JOHN R. TUNHEIM, District Judge.
Plaintiff, Ranna Muor, worked for defendant, U.S. Bank National Association ("U.S. Bank"), for more than twenty-five years before resigning in March 2010. Muor alleges that U.S. Bank engaged in national origin discrimination and retaliation in violation of Title VII, 42 U.S.C. §§ 2000e et seq., and the Minnesota Human Rights Act (MHRA), Minn. Stat. §§ 363A et seq.
Muor was born in Cambodia, and she moved to Minnesota in 1980 when she was seventeen. (Tammy P. Friederichs Aff., Ex. A, Ranna Muor Dep. at 16:13-23, Apr. 14, 2010, Docket No. 22.) Muor began working for U.S. Bank in 1983 as a part-time filing clerk. (Id. at 9:20-10:3.) She worked in a variety of positions until 1999 when she became an International Banking Specialist. (Id. at 10:8-16.) As an International Banking Specialist, Muor set up letters of credit for new customers, prepared letters for her supervisor to review, sorted mail, and performed other duties. (Id. at 12:2-16:14.)
Bruce Staples supervised Muor from the time she started working as an International Banking Specialist until 2005. (Tammy P. Friederichs Aff., Ex. F, Bruce Staples Dep. at 69:6-10, Sept. 20, 2011.) During this period, Staples also supervised Kathleen Czantskowski who also worked as an International Banking Specialist. (See id. at 69:9-16.) Barb Engen supervised Staples. (Id. at 66:14-15.)
In 2005, Staples went on disability leave and never returned,
Muor asserts that Czantskowski made derogatory remarks about Muor while Staples was still their supervisor. Staples testified that Czantskowski told him that Muor "couldn't speak English" and "should go back to Cambodia." (Staples Dep. at 132:5-13.) Staples also testified that he heard Czantskowski make comments about another Asian employee's "slanty eyes" and say she "did not like Asian people." (Id. at 131:15-24.) Staples asserts that he attempted to report the comments, both in Czantskowski's performance reviews and in more formal reports to Engen. (Id. at 134:3-23.) He asserts that Engen removed the information from his performance reviews and took no action on his other reports. (Id.) Staples did not report the incidents to anyone other than Engen. (Id. at 135:18-23.) Staples testified that he kept records of the discrimination but that the records were removed from his desk and destroyed while he was on short-term disability leave. (Id. at 135:24-137:3.)
Muor asserts that Czantskowski treated her "as a lesser person" because she is Cambodian, often ignoring her when she spoke. (Muor Dep. at 97:7-18.) Muor asserted that she felt like she was "treated differently" (id. at 98:18-19) and that Czantskowski had a "mean voice" (id. at 99:1-3). Yet, Muor could not remember Czantskowski ever saying anything negative directly to her about being Cambodian or Asian; she simply felt that Czantskowski treated her poorly because she was Cambodian. (See id. at 100:23-101:5.)
Staples completed Muor's performance reviews from 2000 to March 2004. Staples described Muor as "a solid performer, not highly efficient and not exceptional." (Staples Dep. at 96:10-11.) In the performance reviews, Staples gave Muor a score of "3" or "solid performance" overall. (Amy Walsh Kern Aff., Ex. B, 2000-2001 Evaluation; Ex. C, 2001-2002 Evaluation; Ex. E, 2002-2003 Evaluation; Ex. F, 2003-2004 Evaluation.) However, Staples consistently gave Muor "marginally acceptable" ratings in several areas, including "Work is completed in a neat, efficient and accurate manner" (2001-2002 Evaluation; 2002-2003 Evaluation); "Proactively adjust to work within new structures, processes, requirements or cultures (2001-2002 Evaluation; 2000-2001 Evaluation; 2003-2004 Evaluation); and "Takes initiative in solving problems" (2001-2002 Evaluation; 2002-2003 Evaluation). The comments to the evaluations repeatedly reflect Muor's "great attitude." (See, e.g., 2000-2001 Evaluation.) But the comments also note areas that needed improvement and continuing weaknesses: The comments state that Muor "needs to continue to pay attention to detail" (2000-2001 Evaluation); "still needs consistent supervision" (2001-2002 Evaluation); "needs to work on her accuracy when turning in her work daily"; "still needs alot [sic] of assistance when the letter of credit transactions are more complex" (2002-2003 Evaluation); "relies on peers to solve issues when she is unsure of herself"; "needs to broaden her knowledge in the more complex payments as welll [sic] as letters of credit" (2003-2004 Evaluation), and that Muor's "work is inconsistent on a daily basis . . . [she] need[s] to spot check [her] work before turning in for signing" (2001-2002 Evaluation).
