3-1700-9884-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF HUMAN RIGHTS
Brenda Fears,
Complainant,
ORDER DENYING
v. RESPONDENT'S
MOTION FOR
Seagate Technology, Inc., SUMMARY DISPOSITION
Respondent.
This matter is before Administrative Law Judge Allen E. Giles on a Motion for Summary Judgment filed by the Respondent, Seagate Technology, Inc.
Jane M. Hill and James F. Baldwin, Murnane, Conlin, White & Brandt, 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, Minnesota 55101, appeared on behalf of Respondent Seagate Technology, Inc. (hereinafter also referred to as "Seagate" or the "Company").
Lynn Klicker Uthe, Attorney at Law, 1730 South Plymouth Road, Suite 101, Minnetonka, Minnesota 55305, appeared on behalf of Complainant Brenda Fears (hereinafter also referred to as "Complainant" or "Ms. Fears").
The record closed on this motion on April 22, 1996, upon receipt of an affidavit submitted by Respondent.
Based upon all the files, records, and proceedings herein, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:
ORDER
1. The Respondent's Motion for Summary Judgment is hereby DENIED.
2. A trial on the merits shall occur as soon as possible. Mr. Michael Lewis (341-7610), OAH Staff Attorney, will arrange a time convenient to the parties.
3. Any future documents filed with the Office of Administrative Hearings should be addressed to the undersigned Administrative Law Judge, only; it is unnecessary to also file a document with the Office of Administrative Hearings.
Dated: May ___, 1996.
__________________________
ALLEN E. GILES
Administrative Law Judge
MEMORANDUM
Complainant Brenda Fears alleges that her employer, Seagate, committed unfair discriminatory practices against her in violation of Minnesota Statutes, Chapter 363 (1994) the Minnesota Human Rights Act, (hereinafter also referred to as the “Human Rights Act”). She claims that while employed at Seagate, the Company illegally discriminated against her on the basis of race, sex and disability and that the Company took reprisal against her for complaining about unfair discriminatory practices.
Seagate denies Complainant’s claims. The Company affirmatively asserts that it has not illegally discriminated against Ms. Fears and argues that it has not committed any unfair discriminatory practices in violation of the Human Rights Act. Seagate moves for summary judgment. The Company asserts that as a matter of law Ms. Fears has failed to establish employment discrimination under the Minnesota Human Rights Act.
Summary Disposition under the Office of Administrative Hearings Rules of Practice is the equivalent of summary judgment. Minn. Rule 1400.5500(K). Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Sauter v. Sauter, 70 N.W.2d 351, 353 (Minn. 1955); Louwagie v. Witco Chemical Corp., 378 N.W.2d 63, 66 (Minn. App. 1985); Minn.R.Civ.P. 56.03 (1984). A genuine issue is one that is not sham or frivolous. A material fact is a fact whose resolution will affect the result or outcome of the case. Illinois Farmers Insurance Co. v. Tapemark Co., 273 N.W.2d 630, 634 (Minn. 1978); Highland Chateau v. Minnesota Department of Public Welfare, 356 N.W. 2d 804, 808 (Minn. App. 1984).
Seagate, as the moving party in this case, has the initial burden of showing the absence of a genuine issue concerning any material fact. To successfully resist a motion for summary disposition, the nonmoving party, Ms Fears, must show that specific facts are in dispute which have a bearing on the outcome of the case. Hunt v. IBM Mid America Employees, 384 N.W.2d 853, 855 (Minn. 1986). The existence of a genuine issue of material fact must be established by the nonmoving party by substantial evidence; general averments are not enough to meet the nonmoving party's burden under Minn.R.Civ.P. 56.05. Id.; Murphy v. Country House, Inc., 307 Minn. 344, 351-52, 240 N.W.2d 507, 512 (1976); Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1988). The evidence presented to defeat a summary judgment motion, however, need not be in a form that would be admissible at trial. Carlisle, 437 N.W.2d at 715 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The nonmoving party also has the benefit of the most favorable view of the evidence. All doubts and inferences must be resolved against the moving party. See Celotex, 477 U.S. at 325; Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988); Greaton v. Enich, 185 N.W.2d 876, 878 (Minn. 1971); Dollander v. Rochester State Hospital, 362 N.W.2d 386, 389 (Minn. App. 1985).
