Delgado–o'neil v. City of Minneapolis, Civil No. 08–4924(MJD/JJK).

• Citation: 745 F.Supp.2d 894
• Decision Date: 04 August 2010
• Docket Number: Civil No. 08–4924(MJD/JJK).
• Parties: Julie DELGADO–O'NEIL, Plaintiff,v.CITY OF MINNEAPOLIS, Defendant.
• Court: U.S. District Court — District of Minnesota

745 F.Supp.2d 894

Julie DELGADO–O'NEIL, Plaintiff,

v.CITY OF MINNEAPOLIS, Defendant.

Civil No. 08–4924(MJD/JJK).

United States District Court, D. Minnesota.

Aug. 4, 2010.Opinion Denying Motion to Vacate Sept. 17, 2010.

Jill Clark, Jill Clark P.A., Attorney at Law, Counsel for Plaintiff.Susan E. Ellingstad and David D. Leishman, Lockridge Grindal Nauen P.L.L.P., Counsel for Defendant.

MEMORANDUM OPINION AND ORDER

MICHAEL J. DAVIS, Chief Judge.

Before the Court is Plaintiff's motion for partial summary judgment and the motions of Defendant City of Minneapolis (“City”) to exclude Plaintiff's expert report and for summary judgment.

I. Introduction

Plaintiff is Hispanic, and is a current employee at the Minneapolis City Attorney's Office, serving as an Assistant City Attorney I. In 2001, City Attorney Jay Heffern instituted an oral examination as part of a promotional process from the Attorney I position to the Attorney II position. Plaintiff took the oral examination for such promotion in 2001, 2005 and 2007. Plaintiff scored at or near the bottom of the list of those candidates that also took the exam those years. (Ellingstad Aff., Exs. 59–61.) Because only those candidates with the three highest scores were then interviewed ¹, Plaintiff has not been promoted to the Attorney II position. ( Id. Ex. 57.)

After the oral examination results were determined in 2001, a number of attorney's in the City Attorney's Office filed a formal grievance on the basis that the examination was not reasonably related to the essential functions or the typical duties performed by an Attorney II. (Clark Decl., Ex. 3.) The grievance also noted that the examination did not take into consideration the qualifications of the candidates, or their performance evaluations. ( Id.) The grievance did not, however, complain of any adverse impacts based on race.

It wasn't until March 2006 that Plaintiff formally filed a charge of discrimination. In the charge filed on March 6, 2006 with the EEOC and the Minnesota Department of Human Rights (“MDHR”), Plaintiff alleged disparate impact and disparate treatment race discrimination. (Ellingstad Aff., Exs. 65–66.) On March 9, 2007, Plaintiff filed another charge, claiming retaliation. ( Id. Ex. 67.)

Plaintiff then filed this action in August 2008, alleging race discrimination and retaliation in violation of Title VII, the Minneapolis Civil Rights Ordinance (“MCRO”) and 42 U.S.C. § 1981. Thereafter, in 2009, the current City Attorney, Susan Segal, created four supervising attorney positions in the Criminal Division. Segal and Deputy City Attorney Martha Holton Dimick interviewed sixteen candidates and selected four for promotion in April 2009. Plaintiff applied, but was not selected for this promotion. (Segal Aff. ¶¶ 2–8.) Plaintiff then filed additional charges with the EEOC, and also filed a separate action against the City and City Attorney Segal, asserting claims under 42 U.S.C. § 1983. That action was consolidated with this action, and by Order dated January 20, 2010, this Court dismissed the Section 1983 claims pursuant to Fed.R.Civ.P. 12(b)(6). The remaining claims in this action are for retaliation and disparate impact under Title VII, MCRO § 130.40(m)(1) and (3) and 42 U.S.C. § 1981.²

A. Plaintiff's Employment History

Plaintiff was hired by the City in 1997 in the Criminal Division and is currently assigned to the trial team. (Declaration of Julie Delgado–O'Neil ¶ 2.) Plaintiff asserts that a few days before her probationary period was to expire in January 1998, she complained to her supervisor that she had been sexually harassed by a female co-worker. ( Id.) Three days later, she was given a form that extended her probationary period. Prior to that time, Plaintiff had not been aware of any performance issues. ( Id. ¶ 4.)

In March 1998, Plaintiff's supervisor received a complaint that Plaintiff had been rude and aggressive to a Hennepin County clerk, causing the clerk to cry and run out of the courtroom. (Ellingstad Aff., Ex. 16.) Plaintiff asserts that the Union protested the complaint, and that management eventually backed down. The letter remained in her file, however. (Delgado–O'Neil Decl. ¶ 5.)

In October 1998, the City received a letter from a police officer who was upset with the manner in which a case was resolved. (Ellingstad Aff., Ex. 17.) The officer was upset that Plaintiff continued the case without a plea prior to talking with the officer. The officer was also upset because Plaintiff was rude and unpleasant. ( Id.) Plaintiff states that she dismissed the case because the defendant was claiming racial profiling. She further states that the officer, when speaking with Plaintiff in the hallway, became irate and reached for his gun. (Delgado–O'Neil Decl. ¶ 6.)