In 2005, Engen completed Muor's performance review, and Muor again received an overall performance rating of "solid performance." (Kern Aff., Ex. G, 2005 Evaluation.) The evaluation was very positive: Muor received "highly effective" ratings in several areas and no "needs improvement" ratings.
From 2006 to 2008, Czantskowski completed Muor's performance reviews. In her 2006 review, Muor received an overall performance rating of "solid performance." (Kern Aff., Ex. I, 2006 Evaluation.) She received no "highly effective" or "needs improvement" marks. The comments on the evaluation noted that "her work has errors" and sometimes "work has to be redone and/or corrections made." (Id.)
In her 2007 review, Muor received an overall performance rating of "solid performance." (Kern Aff., Ex. H, 2007 Evaluation.). However, Czantskowski gave Muor "needs improvement" scores in several areas. The review states that Muor "demonstrate[s] a skill level below that of an International Banking Specialist 3." Czantskowski noted Muor's work was "inconsistent" and that she "needs to slow down and spot check her work before turning it in to be signed." (Id.)
Czantskowski presented Muor with her 2007 evaluation in February 2008 in a meeting in which Engen was also present. (See id.; Muor Dep. at 112:9-12.) In the "Employee Comments" section of this review, Muor wrote, "I strongly disagree with this review. It is inconsistent and contradective [sic]." (2007 Evaluation.) Muor also asserts that, after seeing the review, she said Czantskowski was discriminating against her and the performance review was discriminatory. (Muor Dep. at 110:23-111:16.)
In early 2008, Czantskowski offered to provide Muor with further training. (Kern Aff., Ex. L, E-mail from Czantskowski to Muor, Docket No. 16.) The only training for International Banking Specialists is on-the-job. (Czantskowski Decl. ¶ 14, Docket No. 26.) Muor and Czantskowski only met for training time once, however. (See Czantskowski Dep. at 73:25-76:10.) Muor admits she was offered more training by Czantskowski in some areas, but she asserted that it was not in the areas she needed. (Muor Dep. at 77:24-75:9.) Czantskowski asserts that Muor was "adamant" that she knew her job and that if she had questions she would seek out Czantskowski. (Czantskowski Dep. at 76:7-25.)
Engen wrote Muor's 2008 performance review, although Czantskowski was still Muor's manager. (Kern Aff., Ex. N, 2008 Evaluation.) Muor received an overall performance rating of "needs improvement." (Id.) The comments noted,
(Id.)
When she received the 2008 review, in late February 2009, Muor also received a Written Warning of Unsatisfactory Performance. (Kern Aff., Ex. O, Written Warning; Czantskowski Dep. at 75:25-76:1.) At U.S. Bank, a written warning is placed in an employee's personnel file, and it makes the employee ineligible for salary increases and bonuses. (Bach Dep. at 19: 12-19.) After receiving a written warning, an employee is not allowed to apply for other positions within the company until their performance improves. (Id.)
After receiving the review and the warning, Muor became ill and went home. (Muor Dep. at 163:12-22.) On March 4, 2009, Muor dropped off letters at the U.S. Bank office after hours, accusing Czantskowski of discrimination and challenging her written warning.
Muor's stress-related leave of absence began on March 5, 2009. (Id. 163:12-164:20; Def.'s Mem. Supp. Summ. J. at 16, Docket No. 14.) Bach asserts that she attempted to contact Muor on multiple occasions but that Muor was non-responsive, saying she did not want to "talk about it right now." (Bach Dep. at 23:22-24:16.)
In June 2009, Muor returned to work for two weeks on a part-time basis. (Muor Dep. at 165:16-24.) Bach contacted Muor during this period to discuss her discrimination claims. (Id. at 169:9-21.) Muor again asserted that she did not want to discuss the claims then, saying she felt ill and she did not want to go through it again. (Id. at 169:17-170:13.) After the two week period, Muor returned to disability leave. (Id. at 177:8-15.)
On December 21, 2009, Bach sent Muor a letter stating she had received a letter from Muor's doctor indicating Muor would be able to return on a part-time basis on January 4. (Id. at 179:13-20.) Muor asserts that her doctor did not send a letter at this time saying that she was ready to return to work. (Id. at 179:13-25.) Neither letter was submitted as an exhibit by either party.
On December 28, 2009, U.S. Bank hired Jody Brown as an International Banking Specialist. (Friederichs Aff., Ex. D, Jody Brown Dep. at 5:7-6:9.) Muor claims that Brown replaced her; U.S. Bank asserts that Muor has not been replaced by a new hire to date.
