis, and Mr. Conlow)

 

            49.       Shortly after the May 21, 1993, sales meeting, Ms. Soltis met with Mr. Grossman and Mr. Huston to discuss her accusations of disparate treatment of Ms. Dale and Mr. Erickson.  Ms. Soltis expressed her own opinion that MT&C was discriminating against Ms. Dale on the basis of her sex.  (Testimony of Thomas Grossman and Ann Soltis)  Mr. Grossman stated to Ms. Soltis that he considered allegations of gender discrimination to be serious matters, and that if Ms. Dale believed that she had issues of that kind, it was incumbent on her to discuss them directly with him.  (Testimony of Thomas Grossman)

 

            50.       Later in the day on May 21, 1993, Ms. Soltis told Ms. Dale of Mr. Grossman’s request that Ms. Dale discuss any issues she might have about gender discrimination directly with him.  (Testimony of Lynne Dale and Ann Soltis)  Ms. Dale declined to discuss any such issues with Mr. Grossman.  In fact, when Mr. Grossman actually sought her out later in the day on May 21st, Ms. Dale told him that she did not have time to talk about it.  (Testimony of Lynne Dale.

 

            51.       It was MT&C’s policy to allow its employees to take time off during the work day for personal matters, as long as the employee’s work did not suffer and Mr. Conlow’s express prior approval had been obtained.  (Testimony of Mr. Conlow)  Mr. Erickson received Mr. Conlow’s permission to pick up his daughter from school on occasions, to take time off to purchase a car, and occasionally  to play golf with customers on company time.  On other occasions Mr. Erickson played golf on company time without Mr. Conlow’s knowledge or permission.  (Testimony of Richard Conlow and Lenny Erickson)  Ms. Dale received Mr. Conlow’s permission to take time off to care for family business and to participate in a study involving certain medical treatment.  (Testimony of Richard Conlow and Lynne Dale)

 

            52.       Mr. Erickson would frequently begin his work day at the office at between six and seven o’clock in the morning before any other MT&C employees began work, and he prepared all of his own business correspondence and sales proposals on his own computer at home in the evenings.  (Testimony of Michelle Draves and Lenny Erickson)

 

            53.       Ms. Dale was summoned to jury duty in Hennepin County District Court in the latter part of May, 1993.  Mr. Low made a comment to Ms. Dale that she should have been able to obtain an excuse from jury duty.  (Testimony of Lynne Dale)  Some unknown person, purporting to act on behalf of MT&C, called the chambers of Hennepin District Court Judge Harvey Ginsberg to ascertain whether Ms. Dale could be excused from jury duty.  (Testimony of Patricia Anderson)  Ms. Dale ended up serving on jury duty, and she was neither criticized nor threatened with any kind of adverse personnel action because of her jury service.

 

            54.       Mr. Conlow made an effort to praise everyone in the MT&C organization from time to time, including Ms. Dale.  When Mr. Conlow did praise Ms. Dale, it appeared to be sincere.  (Testimony of Jeffrey Johnson)

 

            55.       After Ms. Soltis’ transfer from MT&C, Holly Dunn (hereinafter “Ms. Dunn”) was assigned by Phoenix Management Corporation to provide clerical support to the sales consultants who worked for MT&C.  Ms. Dunn created difficulties for Ms. Dale and did not provide her with adequate support in preparing sales proposals – particularly in the case of a sales proposal Ms. Dale was making to Minnegasco.  When Ms. Dale complained about Ms. Dunn to Mr. Conlow, the substance of Mr. Conlow’s response was for Ms. Dale to try to get along with Ms. Dunn.  (Testimony of Lynne Dale)  Most other MT&C employees had similar problems with Ms. Dunn.  (Testimony of Lenny Erickson, Stanley Lock, Richard Conlow, and Steven Huston)

 

            56.       On occasions Ms. Dale behaved in a rude, abrasive, condescending, or overly critical manner toward Ms. Hoeschen, Ms. Dunn, Ms. Draves, Mr. Erickson, and Mr. Johnson, all of whom were fellow employees of the Grossman groups of companies.  Ms. Hoeschen, Ms. Dunn, and Ms. Draves all made complaints to Mr. Conlow regarding Ms. Dale’s behavior toward them.  (Testimony of Richard Conlow, Michelle Draves, and Jeffrey Johnson)  None of them made complaints to Mr. Conlow about Mr. Erickson or about Mr. Lock while Ms. Dale was still employed at MT&C.

 

            57.       Mr. Conlow had a long-standing relationship with Austin Community College where he had taught his “Excellence in Management” seminar from time to time.  His staff contact at Austin Community College was Susie Bross (hereinafter “Ms. Bross”).  One account which Mr. Conlow had assigned to Ms. Dale as early as October of 1992 was the Hormel Company in Austin, Minnesota.  (Exhibit 6(a))  In August of 1993, through her own contacts with Hormel, Ms. Bross received information that Hormel might be interested in all or part of the “Excellence in Management” seminar for its own employees.  There was an understanding between Mr. Conlow and Ms. Bross that if marketing efforts to Hormel were successful, MT&C would provide those services to Hormel through Austin Community College.  (Testimony of Mr. Conlow)

 

            58.       Ms. Bross arranged a meeting for herself, Mr. Conlow, and Ms. Dale with Hormel in August of 1993.  The purpose of the meeting was to determine Hormel’s training needs and how MT&C might be able to respond to those needs.  Following the meeting, Mr. Conlow instructed Ms. Dale to prepare a draft of a letter to Hormel indicating how Austin Community College and MT&C intended to follow up.  Mr. Conlow told Ms. Dale to consult with Ms. Bross when sending that letter out because, as a joint venturer, the College wanted to be involved in any further communications with Hormel.  Ms. Dale prepared the letter in final form and sent it directly to Hormel without consulting with Ms. Bross or first providing her with an opportunity to examine a draft.  (Testimony of Richard Conlow and Lynne Dale)

 

            59.       When Ms. Bross later found out that Ms. Dale had sent the letter directly to Hormel, she called Mr. Conlow to complain of what Ms. Bross characterized as devious, dishonest, and unprofessional conduct on Ms. Dale’s part.  She requested that Ms. Dale be taken off the Hormel account.  Mr. Conlow informed Ms. Dale about the telephone call and indicated that he thought it was a serious matter but that he would try to rectify it.  Mr. Conlow then informed Ms. Dale that she was being taken off the account.  (Testimony of Richard Conlow)  Mr. Conlow placed a notation in Ms. Dale’s personnel file regarding Ms. Bross’ complaint.  (Testimony of Richard Conlow and Steven Huston; Exhibit 13)

 

            60.       Mr. Conlow also had a long-standing relationship with North Hennepin Community College (hereinafter “North Hennepin”) where he had been teaching his “Excellence in Management Seminar” since 1982.  His primary staff contact at North Hennepin was Judy Eiler (hereinafter “Ms. Eiler”) who was Director of that College’s Management Institute.  (Testimony of Richard Conlow)  Charlotte Baines (hereinafter “Ms. Baines”) worked under Ms. Eiler as North Hennepin’s Conference Coordinator, with responsibility for coordinating programs, registration, catering and ensuring that the needs of the College, the instructors, and the attendees were being met.  (Testimony of Charlotte Baines)  The lists of attendees at Mr. Conlow’s classes at North Hennepin had been a very good source of sales leads for MT&C.  (Testimony of Richard Conlow)

 

            61.       Ms. Baines interacted with Ms. Dale from time to time both in person and on the telephone in connection with classes Mr. Conlow was presenting at North Hennepin.  It was Ms. Baines' feeling and belief that Ms. Dale generally treated her in a condescending and demeaning manner and was rude and abrupt in the way she conducted herself.  (Testimony of Charlotte Baines)

 

            62.       In order to secure certain kinds of appropriated funds from the State of Minnesota, it was necessary for North Hennepin to have the Social Security Numbers of the attendees at classes sponsored by the college.  In late August of 1993, Ms. Dale brought several attendees from one of MT&C’s customers to North Hennepin to register for one of Mr. Conlow’s classes.  When Ms. Baines asked for the Social Security Numbers of the attendees, Ms. Dale answered in a rude and abrasive manner that she did not have that information and had no intention of bothering their customer or attendees by asking them for it.  This exchange was overheard by Ms. Eiler and other staff at the college.  (Testimony of Charlotte Baines)

 

            64.       On or before September 10, 1993, two employees of Phoenix Management Company told Mr. Huston that they had overheard Ms. Dale making disparaging remarks about another MT&C employee during the course of a telephone conversation with a customer.  Mr. Huston related this information to Mr. Grossman, who met in his office with Ms. Dale and Mr. Huston on September 10, 1993.  (Testimony of Steven Huston)  During the meeting Ms. Dale stated that she did not believe she had made such a statement.  (Testimony of Lynne Dale and Steven Huston)  Mr. Grossman responded that he could not determine whether she had made the statement or not, but if she had, it was a serious matter.  (Testimony of Thomas Grossman)

 

 

            65.       Ms. Eiler subsequently complained to Mr. Conlow about Ms. Dale’s behavior and requested that Ms. Dale have no further contact with North Hennepin.  On or about September 3, 1993, Mr. Conlow met with Ms. Dale, informed her about Ms. Eiler’s complaint, again advised her that he considered this second customer complaint to be a serious matter.  Mr. Conlow told Ms. Dale that she was to have no further contact with the staff at North Hennepin, and he made a notation in her personnel file about the incident.  (Testimony of Richard. Conlow; Exhibit 13).

