NO. A08-1367
StateofMinnesota
InSupremeCourtCapella University,
Appellant, v.
Elen Bahr, Respondent.
APPELLANT'S BRIEF AND APPENDIX
Thomas A. Harder (#158987) FOLEY & MANSFIELD, PLLP 250 Marquette Avenue, Suite 1200 Minneapolis, MN 55401 Tel: (612) 338-8788 Fax: (612) 338-8690
Counsel for Appellant
Joni M. Thome (#232087) HALUNEN &ASSOCIATES 1650 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Tel: (612) 605-4098 Fax: (612) 605-4099
Counsel for Respondent
Angela Behrens (#0351076) STATE OF MINNESOTA- OFFICE OF THE ATTORNEY GENERAL 445 J\finnesota Street, Suite 900 St. Paul, MN 55101-2127 (651) 297-3546
Attorneys for the Commissioner of the Minnesota Department of Human Rights
BACHMAN LEGAL PRINTING- FAX (612) 337 8053- (612) 339-9518 or 1 800-715-3582
The appendix to this brief is not available for online viewing as specified in the Minnesota Rules of Public Access to the Records of the Judicial Branch, Rule 8, Subd. 2(e)(2).
TABLE OF CONTENTS
STATEMENT OF THE LEGAL ISSUES INVOLVED .......................... 1
1. Does the Act of Delaying the Placement of an Employee .............. I on a Performance Improvement Plan (PIP) Constitute an Unfair Employment Practice (Discrimination) as Defined by Minn. Stat. § 363A.08, Subd. 2?
2. Minn.Stat.§ 363A.15Protects an Employee from ................... 1 Reprisals for Opposing a PracticeForbidden Under the Minnesota Human Rights Act (MHRA). In that not Placing an Employee on a PIP is not a Forbidden Act of Discrimination, Should the Statute be Interpreted to Extend its Protections to an Employee who Opposes an Act that is not in Fact Forbidden, if the Employee Alleges that she had a Reasonable Belief the Act was Forbidden?
3. Assuming the Federal Title VII "Reasonable Belief' ................ 2 Standard is Engrafted onto the Statute, Should the Court Adopt the Federal Standard of Applying an Objective Analysis to the Profession of a Reasonable Belief, and Dismiss where the Belief is Unreasonable, as a Matter of Law?
STATEMENT OF THE CASE ............................................. 3
STATEMENT OF FACTS ................................................ 4
ARGUMENT ........................................................... 6
1. Standard of Review. . ......................................... 6
2. Law and Argument. ........................................... 8
A. To Place (or not place) an Employee on a PIP is not ............ 9 an Adverse Employment Action
1
B. Should the Title VII Good Faith Reasonable Belief ........... 18 Standard be Engrafted onto the Statute?
C. The Correct Application of Federal Law .................... 31
CONCLUSION ........................................................ 37
11
TABLE OF AUTHORITIES
FEDERAL CASES
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1964 (2007) ................................. 8, 9
Brannum v. Missouri Dept. of Corrections, fu PS518 F.3d 542 (8 Cir. 2008) .................................. 1, 2, 19, 33, 35, 3
Breiland v .. A.dvanced Circuits. Inc., 976 F.Supp. 858, 865 (D. Minn. 1997) ...................................... 12
Brown v. Sybase. Inc., 287 F.Supp.2d 1330, 1342 (S.D. Fla. 2003) ............................ 13, 18, 30
Burchett v. Target Corp., 340 F.3d 510, 519 EU Cir. 2003) ........................................... 17
Burlington Industries. Inc. v. Ellerth, 524 U.S. 742, 761, 118 S. Ct. 2257 (1998) ................................... 10
Butler v. Alabama Dept. of Transportation, 536 F.3d 1209, 1214 (llili Cir. 2008) ..................................... 33,36
Clark County School District v. Breeden, 532 U.S. 268,270, 121 S. Ct. 1508 (2001) ..................... 2, 18, 19, 33, 34, 35
Clover v. Total Systems Services. Inc., 176 F.3d 1346, 1351 (ll'h Cir. 1999) ........................................ 33
Coburn v. Children's Medical Center, 2004 W.L. 1347604, *4 (N.D. Tex. 2004) ............................... 1, 13, 36
Colenburg v. STARCON International. Inc., 2009 W.L. 1536503, *6, n.9 (D. Minn. 2009) ................................. 15
Cottman v. Rubin, 2001 W.L. 257830 *3 (D. Md. 2001); aff'd. 35 Fed. Appx. 53 EQ Cir. 2002) ....... 13
lil
Crawford v. Metro Government of Nashville and Davidson County, 1N, -u.s.- 129 s. Ct. 846 (2009) ......................................... 9
Crumpacker v. Kansas Dept. of Human Rights, 338 F.3d 1163 (7th Cir. 2003) .......................................... 32,33
Cullom v. Brown, 209 F.3d 1035 (7th Cir. 2000) ............................................. 13
Evans v. Kansas City Missouri School District, 65 F.3d 98 (S'h Cir. 1995) ............................................ 2, 18, 34
Fisher v. Pharmacia and Upjohn, 225 F.3d 915, 919 (8th Cir. 2000) ........................................... 10
Garrett v. Celanese Corp., 2003 W.L. 22234917 at *3 (N.D. Tex. 2003) ................................. 14
Given v. Singular Wireless, 396 F.3d 998-999 (8th Cir. 2005) .......................................... 12
Hamner v. St. Vincent's Hospital, 224 F.3d 701, 707 (7th Cir. 2000) ........................................... 35
Harper v. Blockbuster Entertaimnent Corp., 139 F.3d 1385, 1388, n.2 (11th Cir. 1998) ................................. 34, 36
Hayes v. U.S. Bank Corp. Piper Jaffray. Inc., 2004 W.L. 2075560 (D. Miun. 2004) ....................................... 10
Hernandez v. Muns, 1996 W.L. 661171, *7, 101 F.3d 698 (5th Cir. 1996) .......................... 13
Jenkins v. County of Hennepin, 2007 W.L. 2287840 (D. Minn. 2007) ........................................ 9
Jones v. Fitzgerald, 283 F.3d 705, 714 (8'h Cir. 2002) .......................................... 10
IV
Jordan v. Radiology Imaging Assoc., 577 F.Supp.2d 771, 779-80 (D. Md. 2008) .................................. 17
LaCroix v. Sears Roebuck & Co., 240 F.3d 688, 691 (8th Cir. 2001) ......................................... 1, 11
Ledergerber v. Strangler, 122 F.3d 1142, 1144 (8'h Cir. 1997) ..................................... 10, 11
Lewis v. Heartland Inns of America. LLC, 58,.. cK T 33 1v o, 1v 1a. vv ; .................................. .
Montandon v. Farmland Industries. Inc., 116 F.3d 355 (8'h Cir. 1997) ....................................... 2, 11, 31,32
Occidental Life Ins. Co. of California v. EEOC, 432 u.s. 355, 359 (1977) ................................................. 25
Parker v. Otis Elevator, 9 Fed. Appx. 615, 617 (9th Cir. 2001) ....................................... 35
Pulley v. K.P.M.G. Consulting. Inc., 348 F.Supp.2d 388, 394-95 (D. Md. 2004) ................................... 12
Spears v. Missouri Dept. of Corrections and Human Resources, 210 F.3d 850, 853 (8th Cir. 2000) .......................................... 10
Stewart v. Evans, 275 F.3d 1126, 1136 (D.C. Cir. 2002) ....................................... 11
p KWest, 149 F.3d 550, 557 (7th Cir. 1998) ....................................... 12, 17
Tennant v. Omaha Public Power Dist. 2005 W.L. 1719690, *6 (D. Neb. 2005) ..................................... 12
Tolanda v. KFC National Management Co., 140 F.3d 1090, 1096 (7th Cir. 1998) ........................................ 35
v
Twymon v. Wells Fargo & Co., 403 F.Supp.2d921, 948-49 (S.D. Ia. 2005) .................................. 12
Udoeyop v. Accessible Space. Inc., 2008 W.L. 4681389 at *3 (D. Minn. 2008) ................................... 33
Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990) ..................................... 1, 15, 16, 17
Wimmer v. Suffolk County Police Dept., 1 F 3d r2nd 1 1 I 1 1 )
MINNESOTA CASES
Abraham v. County of Hennepin, 639 N.W.2d 342 (Minn. 2002) ....................................... 27, 28, 29
Anderson-Johanningmeierv. Mid-Minnesota Women's Center. Inc., 637 N.W.2d 270, 277 (Minn. 2002) ......................................... 20
Beltrami County v. Hennepin County, 264 Minn. 406, 119 N.W.2d 25 (1963) ...................................... 23
Borgersen v. Cardiovascular Systems. Inc., 729 N.W.2d 619,624 (Minn. Ct. App. 2007) ................................. 28
Cannon v. Rehabilitative Services. Inc., 544 N.W.2d 790,793 (Minn. Ct. App. 1996) ................................. 31
Carlson v. Independent School District No. 623, 392 N.W.2d 216 (Minn. 1986) ....................................... 2, 22,23
Cummings v. Koehnen, 568 N.W.2d 418,423 (Minn. 1997) .................................... 2, 20, 22
Doe v. State Board of Medical Examiners, 435 N.W.2d 45 (Minn. 1989) .............................................. 30
VI
Elzie v. Commissioner of Public Safety, 298 N.W.2d 29, 32 (Minn. I980) ........................................... 7
Frieler v. Carlson Marketing Group. Inc., 75I N.W.2d 558, 566 (Minn. 2008) ........................................ 2, 8
Goodman v. City of Brooklyn Center, 2007 W.L. 46289 (Minn. Ct. App. 2007) .................................. I, 11
Grothe v. Ramsey Action Programs. Inc., 2f\f\t: T 1 {l\ . . . . . . 11
Grundtner v. University of Minnesota, N.W.2d 323, 329 (Minn. Ct. App. .............................. 27, 28
Hedglin v. City of Willmar, 582 N.W.2d 897, 902 (Minn. I998) ......................................... 28
Herbert v. City of Fifty Lakes, 744 N.W.2d 226, 229 (Minn. 2008) ........................................ 7, 8
Hibbing Educational Association v. Public Employment Relations Board, 369 N.W.2d 527, 529 (Minn. I985) .......................................... 8
Holliday v. Ind. School Dist. No. 709, Case No. A05-I645, 2006 W.L. I738I68, *3 (Minn. Ct. App. 2006) .............. I 0
Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 548 (Minn. OMMNF......................................... 7
Hubbard v. United Press Int'l. Inc., 330 N.W.2d 428, 444 (Minn. 1983) .......................................... 7
Kratzer v. Welsh Companies. LLC, _ N.W.2d _, 2009 W.L. 2253235 (Minn. July 30, 2009) ......... I9, 28, 29, 30, 34
Lee v. Regents of University j I672 N.W.2d 366, 374 (Minn. Ct. App. 2003) ................................. 11
Vll
Lien decker v. Asian Woman United of j I731 N.W.2d 836, 842, n.1 (Minn. Ct. App. 2007) .............................. 11
Loew v. Dodge County Soil and Water Conservation District, case no. A-05-1574, 2006 W.L. 1229641, *8 (Minn. Ct. App. 2006) ............ 31,33
McClain v. Begley, 465 N.W.2d 680, 682 (Minn. 1991) .......................................... 8
Metro Sports Facilities, 561 kKtKO 513, 516-17 (Minn. 1997) ...................................... 22
Minnesota Mining & Manufacturing Co. v. State, 289 N.W.2d 396, 398-99 (Minn. 1979) .................................... 2, 22
Nelson v. Productive Alternatives. Inc., 715 N.W.2d 452,457 (Minn. 2006) ......................................... 21
Nordling v. Northern States Power Co., 478 N.W.2d 498, 504 (Minn. 1991) ...................................... 28, 29
Northland Countzy Club v. Commissioner of Taxation, 308 Minn. 265,241 N.W.2d 806, 809 (Minn. 1976) ............................ 22
Obst v. Microtron. Inc., 614 N.W.2d 196, 204 (Minn. 2000) ..................................... 28, 29
Ray v. Miller Meester Advertising. Inc., 684 N.W.2d 404, 406 (Minn. 2004) ......................................... 23
Sigurdson v. Isanti County, 386 N.W.2d 715 (Minn. 1986) ............................................. 22
Spencer v. State of Minn .. a K of Corrections, 2008 W.L. 668259 (Minn. Ct. App. 2008) ............................. 11, 12, 17
Tuma v. Commissioner of Economic Security, 386 N.W.2d 702, 706 (Minn. 1986) ......................................... 19
vm
Williams v. St. Paul Ramsey Medical Center. Inc., 551 N.W.2d 483,484 n.1 (Minn. 1996) ...................................... 29
Zain v. Polarfab, 2007 W.L. 1191704 (Minn. Ct. App. 2007) .................................. 12
Ziegler v. Leo A. Hoffman Center, 397 N.W.2d 378,382 (Minn. Ct. App. 1986) ................................. 31
OTHER CASES
Baker v. Miller, 636 N.E.2d 551, 557 (Ill. 1994) ............................................ 26
Board of Education ofHawthome School District No. 17 Marengo, 432 N.E.2d 298, 302 (Ill. App. 1982) ....................................... 26
Carmona v. Resorts. Int'l. Hotel, 915 A.2d 518, 528-30 (N.J. 2007) ....................................... 23, 33
Conrad v. Szabo, 480 S.E.2d 801, 814-15 (W.Va. 1996) ..................................... 23
Cox & Smith. Inc. v. Cook, 974 S.W.2d 217 (Tex. App. 1998) ....................................... 23, 34
Hanlon v. Chambers, 464 S.E.2d 741, 754 (W.Va. 1995) ......................................... 23
McCabe v. Board of Johnson Countv Commissioners, 232, 615 P.2d 780 (Kan. App. 1980) ....................................... 23
Viktron!LIKA v. Labor Commission, 38 P.3d 993, 996 (Utah App. 2001) ...................................... 23, 34
Wolfe v. Beckton Dickinson & Company, 662 N.W.2d 599, 605-06 (Neb. 2003) ................................. 12, 23, 34
STATUTES
Minn. Stat. § 82.27 ...................................................... 28
Minn. Stat. § I81.932 .............................................. 2I, 27,28
Minn. Stat.§ 3I7A ...................................................... 2I
Minn. Stat. § 363.0I ..................................................... 6
lVllnn. . . . . . . . . . . . . . . . . . .