Based upon the pleadings and affidavits submitted in this matter, and construing the facts in the light most favorable to the Complainant, the underlying facts in this matter appear to be as follows.
Complainant Brenda Fears is an African-American female employed by Seagate since September 4, 1992 as a machine operator. She is considered a part-time employee, working between 30 and 39 hours per week. At the present time she continues to be employed by Seagate.
On or about November 16, 1993, a co-worker who had the responsibility of "trainer" selected the Complainant for a job assignment by using a racially derogatory rhyme: "Eenie, meenie, miney, moe. . . Catch a nigger by the toe. . . ." Ms. Fears complained about this to management. Complainant also complained about a second racial slur occurring in March of 1994 when handwriting on a document attached to a machine traveling from one worker to another was described as "nigger handwriting", presumably because it was messy. Ms. Fears complained to management about the racial slurs.
Six days after she complained about the first racial slur, she was moved to another location. Subsequently, at the new workstation, she complained about differential treatment by her new supervisor, Con Hemmesch. Ms. Fears asserts that before her transfer she was treated fairly and received good job reviews. However, under the supervision of Mr. Hemmesch, she was subjected to conditions of employment, including unfair evaluations, that were different from the treatment given to similarly situated white employees or co-workers. In addition to the differential treatment based on race, Ms. Fears claims that Mr. Hemmesch also subjected her to intimidating comments of a sexual nature. These comments included a question to Ms. Fears about why she did not tell him his pants were unzipped after another co-worker made the observation, and in reply to Ms. Fears' comment about feeling cold at her workstation, telling her she needed a good man.
Finally, Ms. Fears also claims that Seagate committed an unfair discriminatory practice by refusing to reasonably accommodate skin irritation and vision problems.
Seagate, in response, maintains that the racial slurs were a part of "casual" conversations and, therefore, are not actionable; and if the slurs are actionable, Seagate has no liability because it took prompt remedial action to discourage such statements. Seagate disciplined each of the employees responsible for the racial slurs. The Company asserts that the fact that both employees were promptly reprimanded demonstrates that the Company had a policy that would not tolerate racial harassment in any way.
The Company also asserts that Ms. Fears was moved to the new location, not because of reprisal, but because she was facing a layoff or it was necessary to move her with her duty station.
Seagate also asserts that Mr. Hemmesch's comments regarding his unzipped pants and general statements about male companionship are not actionable under the Minnesota Human Rights Act. The Company states that the alleged comments, though possibly inappropriate, were not sufficiently severe or pervasive as to alter Ms. Fears' conditions of employment.
The Human Rights Act specifies that, "[e]xcept when based on a bona fide occupational qualification, it is an unfair employment practice . . . [f]or an employer, because of . . . race, sex or disability, . . . to discriminate against an employee with respect to . . . terms, . . . conditions, facilities, or privileges of employment." Minn. Stat. § 363.03, subd. 1(2) (1994). Discrimination based on sex is defined to include sexual harassment. Sexual harassment, in turn, is defined to include "verbal or physical conduct or communication of a sexual nature when . . . that conduct or communication has the purpose or effect or substantially interfering with an individual's employment . . . or creating an intimidating, hostile, or offensive employment . . . environment" and "the employer knows or should know of the existence of the harassment and fails to take timely and appropriate action." Minn. Stat. § 363.01, subd. 10a (1994). Minn. Stat. § 363.03, subd. 7 provides in relevant part as follows:
It is an unfair discriminatory practice for an employer . . . to intentionally engage in reprisal against any person because that person:
(1) opposed a practice forbidden under this chapter . . . .
