O'BRIEN v. ABP Midwest, Inc.

• Citation: 814 F. Supp. 766
• Decision Date: 28 December 1992
• Docket Number: Civ. No. 3-92-121.
• Parties: Norma Mae O'BRIEN, Plaintiff, v. A.B.P. MIDWEST, INC., Defendant.
• Court: U.S. District Court — District of Minnesota

814 F. Supp. 766

Norma Mae O'BRIEN, Plaintiff, v. A.B.P. MIDWEST, INC., Defendant.

Civ. No. 3-92-121.

United States District Court, D. Minnesota, Third Division.

December 28, 1992.

COPYRIGHT MATERIAL OMITTED

Jordan S. Kushner, Minneapolis, MN, for plaintiff.

Steven P. Bogart, Reinhart, Boerner, Van Dueren, Norris & Rieselbach, Milwaukee, WI, and John D. Nelson, Dorsey & Whitney, Minneapolis, MN, for defendant.

MEMORANDUM OPINION AND ORDER

KYLE, District Judge.

Introduction

On February 7, 1992, plaintiff Norma Mae O'Brien commenced this action in Ramsey County District Court, against defendant A.B.P. Midwest, Inc. ("ABP"), alleging discrimination under state law and claims under state common law theories. On February 27, 1992, ABP removed the action to this Court. On May 22, 1992, O'Brien filed her First Amended Complaint. Now before the Court is ABP's Motion for Summary Judgment on O'Brien's First Amended Complaint.

Background

Plaintiff Norma Mae O'Brien is a fifty-four year old female resident of Minnesota. O'Brien commenced her employment with ABP on or about September 14, 1989. At all times pertinent to this action, O'Brien was employed at ABP's "Au Bon Pain" restaurant, located in the World Trade Center, 30 East 8th Street, St. Paul, Minnesota. O'Brien generally worked as a sales person, both in the restaurant itself, as well as at a mobile food cart which Au Bon Pain operated in the World Trade Center Atrium. O'Brien generally had favorable employment reviews and was promoted to shift supervisor in September 1990.¹

O'Brien's employment with ABP started its downward spiral in the fall of 1991. In October 1991, O'Brien sought a meeting with Shelly Schreiner, Au Pain's general manager, to discuss her work schedule, specifically a request that her work hours be reduced so that she would work less overtime hours. Schreiner and O'Brien did not have the requested meeting. On or about November 13 1991, O'Brien approached and met with ABP's district manager Jerry Bray. Bray allegedly told O'Brien to "do whatever you have to do, you will always have a job with Au Bon Pain." O'Brien Dep., at 77-78.

On or about November 15, 1991, Schreiner decreased O'Brien's scheduled hours from 40 per week to 30 per week. On November 19, 1991, O'Brien approached Schreiner as she sat in Au Bon Pain's dining room. O'Brien discussed the issue of working hours with Schreiner, but nothing was resolved. On November 20, 1991, Schreiner, verbally and in a subsequent Disciplinary Action Report, accused O'Brien of being loud, disruptive and insubordinate to her during their conversation on the previous day.² O'Brien was given a two-day suspension.

On or about December 5, 1991, O'Brien contacted Ray Steck, ABP's President, at ABP's Madison, Wisconsin office, seeking to gain his assistance in resolving her problems with Schreiner. Steck met with O'Brien and Schreiner in St. Paul, on December 10, 1991. On December 17, 1991, O'Brien was terminated. On the "Employee Change Information" form, Schreiner stated that O'Brien had been terminated for an alleged "breach of security/failure to perform duties." Apparently, Schreiner accused O'Brien of leaving the store safe open. The reason for the termination was disclosed to other ABP personnel. This action followed.

In her First Amended Complaint, O'Brien alleged seven separate causes of action. In Count I, O'Brien alleged that ABP had discriminated against her on the basis of age and sex, in violation of the Minnesota Human Rights Act, Minn.Stat. § 363.03 (1990) ("MHRA"), the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (1988) ("ADEA"), Title VII, 42 U.S.C. § 2000e-3, and St. Paul Legislative Code Ch. 183.³ In Count 2, O'Brien alleged that ABP, through its agents, defamed her. In Count 3, she claimed that ABP had negligently inflicted emotional distress on her. In Counts 4 and 5, O'Brien claimed that ABP had breached its contract of employment with her. In Count 6, O'Brien alleged that ABP's conduct breached the implied-in-fact covenant of good faith and fair dealing. Finally, in Count 7, O'Brien alleged that ABP had intentionally inflicted emotional distress upon her.

