Miller v. Stifel, Nicolaus & Co., Civ. No. 10–1258 (JJK).

• Decision Date: 20 September 2011
• Docket Number: Civ. No. 10–1258 (JJK).
• Parties: Leslie Ingram MILLER, Plaintiff, v. STIFEL, NICOLAUS & COMPANY, INC., Defendant.
• Court: U.S. District Court — District of Minnesota

812 F.Supp.2d 975

Leslie Ingram MILLER, Plaintiff,

v.STIFEL, NICOLAUS & COMPANY, INC., Defendant.

Civ. No. 10–1258 (JJK).

United States District Court, D. Minnesota.

Sept. 20, 2011.

Leslie Ingram Miller, Edina, MN, pro se.

Angela Beranek Brandt, Caryn A. Boisen, Larson King, LLP, St. Paul, MN, Josef S. Glynias, Kate M. Heideman, Robert J. Tomaso, Husch Blackwell Sanders LLP, St. Louis, MO, for Defendant.

MEMORANDUM OPINION AND ORDER

JEFFREY J. KEYES, United States Magistrate Judge.

INTRODUCTION

Plaintiff Leslie Ingram Miller sued Defendant Stifel Financial Corp./ Stifel, Nicolaus & Co., Inc. (“Stifel”), on various claims arising out of the 2008 termination of her employment from Stifel. She claims that Stifel violated the Sarbanes–Oxley Act (“SOX”) and the Minnesota Whistleblower Act (“MWA”) by discharging her in retaliation for her complaints regarding other Stifel employees. She also alleges that Stifel failed to pay her commissions in violation of the Minnesota Payment of Wages Act (“MPWA”).

Stifel counters that Plaintiff's whistleblowing retaliation claims under SOX and the MWA should be dismissed because: (1) Plaintiff did not engage in protected activity under SOX or the MWA; (2) there is no causal connection between her complaints and the August 2008 termination; and (3) Stifel had a legitimate business reason for discharging Plaintiff and would have taken the same action even in the absence of Plaintiff's reports. Notably, Stifel argues that the August 8, 2008 termination is the only adverse employment action at issue in this lawsuit and that the remaining retaliation claims should be disregarded as time-barred. Further, Stifel argues that Plaintiff's MPWA claim is meritless because: (1) Plaintiff presented no evidence that Stifel failed to remit any bonus payment or commissions owed to her; (2) Plaintiff admitted that she received all of the compensation that she was owed from her employment; and (3) Plaintiff admitted that she did not make a demand for payment.

BACKGROUND

Plaintiff's Employment With Stifel in Edina, Minnesota

In October 2002, Stifel hired Plaintiff as an Investment Executive/Financial Advisor in its Edina, Minnesota branch office, where she worked from October 2002 until June 2006, when she transferred to Stifel's St. Paul branch office. (Doc. No. 69, Aff. of Kate M. Heideman (“Heideman Aff.”) ¶ 2, Ex. A ¶¶ 4, 6.) As an Investment Executive/Financial Advisor, Plaintiff managed and invested her clients' financial assets with the goal of protecting and growing their financial wealth. ( Id. at Ex. A ¶ 5.) While at the Edina branch, Plaintiff was supervised by the Branch Manager, Jim Sher. ( Id. ¶ 7.)

In the spring of 2003, Plaintiff speculated that one of her co-workers, T.S., was using and selling marijuana after she saw him talking with what Plaintiff described as “undesirables” and “degenerate-looking” people. (Heideman Aff. ¶ 3, Ex. B at 17–18, 22, 27, 51; ¶ 4, Ex. C ¶ 10).¹ Plaintiff admitted that she never actually saw T.S. using or selling marijuana, but only assumed that he was doing so based on his appearance and association with “undesirables.” ( Id. ¶ 3 at Ex. B. at 27.) She also admitted that she did not know whether Stifel's investment clients were (or were at risk of being) defrauded by T.S.'s alleged marijuana use. ( Id. at 51.)