A reprisal includes, but is not limited to, any form of intimidation, retaliation, or harassment. It is a reprisal for an employer to do any of the following with respect to an individual because that individual has engaged in activities listed in clause (1) or (2): refused to hire the individual; depart from any customer employment practice; transfer or assign the individual to a lesser position in terms of wages, hours, job classification, job security, or other employment status . . . .
Minnesota courts often rely upon federal case law developed in discrimination cases arising under Title VII of the Civil Rights Act of 1964 in interpreting the Human Rights Act. Relevant Minnesota case law establishes that plaintiffs in employment discrimination claims arising under the Human Rights Act may prove their case either by presenting direct evidence of discriminatory intent or by presenting circumstantial evidence in accordance with the analysis first set out by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 710 and n. 4 (Minn. 1992); Sigurdson v. Isanti County, 386 N.W.2d 715, 719 (Minn. 1986); Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978).
The approach set forth in McDonnell Douglas consists of a three-part analysis which first requires the complainant to establish a prima facie case of disparate treatment based upon a statutorily-prohibited discriminatory factor. Once a prima facie case is established, a presumption arises that the respondent unlawfully discriminated against the complainant. The burden of producing evidence then shifts to the respondent, who is required to articulate a legitimate, nondiscriminatory reason for its treatment of the complainant. If the respondent establishes a legitimate, nondiscriminatory reason, the burden of production shifts back to the complainant to demonstrate that the respondent's claimed reasons were pretextual. McDonnell Douglas, 411 U.S. at 802-03; see also Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 623 (Minn. 1989); Hubbard v. United Press International Inc., 330 N.W.2d 428 (Minn. 1983).
Indirect proof of discrimination is permissible to show pretext, since "'an employer's submission of a discredited explanation for firing a member of a protected class is itself evidence which may persuade the finder of fact that such unlawful discrimination actually occurred.'' Haglof v. Northwest Rehabilitation Inc., 910 F.2d 492, 494 ( 8th Cir. 1990), quoting MacDissi v. Valmont Industries Inc., 856 F.2d 1054, 1059 (8th Cir. 1988). The burden of proof remains at all times with the complainant. Fisher Nut Co. v. Lewis ex rel. Garcia, 320 N.W.2d 731 (Minn. 1982); Lamb v. Village of Bagley, 310 N.W.2d 508, 510 (Minn. 1981).
Minnesota courts have adopted and applied the three-part McDonnell Douglas analysis in deciding summary judgment motions involving claims alleging disparate treatment in violation of the Human Rights Act. Albertson v. FMC Corp., 437 N.W.2d 113, 115 (Minn. App. 1989), citing Sigurdson v. Isanti County, 386 N.W.2d 715, 719-22 (Minn. 1986); see also, Rademacher v. FMC Corp., 431 N.W.2d 879, 882 (Minn. App. 1988); Shea v. Hanna Mining Co., 397 N.W.2d 362, 368 (Minn. App. 1986). The U.S. Court of Appeals for the Eighth Circuit has cautioned that "[s]ummary judgments should be sparingly used [in cases alleging employment discrimination] and then only in those rare instances where there is no dispute of fact and where there exists only one conclusion ... All the evidence must point one way and be susceptible of no reasonable inference sustaining the position of the non-moving party." Johnson v. Minnesota Historical Society, 931 F.2d 1239, 1244 (8th Cir. 1991) (relying upon Hillebrand v. M‑Tron Industries Inc., 827 F.2d 363, 364 (8th Cir. 1987), cert. den, 488 U.S. 1004 (1989); and Holley v. Sanyo Manufacturing, Inc., 771 F.2d 1161, 1164 (8th Cir. 1985).