Minn. Stat. § 363A.03, subd I3 ........................................... I5
Minn. Stat. § 363A.03 ................................................... 27
Minn. Stat. § 363A.08, subd. 2 ........................................ I, 9, 18
Minn. Stat.§ 363A.I5 ........................................... I, 6, 7, 9, 2I
Minn. Stat. § 363A.I5(1) .................................................. 3
Minn. Stat. § 363A.33, subd. I ............................................ 25
Minn. Stat. § 626.556, subd. I ............................................. 3I
Minn. Stat. § 626.556 ................................................... 2I
Minn. Stat. § 626.557 .................................................... 2I
Minn. Stat. § 645.I6 .................................................. 20, 23
Minn. Stat. § 645.I7 ..................................................... 23
Minn. Stat. § 645.I7( 4) .................................................. 30
RULES
Minn. Rule Civ. 12.02(e) ...................................................... 6 Minn. Rule 2805.200 .................................................... 28
X
STATEMENT OF THE LEGAL ISSUES INVOLVED
1. Does the Act of Delaying the Placement of an Employee on a Performance Improvement Plan (PIP) Constitute an Unfair Employment Practice (Discrimination) as Defined by Minn. Stat.§ 363A.08, Subd. 2?
The district court (The Honorable Denise D. Reilly) held "that placing an employee
on a PIP is not an actionable adverse employment action and cannot form the basis of a
discrimination claim. Because placing an employee on a PIP is not an actionable adverse
action, not placing an employee on a PIP is not an actionable adverse action." (A-77).
(Emphasis in original). (All references to the record, "A" are in reference to Appellant's
appendix).
In reversing, the court of appeals seemed to acknowledge the argument that "not every
instance of differential treatment is illegal," (A-270), but it concluded that "at least one
federal circuit has held to the contrary," (citing Vaughn v. Edel, 918 F.2d 517, 521-22 (5th
Cir. 1990) (A-270)) implying that not placing an employee on a PIP may constitute an act of
discrimination forbidden by Minn. Stat. § 363A.08, subd. 2.
The most apposite cases demonstrating that placing or not placing an employee on a
PIP is not an actionable claim of discrimination are LaCroix v. Sears Roebuck & Co., 240
F.3d688, 691 EU Cir. 2001); Coburn v. Children's Medical Center, 2004 W.L. 1347604, *4
(N.D. Tex. 2004); Brannum v. Missouri Dept. of Corrections, 518 F.3d 542, 549 (8th Cir.
2008); and Goodman v. City of Brooklyn Center, 2007 W.L. 46289 *3 (Minn. Ct. App.
2007).
2. Minn. Stat. § 363A.15 Protects an Employee from Reprisals for Opposing a Practice Forbidden Under the Minnesota Human Rights Act (MHRA). In that not Placing an Employee on a PIP is not a Forbidden Act of Discrimination, Should the Statute be Interpreted to Extend its Protection to an Employee who Opposes an Act that is not in Fact Forbidden, if the Employee Alleges that she had a Reasonable Belief the Act was Forbidden?
The district court did "not reach the discussion of whether or not the good faith
reasonable belief standard is the law in Minnesota" because Respondent's assertion that she
had opposed race discrimination "is clearly unreasonable as a matter oflaw and such a claim
cannot survive a motion to dismiss." (A-78, n.2).
In reversing, the court of appeals held (A-267), in a case of frrst impression, that the
Title VII standard should apply, and that Minn. Stat. §363.A.15 should now be read to
protect not just employees who oppose discrimination, but also to protect employees who
allege that they had a good faith and reasonable belief that the act they opposed was
discrimination.
The most apposite cases on statutory interpretation and this Court's adoption of
Federal Title VII law are Cummings v. Koehnen, 568 N.W.2d 418, 423 (Minn. 1997); 3M
v. State, 289 N.W.2d 396,398 (Minn. 1979); Carlson v. fpa k K623,392 N.W.2d216, 220-
21 (Minn. 1986); and Frieler v. Carlson Marketing Group. Inc., 751 N.W.2d 558 (Minn.
2008).
3. Assuming the Federal Title VII "Reasonable Belier' Standard is Engrafted onto the Statute, Should the Court Adopt the Federal Standard of Applying an Objective Analysis to the Profession of a Reasonable Belief, and Dismiss where the Belief is Unreasonable, as a Matter of Law?
The district court determined that the Respondent's assertion of discrimination was
"clearly unreasonable as a matter oflaw ... " (A-78, n.2). The court of appeals concluded that
the Respondent must have a subjective good faith belief in the illegality of the act, and that
such belief must be objectively reasonable. (A-266-67). However, the court of appeals then
concluded that the complaint was adequate as it alleged that Respondent had a subjective
good faith belief that Appellant "was treating LA differently on the basis of race in violation
of the MHRA." (A-269).
The most apposite cases on the proper application of the objective federal standard
are Evans v. Kansas Ci1y. Missouri School District, 65 F.3d 98, 101 (8th Cir. 1995);
Montandon v. Farmland Industries. Inc., 116 F.3d 355, 359 (8th Cir. 1997); Brannum v.
Missouri Dept. of Corrections, 518 F.3d 542, 549 (8'h Cir. 2008); and Clark County School
District v. Breeden, 532 U.S. 268,270, 121 S. Ct. 1508 (2001).
2
STATEMENT OF THE CASE
Respondent Elen Bahr brought this action against her employer, Appellant Capella
University. Her one-count Complaint alleged retaliatory discharge, in violation of Minn.
Stat.§ 363A.15(1). That section of the Minnesota Human Rights Act (MHRA) provides that
it is an unfair discriminatory practice for an employer "to intentionally engage in any reprisal
against any person because that person ... opposed a practice forbidden under this chapter ... "
The practice that the Respondent opposed was Appellant's alleged resistance to the
Respondent's suggestion that a co-employee (LA), be placed on a performance improvement
plan (PIP). The Respondent alleged that Appellant advised her to go slow in dealing with
LA's performance issues and to not place her on a PIP. (A-3, 1 10; A-8, 1 10).
In response to the Complaint, Appellant moved to dismiss pursuant to Rule 12 of the
Minnesota Rules of Civil Procedure, arguing that the practice which Bahr opposed was not
a practice forbidden under the MHRA (A-12, et seq.). The district court agreed and granted
the motion to dismiss (A-68, et seq.). In so ruling, the district court did not reach the issue
as to whether the Federal Title VII standard (which extends protection to a mistaken but
"reasonable good faith" belief of a forbidden act), should be engrafted onto the statute. The
district court determined that it need not reach the issue, because the allegation of such a
belief in this case was umeasonable as a matter oflaw.
Respondent appealed. The court of appeals reversed (A-255, et seq.). The court of
appeals decision is unclear as to whether it considered the non-PIPing of LA to be an act of
discrimination. The court gave superficial recognition to the argument that it was not, by
simply recognizing that Appellant had made the argument. The court of appeals then
concluded that "at least one federal circuit has held to the contrary." By this, the court of
appeals implied, but did not expressly state, that action complained of may be considered an
adverse act of discrimination. However, the court of appeals then at least implicitly
3
recognized that the decision to delay placing LA on a PIP was not an adverse act of
discrimination. That implication is found in the fact that the court of appeals went on to
discuss the application of the Federal Title VII standard. The court of appeals concluded that
the federal Title VII provisions "mirror" the provisions of the MHRA, and concluded that
the federal analysis should be imported and applied to the state statute.
In so doing, the court of appeals determined that the belief must be subjectively in
good faith and objectively reasonable. (A-266-67). Appellant had presented to the court a
multitude of cases holding that the placement of an employee on a PIP is an not an actionable
claim of discrimination as a matter oflaw. Appellant also presented a multitude of cases
holding that where the profession of a mistaken belief of discrimination is unreasonable, as
a matter of law, such case must be dismissed, as a matter of law. However, without any
discussion, analysis, or even reference to those cases, the court of appeals simply concluded
that Respondent's Complaint was adequate because Respondent alleged that co-employee
LA had been treated "differently." (A-269). 1
STATEMENT OF THE FACTS
This case was decided at the district court level on Appellant's Rule 12 motion to
dismiss for failure to state a claim. A judicial analysis of a complaint under that Rule requires
that all facts be presumed to be accurate and well pleaded. The legal issue is whether those
facts, assumed to be true, state a cause of action upon which relief can be granted.