 

            64.       On September 17, 1993, Ms. Dale was out of the office at business-related meetings from about 7:00 a.m. until about 3:30 p.m. when she drove her car to an automobile dealership to have it repaired.  (Testimony of Lynne. Dale)  Mr. Conlow was present in the office most of the day and all of the afternoon.  Ms. Dale did not sign out in the log at the reception desk indicating where she would be during that day and when she expected to return to the office.  Prior to 3:30 p.m. there was no information available to Mr. Conlow at MT&C or at the other Grossman companies as to Ms. Dale’s whereabouts on that day.  (Testimony of Richard Conlow)  About 3:30 p.m. Ms. Dale called and told the receptionist that she had car trouble and would not be returning to the office.  She did not specifically indicate where she could be reached.  Mr. Conlow left a message on Ms. Dale’s home telephone message machine for Ms. Dale to contact him.  Ms. Dale did not return that call.  (Testimony of Mr. Conlow)

 

            66.       During the work day on September 17, 1993, Mr. Conlow consulted with Mr. Grossman about the possibility of terminating Ms. Dale’s employment with MT&C because of her conflicts with staff and the incidents with Austin and North Hennepin Community Colleges.  Mr. Grossman left the decision to Mr. Conlow.  It was after that meeting that Mr. Conlow attempted to locate Ms. Dale to talk to her.  When he found that he was unable to locate her, he made the decision to discharge her.  (Testimony of Richard Conlow)

 

            67.       On September 20, 1993, after the morning sales meeting, Mr. Conlow informed Ms. Dale that her employment with MT&C was terminated.  The reasons he gave her for termination were complaints about her behavior from several staff of the Grossman companies, complaints about her behavior from staff at Austin and North Hennepin Community Colleges, and her failure to report her whereabouts on September 17, 1997, in violation of company policy.  (Testimony of Lynne Dale and Richard Conlow; Exhibit 13)

 

            68.       The decision to hire Ms. Dale was made by Mr. Conlow, after consulting with Mr. Grossman.  The decision to terminate Ms. Dale’s employment was made one year later also by Mr. Conlow, also after consulting with Mr. Grossman.  (Testimony of Richard Conlow and Thomas Grossman)

 

            69.       Between the time of Ms. Dale’s termination and the time MT&C discontinued its business, MT&C hired four more female sales consultants.  (Testimony of Richard Conlow)

 

            70.       Two of the five female sales consultants hired by MT&C while it was in business, including Ms. Dale, were involuntarily discharged, as were six of the ten male sales consultants.  Only two female and two male sales consultants left the company voluntarily.  The remaining female and two male consultants were laid off when the company ceased doing business.  (Testimony of Richard Conlow)  Additionally, Jeffrey Johnson, another training presenter, and Steven Huston, MT&C’s comptroller and human resources director were also involuntarily terminated.  (Testimony of Jeffrey Johnson and Steven Huston)

 

            71.       The Grossman companies had a written policy prohibiting discrimination in the workplace that had been circulated to all managers.  That policy, however, had not been widely circulated to working staff.  (Testimony of Steven Huston, Jeffrey Johnson, and Lynne Dale)

 

 

 

            72.       Ms. Dale herself did not believe that the criticism she received from Mr. Conlow as the result of the complaints made against her by staff at Austin and North Hennepin Community Colleges was based upon her gender.  (Testimony of Lynne Dale)

 

            73.       Any Finding of Fact more properly termed a Conclusion is hereby adopted as such.

 

            Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following:

 

 

CONCLUSIONS OF LAW

 

            1.         The Administrative Law Judge has jurisdiction to consider the issues raised in this proceeding pursuant to Minn. Stat. § 363.071, subds. 1 and 2, and § 14.50 (1996).

 

            2.         Proper notice of the hearing was timely given, and all relevant substantive and procedural requirements of pertinent statutes and rules have been fulfilled.

 

            3.         At the times relevant to this proceeding, MT&C was an “employer,” as defined in Minn. Stat. § 363.01, subd. 17 (1996), and Ms. Dale was an “employee,” as defined in Minn. Stat. § 363.01, subd. 16 (1996).

 

            4.         Under Minn. Stat. § 363.03, subd. 1(2)(c) (1996), it is an unlawful employment practice for an employer to discriminate against a person with respect to compensation, terms, conditions or privileges of employment because of sex.

 

            5.         Under Minn. Stat. § 363.03, subd. 1(2)(b) (1996), it is an unlawful employment practice for an employer to discharge an employee because of sex.

 

            6.         In considering whether a discriminatory employment action has occurred under the Minnesota Human Rights Act, Minnesota courts apply the principles articulated by the U. S. Supreme Court in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).  Hubbard v. United Press International, Inc., 330 N.W.2d 428 (Minn. 1983); Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978).  The approach to adjudicating employment discrimination claims in the McDonnell-Douglas case consisted of a three-step analysis.  The complainant is first required to establish a prima facie case.  Establishment by a complainant of the required prima facie case creates a presumption of employment discrimination prohibited by Minn. Stat. § 363.03.  Although the burden of proof always remains with the complainant, the burden of producing evidence then shifts to the respondent to present evidence of some legitimate, non-discriminatory reason for its actions.  If the respondent, in turn, comes forward with evidence of legitimate, nondiscriminatory reasons for the employment actions in question, then the complainant must prove by a preponderance of the evidence that the reasons or justification advanced by the respondent amount to a pretext for intentional discrimination.  Id. 

 

            7.         Despite what has been characterized as a shifting burden of proof, the burden of proving that the respondent engaged in intentional discrimination always remains with the complainant.  Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993); Hasnudeen v. Onan Corp., No. CX-94-2106 slip. op. at 2 (Minn. Aug. 29, 1996), rev’g, 531 N.W.2d 891 (Minn. App. 1995).  In other words, if the stated reasons for an adverse employment action are pretextual but the real reasons are not shown to be discriminatory, a complainant has not met his or her burden of proof.

 

            8.         A complainant may sustain the burden of proving discriminatory intent, as required by the third step of the McDonnell-Douglas test, either directly, by adducing direct evidence of a discriminatory motive, “or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”  Sigurdson, 386 N.W.2d at 720, quoting Burdine, 450 U.S. at 255-56.  But the factfinder must be persuaded by a preponderance of the evidence not just that the proffered reasons for the employment action were a pretext for some other reason but that they were a pretext for intentional discrimination.  Sigurdson, 386 N.W.2d at 720.

 

            9.         What actually constitutes the required prima facie showing may vary from case to case, depending on the kind of employment discrimination being alleged and the particular “factual pattern and employment context’.  Sigurdson v. Isanti County, supra, 386 N.W.2d at 720.

 

            10.       In order to show a prima facie case of discrimination with respect to the allocation of compensation and benefits, Ms. Dale must show: (1) that she is a member of a protected class; (2) that she was eligible for a certain type of benefit or for the opportunity to receive a certain type of compensation; (3) that she was denied that benefit or opportunity for compensation; and (4) that non-protected group members did receive the benefit or opportunity for compensation.  Cf. Moore v. Norfolk & Western Ry., 731 F. Supp. 1015, 1019 (D. Kan. 1990).

 

            11.       Ms. Dale presented a prima facie case of discrimination with respect to compensation and benefits on the basis of sex.

 

            12.       MT&C, on the other hand, established legitimate, nondiscriminatory reasons for any differences in the way in which it allocated benefits and opportunities for compensation to Ms. Dale and to her male counterpart.

 

            13.       Ms. Dale failed to establish by a preponderance of the evidence that the reasons given by MT&C for the way in which it allocated benefits and opportunities for compensation to her and to her male counterpart were a pretext for discriminating against her on the basis of her sex.

 

            14.       In order to show a prima facie case of discrimination in terms and conditions of her employment through disparate treatment of Ms. Dale and her male counterpart on the job, she must show: (1) that she is a member of a protected class; and (2) that she was subjected to adverse employment actions on the job which similarly situated non-protected group members were not subjected to.

 

            15.       Ms. Dale presented a prima facie case of discrimination in terms and conditions of her employment through disparate treatment of herself and her male counterpart on the job by establishing that she was at times supervised and controlled on the job more closely than her male counterpart was and that she appeared to have received, in some other respects, less favorable treatment on the job than was accorded her male counterpart.