Discussion

I. The Standard of Decision

Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment. Under that Rule:

summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c). Stated in the negative, summary judgment will be denied where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

On a motion for summary judgment, the movant bears the burden of bringing forward sufficient evidence to establish that there are no material issues of fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The evidence of the non-moving party is to be believed and all justifiable inferences are to be drawn in a light most favorable to that party. Matsushita Elec. Indus. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 1357, 89 L.Ed.2d 538 (1986); Liberty, 477 U.S. at 255, 106 S.Ct. at 2513; Trnka v. Elanco Prod., 709 F.2d 1223, 1225 (8th Cir. 1983). Where a moving party, with whatever it provides the court, makes and supports a motion for summary judgment in accordance with Rule 56, a party opposing the motion may not rest upon the allegations or denials of his pleadings; rather, the adverse party's response must "set forth specific facts showing that there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 256, 106 S.Ct. at 2514. That is, the party opposing the motion for summary judgment must make a showing sufficient to establish the existence of every element essential to that party's case, and on which that party will bear the burden of proof at trial. Fischer v. NWA, Inc. 883 F.2d 594, 599 (8th Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2205, 109 L.Ed.2d 531 (1990). Where a party opposing the motion fails to establish the existence of an essential element, all other facts are immaterial and the moving party is entitled to judgment as a matter of law. Id.

II. Count 1

In Count 1, O'Brien alleges that ABP engaged in numerous acts of wrongful conduct, including reducing her work hours, disciplining her, and terminating her on the basis of her age, and sex.⁴ She asserts that these acts of discrimination violate the ADEA, Title VII, the MHRA and the St. Paul Legislative Code. ABP seeks summary judgment on Count 1 in its entirety.

To resist the motion for summary judgment, O'Brien must establish a prima facie case of age and sex discrimination. Matson v. Cargill, Inc., 618 F.Supp. 278, 281 (D.Minn.1985). To do so, O'Brien must show that ABP terminated her "under circumstances which give rise to an inference of unlawful discrimination." Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 289 (8th Cir. 1982) (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981)), cert. denied, 459 U.S. 1205, 103 S.Ct. 1194, 75 L.Ed.2d 438 (1983). In a discriminatory treatment case, the usual method of proving an inference of discrimination is a three-step process involving a prima facie case, rebuttal, and a showing of pretext. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The McDonnell Douglas analysis applies to claims under Title VII, the ADEA and the MHRA. See Halsell, 683 F.2d at 289 (ADEA); Danz v. Jones, 263 N.W.2d 395, 398-99 (Minn.1978) (MHRA). The proof necessary will vary depending upon the circumstances of the case.

In the summary judgment context, where an employee establishes a prima facie case of discrimination, the burden then shifts to the employer to offer a legitimate, non-discriminatory reason for the employment decision. If the employer meets its burden of production, the plaintiff must offer sufficient rebuttal evidence to create a genuine issue of material fact as to pretext. Matson v. Cargill, 618 F.Supp. 278, 283 (D.Minn.1985). The plaintiff bears the ultimate burden of persuasion throughout.

A. Age Discrimination

Because O'Brien alleges that she was terminated because of her age, she must prove the following four elements to establish a prima facie case of age discrimination:

(1) She was at least 40 years old at the time of her termination;

(2) she was performing her job at a level that met ABP's legitimate expectations;

(3) despite her performance in her job, she was terminated; and

(4) that the employer tried to replace her with someone else who could provide the same service or skill.

Raschick v. Prudent Supply, Inc., 830 F.2d 1497, 1499 (8th Cir.1987), cert. denied, 485 U.S. 935, 108 S.Ct. 1111, 99 L.Ed.2d 272 (1988); see Halsell, 683 F.2d at 291; Bruss v. Toro, 427 N.W.2d 17, 19 (Minn.Ct.App.1989) (elements under the MHRA).

The Eighth Circuit, in Johnson v. Minnesota Historical Soc., 931 F.2d 1239 (8th Cir.1991), indicated that "summary judgments should seldom be used in cases alleging employment discrimination." Id. at 1244. The court reasoned that summary judgment would rarely be appropriate because discrimination is difficult to prove by direct evidence, thereby justifying a simplified form of proof from a claimant in order to create an inference of discrimination. Id. The court concluded that summary judgment would be appropriate "only in those rare instances where there is no dispute of fact and where there exists only one conclusion. The evidence must point one way and be susceptible of no reasonable inference sustaining the position of the...