In the summer of 2003, Plaintiff reported that T.S. was using Stifel's photocopier for his personal printing and to allegedly run a side business. ( Id. ¶ 2, Ex. B at 56–58, 59; ¶ 4, Ex. C ¶¶ 11, 12; ¶ 5, Ex. D at 6 of 10.) Plaintiff admitted that she does not know whether using a company printer for non-business purposes violates any rule or regulation of the Financial Industry Regulatory Authority (“FINRA”). ( See id. ¶ 3, Ex. B at 83, 85, 101.) In 2003, Plaintiff also reported that T.S. allegedly accessed an off-limits area in the Edina branch office. ( Id. at 96; ¶ 4, Ex. C ¶ 12; ¶ 5, Ex. D at 7 of 10.) Plaintiff admitted that she does not know whether accessing an off-limits area violates any rule or regulation of FINRA. ( Id. ¶ 3, Ex. B at 100–01). In December 2005, Plaintiff reported that she believed two brokers had engaged in sexual activities at the Edina branch office. ( Id. ¶ 2, Ex. A ¶ 10; Ex. B at 116–119; Ex. C ¶ 17; Ex. D at 7 of 10.)

Plaintiff's Employment With Stifel in St. Paul, Minnesota

In June 2006, Plaintiff requested a transfer to Stifel's branch office in St. Paul, Minnesota. (Heideman Aff. ¶ 2, Ex. A ¶ 13; ¶ 3, Ex. B at 138–39.) Stifel granted Plaintiff's request. ( Id., Ex. A ¶ 14; Ex. B at 138–139.) The Branch Manager, David Upin, supervised Plaintiff during her employment in St. Paul. ( Id. at Ex. A ¶ 15; Ex. B at 138; ¶ 4, Ex. C ¶ 18.) On August 30, 2006, Plaintiff told Stifel's President, Scott McCuaig, that Mr. Upin was “one of the finest managers I have seen in my career ... [y]ou should send the rest to train with him.” (Heideman Aff, ¶ 6, Ex. E.) And on February 7, 2007, Plaintiff praised Stifel's Chief Executive Officer, Chief Financial Officer, and President for their “wonderful thoughtfulness” and praised each of them for “making a great company.” ( Id. ¶ 10, Ex. I.)

In late 2007, however, Plaintiff complained that Mr. Upin asked one of Stifel's assistants to fix the personal computers of his friends and family members. (Heideman Aff. ¶ 3, Ex. B at 229–30, 231; ¶ 5, Ex. D at 9 of 10.) Plaintiff admitted that she does not know whether asking an assistant to help friends or family violates any rule or regulation of FINRA. ( Id. ¶ 3, Ex. B at 230.) Then, in November 2007, Plaintiff reported that she believed Mr. Upin spent too much time away from the St. Paul branch office. ( Id. ¶ 3, Ex. B at 147–48,160; ¶ 4, Ex. C ¶ 18; ¶ 5, Ex. D at 8 of 10.) In December 2007, Plaintiff speculated that the St. Paul office had not paid a postage bill, resulting in several documents not being delivered to her. ( Id. ¶ 3, Ex. B. at 222–24; ¶ 5, Ex. D at 9 of 10.) And on January 3, 2008, Plaintiff alleged that boxes of files at the St. Paul office were not properly secured. ( Id. ¶ 3, Ex. B at 190, 196–97; ¶ 4, Ex. C ¶ 19; ¶ 5, Ex. D at 9 of 10; and Ex. F.)