 

            16.       MT&C, on the other hand, established legitimate, nondiscriminatory reasons for any differences in which Ms. Dale and her male counterpart were supervised and controlled or were otherwise treated on the job.

 

            17.       Ms. Dale failed to establish by a preponderance of the evidence that the reasons given by MT&C for the differences in which she and her male counterpart were supervised and controlled and were otherwise treated on the job were a pretext for discriminating against her on the basis of her sex.

 

            18.       In order to show a prima facie case of a discriminatory discharge from employment, Ms. Dale must show:  (1) that she is a member of a protected class; (2) that she was qualified for the position held; (3) that she was discharged; and (4) that after her discharge, the employer assigned a non-member of the protected class to do the same work.  Rademacher v. FMC Corporation, 431 N.W.2d 879, 882 (Minn. App. 1988).

 

            19.       Ms. Dale presented a prima facie case that she was discharged from her employment with MT&C on the basis of her sex.

 

            20.       MT&C established legitimate, nondiscriminatory reasons for discharging Ms. Dale from her employment.

 

            21.       Ms. Dale failed to establish by a preponderance of the evidence that the reasons given by MT&C for discharging her from her employment were a pretext for discriminating against Ms. Dale on the basis of her sex.

 

            22.       Any Conclusion more properly termed a Finding is hereby adopted as such.

 

            23.       These Conclusions are made for the reasons set forth in the Memorandum which follows and which is hereby incorporated by reference herein.

 

 

            Based on the foregoing Conclusions, IT IS HEREBY ORDERED:

 

            The charges and Complaint of the Complainant, Lynne Dale, are DISMISSED with prejudice.

 

 

Dated:  This 7th day of August, 1997.

 

 

 

 

 

 

                                                                        ­­­­­­­­­­­­­­­­­­­________________________________

                                                                        BRUCE H. JOHNSON

                                                                        Administrative Law Judge

 

 

Reported: Tape recorded (28 tapes); no transcript prepared

MEMORANDUM

 

 

I.  Contentions of the Parties

 

            The Complainant in this matter, Lynne Dale (hereinafter “Ms. Dale”), filed a discrimination charge against the Respondent, Metropolitan Training & Consulting, Inc. (hereinafter “MT&C”), with the Minnesota Department of Human Rights on or about August 3, 1994.  In her charge, Ms. Dale alleged that MT&C discriminated against her, on the basis of her sex, in three general respects, namely: (1) that she was denied certain compensation and benefits which her male counterpart was receiving; (2) that she was generally subjected to differential treatment on the job in comparison with the treatment accorded to her male counterpart; and (3) that the reasons given for termination of her employment were a pretext for intentional discrimination based on her sex, all in violation of Minn. Stat. § 363.03, subd. 1(2)(a).  Before the Department of Human Rights concluded its investigation, Ms. Dale requested that the matter be scheduled for hearing before an administrative law judge pursuant to Minn. Stat. § 363.071, subd. 1a (1994), and a Notice of and Order for Hearing was issued requiring the Complainant to file a complaint and the Respondent to answer the same.  A complaint and an answer having been filed in this matter, it proceeded to a hearing on the merits.

 

            With regard to discrimination in compensation, all MT&C sales consultants were compensated with a base salary of $2,500 per month and a 5% commission on gross sales.  Ms. Dale contends that her male counterpart, Mr. Erickson, was also given a $500 per month draw against commissions earned and that her request for the same accommodation was refused.  She also alleges that customer leads acquired by MT&C were distributed disproportionately to Mr. Erickson.  With regard to differential treatment, Ms. Dale essentially contends that in numerous respects members of MT&C management imposed higher standards on her job performance than they imposed on Mr. Erickson’s, and that they offered support and assistance to Mr. Erickson that were withheld from or denied to her.  Finally, Ms. Dale  argues that the reasons for terminating her employment were a pretext and that her discharge was motivated by intentional discrimination against her based on her sex.

 

            MT&C, on the other hand, contends that Ms. Dale failed to request and bargain for a draw against commissions during her employment negotiations with MT&C, and that customer leads were not disproportionately distributed to Mr. Erickson.  With respect to treatment on the job, MT&C argues the disparities alleged by Ms. Dale had no objective basis in fact, and that any differences in treatment that may have occurred were done for legitimate business reasons.  Finally, with regard to termination of Ms. Dale’s employment, MT&C argues that she was an at will employee who was discharged for legitimate business reasons or, if the reasons given for her discharge are found to be a pretext, they were not a pretext for intentional discrimination based on her sex.

 

 

II.  Applicable Law

 

            In the instant proceeding Ms. Dale has alleged sex discrimination in violation of the Minnesota Human Rights Act (hereinafter sometimes “MHRA”)  Minn. Stat. § 363.03, subd. 1(2)(b) and (c) (1996), which provides that it is an actionable unfair employment practice:

 

            (2) For an employer, because of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, or membership or activity in a local commission, disability, sexual orientation, or age,

                        *  *  *

                        (b) to discharge an employee; or

 

            (c) to discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment.

 

            In considering alleged violations of the MHRA, Minnesota courts have frequently borrowed from federal case law interpreting Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. because of similarities between the two statutes.  For example, in analyzing whether a discriminatory employment action has occurred under the MHRA, Minnesota courts apply many of the principles articulated by the U. S. Supreme Court in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).  See, e.g., Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978).  This borrowing of federal analytical approaches has occurred both in disparate treatment cases, Sigurdson v. Isanti County, 386 N.W.2d 715, 719-22 (Minn. 1986), and in discriminatory discharge cases.  Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 710-11 (Minn. 1992).

 

            The U. S. Supreme Court’s approach to adjudicating employment discrimination claims in the McDonnell-Douglas case consisted of a three-step analysis.  The complainant is first required to establish a prima facie case.  What actually constitutes the required prima facie showing may vary from case to case, depending on the kind of employment discrimination being alleged and the particular “factual pattern and employment context’.  Sigurdson v. Isanti County, supra, 386 N.W.2d at 720.  For example, in this proceeding a prima facie case that supports complainant’s claim of discriminatory treatment in conditions of employment is likely to be somewhat different from a prima facie case showing a discharge motivated by discrimination.

 

            Establishment by a complainant of the required prima facie case creates a presumption of employment discrimination prohibited by Minn. Stat. § 363.03.  Although the burden of proof always remains with the complainant, the burden of producing evidence then shifts to the respondent to present evidence of some legitimate, non-discriminatory reason for its actions.  Id.  At this stage, the burden on a respondent is mainly one of producing evidence and less one of persuasion or proof.  To join the issues, a respondent need only come forward with “sufficient, relevant, and proper rebuttal evidence” of a legitimate business purpose.  Danz v. Jones, supra, 263 N.W.2d at 399.  A respondent does not have the burden of proving that its actions were, in fact, motivated by those legitimate business reasons.  Texas Department of Community Affairs v. Burdine, 450 U.S. 567, 577 (1981).  Even though the respondent may bear the burden of producing evidence, the burden of proof continues to rest with the complainant.  The inquiry at this second step is simply whether the respondent has met its burden of production and adduced evidence that responds to the complainant’s prima facie case and that frames “the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext.”  Sigurdson v. Isanti County, supra, 386 N.W.2d at 720.

 

            If the respondent comes forward with evidence of a legitimate, nondiscriminatory reason for the employment actions in question, then the issues become joined on the merits, and the trier of fact must evaluate and weigh all of the evidence tending both to establish and to negate the existence of discrimination.  In order to prevail, the complainant must prove by a preponderance of the evidence that the reasons or justification advanced by the respondent amount to a pretext for intentional discrimination.  Id.  In other words, despite what might be characterized as a shifting burden of going forward with evidence and even, perhaps, burden of persuasion, the burden of proof always remains with the complainant.  Sigurdson, 386 N.W.2d at 720; Fisher Nut Co. v. Lewis ex rel. Garcia, 320 N.W.2d 731 (Minn. 1982).  Even if the trier of fact should find that the reasons cited by the employer for the employment action are not credible, or even that those reasons are false, that does not mean that the complainant automatically prevails.  The complainant still bears “the ultimate burden” of persuading the factfinder by a preponderance of the evidence that the respondent discriminated against her because of her sex.  St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993); Hasnudeen v. Onan Corp., No. CX-94-2106 slip. op. at 2 (Minn. Aug. 29, 1996), rev’g, 531 N.W.2d 891 (Minn. App. 1995).  In other words, if the stated reasons for an adverse employment action are pretextual but the real reasons are not shown to be discriminatory, a complainant has not met his or her burden of proof.