On January 5, 2010, Bach sent Muor a letter stating that if Muor did not return to work by January 18, 2010, U.S. Bank would fill her position. (Muor Dep. at 180:14-19; Kern Aff., Ex. R, Jan. 5 Letter to Muor, Docket No. 16.) Muor did not return to work in January. (Muor Dep. at 182:8-16.)
On February 23, 2010, Bach sent an e-mail to Muor saying she had received a fax from Muor's doctor indicating that Muor was cleared to return to work part-time on March 2, 2010. (Id. at 183:12-21; Kern Aff., Ex. S, Docket No. 16.) The e-mail also indicated that Muor's position was no longer open because she had not returned to work by January 18. (Kern Aff., Ex. S.)
At the time, Bach offered Muor a part-time teller position which Muor rejected. (Muor Dep. at 184:9-15.) Muor applied for a different position (in the mortgage closing department) at U.S. Bank and informed Bach of her application. (Id. at 185:2-18; Kern Aff., Ex. T, Docket No. 16.) On March 17, 2010, U.S. Bank offered Muor a position as an International Banking Specialist, working under a different direct supervisor. (Muor Dep. at 188:18-189:8; Kern Aff., Ex. U, Docket No. 16.) The position had the same salary as Muor's previous position.
Summary judgment is appropriate where there are no genuine issues of material fact and the moving party can demonstrate that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the suit, and a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court considering a motion for summary judgment must view the facts in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences that can be drawn from those facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Muor's national origin discrimination claim under both the MHRA and Title VII must be analyzed under the three-step framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
To demonstrate a prima facie case of race/national origin discrimination, Muor must show that (1) she is a member of a protected class; (2) she was qualified for her job (that is, she was meeting her employer's legitimate expectations); and (3) she suffered an adverse employment action; (4) under circumstances that give rise to an inference of unlawful discrimination. Anderson v. Durham D&M, LLC, 606 F.3d 513, 520 (8
To establish an "adverse employment action an employee must show a tangible change in duties or working conditions that constituted a material employment disadvantage." Burchett v. Target Corp., 340 F.3d 510, 518 (8
First, critical performance reviews and written warnings are not — without more — adverse actions. In Burchett, the Eighth Circuit held a negative performance review is "actionable only if the employer subsequently uses that review to alter the terms or conditions of employment to the detriment of the employee." 340 F.3d at 518-19. See also Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046, 1058 (8
Second, "[a]n employer's denial of an employee's request for training is not, without more, an adverse employment action." Box v. Principi, 442 F.3d 692, 697 (8
"While the action[s] complained of may have had a tangential effect on [Muor's] employment, [they] did not rise to the level of an ultimate employment decision intended to be actionable under Title VII." Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8
The Court also concludes that Muor has failed to provide evidence that would establish an inference of unlawful discrimination. First, the performance reviews that Muor asserts were discriminatory were consistent with her earlier reviews. Although Muor's overall performance score declined for the first time in her 2008 review, the criticisms were consistent with earlier reviews written by a different supervisor. Nothing in the reviews suggests that they were motivated by a "prohibited reason." Anderson, 606 F.3d at 521.
Second, Muor provides little or no evidence of discriminatory intent. Other than her own feeling that Czantskowski's treatment of Muor was caused by her national origin, the only evidence Muor offers of bias is Staples' testimony. "Under the McDonnell Douglas analysis, stray remarks, statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process are insufficient to establish a prima facie case." Smith v. DataCard Corp., 9 F.Supp.2d 1067, 1079 (D. Minn 1998) (citing Price Waterhouse v. Hopkins, 490 U.S. 288, 276-78 (1989)); see also Walton v. McDonnell Douglas Corp., 167 F.3d 423, 427-28 (8
Muor asserts that bias was demonstrated by Czantskowski filling Muor's position with non-Asian employees. Yet Muor had indicated no intent to return to work when Czantskowski filled an International Banking Specialist position by hiring Brown. Czantskowski's hiring of non-Asian employees is irrelevant.
Muor further argues that Czantskowski treated her differently than other non-Asian employees, particularly when she made mistakes, thereby demonstrating bias. "Under this standard, the plaintiff "must show that she and other employees were involved in or accused of the same or similar conduct and [were] disciplined in different ways." See Lee v. Kmart Corp., ___ F. Supp. 2d ___, 2011 WL 6740335, at *4 (D. Minn. Dec. 21, 2011). Muor provides no evidence of how similarly-situated white employees were disciplined. The only evidence she provides are her own allegations about workplace interactions.
Even if Muor had met her burden of demonstrating a prima facie case of discrimination, the Court concludes that U.S. Bank demonstrated a legitimate reason for issuing negative performance reviews and a written warning — Muor's failure to meet her supervisor's expectations. Further, the Court finds that Muor fails to demonstrate that U.S. Bank's reasons were pretextual.