Accordingly, for purposes of the district court's analysis, the court of appeals' review, and
this Court's review, the facts were and will be presumed to be as alleged in the Complaint.
1The Commissioner of the Minnesota Department of Human Rights submitted a brief as Amicus Curiae. The Commissioner took the position that the federal reasonable belief standard should be applied to the state statute. However, the Commissioner made no argument whatsoever that the decision to "go slow" in placing LA on a PIP was in fact an act of discrimination. Indeed, the Commissioner made no attempt to argue that the Respondent could have a reasonable belief that doing nothing to LA was an act of adverse discrimination against her.
4
Respondent began her employment with Appellant in its communications department
in February, 2006. (A-1, ¶ 3). She was promoted in August, and in that position managed
other staff. In June, 2006, Respondent assumed management oversight for LA, an African
American woman. (A-2, ¶ 4).
Respondent perceived that LA's performance was failing to meet expectations and
provided informal coaching to her. (Id. at ¶ 5). Respondent reported her concerns about
LA's performance to other employees within Appellant's HR department. (Id., ¶¶ 6-7).
On March 7, 2007, Appellant allegedly met with her supervisor and an HR employee
to discuss LA's performance deficiencies. Appellant believed that LA's performance
warranted a performance improvement plan (PIP). (I d., ¶ 1 0). Respondent alleges that the
Appellant's HR employee advised Respondent to "move slowly" with LA and to not place
her on a PIP. (¶ 10). Respondent alleged that other employees that she managed had been
placed on a PIP, one with great success, and with a second employee who ultimately quit.
(Id., ¶ 11 ). Respondent alleged that she continued to work with LA on her deficiencies and
continued to apprise her supervisor of LA's performance issues.
Respondent alleged that on March 27, 2007, she met with LA again to discuss
performance deficiencies, after which she met with Appellant's HR employees. She alleges
that in response, the Appellant's HR employee cautioned Respondent to "move more slowly
on the matter [ LA] she had ever moved on a performance issue," and was told that
LA "has a history" in the organization. Id. (A-4, NQFK
Respondent alleged that she was then instructed by Appellant's HR department that
it was "trying to do the right thing" and that she was to take a fine-tooth comb through LA's
performance evaluation. (A-5, ¶ 17).
Respondent alleges she then met with LA on April 11, 2008 to review her
performance, after which she advised Appellant's HR department that this treatment of LA
5
was unfair and discriminatory to LA "and to other employees." Ef KI18). She alleges that
on April16, she again advised Appellant's HR of her opinion that the treatment of LA "was
discriminatory and unfair to her AND to other people in the department." (Id., 19,
emphasis in original). Respondent also alleged that she was advised that other employees
on her team had made complaints to HR about Respondent's performance. E JSI 20).
Respondent alleges that she was advised that Appellant was reviewing her performance and
that there would be a discussion of a development plan for Respondent. (Id.,, 24).
Respondent alleges that on April 19, 2007, she advised her supervisor that she would
no longer actively participate "in the discriminatory treatment i K?E JTI 25). On June
19, 2007, Respondent met with her supervisor and with Appellant's HR employees.
Respondent alleges she was advised by her supervisor that he did not think Respondent could
tnm her situation around and discussed termination of her employment. When Respondent
declined the invitation to resign her employment, she was terminated. (A-9, 33, 34).
Respondent then brought a one count Complaint alleging reprisal discrimination in
violation of the Minnesota Human Rights Act.2 She alleged that her termination was as a
result of Respondent's "good faith reports of discriminatory treatment and refusals to
participate in discriminatory employment practices." Ef KI36).
Appellant brought a Rule 12 motion to dismiss, which was granted. Respondent then
appealed the matter to the court of appeals, which reversed the district court dismissal. This
Cou.'i then granted Appellant's petition for further review.
ARGUMENT
1. Standard of Review.
Respondent's case was dismissed pursuant to Minn. Rule Civ. 12.02( e) for failure to
state a claim upon which relief can be granted. The standard of review on a motion to
2The Complaint alleged a violation of Minn. Stat. § 363.01 et seq. It is clear, however, that the Respondent meant to allege a violation of Minn. Stat. § 363A.15.
6
dismiss is de novo. Herbertv. CityofFiftyLakes, 744 N.W.2d226, 229 (Minn. 2008). The
only legal question presented is "whether the Complaint sets forth a legally sufficient claim
for relief. It is immaterial to our consideration here whether or not the plaintiff can prove the
facts alleged." Elzie v. Commissioner of Public Safety, 298 N.W.2d 29, 32 (Minn. 1980)
(citations omitted).
The district court assumed the facts to be true. (A-73). The issue then is whether
those facts support a legally cognizable cause of action. The Respondent's alleged cause of
action is the claim that she was terminated in retaliation for her opposition to acts of
discrimination forbidden under the MHRA.
To plead a prima facie case of retaliation, a plaintiff must allege facts of(l) statutorily protected conduct; (2) adverse action; and (3) causal connection between the two.
Hooverv. Norwest Private Mortgage Banking, 632 N.W.2d 534, 548 (Minn. 2001); see also
Hubbard v. United Press Int'l. Inc., 330 N.W.2d 428,444 (Minn. 1983). This is the standard
applied by the court of appeals (A-266), and was the standard conceded by all parties, as well
as the Amicus Curiae Commissioner. (A-208). Appellant conceded, arguendo, elements 2
and 3, and the court of appeals concurred that "only the first requirement is at issue on this
appeal." (A-261). The legal issue therefore is whether by allegedly opposing the decision
to delay the placement of LA on a PIP, Respondent engaged in statutorily protected conduct.
The e defines an employee to have engaged in "statutorily protected conduct"
if she "opposed a practice forbidden under tl:Iis chapter or has filed a charge, assisted or
participated in any manner in an investigation, proceeding, or hearing under this chapter ... "
Minn. Stat. § 363A.l5. Appellant's contention is simple- the MHRA does not "forbid" the
act of delaying the decision of placing LA on a PIP. Such is not "discrimination."
While it is true the Respondent alleged that this constituted discrimination, this Court
is not bound by that legal conclusion. On a Rule 12 motion, it is Plaintiffs obligation to
7
provide the factual grounds of entitlement to relief, which requires more than labels and
conclusions and formulaic recitation of the elements of a cause of action will not do ... " Bell
Atlantic Corp. v. Twombly. 550 U.S. 544, 127 S. Ct. 1955, 1964 (2007).
We are not bound by legal conclusions stated in the complaint when determining whether a complaint survives a motion to dismiss for failure to state a claim. Legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.
Herbert v. City ofFifty Lakes, 744 N.W. 2d 226, 235, (Minn. 2008), citing Bell v. Twombly
X other internal citations omitted.
The legal issue therefore is whether the non-PIPing of LA constitutes discrimination,
not in the opinion of Respondent, but as defined by MHRA (as interpreted by the courts).
The construction of a statute is clearly a question oflaw. Hibbing Educational Association
v. Public Employment Relations Board, 369 N.W.2d 527, 529 (Minn. 1985). "The question
requires us to construe the MHRA, and a review is de novo." Frieler v. Carlson Marketing
Group. Inc., 751 N.W.2d 558, 566 (Minn. 2008). This Court "is not bound by the decision
of the court of appeals" in determining this question oflaw. McClain v. Begley, 465 N.W.2d
680, 682 (Minn. 1991).
2. Law and Argument.
As noted previously, Appellant, Respondent, the Commissioner and the court of
appeals a!! conc"rred on the elements of a retaliation claim. Simply put these are: 1)
statutorily protected conduct; 2) an adverse action; and 3) a causal connection between No.
I and No.2. The Respondent was terminated. That is an adverse action. Appellant assumed
arguendo a causal connection between the Respondent's termination and her opposition to
the alleged "discrimination" for, and/or against LA. 3 In that favoring LA by doing nothing
3The Complaint is speculative as to exactly what Respondent meant to allege. It is not clear whether a PIP is a good thing or a bad thing, in Respondent's opinion. Prior PIPs, after all, had resulted both in improved performance for one employee and a resignation by another. (Complaint, A-3, 1 11). Respondent also alleged that the non-PIPing of LA was discriminatory
8
to her is clearly not a claim of adverse discrimination, we will assume that Respondent meant
to allege that Appellant disfavored LA by not placing her on a PIP. The only remaining legal
issue therefore is whether or not the practice opposed4 is in fact "a practice forbidden under
this chapter." Unquestionably it is not.
A. To Place (or not place) an Employee on a PIP is not an Adverse Employment Action.
Discrimination on the basis of race, is of course, a practice forbidden under the
MHRA. Discrimination is defined as a refusal to hire, to discharge or to otherwise
discriminate against a person with respect to the terms and conditions of employment,
because of race. Minn. Stat.§ 363A.08, subd. 2. The parties agreed, and the district court
concurred, that an allegation of discrimination requires an allegation that a member of a
and unfair to LA "AND to other people in the department." Ef KI¶ 19). The district court confumed that the Complaint was "unclear" but simply assmned that Respondent meant to allege that Appellant "was discriminating against" LA. (A-73). That would be a natural assmnption, because the definition of discrimination is to refuse to hire, discharge or otherwise discriminate "against" a person with respect to her employment because ofrace. Minn. Stat. § 363A.08, subd. 2. Apparently the court was incorrect in its assmnption, in that Respondent's brief to the court of appeals alleged that what she meant to claim that what she objected to was the "discriminatory (favorable treatment) ofLA as well." (Appellant's brief, A-129-30, n.5) (emphasis added). Respondent's brief can be read to allege discrimination in favor of LA, against LA, in favor of LA's co-workers and against LA's co-workers. The court of appeals acknowledged that the language of the Complaint "raises other questions." (A-272). The court acknowledged that it was unclear if the Respondent meant to allege that a PIP for LA would have been beneficial, or that it was a disciplinary step against her. The court acknowledged that the Complaint invited questions. Ef K). The court of appeals concluded, however, that the Complaint could be read to allege that Respondent believed that Appellant had "discriminated against LA on the basis of her race." Id. One interpretation of Respondent's Complaint is that the non-PIPing of LA constitutes discrimination against her co-workers (whose race is not alleged). Is that too now considered actionable discrimination? The speculative nature of the Complaint itself independently supports the dismissal. In order to adequately state a claim under Rule 12, a plaintiff must plead facts sufficient to "raise a right to relief above the speculative level." Jenkins v. County ofHenmmin, 2007 W.L. 2287840 (D. Minn. 2007), citing Bell-Atlantic Com. v. Twombly, 127 Sup. Ct. 1955, 1964 (2007).
4Minn. Stat. §363A.15 prohibits retaliation because a person associates with others in a protected class, participates in the investigation of a hearing under the Act, or opposes a practice forbidden under the Act. Appellant has not at any time suggested that the Respondent's conduct does not constitute opposition under the opposition clause. We note that the United States Supreme Court in Crawford v. Metro Govermnent ofNashville and Davidson County, TN, U.S. _, 129 S. Ct. 846 (2009) weighed in on and arguably expanded the defmition ? K?However, we have not challenged the argument that the Respondent engaged in opposition. Our argument is more simple. The conduct the Respondent opposed was not forbidden conduct.