 

            A complainant may sustain the burden of proving discriminatory intent, as required by the third step of the McDonnell-Douglas test, either directly, by adducing direct evidence of a discriminatory motive, “or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”  Sigurdson, 386 N.W.2d at 720, quoting Burdine, 450 U.S. at 255-56.  But a further question is whether a successful showing that the proffered reasons for a discharge are unworthy of belief is alone sufficient to establish discriminatory intent.  This issue was considered in Hicks where the Court noted:

 

[T]he district court concluded that “although [respondent] has proven the existence of a crusade to terminate him, he has not proven that the crusade was racially rather than personally motivated.”  509 U.S. at 508.

 

Put another way, the factfinder must be persuaded by a preponderance of the evidence not just that the proffered reasons for discharge were a pretext for some other reason but that they were a pretext for discrimination.  Sigurdson, 386 N.W.2d at 720.  Whether intentional discrimination can be inferred from the mere existence of a pretextual reason depends on all of the facts and circumstances of the case.  For example, if the existence of a pretextual reason is combined either with other evidence of discriminatory conduct on the part of the employer or with the absence of any other reasonable explanation for the employer’s offering of the pretext, then existence of discriminatory intent might reasonably be inferred.

 

 

III.  The Credibility of Witnesses

 

            Twelve witnesses testified at the hearing – seven for Ms. Dale and five for MT&C.  Nine of those witnesses had been employed by, or affiliated with, MT&C; six of that group had had their employment involuntarily terminated.  Nearly every one of that group of witnesses displayed some degree of animosity toward MT&C and some or all of its principals.  In most cases, those animosities colored their view of events.  There were also numerous contradictions, some minor and some material, in the testimony of Ms. Dale and the other witnesses she herself presented.  The employees who testified even occasionally displayed some personal animosity toward some of their coworkers.  One witness remarked that “there was a level of cruelty within the organization” displayed by and aimed at nearly everyone who was employed there.  (Testimony of Stanley Lock)  Against this backdrop, some general observations on the credibility of witnesses may be helpful in understanding how the Administrative Law Judge resolved the numerous conflicts and contradictions in testimony.

 

            The four most credible witness who testified at the hearing were Patricia Anderson, Steven Huston, Michelle Draves, and Charlotte Baines.  To the extent possible, the Administrative Law Judge used their testimony as the focal point for constructing findings of fact.  Patricia Anderson, who is employed as clerk to Hennepin County District Court Judge Harvey Ginsberg, had no personal relationship with either MT&C or anyone associated with the company and had no motive to offer anything other than her objective recollections.  Unfortunately, her testimony was confined to the narrow issue of whether someone at MT&C had tried to have Ms. Dale excused from jury duty, an issue that was peripheral at best.  Steven Huston was the former comptroller and chief human resources officer of the Grossman group of companies, including MT&C.  Even though he himself had been involuntarily discharged from that employment and could have been expected to harbor some animosity toward Mr. Grossman and MT&C, the testimony he presented appeared to be balanced, objective, and relatively uncolored by any underlying bias, prejudice or apparent interest in the outcome.  Mr. Huston also appeared to be cognizant and respectful of the reasonable limits of his memory.  In its impact, Mr. Huston’s testimony generally supported MT&C’s contentions.

 

With the exception of Messrs. Grossman and Conlow themselves, Michelle Draves was the only former employee of the Grossman companies who had left the organization of her own accord and without apparent feelings of bitterness or hostility.  Again, she had no apparent interest in the outcome and did not appear to be motivated by particular feelings about any of the principals.  Ms. Draves testimony was particularly significant because it directly and materially contradicted the testimony of another important witness, Ann Soltis.  Finally, Charlotte Baines, an employee of North Hennepin Community College, testified about what she characterized as an unpleasant encounter that she and her supervisor had with Ms. Dale.  Ms. Baines had neither any interest in the outcome of this matter nor any apparent reason to be biased toward one party or another.  Her testimony regarding Ms. Dale’s general demeanor was consistent with that of Michelle Draves and Jeffrey Johnson, two other witnesses whose testimony was generally credible.

 

            The next most credible group of witnesses consisted of Dennis Christian, Jeffrey Johnson, and Richard Conlow.  Although Messrs. Conlow and Johnson both displayed a proclivity to portray events in ways tending to deflect any criticism away from themselves, they seemed to be credible and relatively dispassionate witnesses.  Neither appeared to be much affected by the personal animosities that seemed to have characterized other personal relationships within the company.  Although they testified on behalf of opposing parties, their testimony was generally consistent in most material respects.  Although he was involuntarily discharged from his employment with MT&C, Mr. Johnson nevertheless seemed to be quite objective in his appraisal of events.  Although primarily a damages witness and a close personal friend of Ms. Dale’s, Mr. Christian seemed to have given an honest and unbiased account of Ms. Dale’s state of mind.  He was helpful in providing some keen insights into how Ms. Dale’s view of events may have been shaped.

 

            Thomas Grossman and Lynne Dale were the two witnesses who had a strong interest outcome of this proceeding.  Although the testimony of both was clearly colored by their desire to present factual pictures that were favorable to their respective positions, both appeared to display a good faith belief in the truth of the matters to which they were testifying.  Mr. Grossman’s testimony was primarily directed to general matters, and that was largely in accord with the testimony of other witnesses.  He only testified to a handful of specific events, and in some of those cases his recollection differed sharply from that of Ms. Dale’s.  Mr. Grossman’s testimony was colored by the view that all of MT&C’s sales consultants, including Ms. Dale, had performed inadequately.  No attempt was made by either counsel to elicit testimony from Mr. Grossman on specific instances of inadequate performance by other MT&C sales consultants.  Ms. Dale’s testimony was hampered by an imperfect recollection of specific events.  Her memory frequently had to be prompted and refreshed, and much of her testimony amounted to general impressions, opinions, or conclusions.

 

            The least credible witnesses at the hearing were Lenny Erickson, Ann Soltis, and Stanley Lock.  Mr. Erickson testified that he was initially approached about becoming a sales consultant for MT&C in February of 1992, when Messrs. Conlow and Grossman were still exploring the idea of establishing the business.  He testified that he declined the offer at that time because he did not believe that they were serious about investing the time and money required to make such a venture a success.  Mr. Erickson went on to testify that later in August, 1992, Messrs. Grossman and Conlow convinced him that they were serious, and Mr. Erickson accepted a sales position with the company.  Ultimately, however, like many of the other witnesses, Mr. Erickson ended up being fired.  He testified that he was unhappy with Messrs. Grossman and Conlow because he did not believe they had delivered on their promises to him.  Lingering feelings of personal animosity and bitterness toward them and toward MT&C were apparent through the course of Mr. Erickson’s testimony.  It was apparent from Ms. Soltis’ testimony that she had had some rather strong feelings of personal animosity toward Mr. Erickson.  This diminished the value of the evidence she presented because it was difficult to ascertain how much of the disparate treatment she said was displayed by MT&C management toward Mr. Erickson was motivated by her negative feelings about him.  Ms. Soltis testified that she started accounting for Mr. Erickson’s time out of the office at the instance of Michelle Draves, who had expressed concern about Mr. Erickson’s work habits.  This testimony was directly contradicted by that of Ms. Draves, who had no apparent reason to be biased in her recollection of events.  Finally, there was evidence that Stanley Lock, who had been employed as a sales consultant for MT&C for only about six months, had been discharged for organizing a business of his own on MT&C time.  Mr. Lock openly expressed his bias; he testified that he had not enjoyed working at MT&C and “felt that he had been duped.”  Mr. Lock’s feelings of animosity extended not only toward MT&C and Messrs. Grossman and Conlow, but also toward many of his coworkers.

 

 

IV.  Discrimination Relating to Compensation and Benefits

 

            As noted above, the MHRA prohibits employers from discriminating with respect to compensation on the basis of sex.  Minn. Stat. § 363.03, subd. 1(2)(c).  There was no direct evidence in the record tending to prove an intent on MT&C’s part to discriminate against Ms. Dale on the basis of her sex – including the way in which MT&C allocated compensation and benefits to her.[2]  On the other hand, there was considerable direct evidence in the record that tended to negate the existence of a discriminatory attitude on the part of MT&C management toward women.  Richard Conlow, Steven Huston, and Ms. Dale’s own witness, Jeffrey Johnson, all testified to the effect that they had never heard Mr. Grossman make a sexist or other remark indicating that he had a discriminatory animus toward women.  Ms. Soltis, whose testimony was generally hostile to MT&C, testified that she loved her job, that she got along extremely well with Mr. Conlow, and that Mr. Conlow had given her a great deal of authority and independence in determining how to perform her duties.

 

            Any evidence of discrimination in the allocation of compensation and benefits is therefore, at best, indirect, and the three-part McDonnell-Douglas test must be applied to this claim.  Under the first step of this test, a complainant is required to establish a prima facie case.  A formulation of those elements as they apply to Ms. Dale’s claims of discrimination in the establishment of compensation and benefits would be that:  (1) she is a member of a protected class; (2) that she was eligible for a certain type of benefit or for an opportunity to receive a certain type of compensation; (3) that she was denied that benefit or that opportunity for compensation; and (4) that non-protected group members did receive the benefit or opportunity for compensation.  Cf. Moore v. Norfolk & Western Ry., 731 F. Supp. 1015, 1019 (D. Kan. 1990).