In December 2000, the City was notified that Plaintiff had continued a hearing in a traffic matter that involved a fatality to allow the defense attorney to “judge shop.” Prior to agreeing to the continuance, Plaintiff had been notified that the parents of the deceased victim were going to attend the hearing, and that they would be driving up from Iowa. Plaintiff nonetheless continued the matter before the parents arrived at the courtroom. (Ellingstad Aff., Ex. 18.)

In March 2002, the City received another complaint about the Plaintiff—this time from the Violations Bureau. ( Id. Ex. 19 (Voicemail from Susan Beaty).) Plaintiff had gone to the Violations Bureau on March 15 and 18, 2002, to negotiate a lower payment on a parking ticket. Plaintiff was reportedly rude and obnoxious to the clerk in the hearing office, and two of the hearing officers, Doug Olson and Susan Beaty. ( Id. Ex. 20.) Ultimately, the City determined that Plaintiff's conduct at the Violations Bureau violated Minneapolis Civil Service Commission Rule 11.03B(10) “discourtesy to public or fellow employees.” Plaintiff was suspended for six days due to this violation. ( Id. Ex. 22.) Plaintiff filed a grievance with the Union, and the grievance was sustained because it was determined that, while Plaintiff may have been rude, she was operating on her own time when such conduct occurred. ( Id. Ex. 23.)

As discussed previously, Plaintiff took the oral examination in 2001 for the Attorney II position, but did not score high enough to be considered for the position. In 2003, Plaintiff again applied for the Attorney II position, but later withdrew her application because she didn't trust the process and because she heard a rumor that the City Attorney had already pre-selected those attorneys to be promoted. (Delgado–O'Neil Decl. ¶ 5.)

In August 2003, the City received a complaint from the maintenance supervisor at St. Olaf's Church, Steven Nallick. ( Id. Exs. 24 and 25.) According to Nallick, Plaintiff was improperly parking in St. Olaf's parking lot. Several notes were left on her car informing her she couldn't park in the lot, but she kept doing so. On one particular day, Nallick had called to have her car towed, but before the tow truck left with her car, Plaintiff arrived at the lot. The tow truck driver agreed to not tow the car if Plaintiff paid the $50 drop fee. Plaintiff claimed not to have the money with her, so Nallick agreed to pay the drop fee upon Plaintiff's assurances that she would immediately repay him. According to Nallick, Plaintiff did not repay him for the drop fee. ( Id.) The City conducted an investigation into the complaint, and determined that the matter be closed as there was insufficient evidence that Plaintiff had violated a City rule, policy or procedure. ( Id. Ex. 25.)

Plaintiff initially complained that the investigation concerning the St. Olaf's lot was discriminatory. ( Id., Ex. 64.) Plaintiff alleges that Nallick had left several messages trying to contact Plaintiff personally, and Plaintiff reported to HR representative Carlos that Nallick was harassing her. It is Plaintiff's position that rather than take her concerns seriously, the City instead investigated Plaintiff. (Delgado–O'Neil Decl. ¶¶ 8–9.)

In July 2004, Plaintiff filed to run for a judgeship. Plaintiff alleges that City Attorney Heffern was not happy about her decision to run. In support, Plaintiff cites to a memorandum Heffern sent to her which simply informed her that pursuant to Section 13.03, Subd. 5 of the applicable Collective Bargaining Agreement, Plaintiff should either take a leave of absence without pay, or vacation time, for the 30 days prior to the election. (Delgado–O'Neil Decl., Ex. Q.)

In February 2005, the Plaintiff was arrested for shoplifting at a Cub Foods store. Security cameras recorded the Plaintiff moving to an empty aisle and placing some items in her purse, then leaving the store without paying for them. (Ellingstad Aff., Ex. 28.) Ultimately, the criminal matter was continued without a plea. ( Id. Ex. 1 (Delgado–O'Neil Dep. at 164).) Plaintiff did not report the arrest to the City until months later, after another employee threatened to report it. ( Id., Ex. 2 (Banwer Dep. at 41–42).) Plaintiff stated that on the night in question, she was ill and put some items in her purse because they were falling out of her cart. She was on her way back into the store to pay for the items when she was approached by the store security personnel. A co-worker of Plaintiff's, Judd Gushwa, testified that the store security tape was consistent with Plaintiff's explanation. (Delgado–O'Neil Decl., Ex. gg (Gushwa Dep. at 92).) After an investigation into this matter, Plaintiff was found to have violated Minneapolis Civil Service Commission Rule 11.03 B. 13—Misconduct—Criminal or dishonest conduct unbecoming to a public employee. Plaintiff was suspended for two weeks, which was reduced to one week pursuant to her Union grievance. (Ellingstad Aff., Ex. 29; Delgado–O'Neil Decl. ¶ 18.)

In June 2005, Plaintiff again applied for an Attorney II position and took the oral examination. She again did not receive a score high enough for her to be considered for...