9
protected class "suffered an adverse employment action" and that non-members ofher class
were treated differently. See district court at A-75, citing Hayes v. U.S. Bank Corp. v. Piper
Jaffray, Inc., Case No. 03-4208 RHK/AJB, 2004 W.L. 2075560 (D. Minn. 2004); Holliday
v. Ind. School Dist. No. 709, Case No. A05-1645, 2006 W.L. 1738168, *3 (Minn. Ct. App.
2006), citing Fisherv. Pharmacia and Upjohn, 225 F.3d 915,919 (8'h Cir. 2000).
The district court determined as a matter of law that in light of the fact that placing
an employee on a PIP is not an adverse action as a matter oflaw, not placing LA on a PIP
is clearly not a forbidden and adverse discriminatory act. The court was clearly correct in its
legal conclusion.
An adverse employment action is a tangible employment action. Burlington
Industries. Inc. v. Ellerth, 524 U.S. 742, 761, 118 S. Ct. 2257 (1998). In order to prove a
violation of Title VII, plaintiff must show "that she suffered an adverse employment action
that affected the terms or conditions of her employment." Hayes, supra, citing Ledergerber
v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997).
While a tangible, and therefore actionable employment action may constitute
something less than a discharge, all of the federal courts, including the Eighth Circuit, have
"consistently held a change in non-tangible working conditions, no matter how unpleasant,
fails to constitute a 'material employment disadvantage' necessary to establish an adverse
employment action under. . . Title VII. .. " Haves v. U.S. Bank Corn. Piner Jaffray. Inc.,
2004 W.L. 2075560 (D. Minn. 2004), citing Jones v. Fitzgerald, 283 F.3d 705,714 (8th Cir.
2002).
A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.
Burlington Industries. Inc. v. Ellerth, 524 U.S. 742, 761 118 S. Ct. 2257 (1998); see also
Spears v. Missouri Dept. of Corrections and Human Resources, 210 F.3d 850, 853 (8'h Cir.
10
2000) (a poor performance rating is not an adverse employment action as a matter oflaw).
Prior to this case, the court of appeals had repeatedly and expressly applied this same
standard to claims brought under the MHRA.
"This court in a whistleblower action has adopted the definition of adverse
employment action used by the 8'h Circuit to evaluate Title VII violations: an ultimate
employment decision that creates a material change in the terms or conditions of . . .
employment." Grothe v. Ramsey Action Programs. Inc., 2006 W.L. 1529447 (Minn. Ct.
App. 2006), citing Lee v. Regents of the University of Minnesota, 672 N.W.2d 366, 374
(Minn. Ct. App. 2003) (emphasis added). The definition of an adverse employment action
is the same under Title VII and the MHRA. LaCroix v. Sears Roebuck & Co., 240 F.3d 688,
690 (8th Cir. 2001 ). "Unpalatable transfers and low performance reviews are generally not
actionable." Spencer v. State ofMinn .. Dept. of Corrections, 2008 W.L. 668259, *4 (Minn.
Ct. App. 2008), citing Montandon v. Farmland Industries. Inc., 116 F.3d 355, 359 (8th Cir.
1997).
Placing an employee on a "work plan" is not an adverse employment action, and
therefore not discrimination under the MHRA. Goodman v. City ofBrooklvn Center, 2007
W.L. 46289 (Minn. Ct. App. 2007); citing Stewart v. Evans, 275 F.3d 1126, 1136 (D.C. Cir.
2002). "To satisfy the adverse employment action element, the employee must establish the
employer's conduct resulted in a 'material change in the terms or conditions of her
employment.' Lee v. Regents ofUniversity of Minnesota, 672 N.W.2d 366, 3 74 (Minn. Ct.
App. 2003), quoting Ledergerberv. Strangler, 122 F.3d 1142, 1144 (8th Cir. 1997). Only an
"ultimate employment decision" was "intended to be actionable under Title VII."
Ledergerber, 122 F.3d at 1144. The Minnesota Court of Appeals has previously "adopted
the gth Circuit 'ultimate employment decision' test for retaliatory actions applied in Federal
Title VII whistleblower actions." Liendecker v. Asian Woman United of Minnesota, 731
11
N.W.2d 836, 842, n.l (Minn. Ct. App. 2007). Where a plaintiff is transferred and reassigned
with no loss of pay, that plaintiff has not suffered an adverse employment action as a matter
of law. Zain v. Polarfab, 2007 W.L. 1191704 (Minn. Ct. App. 2007). The present case
cannot be reconciled with the above holdings.
There is an important public policy principle that mandates that only ultimate
employment decisions be actionable, as otherwise "every trivial personnel action that an
irritable chip on the shoulder employee did not like would form the basis of a discrimination
suit." Breiland v. Advanced Circuits. Inc., 976 F.Supp. 858, 865 (D. Minn. 1997). "Unless
we interpret FEP A to require a reasonable good faith belief, employees who fear dismissal
could exploit FEP A by filing a frivolous claim or with a lengthy costly retaliation suit."
Wolfe v. Beckton Dickinson & Company, 662 N.W.2d 599, 605-06 (Neb. 2003). A different
rule would be "sending the message to employers that even the slightest nudge or admonition
(however well intentioned) given to an employee can be the subject of a federal lawsuit."
Sweeneyv. West, 149 F.3d 550, 557 (7'h Cir. 1998), cited with approval in Spencerv. State
Department of Corrections, 2008 W.L. 668259 (Minn. Ct. App. 2008).
Applying this standard, the federal courts, without known exception, have held that
placing an employee on a PIP is not an actionable claim for discrimination. For a sampling
of the cases reaching this conclusion, see Pulleyv. hKmK.M.G. Consulting. Inc., 348 F.Supp.2d
388, 394-95 (D. Md. 2004) ("Placement on a PIP [does not] constitute adverse employment
actions ... the decision to place him on a PIP did not adversely alter the conditions of his
employment, because it was designed to permit Pulley to continue his employment.");
Twymon v. Wells Fargo & Co., 403 F.Supp.2d 921, 948-49 (S.D. Ia. 2005) ("Plaintiff's
placement on the PIP does not constitute an adverse employment action."); Given v. Singular
Wireless, 396 F.3d 998-999 (8th Cir. 2005) ("placing Given on a 'performance improvement
plan' without more, did not constitute an adverse employment action."); Tennant v. Omaha
12
Public Power Dist. 2005 W.L. 1719690, *6 (D. Neb. 2005) (Plaintiffs "placement on a
performance improvement plan that was extended beyond the initial time period does not rise
to the level of 'ultimate employment decision' so as to be actionable under Title VII.");
Hernandez v. Muns, 1996 W.L. 661171, *7, 101 F.3d 698 (5th Cir. 1996) (table) ("The
placement of Hernandez on the PIP does not rise to the level of an ultimate employment
decision of the character that Title VII was intended to address."); Coburn v. Children's
Medical Center, 2004 W.L. 134 7604, * 4 (N.D. Tex. 2004) ("with respectto her ... PIP, courts
have consistently held that such evaluations and write-ups are not ultimate employment
decisions." "Issuance of a PIP" is not an ""ultimate employment decision" that would rise
to the level of an actual adverse employment action ... "); Cottman v. Rubin, 2001 W.L.
257830 *3 (D. Md. 2001); affd. 35 Fed. Appx. 53 (4'h Cir. 2002), ("the agency's decision
to place Cottman on a PIP cannot even remotely be considered an "ultimate employment
decision" and therefore is not actionable") cited in Brown v. Sybase. Inc., 287 F.Supp.2d
1330, 1342 (S.D. Fla. 2003).
Indeed, at least one court has reached the self-evident conclusion that in that placing
an employee on a PIP is not an adverse action, not placing an employee on a PIP is not an
adverse action. In Cullom v. Brown, 209 F.3d 1035 (7th Cir. 2000) the Plaintiff alleged, as
an adverse action, his receipt of an overly generous performance evaluation and "his failure
to be placed on a PIP." Id. at 1040. The court noted that per that employer's policy, a PIP
could be in place only after an unsatisfactory rating in job performance, and t.l-tat a PIP could
then result in termination, or a failure to promote. The court held that "the adversity of an
employinent action is judged objectively, and no reasonable person would call 'adverse' an
employer's failure to demote him to a remedial program and place him on probation." Id.
at 1041. "While Title VII prevents employers from punishing their employees from
complaining about discrimination, it does not prevent an employer from unjustifiably
13
rewarding an employee to avoid a discrimination claim." (Id.) In light of the overwhelming
precedent establishing that placing an employee a PIP is not an adverse act of
discrimination "it would be strange to label as an "adverse action" evaluations that employee
complains are "too good."" (ld.)
An allegation of engaging in protected activity is an essential element ofRespondent' s
cause of action. Where the conduct alleged in the Complaint is clearly is not protected, as
a matter oflaw, the Respondent has failed to plead an essential element ofher case. She has
failed to allege a cause of action upon which relief can be granted and the claim is properly
dismissed pursuant to Rule 12. Garrett v. Celanese Corp., 2003 W.L. 22234917 at *3 (N.D.
Tex. 2003) (internal citations omitted) (emphasis added). "A motion under Rule 12(b)(6)
tests the legal sufficiency of the claim stated in the complaint and must be evaluated on the
sole basis of the pleadings." Garrett, supra, at *1. While the facts alleged must be assumed
to be true, "however, to avoid dismissal, the plaintiff must plead specific facts, not mere
conclusory allegations." Id. "Furthermore, a dismissal is appropriate where the complaint
contains no allegation regarding a required element of the claim asserted." ld. "In the
present case, the only facts supporting Garrett's Title VII discrimination and retaliation
claims are that she received a poor evaluation and was placed on a PIP. As a matter oflaw,
these acts do no rise to the level of ultimate employment actions." Id. at *3. As a result, the
plaintiff"cannot make out a prima facie case for employment discrimination or retaliation ...
[and]. .. therefore ... are dismissed." I d.
The court of appeals, however, suggested, without any reference to any of the above
case law, that the decision to not place LA on a PIP is in fact an act of discrimination
prohibited by the MHRA. In her amicus brief, the Commissioner did not contend that LA
suffered an adverse employment action, only that the reasonable belief standard should be
imported (without addressing whether or not there could be a reasonable belief under the
14
circumstances). Indeed, the court of appeals did not expressly conclude that the non-PIPing
ofLA is an adverse employment action. Instead, the court only by implication suggested that
RK
First, the court concluded that the Complaint alleged that Appellant was "treating LA
differently on the basis of race in violation of the MHRA." (A-269) citing Minn. Stat.§
363.A.08, subd. 2 (3). That section however, defines unfair cmploymentpractices to include
prohibition of discrimination against the person with respect to hiring, compensation and
terms of employment. It does not address what level or finality of the action is necessary to
constitute "discrimination," and to our knowledge no court, state or federal, has ever
extended its discrimination protections simply to treating an employee "differently." The
MHRA defines discrimination to "segregate or separate ... " Minn. Stat.§ 363A.03, subd. 13.
Respondent argued only that LA had been segregated. (A-44, 129, 149). It is manifestly
clear, however, that "segregation" without a material and adverse change is not
discrimination. Colenburgv. pq ARCONinternational. Inc., 2009 W.L. 1536503, *6, n.9 (D.
Minn. 2009).
Beyond that, the court of appeals simply gave a nod to Appellant's assertion that "not
every instance of differential treatment is illegal." (A-270). Without any further
consideration, the court simply declared that "at least one federal circuit has held to the
contrary. (A-270). Specifically, the court cited to s v. Edel, 918 cKO I517, 521-22
(5th Circuit 1990). Appellant respectfully suggests that that reliance was misplaced.