 

            Ms. Dale’s first claim of discriminatory allocation of compensation and benefits related to a draw against commissions which Mr. Erickson was given and which she was not.  Since a draw must be reconciled against commissions earned, it is more a beneficial financial accommodation than a form of compensation.  It was the testimony of Messrs. Grossman and Conlow that the normal financial arrangement for MT&C’s sales consultants was a salary of $2,500 per month and a five percent commission on gross sales, payable when earned.  Mr. Grossman further testified that he would only consider giving a sales consultant a draw against future commissions if that accommodation was specifically requested by a prospective employee during employment negotiations and, then, only if Mr. Grossman concluded that offering that benefit was necessary to attract a prospective employee whom MT&C particularly wanted to hire.  There was evidence that MT&C employed a total of fifteen sales consultants during the life of the company and that only two of them, including Mr. Erickson, had specifically asked for and received a draw as a condition of their accepting employment with the company.  (Testimony of Richard Conlow)  There was no evidence that any MT&C sales consultant was ever given a draw against commissions after his or her initial employment agreement with MT&C had been negotiated.  The evidence further showed that Mr. Erickson came to Metropolitan with specific prior experience in operating his own training and consulting business.  Although Ms. Dale did have prior sales experience, that experience had been gained primarily in the real estate field.  Mr. Erickson himself testified that he had been somewhat reluctant to accept employment as a sales consultant with MT&C, and one can reasonably infer from the other evidence that his request for a draw was approved for the purpose of inducing him to accept that employment.  Ms. Dale did not request a draw similar to Mr. Erickson until December, 1992, some three months after she began her employment.  (Testimony of Lynne Dale)  When all of this is considered together, Ms. Dale failed to establish by a preponderance of the evidence that the decision not to provide her with a draw against commissions was motivated by an intent to discriminate against her because of her sex.

 

            Ms. Dale also claimed that MT&C management distributed sales leads disproportionately to Mr. Erickson, effectively providing him with more opportunities to earn commissions than she was provided.  This issue was first raised in about February 1992, when Ms. Soltis expressed her belief that Mr. Conlow and MT&C were giving Mr. Erickson a disproportionate share of sales leads.  The claim of disproportionate lead distribution was two-fold.  Ms. Soltis’ first claim was that Mr. Grossman and Jim Low, another member of the MT&C management team, had been giving a number of sales leads to Mr. Erickson while giving none to Ms. Dale.  With respect to leads provided by Mr. Grossman, Ms. Soltis could not recall how many leads he may have given to Mr. Erickson, which leads they might have been, or whether any of them may have actually produced business.  Ms. Soltis could only recall one lead that Mr. Low had given to Mr. Erickson, and Mr. Erickson himself could only recall having received one lead each from Mr. Grossman and Mr. Low.  Neither produced business for the company.[3]  On the other hand, Ms. Dale testified that Mr. Grossman had assigned her to solicit business from two Twin Cities’ law firms with which he had been doing business and also that Mr. Low had introduced her to the fleet managers of two car dealerships for the purpose of developing sales leads.  As was the case with Mr. Erickson, neither of those efforts produced business for MT&C.  Ms. Soltis’ other contention – that Ms. Dale had been receiving a disproportionately small number of the leads Mr. Conlow developed from his seminars – was based solely on her subjective impressions and beliefs.[4]  There was no corroborating evidence in the record to support that contention.

 

            In any event, after Ms. Soltis brought up the issue, Mr. Conlow allowed her to establish a system of distributing leads alternately to Mr. Erickson and to Ms. Dale.  This system appears to have remained in effect until Ms. Soltis was transferred to Phoenix Management Company in June of 1993.  (Testimony of Ann Soltis)  The only evidence about how leads were distributed after that date was provided by Mr. Lock.  He testified that when he began working for MT&C in September of 1993, slips of paper with the names of leads were placed on sales consultants’ desks on an apparently random basis, but he also said that the sales consultants frequently shared with one another the names of leads they had received in order to avoid calling on the same customers.  This practice also would have provided some check and balance against disparate distribution.  Mr. Lock went on to say that the only apparent unfairness he observed in the distribution of leads was only an impression that a sales consultant, regardless of gender, had a better chance of receiving leads if he or she was physically present when leads were being handed out.  Additionally, MT&C’s “Success Reports” (Exhibits 6(a) through (f)) indicate that Ms. Dale’s gross sales exceeded Mr. Erickson’s while they were both employed by MT&C.  This at least diminishes any inference that her earnings suffered from a maldistribution of sales leads.  Finally, even if there had been persuasive evidence that Ms. Dale had received significantly fewer sales leads than Mr. Erickson received, there was no evidence that the reason she may have received fewer leads was because of her sex.  In view of all of this, the Administrative Law Judge concluded that Ms. Dale failed to establish by a preponderance of the evidence that her male counterpart received a disproportionately large number of sales leads.  Even if that had been the case, there was no evidence from which an inference could be drawn that the way in which MT&C distributed sales leads was motivated by an intent to discriminate against Ms. Dale because of her sex.

 

 

V.  Differential Treatment on the Job

 

            As a second general contention, Ms. Dale, in effect, claims that there was discrimination with regard to the terms and conditions of her employment, arguing that in numerous specific ways her male counterpart was generally accorded more favorable (or in some cases, less negative) treatment on the job.  A formulation of the elements of a prima facie case with regard to this claim would simply be that:  (1) she is a member of a protected class; and (2) that she was subjected to adverse treatment on the job which similarly situated non-protected class members were not subjected to.  Ms. Dale’s claims of discriminatory, differential treatment generally fall into the following four categories:  (a) that Ms. Dale was unfairly criticized for certain business failures; (b) that Mr. Erickson was permitted to market portions of MT&C’s training programs separately while Ms. Dale was not; (c) that Ms. Dale was held to higher standards of accountability and performance on the job than Mr. Erickson was; and (d) that Messrs. Grossman and Conlow were generally more  encouraging, supportive, and assistive of Mr. Erickson in his sales efforts than they were of Ms. Dale in hers.

 

            The Minnesota Human Rights Act does not require employers to manage, supervise, deal with, or treat all employees, who are similarly situated, in exactly the same way.  Neither does it require employers to treat protected group members fairly and reasonably at all times.  In applying similar federal legislation, the Eighth Circuit Court of Appeals observed:

 

[T]his lawsuit is less about possible age discrimination that it is about whether [defendant’s] decision to discharge [plaintiff] as opposed to some of the other employees . . . was fundamentally unfair or arbitrary . . .  [T]he employment laws have not vested the federal courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers.  Hutson v. McDonnell-Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995)

 

Similarly, in Jorgensen v. Modern Woodmen of America, 761 F.2d 502, 505 (8th Cir. 1985), the Eighth Circuit Court of Appeals observed that “the ADEA is not intended as a means of reviewing the propriety of a business decision.”

 

            What the MHRA does prohibit is preferential treatment of non-protected group members that is motivated by an intent to discriminate against protected group members because of their protected group status.  As previously noted, the record in this proceeding is devoid of any direct evidence that MT&C intentionally discriminated against Ms. Dale with respect to the terms and conditions of her employment because she was a woman.  There is not even any evidence from which a clear inference of intentional discrimination on the basis of sex can be drawn.  What Ms. Dale has produced is evidence of what she alleges are numerous instances where MT&C management provided Mr. Erickson with more assistance and support than it provided her while imposing fewer demands and expectations on him than it imposed on her.

 

            In essence, Ms. Dale is asking the Administrative Law Judge to infer an intent on MT&C’s part to discriminate against her because of her sex from the sheer number of these alleged instances of differential treatment.  First of all, an intent to discriminate on the basis of sex is inferable from the mere fact of different treatment of similarly situated male and female employees only where no other reason or motive for the difference in treatment is apparent from the evidence.  The instances of differential treatment alleged by Ms. Dale must therefore be scrutinized to determine, first, whether they actually occurred and, second, whether the evidence discloses some other, non-discriminatory reason or motive for the difference in treatment.

 

 

A.  Unfair Criticism

 

            In support of her claim of discrimination in conditions of employment, Ms. Dale contends that Mr. Grossman unfairly criticized and blamed her for MT&C’s failure to sell training programs to the Briggs and Morgan and Dorsey & Whitney law firms, both of which had performed services for Mr. Grossman’s companies.  The evidence clearly established that Mr. Grossman did blame Ms. Dale for what he considered to be a failed sales effort to provide training services to those two law firms, and both parties presented evidence to support their respective views on whether or not Mr. Grossman’s criticism was justified.  Ms. Dale testified to her own belief that the sales effort was not worthwhile and was unlikely to result in sales.  But whether Mr. Grossman’s criticism of Ms. Dale was fair, reasonable, or justified is immaterial in the absence of some evidence that his criticism was motivated by an intent to discriminate against Ms. Dale because of her sex.  No such connection was ever made.  Moreover, the testimony of Mr. Huston and Mr. Grossman himself established that Mr. Grossman commonly directed criticism at anyone involved in what he considered to be a failed sales effort, regardless of gender.