A plaintiff may demonstrate pretext by showing "the employer's proffered reason has no basis in fact." Stallings v. Hussmann Corp., 447 F.3d 1041, 1052 (8
Muor has not demonstrated that Czantskowski's criticisms had no basis in fact. The criticisms in the written warning and the performance review are similar to — although more severe than — those received in previous performance reviews from a different supervisor. Muor has also failed to show that U.S. Bank did not follow its own policies. Muor asserts that Engen's involvement in her performance review demonstrates a "deviation" from the normal evaluation process. Engen admitted she did not typically get involved in preparing performance reviews (see Engen Dep. at 12:6-24); however, she noted that part of her job as a supervisor is to be involved in the process when needed (see id.). Finally, as discussed supra, Muor has not demonstrated that similarly-situated employees were treated in a disparate manner.
The Court concludes that Muor has failed to meet her burden with respect to her discrimination claim either by demonstrating a prima facie case or by demonstrating her employer's reasons were pretextual. Consequently, the Court will grant U.S. Bank's summary judgment motion for this claim.
As with Muor's national origin discrimination claim, her reprisal claim under both the MHRA and Title VII must be analyzed under the three-step framework set forth in McDonnell Douglas Corp. v. Green. 411 U.S. at 802.
To demonstrate a prima facie case of reprisal, Muor must show that she engaged in a protected activity, U.S. Bank took adverse action against her, and there is a connection between the protected activity and the adverse action. Macias Soto v. Core-Mark Int'l, 521 F.3d 837, 841 (8
In the alternative, Muor seeks to invoke the doctrine of constructive discharge. The doctrine permits a plaintiff to demonstrate the defendant took an adverse employment action even when the plaintiff resigned from her position. Coursolle v. EMC Ins. Grp., 794 N.W.2d 652, 660 (Minn. Ct. App. 2011).
As discussed in Part II.A.1, supra, the Court found that Muor failed to demonstrate an adverse action in connection with her discrimination claim. To support her reprisal claim, Muor asserts additional acts by U.S. Bank that she believes constitute an adverse action: failing to assign Muor to a different manager upon her request; failing to investigate her complaint that Czantskowski was discriminating against her; telling Muor not to discuss her discrimination complaint at work; selecting a date for her return to work before Muor was approved to return by her doctor; failing to interview Muor for a position in the mortgage department; and offering Muor a position with a supervisor, Hudoba, that U.S. Bank knew had harassed Muor in the past.
First, the record does not support Muor's assertion that U.S. Bank failed to investigate her complaint against Czantskowski. Bach, a human resources employee, was contacted by Engen and Muor. Muor did not file a formal complaint or a rebuttal to her 2007 review that would have initiated a further response from human resources. Nor does the record support Muor's assertion that U.S. Bank knew Hudoba harassed Muor in the past. Muor had never reported harassment, nor is there any evidence suggesting she told U.S. Bank of the harassment when explaining why she was not accepting the position under Hudoba.
Second, an "employee suffers a materially adverse employment action in the context of a MHRA retaliation claim when the employer engages in conduct that would dissuade a reasonable employee from making a discrimination claim." Quinn v. St. Louis Cnty., 653 F.3d 745, 751 (8
Finally, taking the facts in the light most favorable to Muor, U.S. Bank did inform Muor that her position would be filled if she did not return to work before she received physician approval to return. However, Muor has not established that this act constituted discrimination because U.S. Bank offered Muor two positions when she was ready to return to work. Muor has not demonstrated that these positions would have resulted in a material change to her employment. Nor has Muor demonstrated that she was qualified for the mortgage position for which she applied or that it was more consistent with her previous position than the jobs offered to her by U.S. Bank. The Court concludes that Muor failed to demonstrate an adverse employment action and therefore has failed to establish her prima facie case of reprisal.
To prove constructive discharge, Muor must show (1) a reasonable person in her situation would find the working conditions intolerable, and (2) the employer intended to force her to quit. Id. at 752. Muor has presented no evidence about a reasonable person in her working conditions. Further, Muor has presented no facts that suggest U.S. Bank intended to force Muor to quit or that her resignation was a foreseeable consequence of the alternative employment positions they offered her. Consequently, the Court finds that Muor has failed to provide the facts necessary to support a finding of constructive discharge.
The Court concludes that Muor has failed to meet her burden with respect to her retaliation claim. Accordingly, the Court will grant U.S. Bank's summary judgment motion.
Based on the foregoing, and all the files, records, and proceedings herein,