Plaintiff's Employment With Stifel In Minneapolis, Minnesota

In September 2007, Stifel informed employees in the St. Paul branch office that its current lease would be ending and that it was negotiating a new lease on the 26th floor of another office building. (Heideman Aff., ¶ 2, Ex. A ¶ 16; ¶ 8, Ex. G.) At that time, Plaintiff requested to be transferred to another branch office. ( Id. ¶ 17, Ex. H.) Stifel granted Plaintiff's request, and she was transferred to Stifel's Minneapolis branch office on January 11, 2008. ( Id. ¶ 2, Ex. A ¶ 18.) While employed in Minneapolis, Plaintiff was supervised by the Branch Manager, Matthew Kyler. ( Id. ¶ 19; Ex. H.) Plaintiff did not make any complaints to Stifel during her employment in Minneapolis. ( Id. ¶ 3, Ex. B at 218.)

Plaintiff's Productivity Issues and Customer Complaint

On April 21, 2003, while at the Edina branch, Plaintiff received a written warning because she did not meet Stifel's minimum production requirements during the first six months of her employment. ( Id. ¶ 11, Ex. J.) And in January 2005, Plaintiff received a second warning after she failed to meet Stifel's minimum production requirements during the 2004 calendar year. ( Id. ¶ 12, Ex. K.) Later, in the summer of 2008, Plaintiff was still averaging below Stifel's minimum production expectations. ( Id. ¶ 13, Ex. L.)

During her employment, Plaintiff's largest and most profitable accounts were owned by or related to Roslye Ultan (the “Ultan Accounts”). ( Id. ¶ 2, Ex. A ¶ 20.) Beginning in October 2004, Plaintiff's commissions from Stifel became her exclusive source of income. ( Id. ¶ 22.) From 2005 to the end of 2007, the Ultan Accounts accounted for more than 50% of Plaintiff's total commissions. ( Id. ¶ 21.) In May 2008, Ms. Ultan removed all of her accounts from Stifel. (Heideman Aff. ¶ 14, Ex. M.) The loss of the Ultan Accounts exacerbated Plaintiff's ongoing productivity issues. (Heideman Aff. ¶ 3, Ex. A. ¶ 26.) Also in May 2008, Ms. Ultan submitted a written complaint alleging that Plaintiff had engaged in overly aggressive trading in her accounts, resulting in losses of more than $300,000. (Heideman Aff. ¶ 15, Ex. N.) After receiving Ms. Ultan's complaint, Stifel investigated her allegations. ( Id. ¶ 2, Ex. A.¶ 24.)

Plaintiff's Discharge from Stifel

Based on its investigation, Stifel determined Ms. Miller's trading activities, including in the Ultan Accounts, were inconsistent with Stifel's policies and practices. ( Id. ¶ 25; see also Heideman Aff., ¶ 16, Ex. O.) On August 8, 2008, Stifel terminated Plaintiff's employment. ( Id. ¶ 27; Doc. No. 1, Compl. ¶ 21.) Plaintiff has admitted that Stifel paid all of the bonus and commission payments that she was owed. (Heideman Aff. ¶ 17, Ex. P ¶¶ 8–9.) Plaintiff has also admitted that she did not make a written demand for payment of any allegedly unpaid compensation after her employment with Stifel ended. ( Id. ¶¶ 10–12.)

Plaintiff's Complaint to the United States Department of Labor

On November 6, 2008, Plaintiff filed a complaint with the United States Department of Labor (“DOL” or “OSHA” ²) alleging that Stifel violated SOX by discharging her because of her complaints in 2003, 2005, and 2007. ³ (Heideman Aff. ¶ 5, Ex. D.) On June 5, 2009, OSHA dismissed Plaintiff's complaint and found that there was “no reasonable cause to believe that [Stifel] violated SOX....” ( Id. ¶ 14, Ex. M.) It specifically found that Plaintiff did not engage in activity protected by SOX because her complaints “[did] not constitute reasonably perceived violations of 18 U.S.C. § 1341, § 1343, § 1344, § 1348; any rule or regulation of the Securities and Exchange Commission; or any provision of federal law relating to fraud against shareholders.” ( Id.)

DISCUSSION

I. Standard of Review

Summary judgment will be granted when the...