Emma Vauglm was terminated by her employer, Texaco, Inc. Vauglm, a black female
attorney, went off on maternity leave, and when she returned, her supervisor, one Mr. Robert
Edel, complained about the low volume of her work. Her complaint about the criticism
5Indeed, the court of appeals posed the question as to whether Respondent could "reasonably conclude that the withholding of a PIP, without other losses, was singularly harmful." (A-272). Unfortunately, the court did not answer the question.
15
resulted in Ms. Vaughn being referred to as the "black matriarch within Texaco." Vaughn,
918 F .2d at 519. Duly alarmed, the legal department at Texaco advised Mr. Edel not to have
any confrontations with Ms. Vaughn about her work, "to avoid charges of race
discrimination." Vaughn was ultimately fired two years after this issue, but received
"satisfactory" performance evaluations in that two-year interim.
Texaco contended that Vaughn had been terminated for poor performance and offered
evidence to prove its contention. In response to the argument that Vaughn's evaluations had
been satisfactory for two years, Texaco claimed that those positive evaluations had been
"intentionally overstated." Texaco contended that Vaughn was terminated after a cost
savings study identified Vaughn as the "poorest performer." Whether or not the treatment
of Vaughn could be considered an adverse and tangible job action was not even discussed.
What was discussed was the fact that Vaughn's performance was in fact poor, from
which the defendant argued that there was no race discrimination afoot, as they fired Vaughn
for poor performance, which it admittedly was able to prove. In rejecting the argument, the
court simply noted that ''Texaco's treatment of Vaughn was not color blind during" the two
year period between the matriarch comment and her termination. I d. at 522. At no time did
the court even touch upon the issue as to whether or not any ofTexaco's actions constituted
an adverse and ultimate employment action. Instead, the court rejected Texaco's argument
that its termination decision was color-blind, in that the non-PIPing of Vaughn may have
contributed to her performance deficiencies, which in tu ... -n resulted in her termination. The
Vaughn court did not determine that the non-PIPing was an adverse employment action, only
that the non-PIPing, which was admittedly related to her race, contributed to her ultimate
termination.
Accordingly, the "at least one federal circuit" upon which the court of appeals pinned
its entire decision (and rejection of dozens of other federal cases), did not even discuss the
16
issue involved in this case. Such reliance was clearly misplaced.6
The Federal Title VII decisions have uniformly confirmed that to constitute a
protected act of discrimination, there must be an ultimate, final, adverse and tangible
employment action. Heretofore, the Minnesota Court of Appeals had followed the federal
lead. The appellate decision now under review suggests, at least by implication, that such
a non-final, transitory and intangible thing as an employer's decision to "go slow" in placing
an employee on a PIP is an act of discrimination, forbidden by the MHRA. Such a
conclusion is an extreme and unprecedented extension of the scope and reach of the MHRA.
It finds no support in any federal case, and is inconsistent with a number of other Minnesota
Court of Appeals decisions. It is contrary to a well-articulated public policy. This decision
clearly would be "sending the message to employers that even the slightest nudge or
admonition (however well-intentioned) given to the employee can be the subject of a federal
lawsuit." p KWest, supra. 149 F.3d 550, a case cited with the approval by the court
of appeals last year; Spencer v. State Department of Corrections, 2008 W.L 668259 at *4
(Minn. Ct. App. 2008).
With this decision, employees are now at liberty to bring a lawsuit every time they
disagree with an evaluation, review, reprimand, or other internal and transitory management
decision. They can sue if they are placed on a PIP, and if they are not placed on a PIP. In
response to a motion to dismiss any such claim, they can cite Bahr v. Capella University for
the proposition that treating employees "differently on basis of race" is in violation of the
60ther courts have noted that in Vaughn, the lack of correction of the plaintiff's performance "led directly to the employee's subsequent poor performance and termination." Jordan v. Radiology hnaging Assoc., 577 F.Supp.2d 771, 779-80 (D. Md. 2008). In and of itself, a PIP cannot be an adverse action. Read properly, Vaughn simply means that if a PIP or a non-PIP leads to a termination, that PIP can be considered as part of the evidence of discrimination, but it is not adverse act in and of itsel£ "A negative performance review is not in itself an adverse employment action and it is actionable only if the employer subsequently uses that review to alter the terms and conditions of employment to the detriment of the employee." Spencer, supra, (Minn. Ct. App.) citing Burchett v. Target Corp., 340 F.3d 510, 519 (8th Cir. 2003). (A-36-37).
17
MHRA. This is expressly contrary to the federal view of the issue. The authority of a
supervisor "would be seriously undermined if members of the staff were able to contest every
administrative action that struck a dissident note with their personal view." Evans v. Kansas
City Missouri School District, 65 F.3d 98, 101-02 (8th Cir. 1995). Even a casual reading of
the federal decisions would confirm the conclusion that not placing LA in a PIP is not an
ultimate employment decision. "Not even remotely." Brown v. Sybase, supra, 287 F.Supp.
at 1342.
It is respectfully suggested that this Court take the opportunity to confirm that an act
of discrimination, as described by Minn. Stat. § 363A.08, subd 2, applies only to ultimate
employment decisions which result in a material and tangible adverse change in the terms or
conditions of employment.
B. Should the Title VII Good Faith Reasonable Belief Standard be En grafted onto the Statute?
The decision below notwithstanding, placing an employee on a PIP is unquestionably
not a tangible and adverse employment action; it is not an action "forbidden under the"
MHRA. Even assuming all of the facts as alleged in the Complaint to be true, they do not
allege a claim upon which relief can be granted. Respondent is not protected by the anti-
retaliation provisions of the MHRA, because she did not engage in statutorily protected
conduct.
Accordingly, any prospects of the continued existence of the Respondent's claim
depend upon excusing the fact that the act was not forbidden in favor of an allegation that
the Respondent allegedly believed that it was. That then raises the question as to whether the
Title VII standard should be imported into the interpretation of the state statute. Appellant
has at all times conceded that such is the standard routinely applied by the federal KT
7The United States Supreme Court had expressly not decided the issue. In Clark County School Bd. v. Breeden, 532 U.S. 268, 270 (2001), the Court took note of the fact that various federal jurisdictions had adopted this standard, but expressly stated that it has "no occasion to
18
Appellant suggests that there are substantial reasons that the federal scheme should not be
imported in this instance.
To be clear, Appellant contends it is inarguable that if the Title VII standard is
imported, the claim must be dismissed in any event. The determination of a plaintiffs
profession of a reasonable belief is quite clearly an objective standard, one that must be
analyzed "in light of the applicable substantive law." Brannum v. Missouri Dept. of
Corrections, 518 F.3d 542, 549 (8'h Cir. 2008). As noted, supra (n.7), the claim must be
dismissed if"no one could reasonably believe that the incident recounted violated Title VII."
Clark, 532 U.S. at 270. However, the initial determination for this Court is whether the
federal standard should be applied in the first place.
Appellant contends that the statute is plain and unambiguous on its face, and there is
therefore no basis to consider Federal Title VII. The statute requires no interpretation, just
enforcement. "We look beyond the plain language of the statutory or regulatory provision
only if the text is ambiguous." Kratzer v. Welsh Companies. LLC, _ N.W.2d _, 2009
W.L. 2253235 (Minn. July 30, 2009). "In a situation such as this, "where the words of [the
rule] are clear and free from ambiguity, we have no right to construe or interpret the [rule's]
language. Our duty in such a case is to give effect to the [rule's] plain meaning." Kratzer,
I quoting Tuma v. Commissioner of Economic Security, 386 N.W.2d 702, 706 (Minn.
1986).
Wnere a statute clearly and unambiguously defines the scope of its J
provisions, this Court has rejected the invitation to import different protections on public
rule on the propriety of this interpretation, because even assuming it is correct, no one could reasonably believe that the incident recounted [in this case] violated Title VII." In that, the district court below followed the Supreme Court lead, concluding expressly that it "does not reach the decision of whether or not the good faith reasonable belief standard is the law of Minnesota because Plaintiffs assertion that Defendant was discriminated against [LA] when it did not PIP her is clearly unreasonable as a matter of law and such a claim cannot survive a motion to dismiss." (A-78, n.2).
19
policy grounds. See Anderson-Johanninweier v. Mid-Minnesota Women's Center, Inc.,
637 N.W.2d 270, 277 (Minn. 2002).8 "We are not free to disregard the words of a statute
"under the pretext of pursuing the spirit" if the words are free from ambiguity ... [W]e will
not look beyond its text to search for an unexpressed public policy requirement" Anderson-
Johannigmeier supra, 637 NW 2d at 276. (internal citations omitted). Appellant defers to
the argument of Respondent below.
According to canons of statutory construction, "when the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded ... Minn. Stat.§ 645.16.
Respondent's brief to the court of appeals (A-110).
Words of a statute should generally be given their normal meaning; "thus, in the
absence of ambiguous language, we may not consider legislative history or intent except as
it is embodied in the statute's terms." Cummings v. Koehnen, 556 N.W.2d 586, 590 (Minn.
Ct. App. 1996). In that we find endorsement in the amicus briefbelow.
Statutory interpretation is a question of law, which this Court reviews de novo. The goal of statutory interpretation is to ascertain the Legislature's intent. Minn. Stat.§ 645.16 (2006). When the plain meaning of a statute is clear, a court must apply its plain language. Id.
Brief of Amicus Curiae, (A-208).
On its face, the statute protects an employee from retaliation where she has opposed
an act forbidden under the MHRA Respondent would have this Court insert the words
"reasonably believed to be" in front of the word "forbidden." There is no ambiguity
justifying such a re-write.
8 When we interpret a statute, we must ascertain and effectuate the intention of the legislature. We will not disregard the words of a statute if they are free from ambiguity. Thus, we begin our analysis with the statutory language.
Anderson, 637 N.W.2d at 273.
20
Further, the canons of statutory construction would suggest that the legislature has
deliberately not inserted those words. The legislature obviously knows how to write a good
faith exception into a retaliation provision. It did so in Minn. Stat§ 181.932; § 626.556 and
§ 626.557. It has had many years to write a similar provision into the Minnesota Human
Rights Act. The MHRA was first passed in 1955, which included a reprisal provision. The
language of the provision itself, however, was subsequently amended in eight separate
legislative sessions. 9 In none of the eight occasions that the legislature revisited this
language did it extend the protection not just to a violation of law, but a mistaken belief of
a violation of the law. No reading of the "plain language" of this statute would allow this
Court to insert the language that the legislature presumably chose to omit. Expressio unius
exclusio alterius. 10 This Court has previously declined "to read into [a] statute a provision
9MHRA, Minn. Stat § 363A 15 (2009) (former version at ch. 897, §§ 12 to 16, Laws 1967 (re-wording); ch. 975, §§ 3 to 5 and ch. 9, § 80, Laws 1969 (complete overhaul of the reprisal section; reprisal section given its own subsection and substantially altered and expanded); ch. 296, § 1 and ch. 729, §§ 3, 16, Laws 1973 (again substantial1yreorganized andre-worded into a new subsection); ch. 531, § 4 and ch. 540, §§ 1, 2, Laws 1980 (significant text added against reprisals andrea! estate contacts); ch. 330, § 1, Laws 1981 (definition of what reprisal includes was added); ch. 216, art. 1, §59 and ch. 276, §§ 7 to 10, Laws 1983 (language concerning reprisals for association with certain groups amended); ch. 280, §§ 9 to 14, 21, Laws 1989 (re-wording); and ch. 171, § 1, Laws 1997 (adding language so that a reprisal by any individual is prohibited)).