 

 

B.  Discretion to Modify Product

 

            Another claim of disparate treatment was that Ms. Dale was required to market all of the components of MT&C’s “Excellence in Management” program as a whole, while Mr. Erickson was allowed to market the components individually.  Throughout its four-year business life, MT&C struggled with adopting a clear business strategy.  Marketing and selling the nine seminars of Mr. Conlow’s “Excellence in Management” program, either individually or as a group, and without substantial tailoring for the customer, minimized MT&C’s costs because the syllabus and material had already been created.  But pursuing that strategy had the effect of limiting the market because there was only a limited number of businesses who were interested in purchasing that entire series of seminars “off-the shelf” without adaptation to their particular circumstances and needs.  (Testimony of Jeffrey Johnson)  On the other hand, while offering more tailored, individual components to customers enlarged the potential market for MT&C’s services, it also had the effect of driving up its costs, since new syllabuses and materials would have to be created for each new customer.  (Id.)

 

            Virtually every employee or officer of MT&C who testified at the hearing had a somewhat different view of what the proper business strategy for the company should have been, and those disparate views were in part shaped by individual experience and self-interest.  The different views about what was the appropriate marketing strategy produced a great deal of friction between sales staff and management and even among sales staff.  (Testimony of Lynne Dale, Lenny Erickson, Jeffrey Johnson, Stanley Lock, and Richard Conlow)  Mr. Grossman himself conceded that defining its market was always a problem for MT&C.  (Testimony of Thomas Grossman)  It is perfectly possible that Ms. Dale and Mr. Erickson were given conflicting instructions from time to time as to how they should market the components of the “Excellence in Management” program.  But the evidence established that any such disparities resulted from confusion over, and conflicting views of, MT&C’s business strategy and not an intent to discriminate against Ms. Dale because of her sex.  In fact, the evidence even negated the claim of disparate treatment in this respect.  MT&C’s sales records established that Ms. Dale did from time to time sell individual components of “Excellence in Management” to customers and that she received commissions on those sales.  (Exhibit 6(f))

 

 

C.  Disparate Standards of Accountability and Performance

 

            Another set of claims of discrimination in conditions of employment were based on the contention that Ms. Dale was held to a higher standard of accountability and performance on the job than Mr. Erickson was.  In one instance, Ms. Dale testified that the staff of MT&C were told that they would have to work the Friday after Thanksgiving.  She stated that she was the only one to work the entire day, with Ms. Soltis having been excused for a family holiday, Mr. Conlow having not shown up at the office, and Mr. Erickson having worked for only half a day.  But there was no evidence of whether or not Mr. Erickson had asked to be excused for half a day, of whether Mr. Conlow was working outside the office, or whether Ms. Dale would have been excused if she had asked to be.[5]  In other words, the evidence was insufficient to establish this incident as an act of discrimination, much less an act of discrimination because of gender.

 

            Ms. Dale also testified that she was required to account to Mr. Conlow to a much greater degree for the way in which she performed her duties than Mr. Erickson was.  Mr. Conlow, in fact, conceded that this was the case, particularly at the outset of Ms. Dale’s employment.  The reason he gave was that Ms. Dale required more guidance and oversight than Mr. Erickson did because she lacked his specific prior experience in selling training programs.[6]  There was no evidence in the record tending to establish that this explanation was a pretext for an underlying intent on Mr. Conlow’s part to discriminate against Ms. Dale based on her sex.

 

            One of Ms. Dale’s major contentions was that Mr. Conlow failed to reprimand Mr. Erickson for acts which she considered to be employee misconduct.  She argues that this failure to take sufficient punitive action against Mr. Erickson represented discrimination against her.  One incident Ms. Dale cites occurred in January or February of 1993.  When a dispute arose between Ms. Dale and Mr. Erickson about how and when they should collaborate to create a flyer, Mr. Erickson became sullen and spoke to Ms. Dale only when absolutely necessary for a period of a month to six weeks.  The evidence established that Mr. Conlow did not specifically reprimand Mr. Erickson for this behavior but rather chose to give the entire staff a lecture on teamwork.  Ms. Dale argues that Mr. Conlow should have been more forceful in his censure of Mr. Erickson.

 

Another such incident occurred in about mid-May of 1993.  Ms. Soltis began documenting the times when Mr. Erickson left and returned to the office and his apparent destinations and correlated that information with what was recorded on the office’s sign in/sign out log.  Ms. Soltis then confronted Mr. Conlow with a list of apparent discrepancies in Mr. Erickson’s claimed whereabouts.[7]  Again, the evidence established that Mr. Conlow did not specifically reprimand Mr. Erickson for this behavior but rather told both Mr. Erickson and Ms. Dale that “everyone had to be more accountable.”  Ms. Soltis also testified she believed that Mr. Erickson had spent several days looking for a new car when he had only been given one day off to look.  There was also evidence that Mr. Erickson had played golf during business hours and that only some of his golf games had been with customers.[8]  To establish a contrast, Ms. Dale presented evidence that Mr. Low told her that she should have been able to have obtained an excuse from jury duty in May of 1993.  She also presented evidence that someone from MT&C had called the chambers of a Hennepin County District Court Judge Harvey Ginsberg in an effort to have her released from jury duty without her knowledge.  (Testimony of Patricia Anderson)  Ms. Dale contends that these incidents, together with other, less specific evidence of disparate treatment, establish that she was held to higher standards of accountability than Mr. Erickson.

 

            There was, however, other evidence in the record that contradicted this claim of a double standard.  Mr. Conlow testified that Ms. Dale had also been given time off from work to take care of personal business from time to time.  Evidence also established that Mr. Erickson frequently (and even customarily) came to the office and began his work day as early as six or seven o’clock in the morning, some two hours before anyone else arrived.  There was also evidence that Mr. Erickson prepared all of his own business correspondence and sales proposals on his own computer at home in the evenings.  (Testimony of Mr. Erickson and Ms. Draves)  With regard to Ms. Dale’s jury service, the identity of the caller to Judge Ginsburg’s chambers was never discovered.  Ms. Dale did serve on jury duty, and she was never personally criticized or threatened with adverse action because of her jury service.

 

            One of the three reasons given for termination of Ms. Dale’s employment was her failure to sign out or apprise MT&C of her whereabouts on September 17, 1993, just prior to termination of her employment.  The evidence showed that MT&C did have policies on how and when sales consultants were to sign in and out and apprise MT&C of their whereabouts during the work day.  The evidence also show that these policies were unevenly and sporadically enforced, particularly in the case of Mr. Erickson.  Ms. Dale essentially claims that she was fired for violating this policy while Mr. Erickson had only received a mild admonition about accountability for the same kind of violation.  This, she contends, proves that MT&C had a double standard of accountability.  Although this issue is discussed in greater detail in Section VI, below, it may be helpful to reiterate some of the salient points of analysis here.  Violating the company notification policy was only one of three reasons given for discharging Ms. Dale and, by Mr. Conlow’s own admission, the least serious one.  There is nothing in the record to suggest that Mr. Erickson would not have been fired if his violation of the notification policy had been accompanied by other, more serious charges, such as those leveled against Ms. Dale.

 

            In summary and based on all of the evidence, the Administrative Law Judge concluded that Ms. Dale either was not subjected to higher standards of accountability and performance on the job than Mr. Erickson, or if she was, any disparities in expectations were unrelated to her gender.

 

 

D.  General Lack of Support and Assistance

 

            Ms. Dale’s final set of claims regarding discrimination in conditions of employment involve allegations that Messrs. Grossman and Conlow were generally more supportive of Mr. Erickson in his sales efforts than they were of Ms. Dale in hers.  The evidence Ms. Dale produced to establish Mr. Grossman’s lack of support for her consisted mainly of her own testimony that in his dealings with her, Mr. Grossman was generally cool, abrupt, critical, occasionally hostile, etc.  There was relatively little evidence about how Mr. Grossman may have behaved in his dealings with Mr. Erickson other than some general impressions that those dealing were “warmer and more friendly.”  There was, however, some compelling evidence that Mr. Grossman had treated Ms. Dale no differently than other employees, both male and female. Mr. Huston’s testimony portrayed Mr. Grossman as a man who was singularly preoccupied with making a profit and who had a low level of tolerance for anyone whom he believed was impeding the profitability of his companies.  That lack of tolerance was accompanied by an abrupt and direct communication style and a tendency to increase the volume of his voice when upset.  Mr. Huston testified that when business was falling short of Mr. Grossman’s expectations, he had a tendency to believe that someone was not performing his or her job properly.  Mr. Grossman himself testified that he had been generally dissatisfied with the sales efforts of MT&C throughout the company’s existence.  Taken together, the evidence established that Mr. Grossman could be a difficult person for anyone to work for or to be around, particularly when he was upset.  In short, Ms. Dale failed to establish by a preponderance of the evidence that Mr. Grossman treated her differently on the job than he treated any of his other employees.