The elements of a prima facie case of discrimination vary depending upon the type of discrimination alleged, and must be tailored to fit the particular circumstances. Ward v. Employee Development Corp., 516 N.W.2d 198, 201 (Minn. App. 1994). Complainant's claims in the present case allege three types of discrimination: (a) retaliation or reprisal; (b) sexual harassment; and (c) discrimination on the basis of race in conditions of employment. The Judge believes that there are triable issues with respect to each of these types of discrimination. For the purposes of this motion, only two of the types of discrimination will be addressed.
To establish a prima facie case of reprisal, an employee must establish:
(1) statutorily-protected conduct by the employee;
(2) adverse employment action by the employer; and
(3) a causal connection between the two.
Ms. Fears has established the elements necessary for a prima facie case of reprisal. On November 16, 1993, she complained to Seagate management about the first racial slur. Six days later she was transferred to a new work area with a new supervisor who subjected her to harsh discipline, unfair evaluations and intimidation. Viewing the facts in favor of Complainant, the Judge concludes that Ms. Fears' employment transfer which occurred six days after her complaint of racial discrimination is close enough in time so as to be causally connected. For these reasons, Ms. Fears has established a prima facie case of reprisal.
Seagate has failed to articulate legitimate, non-discriminatory reasons for Ms. Fears' transfer. The reasons that were offered appear to be conflicting. For example, the reasons for Ms. Fears' transfer, as indicated by Mr. Hemmesch in his affidavit, is that Ms. Fears was moved because work schedules changed and machine operators have no choice as to where they will be assigned. According to Mr. Hemmesch, Ms. Fears was required to move or face layoff. Ms. Carmen Shearing-Walsh, in her affidavit, offers what appears to be a different reason for Ms. Fears' transfer. She states that "some of the inspection criteria performed at station two were moved to Final Visual because product identification could not be verified against the traveler form at station two." Apparently, according to Ms. Shearing-Walsh, Ms. Fears was moved because her duty station was moved. The reasons offered for Ms. Fears' transfer are vague and appear to be conflicting. The Judge also notes in passing that the Company maintains that the racial slurs are not actionable because they were made in "casual" conversation. The Judge suggests that there may be no circumstances where it is appropriate to allow a quasi-supervisory employee to make assignments to a minority employee with the aid of a racially derogatory rhyme as involved in this case.
To establish a prima facie case of sexual harassment, an employee must show that:
(1) the employee is a member of a protected class;
(2) the employee was subjected to unwelcome sexual harassment;
(3) the harassment complained of was based on sex;
(4) the harassment affected a term, condition, or privilege of employment or created an intimidating, hostile, or offensive environment; and
(5) the employer is liable for the harassment that occurred based on its actual or imputed knowledge of the harassment and its failure to take appropriate remedial action.
Johnson v. Ramsey County, 424 N.W.2d 800, 808 (Minn. Ct. App. 1988). Hubbard United Press Intern., Inc., 330 N.W.2d 428, 444 (Minn. 1983).
Ms. Fears has established the elements of a prima facie case of sexual harassment. She is a member of a protected class who was subjected to unwelcome sexual harassment. The harassment was based on sex and because it came from her immediate supervisor, the person responsible for her evaluations, the harassment affected a term, condition, or privilege of employment or created by intimidating, hostile, or offensive working environment. Ms. Fears complained to management at Seagate about the sexual harassment and other problems that she had with Mr. Hemmesch. The record does not reflect whether any disciplinary action was taken against Mr. Hemmesch or that the Company responded to Ms. Fears' complaints of sexual harassment.
The Company's only response to Ms. Fears' sexual harassment claim is that the alleged conduct did not affect a term or condition or employment and that Ms. Fears failed to complain about the conduct to Seagate's management.
Based upon the application of the standards set forth above and construing the evidence in a light most favorable to the non-moving party, the Administrative Law Judge concludes that because there are genuine issues of material fact, summary judgment is inappropriate in this case. Respondent's motion for summary judgment is accordingly DENIED.
A.E.G.