10In Nelson v. Productive Alternatives. Inc., 715 N.W.2d 452, 457 (Minn. 2006), this Court considered both statutory and connnon law whistleblower claims. PlaintiffNelson, who was both an employee and a member ofthe defendant non-profit, alleged that he was wrongfully discharged as an employee in retaliation for his exercising his voting rights as a member. He alleged his termination violated Minn. Stat. § 317 A. This Court affirmed the dismissal:
But since it is undisputed that the actions Nelson attributes to Productive Alternatives are not among the various practices prohibited by Minn. Stat. § 317 A, we must conclude that the legislature has implicitly reserved those actions to the discretion of Productive Alternatives. In so doing, we abide by the canon of statutory construction, "expressio unius excelusio alterius," meaning expression of one thing is the exclusion of another.
*** That is, since the legislature has extensively expressed the rights and privileges of membership in a non-profit corporation, and since protection from reprisal employment discharge is not among these
21
that the legislature "purposely omits or inadvertently overlooks." Metro Sports Facilities,
561 N.W.2d 513, 516-17 (Minn. 1997). The legislature has never expressly made an
employer liable to an employee who opposed action which she mistakenly thinks is illegal.
"Since the legislature could readily have" made this change "by adding a single phrase to the
statute, as other jurisdictions have done, we presume that the omission was deliberate."
Northland Country Club v. Commissioner ofTaxation, 308 Minn. 265, 241 N.W.2d 806, 809
(Minn. 1976).
There is no ambiguity to justify looking beyond the plain language of the statute.
Further, the court of appeals was incorrect when it concluded the state and federal acts are
mirror images. It is true that this Court has often adopted Title VII law in interpreting the
MHRA, at least when it comes to procedural issues. For example, this Court has adopted the
federal McDonnell-Douglas analysis in cases presenting only circumstantial evidence of
discrimination. See, K KISigurdson v. Isanti County, 386 N.W.2d 715 (Minn. 1986).
However, it is also true that this Court has declined to follow federal Title VII law
where there are substantive differences between the state and federal acts. For example, in
Cummings v. Koehnen, 568 N.W.2d 418 (Minn. 1997), this Court declined to follow the
federal rule because the federal and state statutes differ significantly in their treatment of
sexual harassment. Title VII precedent is not followed if it is "not similar." I d. at 422, n.5.
In Minnesota Mining & Manufacturing Co. v. State, 289 N.W.2d 396, 398-99 (Minn. 1979),
Court refused to follow the federal interpretation of sex discrimination and held that
discrimination based upon pregnancy or childbirth is sex discrimination under the MHRA,
despite the fact that the United States Supreme Court had reached a different conclusion in
its interpretation of Title VII. In· Carlson v. Independent School District No. 623, 392
N. W.2d 216, 222 (Minn. 1986), this Court considered the differing legislative obligations as
express protections, we must conclude that the legislature meant not to protect members from such practices.
22
to exhaustion of remedies and the time lines for filing of civil actions. This Court determined
that it would follow the state interpretation of the filing provisions rather than the federal
provisions, due to "significant differences" between the two. Carlson, 392 N.W.2d at 220-
21. In Ray v. Miller Meester Advertising. Inc., 684 N.W.2d 404, 406 (Minn. 2004), this
Court considered the Title VII provision for an award of doubling of remedies, and
contrasted that to the state common law. The court declined to follow the Federal Title VII
damage principles in interpreting the MHRA, in part because the language was not
"sufficiently similar." 684 N.W.2d at 469.
There are substantive differences between the state and federal acts, both in the
language of the acts themselves, and in the procedural enforcement of claims under the acts.
Unlike Title VII, the state legislature has declared it to be a policy of the MHRA to
protect employees from retaliation, but also protect employers from "wholly unfounded
charges." Minn. Stat.§ 363A.02, subd. l(b). There is no parallel provision in Title VII.
Unless we assume the legislature inserted superfluous language, it must be given some effect.
The legislature has determined that this Court should give effect to all of the provisions of
a statute. Minn. Stat. § 645.16. The legislature intends that the law be effective and certain.
Minn. Stat. § 645.17. This Court is to avoid a result that would render any word or phrase
superfluous, void, or insignificant. Beltrami County v. Hennepin County, 264 Minn. 406,
119 N.W.2d 25 (1963). This language must be given some effect. 11
11Respondent contends (A-246-47) that other states have applied the good faith standard despite the fact that the statute does not contain the good faith language, citing Carmona v. Resorts. Int'l. Hotel, 915 A.2d 518, 528-30 (N.J. 2007); Wolfe v. Beckton Dickinson & Co., 662 N.W.2d 599, 605 (Neb. 2003); Viktron!LIKA v. Labor Connnission, 38 P.3d 993, 996 (Utah App. 2001); Cox & Smith. Inc. v. Cook, 974 S.W.2d 217 (Tex. App. 1998); Hanlon v. Chambers, 464 S.E.2d 741, 754 (W.Va. 1995); Conrad v. Szabo, 480 S.E.2d 801, 814-15 (W. Va. 1996); and McCabe v. Board of Johnson Countv Connnissioners, 615 P.2d 780 (Kan. App. 1980). Respondent alleges that these state statutes contain "language similar or identical to Title VII and the MHRA." (A-247). That, of course, cannot be a true statement because Title VII and the MHRA themselves do not contain similar or identical language. More specifically, none of the cases cited by Respondent contains an announcement of public policy to expressly protect employers from wholly unfounded charges of discrimination. These cases are therefore irrelevant to this issue here.
23
In assessing the issue, the court of appeals did not give any effect to that language, but
instead found that an employer was adequately protected from unfounded charges under the
Federal Title VII scheme. Appellant disagrees.
First, the court noted that while Title VII does not expressly condemn unfounded
charges, this does not mean that it "in any sense invites them." (A-266). Appellant suggests
this offers nothing in an attempt to determine what effect should be given to the language.
It is true that neither Title VII nor the MHRA expressly invite unfounded charges. However,
it is also true that only the MHRA expressly condemns them.
Second, the court of appeals found comfort in the fact that under the Title VII scheme,
a plaintiff must have a subjectively good faith belief, and that such belief must be objectively
reasonable. The court initially recognized the necessary import of this; i.e., "if no reasonable
person could have believed that the underlying incident complained of constitutes unlawful
discrimination, then the employee's objection is not protected conduct." (Id.) That is a
correct statement ofF ederal Title VII law. The accurate analysis of that element should have
led immediately to the conclusion that the Respondent's belief that Appellant discriminated
against LA was unreasonable, as a matter of law. This conclusion, in tum, should have
resulted in an affirmation of the district court's dismissal.
Any federal court would have dismissed this case if pleaded as a Title VII claim,
despite the fact that Congress has not embedded the same employer protection provision in
Title VII. In that the state legislature has provided such employer protection, it is manifestly
clear that in this particular case, the employer did not receive even that level of protection
against "unfounded charges" it would have received in federal court. Indeed, the
Commissioner argued below that the employer does receive protection from wholly
unfounded charges of discrimination under the state statutory scheme, and that the MDHR
effectuates that policy as follows:
24
The MHRA further directs the Commissioner to "make an immediate inquiry when it appears that a charge [of an unfair discriminatory practice] is frivolous or without merit" and to dismiss the charge. Minn. Stat 363. 28 subd. 6( a). The MHRA does not permit frivolous allegations of discrimination to move forward.
The Brief of Amicus Commissioner (A-209).
Thus, the Commissioner would have it that the employer is protected from unfounded
charges through the Commissioner's obligation to make an immediate inquiry and dismiss
meritless charges. That is all well and good, if a Plaintiff chooses to first present her claim
to the Minnesota Department of Human Rights (MDHR). In such a situation, according to
the Commissioner of the Department, there will be an immediate inquiry and if the charge
appears frivolous or without merit, it shall not move forward.
What neither the Commissioner nor the court of appeals addressed, however, is what
occurs when a plaintiff chooses to bypass the MDHR and sue the case out directly in district
court. That is, to present a Federal Title VII case in Federal District Court, the plaintiff is
obligated to first file an administrative charge with the EEOC and exhaust that administrative
remedy, as part ? integrated, multi-step enforcement procedure ... " Occidental Life Ins.
Co. of California v. EEOC, 432 U.S. 355, 359 (1977). In this, the federal procedure is
substantially different from the state scheme, in that under the MHRA the option of
proceeding first with an administrative charge with the MDHR is just that- an option. A
plaintiff can instead choose to go straight to district court litigation. Under the MHRA "[a]
person may bring a civil action seeking redress for an unfair discriminatory practice directly
to district court." Minn. Stat. § 363A.33, subd. 1.
By doing so, the plaintiff is at total liberty to bypass the "immediate inquiry'' of the
Commissioner and proceed with her frivolous charge.
What then is the effect of Minn. Stat. § 363A.03, subd. 1, and the Commissioner-
provided protection from unfounded charges in a direct action such as this? One could
25
suggest that in the case of a direct action, the requirement should be that the district court
judge assume the role of the Commissioner, perform an "immediate inquiry," and dismiss
the charge if it is frivolous and without merit In this case, the Honorable Denise D. Reilly
did precisely that. Unfortunately, the court of appeals overruled that immediate inquiry, and
reinstated the meritless charge.
Other states with civil rights acts containing identical language have rejected the
concept of a direct action expressly because of the filtering role played by the
Commissioner.12
The language of the federal and state acts are different. The state legislature has
expressly noted that employers should be protected from unfounded charges. Title VII
contains no such express protection. The procedures of the two acts are substantively
different. Under the federal scheme, administrative exhaustion is required, whereas under
12The lllinois Human Rights Act contains the identical provision. See lllinois Revised Statute, 1980 supplement chapters 68, parts 1-101 et seq.; part 1-102 (A). The Appellate Court of Illinois has expressly held that ''the legislature established procedures to determine the validity of a complainant's charge" expressly "in order to effectuate these goals of equal employment opportunity for the employee and protection for the employer against unwarranted claims ... " Board of Education of Hawthorne School District No. 17 Marengo, 432 N.E.2d 298, 302 (Ill. App. 1982).
In Baker v. Miller, 636 N.E.2d 551, 557 (Ill. 1994), the Illinois Supreme Court considered whether to allow a direct action. The Illinois Human Rights Act, unlike the Minnesota Act, provides an exclusive remedy. However, it defmes its employer to be a business with 15 or more employees. V/hat then of a plaintiff that is employed by an employer of less 15. Does she have no cause of action whatsoever? Or does she have the right to a direct action? To resolve the issue, the court determined that the statute would be read to allow that employee to also bring an action against the small employer through the Human Rights Commission rather than to provide a direct action. The court noted that under an administrative claim process, the Department of Human Rights "is mandated to conduct an investigation to determine the meritoriousness of a claim prior to filing a complaint with the e Rights Commission." The court noted that if the employee were allowed a direct action, the employer would lose the protection provided by the administrative scheme, which would "leave small employers at risk to pay potentially bankrupting sums, including punitive damages." Id. The irony of this case, of course, is that Respondent was allowed to bypass the Commissioner's immediate inquiry and bring a direct action, but when the district court stepped into the shoes of the Commissioner and made the same immediate inquiry, her decision was reversed. In so doing, the court of appeals distorted the definition of discrimination and expanded the level of protection to employees who bring erroneous claims of discrimination. Appellant received precious little protection from this unfounded charge.