 

            The evidence elicited to support Ms. Dale’s claim that Mr. Conlow failed to provide her with the same level of support and assistance as Mr. Erickson consisted mainly of incidents that Ms. Dale recalled where she had asked for assistance and Mr. Conlow failed to provide it, where Mr. Conlow provided assistance to Mr. Erickson which he did not provide to her, and where Mr. Conlow gave her faint praise laced with criticism while his praise of Mr. Erickson was allegedly more effusive.  The most prominent set of these incidents involved Holly Dunn, whom MT&C had assigned to provide secretarial support to its sales consultants.  Ms. Dale testified that she encountered considerable difficulty in obtaining appropriate support from Ms. Dunn in preparing proposals to customers and that despite repeated requests by Ms. Dale, Mr. Conlow failed to take steps to compel Ms. Dunn to provide the appropriate kind and level of support to Ms. Dale.  But virtually every other MT&C employee who testified at the hearing expressed similar complaints about Ms. Dunn, and Mr. Conlow himself conceded that Ms. Dunn had been an ill-advised hire.  Mr. Conlow’s other testimony largely contradicted Ms. Dale’s with regard to the level of support which he gave to her and her sales efforts.  The thrust of his testimony was that he provided a greater level of support and assistance to Ms. Dale than to Mr. Erickson, particularly at the outset, because she lacked Mr. Erickson’s specific experience in selling training programs.[9]

 

            But even assuming that Mr. Conlow had been less supportive of Ms. Dale and her sales efforts than he was of Mr. Erickson and his, the record was devoid of any evidence suggesting that the disparity in support was the result of an intent to discriminate against Ms. Dale because of her sex.  In fact, any such inference tends to be negated by the testimony Ms. Soltis and Ms. Draves, both of whom testified that Mr. Conlow was generally supportive of them and their efforts on the job.  Considering all of the evidence and the credibility of witnesses, the Administrative Law Judge found that any differences in treatment that Ms. Dale and Mr. Erickson may have received from Mr. Conlow were based the latter’s good faith desire to provide appropriate, personalized supervision of two employees with different skills and personalities and was not based on an intent to discriminate.  In retrospect, Mr. Conlow’s approach to supervising and managing Ms. Dale may not have been the best, but the MHRA does not require perfection in human resource management, only an absence of intentional discrimination based on protected class status.

 

            In summary, in some instances Ms. Dale failed to show that the treatment accorded to Mr. Erickson and herself was disparate.  In others, instances of differences in treatment had legitimate business explanations.  And even where the business explanations for such differences might be regarded as poor human resource management, Ms. Dale failed to come forward with any evidence that MT&C’s motive for treating Ms. Dale and Mr. Erickson differently was to discriminate against Ms. Dale because of her sex.  Feges, supra, 483 N.W.2d at 711, citing Furnco Construction Co., 438 U.S. 567, 577 (1978).  In short, Ms. Dale failed to establish by a preponderance of the evidence that MT&C discriminated against Ms. Dale in the conditions of her employment because of her gender.

 

 

V.  Discriminatory Discharge from Employment

 

            Although what constitutes a prima facie case of employment discrimination in violation of Minn. Stat. § 363.03, may depend on the particular circumstances of the case, the elements of a prima facie case of discriminatory discharge are well established in Minnesota law:

 

(1)       The employee is a member of a protected class;

 

(2)       The employee was qualified for the position held;

 

(3)       The employee was discharged; and

 

(4)       After the employee’s discharge, the employer assigned a non-member of the protected class to do the same work.

 

Rademacher v. FMC Corporation, 431 N.W.2d 879, 882 (Minn. App. 1988).  Applying that test to facts in this proceeding:

 

(1)       Ms. Dale is a woman, and therefore a member of a class protected by Minn. Stat. § 363.03 against discrimination in employment based upon her sex;

 

(2)       MT&C does not dispute that Ms. Dale was qualified for the position she held;

 

(3)       Ms. Dale’s employment was terminated on September 20, 1993 (Testimony of Lynne Dale and Richard Conlow); and

 

(4)       Evidence in the record indicates that after her discharge, Ms. Dale’s duties were distributed among a number of other MT&C officers and employees, all of whom were men.  (Testimony of Stanley Lock)

 

In short, Ms. Dale met her initial burden of establishing a prima facie case of discriminatory discharge.  Under the first step of the McDonnell-Douglas test, a presumption was therefore created that MT&C unlawfully discriminated against Ms. Dale “. . . because these facts, unless otherwise explained, are more likely than not to be based on impermissible factors.”  Feges, supra, 483 N.W.2d at 711, citing Furnco Construction Co., 438 U.S. 567, 577 (1978). 

 

            To meet its burden under the second step of the McDonnell-Douglas case, MT&C offered evidence of three legitimate business reasons for discharging Ms. Dale:  (1) that she had behaved in rude, abrasive, and offensive manner toward some other staff members of the Grossman companies; (2) that she had behaved in rude, abrasive, and offensive manner toward employees of two of MT&C’s customers; and (3) that she had failed to keep Mr. Conlow advised of her whereabouts on September 17, 1993, in violation of company policy.[10]

 

            In reply, Ms. Dale contends that MT&C failed to produce sufficient evidence of the legitimacy of these reasons, and they must therefore be regarded as pretexts.  In other words, she seems to argue that when considering evidence of the reasons given for the discharging of a protected class member, even one who is employed at will, a factfinder must weigh the evidence of those reasons to ascertain whether they measure up to some minimal standard of legitimacy before going on to the third step of the McDonnell-Douglas test.  In Hicks, the U. S. Supreme Court characterized a respondent’s burden of showing legitimate reasons merely as one of producing evidence, 509 U.S. at 507.  However, in Burdine, supra, 450 U.S. at 254, the Court at least suggested that there might be some element of persuasion in that burden.  That suggestion also appears in Feges, 483 N.W.2d at 711:

 

The reason must be offered by admissible evidence, be of a character to justify a judgment for the defendant, and must be clear and reasonably specific enough to enable the plaintiff to rebut the proffered reason as pretextual.

 

In the context of the McDonnell-Douglas test, the terms “legitimate” and “pretextual” appear to be antonyms so that characterizing a reason for discharge as one necessarily excludes characterizing it as the other.  Compelling a respondent to measure up to some standard of proof of legitimacy would have the effect of shifting, to some extent, the burden of proving pretext from a complainant to a respondent.  The sounder view is that in the second step of the McDonnell-Douglas analysis, a respondent’s burden is to produce evidence of reasons for discharge that are at least facially legitimate, and that it is then a complainant’s burden under the third step to adduce evidence that the facially legitimate reasons are only pretexts for discriminatory ones.

 

            There was admissible evidence in the record which, if believed, was sufficient to support a finding for MT&C establishing a factual basis for all three of the reasons proffered by MT&C for discharging Ms. Dale.  There was testimony of five witnesses, which, if believed, tended to establish that Ms. Dale exhibited a negative communications style in her dealings with others and that she had on occasions behaved rudely, abrasively, and offensively toward other staff of the Grossman companies and also toward staff at Austin and North Hennepin Community Colleges, two of MT&C’s customers.  (Testimony of Richard Conlow, Steven Huston, Michelle Draves, Charlotte Baines, and Jeffrey Johnson)  Reserving for the present the question of whether it reasonably represented a firing offense, there was also testimony tending to establish that Ms. Dale failed to keep MT&C notified of her whereabouts on September 17, 1993, in violation of a company policy.  (Testimony of Richard. Conlow and Lynne. Dale)  In short, MT&C met it burden of coming forward with evidence of legitimate, non-discriminatory reasons for discharging Ms. Dale.

 

            The analysis, therefore, reaches the third step of the McDonnell-Douglas test.  Since the MT&C produced evidence of reasons for discharge which at least on their face appear to be legitimate, the presumption of discrimination creates by Ms. Dale’s prima facie showing dissolves, and inquiry turns to the third step of the McDonnell-Douglas test in which the sole question is “whether or not the court is persuaded that the employee has been the victim of intentional discrimination.”  Hasnudeen, supra, at 2, citing Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 626 (Minn. 1988).  Part of that inquiry is determining whether the reasons given for discharge were pretextual and, in fact, masked an underlying discriminatory intent.  Hasnudeen, supra at 2.  But to arrive at a result, the reviewing tribunal must still evaluate and weigh all of the evidence tending to establish or to negate the presence of a motive on the part of the respondent to discriminate against the complainant on the basis of sex.