26
the state scheme, it is optional. The court of appeals found that Title VII properly protected
employers from unfounded charges. However, under Title VII, the. charge must first proceed
to the EEOC, which would presumably perform a role similar to the Commissioner of the
MDHR, and screen frivolous and unfounded charges. That screening protection is lost where
a plaintiff bypasses the MDHR and proceeds with a direct action.
The statutory language of Minn. Stat. § 363A.03 must be given some effect. This
would suggest that the statute should not be read to protect against opposition to acts that are
mistakenly believed to be forbidden by the act, but should instead be interpreted to read
exactly as legislature wrote it; i.e., to protect against retaliation for opposition "to conduct
forbidden under this" act
Finally, the reasonable belief standard is inconsistent with the standard that this Court
has fashioned and applied to other retaliation claims.
For example, the whistleblower statute extends its protections to employees who
oppose a violation oflaw, but also to an employee who in "good faith" reports a violation "or
suspected violation" of federal or state law. Minn. Stat.§ 181.932. On its face one could
assume that standard would be easier to meet than the retaliation standard of the MHRA,
which requires a "forbidden" act, not a "suspicion" that the act is forbidden. However, this
Court's interpretation of the whistleblower statute does not support that assumption; indeed,
ti-..is Court's interpretation of Minn. Stat. § 181.932 has been more constrained than the court
of appeals interpretation of the MHRA below.
While the whistleblower plaintiff need not specifically name the rule or law, the
plaintiff must at least allege facts which, "if proven would constitute a violation of a law or
rule adopted pursuant to law." Grundtner v. University of Minnesota, 730 N.W.2d 323, 329
(Minn. Ct. App. 2007), citing Abraham v. County of Hennepin, 639 N.W.2d 342, 354-55
(Minn. 2002). "The mere suggestion of improper conduct, which the University refrained
27
from following, did not amount to statutorily protected conduct." Grundtner, 730 N.W.2d
at 330, citing Borgersen v. Cardiovascular Systems, Inc., 729 N.W.2d 619, 624 (Minn. a. App.2007).
This Court has recently reaffirmed that position in Kratzer v. Welsh Cos., LLC, 2009
W.L. 2253235 (Minn. 2009). In that case, the plaintiff brought a claim under the
whistleb1ower statute. Plaintiff had been terminated. He alleged the termination was in
retaliation for his reporting what he claimed to be violations ofMinn. Stat. § 82.27 and Minn.
Rule 2805.200. The district court granted defendant's motion for summary judgment, but
the court of appeals reversed. This Court reversed the court of appeals and reinstated the
dismissal. In so doing, this Court noted that it had previously "cautioned against construing
§ 181.932 too broadly." This Court noted that it had previously dismissed whistleblower
charges where the conduct reported did not allege a violation oflaw such that a report would
be protected. See Obst v. Microtron. Inc., 614 N.W.2d 196, 204 (Minn. 2000); Hedglin v.
City ofWillmar, 582 N.W.2d 897,902 (Minn. 1998); Nordling v. Northern States Power Co.,
478 N.W.2d 498, 504 (Minn. 1991).
This Court reaffirmed that an allegation could be in good faith even if the facts tum
out not to be as reported by the plaintiff. However, Plaintiff has no claim unless the facts,
if true, "constitute a violation oflaw or rule adopted pursuant to law." Kratzer, 2009 W.L.
2253235 at *7, citing v. County of Hennepi11, 639 N.W.2d 342, 354-55 (Minn.
2002). Specifically, this Court held as follows:
Although there need not be an actual violation, the law alleged to have been violated must exist. If it later turns out that the facts are not as the employee reported them in good faith to be, the conduct is protected so long as the facts, if they had been true, would be a violation of the law.
I d. at *7. (Emphasis added). This Court refused to provide whistleblower protection to Mr.
Kratzer, as his actions were not within the statutory definition of the act. "The whistleblower
28
act does not protect reports based on an employee's subjective notions of wrongdoing ... "
Kratzer, 2009 W.L. 2253235 at *6, citing Williams v. St. Paul Ramsey Medical Center. Inc.,
551 N.W.2d483, 484 n.1 (Minn. 1996). "Consistent with this caution, we have recognized
that a mere report of behavior that is problematic or even reprehensible, but not a violation
of the law, is not protected conduct under the whistleblower act." Id., citing Obst v.
Microton, supra. Conduct that "seems distasteful and ... ill advised, but that is not illegal" is
not protected conduct under the act." I d., citing Nordling v. Northern States Power Co., 478
N.W.2d 49&, 504 (Minn. 1991 ). Respondent argued below that a ? establish
that the conduct he opposed was in fact discriminatory... Instead, he must demonstrate a
good faith, reasonable beliefthat the underlying challenged action violated the law." (A-48).
This Court in Kratzer recognized Kratzer's identical argument that "an actual violation of the
rule is not necessary as long as he suspected in good faith that the conduct was in violation
of the rule ... " This Court recognized the argument, and then concluded that "we have
rejected this argument on at least three occasions and we do so again in this case." Id. at *6.
Instead, this Court concluded that "the proper standard to apply when assessing the
legal sufficiency of a claim under the whistleblower statute is to assume that the facts have
occurred as reported and then determine, as we have said in Abraham, whether those facts
"constitute a violation oflaw or rule adopted pursuant to law." Id. at *7. That is precisely
what the district court did in this case.
The district court acknowledged that it "must accept the allegations in the pleading
as true and must give the pleader the benefit of all favorable and reasonable inferences." (A-
73). With that assumption, the legal issue is whether the Respondent ''pleaded that the
conduct leading to her termination was statutorily protected." (Id. at A-74). The court
concluded as a matter oflaw that Respondent "has not pleaded that [LA] suffered an adverse
employment action that is cognizable under the MHRA." (Id. at A-76).
29
The court of appeals did not squarely address the issue. That is, the appellate court
below suggested that the non-PIPing of LA is perhaps an adverse act, by virtue of its
reference to Vaughn v. Taylor. However, the court of appeals also suggested that perhaps
it is not, by virtue of its reference to the federal reasonable belief standard. illtimately, the
court of appeals concluded simply that the non-PIPing of LA was discrimination because she
was treated differently. But different treatment is not the equivalent of illegal discrimination.
According to this Court's recent decision in Kratzer, the question is whether the factual
events alleged, assuming they are true, "be a violation of the law." The answer to that
question is manifestly obvious. An employer's decision to place an employee on a PIP, or
not place an employee on a PIP, "cannot even remotely be considered an "ultimate
employment decision" and therefore is not actionable." Brown v. Sybase, supra, 287
F.Supp.2d at 1342. Thus, if we apply the standard of the whistleblower statute (which
expressly protects good faith reports of suspected violations) the Respondent's Complaint
does not state a cause of action as a matter of law.
There is no reason to suggest the standard should be less stringent, and plenty of
reason that the standard should be more stringent in this case. Where statutes stand in pari
materia, those statutes should be construed to be harmonious. Minn. Stat. § 645.17( 4); Doe
v. State Board of Medical Examiners, 435 N.W.2d 45 (Minn. 1989). If the whistleblower
statute (and its protection of suspected violations) requires an actual violation of the I it
seems manifest the Human Rights Act, which legislatively does not extend its protections to
suspected violations oflaw, should be judicially limited to real violations, not speculated or
imagined violations. However, standing Kratzer clearly on its head, the court of appeals has
applied the lesser standard, and allowed the claim to go forward if the Plaintiff simply alleges
she opposed acts that she mistakenly, but reasonably thought were in violation of the law.
Consistency would suggest that the standard applied to the MHRA is the same standard as
30
applied to the whistleblower statute. The consequence of that is that the federal reasonable
belief standard not be engrafted onto the Human Rights Act. 13
C. The Correct Application of Federal Law.
Assuming that this Court determines to import the good faith reasonable belief
standard of Title VII decisions, this Court would undoubtedly wish to apply it correctly.
With all due respect, the court of appeals most certainly did not.
It is correct that most, if not all, of the federal circuits have applied the good faith
reasonable belief standard. What is missing from the court of appeals' analysis is any
consideration as to the proper standard to apply in determining the reasonableness of the
professed belief. The district court determined that it need not resolve the issue as to whether
the reasonable belief standard applies to the state statute in that Respondent's professed
belief "is clearly unreasonable as a matter of law ... " (A-78, n.2). The district court also
noted that under the Title VII standard "an employee may not avoid scrutiny of a retaliation
claim merely by claiming a good faith reasonable belief." Qd., Montandon v. Farmland
Industries. Inc., 116 F.3d 355, 359 (8th Cir. 1997) (which in turn was cited by the court of
appeals in Loew v. Dodge Coun1y Soil and Water Conservation District, case no. A-05-157 4,
2006 W.L. 1229641, *8 (Minn. Ct. App. 2006)). The district court rightly observed that "an
employee may sue only for a tangible and illegal action (A-78, n.2). There was no need to
determine whether the reasonable belief standard would apply in Minnesota, in that
Respondent clearly could not meet that standard in any event.
13Similarly, the legislature has extended retaliation protections to a plaintiff who, in good faith, reports a violation of the Vulnerable Adults Act. However, the court of appeals has concluded that that plaintiff has no protection, a good faith standard notwithstanding, if what is reported "do not meet the statutory definitions ... " of protected activity. Cannon v. Rehabilitative Services. Inc., 544 kKtKO 790, 793 (Minn. Ct. App. 1996). Similarly, plaintiffs are protected, by way of Minn. Stat. § 626.556, subd. 1, for a good faith report of the maltreatment of a minor. However, the court of appeals has similarly concluded that if what is reported is not in fact a violation, there is no protection. Ziegler v. Leo A. Hoffinan Center, 397 N. W.2d 378, 382 (Minn. Ct. App. 1986), rev. denied (Minn. 1987).
31
On appeal, Respondent argued at length that the court should apply the reasonable
belief standard of Title VII. Beyond that, Respondent made no argument below as to how
that standard should be applied. For her part, the Commissioner also argued for the
application of the reasonable belief standard, but also provided no direction to the court as
to how that standard is applied by the federal courts.
The court of appeals, superficially, stated the standard correctly:
[T]he good faith, reasonable belief standard requires that an employee's objection to an employer's practice be an objectively reasonable opposition to a discriminatory practice. Montandon v. Farmland Industries. Inc., 116 F.3d 355, 359 (81h Cir. 1997). An employee may not avoid scrutiny of a retaliation claim "merely by claiming such a belief' of a discriminatory practice, but rather, the employee must provide facts supporting the claim that her belief was objectively reasonable. I d. In other words, if no reasonable person could have believed that the underlying incident complained of constitutes unlawful discrimination, then the employee's objection is not protected conduct. Wilkerson, 522 F.3dat322; see also Little, 103 F.3d at 960 (holding that in addition to the subjective good faith requirement, a reprisal plaintiff must show that his employer was engaged in unlawful practices was objectively reasonable in light of the facts and record presented). (A-266-67).