 

            MT&C presented evidence that Ms. Dale had behaved in a rude, abrasive, and offensive manner toward Ann Hoeschen and Holly Dunn.[11]  Michelle Draves herself testified that Ms. Dale had been short, abrupt and condescending when interacting with her.  Ms. Draves also testified that she had complained to Mr. Conlow about the way Ms. Dale had been treating her.  Finally, Mr. Johnson, one of Ms. Dale’s own witnesses, testified that at times Ms. Dale had been abrupt and negative toward both him and Mr. Erickson.  By way of rebuttal, Ms. Dale testified and presented the testimony of others[12] either that she had not behaved in that manner or that she had been justified whenever she may have done so.  After weighing all of the evidence, the Administrative Law Judge found that a preponderance of the evidence established that on occasions Ms. Dale displayed rude, abrasive, and other negative behavior during the course of her interactions with other members of the Grossman companies staff.

 

            With respect to the claim that Ms. Dale had engaged in rude, abrasive, and offensive behavior toward two of MT&C’s customers – namely, with staff of Austin Community College and of North Hennepin Community College, it was uncontroverted that Mr. Conlow had received complaints about Ms. Dale’s behavior from staff at both institutions.  These two institutions accounted directly or indirectly for a large amount of MT&C’s business.  (Testimony of Richard Conlow, Lynne Dale, and Charlotte Baines)  In both cases, Ms. Dale’s contention that this reason for her discharge was pretextual was supported only by her own testimony that her behavior in both cases had not been offensive or had been justifiable. Again, however, the Administrative Law Judge found that a preponderance of the evidence established that Ms. Dale had on occasions exhibited rude, abrasive, and other negative conduct in her dealings with staff from those two community colleges.

 

            The third reason given for discharging Ms. Dale – that she failed to advise Mr. Conlow of her whereabouts during the work day on September 17, 1993, in violation of a company policy– requires more careful consideration.  There was no dispute that it was a policy of MT&C that when sales consultants were out of the office during the work day, they were to notify Mr. Conlow of their whereabouts or if he were unavailable, leave word of their whereabouts with the receptionist.  Ms. Dale testified that on September 17, 1993, she was out of the office at business meetings from about 7:00 a.m. until 3:30 p.m. and after that drove to an automobile dealership to have her car repaired.  She testified that she recalled having told someone at MT&C about her morning meeting but that she could not remember whom.  She also said she may have told the receptionist about her lunch meeting on the day before.[13]  Finally, she recalled having called MT&C from the automobile dealership and having told the receptionist that she was having car trouble and would not be returning to the office.  Ms. Dale did not indicate specifically where she could be contacted.  On the other hand, Mr. Conlow testified that he was in the office most of the day on September 17, 1993, and during all of the afternoon.  He further testified that no information concerning Ms. Dale’s whereabouts was available to him at the office prior to 3:30 p.m. and that Ms. Dale did not respond to a message he had left on the telephone message machine at her home.[14]  After evaluating and weighing the evidence, the Administrative Law Judge concluded that Ms. Dale had violated a company policy by failing to provide appropriate information on her whereabouts on September 17, 1993.

 

            But Ms. Dale further contends that even if she did violate a company policy on that day, it was a policy which others had violated from time to time without being threatened with termination.  The most notable example of this was Mr. Erickson.[15]  There was credible evidence that he, too, had violated MT&C’s sign-in/sign-out policy – at least on some occasions – but that the only consequence had been an admonition to be more accountable, delivered to him as a member of a group.  In other words, Ms. Dale suggests that this is an instance of disparate disciplinary practices with respect to similarly situated male and female employees and, therefore, is not a legitimate reason for dismissal but rather a pretext for discrimination.  Ms. Dale’s argument might have merit if this had been the only reason for her discharge.  But one of several reasons given for a discharge does not necessarily lack legitimacy because, considered in isolation from the others, it seems to be a weak reason for firing someone.  Each reason for discharge must be considered in context with any other reasons that are given.  Mr. Conlow testified that violating this company policy was the least important of three reasons for terminating Ms. Dale’s employment and was not a major factor in the decision to discharge her.  Rather, the thrust of Mr. Conlow’s testimony was that he had been debating during the day of September 17, 1993, whether to discharge Ms. Dale for the other reasons cited.  He stated that when he discovered her unexplained absence from the office, it was “the last straw” for him, and he made the decision to terminate her before he left the office on that day.  There is nothing in the record that tends to establish that Mr. Erickson would not have been discharged if had engaged in all of the conduct MT&C believed that Ms. Dale had engaged in, or that Ms. Dale would have suffered any more than an admonition if all she had done was violate company policy on disclosing her whereabouts during the work day.

 

            Since Ms. Dale was an at-will employee, the only limit that the Minnesota Human Rights Act places on grounds for her dismissal is that they may not involve intentional discrimination on the basis of her protected group status.  In Gill v. Reorganized School District R-6, 32 F.3d 376, 379 (8th Cir. 1994), the Court observed:

 

We are not concerned about the correctness or wisdom of the reason given for [the defendant employer’s] decision, but only ‘whether [the reported incident] was the real reason for [plaintiff’s] termination, and not a pretext for age discrimination.

 

Having found that there was a factual basis for MT&C’s belief that Ms. Dale had misconducted herself in the ways the company claimed, the reasons given by MT&C for discharging her do not by their very nature give rise to any kind of inference that they were a pretext for intentional discrimination on the basis of sex.  In other words, this is not a case where sex discrimination can be inferred from the reasons for discharge alone.  Ms. Dale must therefore sustain her burden of proving by other evidence that her discharge was motivated by sex discrimination.  The inquiry then becomes a matter of weighing any evidence tending to establish that a real reason for discharging Ms. Dale was her gender against any evidence tending to negate the assertion that gender was one of MT&C’s reasons for discharging her.

 

            As previously noted, the only evidence adduced by Ms. Dale that is suggestive of a discriminatory attitude toward women at MT&C is an ambiguous off-hand comment by Mr. Grossman in a parking lot conversation.  To the extent that it was relevant, there was also some testimony that MT&C had not circulated a written discrimination policy to all staff.[16]  When Ms. Soltis expressed her opinion in a staff meeting and to Mr. Grossman in May of 1993 that Ms. Dale appeared to be receiving less favorable treatment than Mr. Erickson, Mr. Grossman told Ms. Soltis that Ms. Dale herself should discuss her concerns with him.  Ms. Soltis relayed the message to Ms. Dale, but Ms. Dale never stepped forward to discuss her own concerns about disparate treatment with Mr. Grossman.  (Testimony of Ann Soltis, Lynne Dale, and Thomas Grossman)

 

            On the other hand, there is great deal of evidence tending to establish that there was no underlying motive on the part of MT&C and its management to discriminate against women because of their sex.  In Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991), the Fourth Circuit Court of Appeals held that:

 

[W]here the hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer.

 

The Court of Appeals explained the basis for this inference as follows:

 

One is quickly drawn to the realization that “[c]laims that employer animus exists in termination and not in hiring seem irrational.”  From the standpoint of the putative discriminator, “[i]t hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological cost of associating with them), only to fire them once they are on the job.”  [Citations omitted.]

 

See also, Lowe v. J. B. Hunt Transport, Inc., 963 F.2d 173 (8th Cir. 1992).  This proposition has yet to be considered by the appellate courts of Minnesota.  Nevertheless, it seems perfectly reasonably to consider evidence here that the hirer and firer were the same and that the discharge occurred fairly soon after hiring as some evidence that gender discrimination was not one of MT&C’s motives for discharging Ms. Dale.[17]  That evidence is strengthened here by the fact that after Ms. Dale’s employment was terminated, MT&C subsequently hired four more female sales consultants during the life of the company.  (Testimony of Richard Conlow) 

 

            These inferences are not the only evidence tending to negate the existence of sex discrimination as a motive for firing Ms. Dale.  There was also evidence that during the life of the company, MT&C hired a total of fifteen different sales consultants.  Ten were men, and five were women.  Six of the ten men were fired, while only two of the five women were fired.  Moreover, Mr. Johnson, one of Ms. Dale’s witnesses, testified that he perceived no evidence of gender discrimination at MT&C.  Ann Soltis, another of Ms. Dale’s witnesses, testified that she had gotten along well with Mr. Conlow and that he given her a great deal of authority and independence in the performance of her duties – at least raising an inference that she had been treated on the job with a great deal of respect.  Finally, on cross examination, Ms. Dale testified that she herself did not believe that the criticism leveled against her as a result of her conflicts with staff at Austin and North Hennepin Community Colleges were based on her gender.  The Administrative Law Judge believed these to be spontaneous, candid, and credible responses to the cross-examiner’s questions.[18]

 

            In conclusion, after considering all of the evidence and the credibility of witnesses, the Administrative Law Judge concluded that Ms. Dale failed to establish by a preponderance of the evidence that one of MT&C’s motives for discharging her from its employment was to discriminate against her on the basis of her sex.

 

 

B. H. J.