After correctly stating the federal standard, the court of appeals declined to apply it. 14
14As noted previously, the court went on to conclude that the Respondent's "objectively reasonable grounds" constituted the fact that Respondent alleged that Appellant "was treating LA differently on the basis of race ... " (A-269). As noted, the court also referenced Vaughn v. Taylor, which did not in any way discuss the reasonable belief standard, nor did it discuss
or not a PlP could be considered an adverse an actionable ultimate employment decision. Beyond that, the court noted that Crumpacker v. Kansas Dept. of Human Rights, 338 F.3d, 1163 (71h Cir. 2003) "is also K?Appellant agrees the case is instructive, but properly read instructs the opposite result from that reached by the court of appeals.
Jill Crumpacker was employed by the State of Kansas as its Director of Employment and Training of the Kansas Department of Human Resources. After meeting with the Kansas Secretary of Human Resources, she wrote him a letter in which she suggested that she was being treated differently because she was a woman. She was terminated shortly thereafter. The state moved to dismiss the claim on ll1h amendment immunity grounds. Specifically, the state argued that congress had abrogated the state's innnunity from retaliation claims only where the claim was based upon "actual violations of Title Vll" and since the plaintiff alleged only a subjective good faith belief, the state is immune from suit. Id. at 1170. In addressing that issue, the court noted that prior decisions from the 1 M circuit had gone so far as to suggest that a ?maintain retaliation claims based on an unreasonable subjective good faith belief that the opposed conduct violated Title Vll." Id. at 1171 (emphasis added). The court, however, then
32
Instead, the court simply held "that the first "statutorily protected conduct" prong of an
MHRA reprisal claim is satisfied when a plaintiff alleges facts supporting a good faith,
reasonable belief that the conduct opposed constituted a violation of the MHRA." (A-267).
A proper application of Title VII principles does not allow this result.
Whether a plaintiff's belief is reasonable must be analyzed "in light of the applicable
substantive law." Brannum, supra, 518 F.3d at 549. Lewis v. Heartland Inns of America,
LLC, 585 F.Supp.2d 1046, 1062 (S.D. Ia. 2008) (same). "The objective reasonableness of
an employee's belief that her employer has engaged in an unlawful employment practice
must be measured against existing substantive law." Clover v. Total Systems Services, Inc.,
176 F.3d 1346, 1351 (II their. 1999); see also Udoeyop v. Accessible Space, Inc., 2008 W.L.
4681389 at *3 (D. Minn. 2008) (same); Butlerv. Alabama Dept. ofTransportation, 536 F.3d
1209, 1214 (11th Cir. 2008) (same).
Indeed, in an unpublished decision, the court of appeals has previously recognized this
standard. In Loew v. Dodge County, 2006 W.L. 1229641, *8 (Minn. Ct. App. 2006), the
court acknowledged the reasonable belief standard and further stated under that standard
"simply claiming" a belief is not sufficient... 15
referred to Clark County School District v. Breeden, supra, which upheld the dismissal of an employee's retaliation claim where "no one could reasonably believe that the incident violated Title VII." Id., quoting Clark County, 532 U.S. at 269. The Crumpacker court then held that the Clark decision "supercedes and overrules this D prior decisions, to the extent they that Title VII is permitting retaliation claims based on an unreasonable good faith belief that the underlying conduct violated Title VII." Id. (emphasis in original). Thus, properly read, Crumpacker stands for the proposition that in the NM Circuit, as in all other circuits, there must in fact be a reasonable basis for the mistaken belief and if the professed belief is unreasonable, the claim must be dismissed.
15 As noted previously (supra, n. 11 ), Respondent suggested that other state courts had adopted the reasonable belief standard. However, a careful reading of those cases confirms that while the Respondent's statement is true, those courts' reasoning as to why they adopted that standard entirely contradicts the Respondent's position.
For example, in Carmona v. Resorts Int'l. Hotel, 915 A.2d, 518, the plaintiff argued that any complaint of discrimination should be protected, that she should be protected if she ''blows any whistle." Id. at 529. The court looked to Title VII law to reject that argument. The court instead required that a plaintiff must have a reasonable belief that the allegation violated the
33
It is necessarily an objective standard, in that a subjective standard "would eviscerate
the objective component of the reasonableness inquiry. 16 If plaintiffs are free to disclaim
knowledge of the substantive law, the reasonableness inquiry becomes no more than
speculation regarding their subjective knowledge." Harper v. Blockbuster Entertainment
Corp., 139 F.3d 1385, 1388, n.2 (11th Cir. 1998).
In applying this standard, the courts have dismissed claims of retaliation where the
plaintiff mistakenly alleged school desegregation to constitute discrimination (Evans v.
Kansas Citv. MO, supra, 65 F.3d at 1 00), where the reported activity cannot be considered
Human Rights Act, as in the absence of such a reasonable belief, any "baseless, meretricious" complaint would be protected. Id. at 530. Instead, "an unreasonable, frivolous, bad faith, or unfounded complaint cannot satisfY the statutory prerequisite necessary to establish liability for retaliation under the [act]." Id. In Wolfe v. Becton, 662 N.W.2d 599, the Nebraska court noted that it had not previously addressed the issue of whether a reasonable belief would be protected. The court noted that some states had required definitive proof of an actual violation, while other courts had chosen to protect baseless and defamatory charges from acts of retaliation. The court adopted the federal law as enunciated in Clark v. Breeden, supr!!, and noted that a reasonable belief would be sufficient, but if the belief was unreasonable, the act was not protected. Indeed, the Nebraska court in Wolfe adopted the standard almost precisely as enunciated by this Court in Kratzer. "If a plaintiff opposed conduct that was not proscribed by [law], no matter how frequent or severe, then a sincere belief that he posed an unfounded practice cannot be reasonable." 662 N.W.2d at 606.
In Viktron, 38 P.3d 993, the court considered whether there must be a reasonable belief of discrimination, or whether the act would extend to acts that were nothing more than "insubordination and argumentativeness." 38 P.3d at 996. The court adopted the reasonable belief standard, and determined that the state act protected only an allegation that reflected a reasonable belief that there was a violation of the state's human rights laws, not just a complaint that did not suggest a violation. The court determined that the view that an employee's action was protected "simply because they alleged discrimination" is "legally incorrect." Id. The court
that there must be a reasonable belief of a violation of the discrimination laws, as it would be "unwise" to insulate "an employee from an employer retaliation for an unreasonable or bad faith claim of discrimination." Id. at 996, n.4. In Cox v. Smith, 974 S.W.2d 217, the Texas court noted that heretofore the defmition of a reasonable belief was "undefined and unexplained." 974 S.W.2d at 225. The court took note that a jury had in fact determined that the few isolated comments had formed the underlying claim of discrimination constitutes sexual harassment. However, on appeal, the court determined that the jury's verdict was "implausible." The court dismissed the claim of retaliation finding that the plaintiff had not established a reasonable belief that she had complained of sexual harassment, not withstanding a verdict that sexual harassment had been proven. Id. at 227.
16The court of appeals suggested the report must be made in subjectively good faith, based upon an objectively reasonable belief. Appellant has not contested the good faith component. The belief is not objectively reasonable.
34
sexual harassment as a matter oflaw (Clark Coun1y School Board, supra, 532 U.S. at 270),
where the plaintiff alleged retaliation after he reported what he perceived to be discrimination
against the general public Et v. Suffolk Coun1y Police Dept., 176 F.3d 125, 135 EO
Cir. 1999) ), where the plaintiff alleged retaliation after he reported discrimination against an
employee that he mistakenly concluded to be disabled under the ADA (Tolanda v. KFC
National Management Co., 140 F.3d 1090, 1096 (7th Cir. 1998)), where the plaintiff
complained of a not-illegal romantic relationship between her supervisor and a co-worker
(Parker v. Otis Elevator, 9 Fed. Appx. 615, 617 (9th Cir. 2001)), or where the plaintiff
complained of harassment due to a sexual orientation where Title VII does not classify that
as protected status (Hamner v. St. Vincent's Hospital, 224 F.3d 701, 707 (7th Cir. 2000)).
Even more directly on point is Brannum v. Missouri Department of Corrections,
supra. In that case, the plaintiffhad witnessed a confrontation between a co-worker and their
manager. During this confrontation, the manager became angry with the plaintiffs co-
worker and removed him from his post for the remainder of the day. The co-worker,
however, remained assigned to that unit and returned to work there the following day. The
plaintiff complained of this and was subsequently permanently removed from her post and
then filed a charge of discrimination followed by a lawsuit. The district court dismissed,
concluding that the plaintiff had not engaged in protected activity.
On review, the gth Circuit determined that it must analyze the reasonableness of the
plaintiff's belief, "in light of the applicable substantive law." 518 F.3d at 548 (citing Clark
Coun1y Sch. Dist. v. Breeden, supra.) The court noted that Title VII protects only ultimate
employment actions, and does not protect "minor changes in working conditions that merely
inconvenience an employee or alter an employee's work responsibilities ... " Id. The court
noted that the co-employee had simply been removed from his post for a few hours and
returned to his post the next day. From this, the court determined that there was "no evidence
35
from which a reasonable person could conclude that he had even suffered an adverse
employment action." Id. The district court's snrnmary judgment order was affirmed.
The question then becomes, whether, in light of the applicable substantive law, the
decision to go so in placing LA on a PIP could be considered an adverse employment action.
As we have seen, the answer is "not even remotely." Every circuit addressing the issue has
concluded that placing an employee on a PIP is not an adverse act of employment, a position
"consistently held" by the federal courts. Coburn, 2004 W.L. 1347604 at *4. Accordingly,
"the reasonableness of the plaintiffs belief in this case is belied by the unanimity with which
the courts have declared [employer's action] non-discriminatory." Harper v. Blockbuster
Entertainment Corp., 139 F.3d 1385, 1388 (I 1th Cir. 1998).
Where binding precedent squarely holds that particular conduct is not an unlawful employment practice by the employer, and no decision of this court or of the supreme court has called that precedent into question or undermined its reasoning, an employee's contrary belief that the practice is unlawful is unreasonable.
Butler v. Alabama Dept. of Transportation, 536 F.3d at 1214.
It should be beyond debate that the proper application of the Title VII standard
requires the reinstatement of the district court decision. The court of appeals has expanded
the definition of discrimination to include non-tangible, transitory and non-adverse trivial
actions, in clear contradiction of all precedent. The court of appeals has compounded that
error by declining to apply an objective scrutiny to the allegation of retaliation, thus
expanding that statute to provide protection to any employee that simply alleges an
unfounded belief of discrimination.
If this Court is to import Title VII analysis into the MHRA, Appellant prays that this
Court import the standard as most recently enunciated by the 8th Circuit in Brannum.
Appellant contends that the necessary result of that legal conclusion is a reversal of the court
of appeals and an affirmation of the district court decision.
36
I
CONCLUSION
For all the foregoing reasons, Appellant Capella University requests that this Court
reverse the decision of the court of appeals and affirm the district court's dismissal of the
Respondent's Complaint pursuant to Rule 12 of the Minnesota Rules of Civil Procedure.
Dated:
37
Respectfully submitted,
FOLEY & MAN EJJLD, PLLP
B : 1 Thomas A. Harder (#158987) 250 Marquette Avenue, Suite 1200 Minneapolis, MN 55401 Telephone: (612) 338-8788 ATTORNEYS FOR APPELLANT
