Walsh v. Ceda Inc

• Decision Date: 18 April 2011
• Docket Number: Civil No. 09-3142 ADM/AJB
• Parties: Carol Walsh, Plaintiff, v. CEDA, Inc., Defendant.
• Court: U.S. District Court — District of Minnesota

Carol Walsh, Plaintiff, v. CEDA, Inc., Defendant.

Civil No. 09-3142 ADM/AJB

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Dated: April 18, 2011

MEMORANDUM OPINIONAND ORDER

Adrianna Shannon, Esq., and Steven Andrew Smith, Esq., Nichols Kaster, PLLP, Minneapolis, MN, on behalf of Plaintiff.

Jill Kirila, Esq., and Traci L. Martinez, Esq., Squire, Sanders & Dempsey, LLP, Columbus, OH, and Stephen C. Rathke, Esq., Lommen, Abdo, Cole, King & Stageberg, PA, Minneapolis, MN, on behalf of Defendant.

I. INTRODUCTION

On February 24, 2011, the undersigned United States District Judge heard oral argument on Defendant CEDA, Inc.'s ("CEDA") Motion for Summary Judgment [Docket No. 16]. Plaintiff Carol Walsh ("Walsh" or "Plaintiff) opposes the motion. Walsh asserts claims under Title VII of the 1964 Civil Rights Act ("Tile VII"), 42 U.S.C. §§ 2000e-2000e-17, and the Minnesota Human Rights Act ("MHRA"), Minn. Stat. Ch. 363A. For the reasons set forth below, the motion is granted in part and denied in part.

II. BACKGROUND¹

Defendant CEDA is in the business of industrial maintenance, providing services to oil refineries, petrochemical plants, utility plants, and pulp and paper operations. Appendix Index toDef.'s Mot. for Summ. J. [Docket No. 19] Werkheiser Ex. 32 ("July 2009 Werkheiser Aff.") ¶ 2. CEDA operates two facilities in Minnesota, one in Ham Lake and one at the Flint Hills Refinery. See Appendix Index to Def.'s Mot. for Summ. J. Werkheiser Aff. ("November 2010 Werkheiser Aff.") ¶ 1. The Ham Lake facility has approximately thirty employees and provides industrial cleaning services for oil refineries and natural gas processing plants and similar operations. July 2009 Werkheiser Aff. ¶¶ 1, 2. The Flint Hills facility is a distinct entity with its own employees, and provides cleaning services to the Flint Hills Refinery, which is not owned by CEDA and employs workers of its own, through approximately eight employees with offices on site. November 2010 Werkheiser Aff.¶¶ 3, 4. The number of employees at each site varies depending on workload. Id. ¶ 4; Werkheiser Ex. 32 ¶ 4. CEDA employs women exclusively in secretarial roles, with none working in the "field." See Werkheiser Dep. at 68. Plaintiffs husband Kevin Walsh ("Kevin") is employed by CEDA as a Field Supervisor at the Flint Hills facility. Shannon Aff. Ex. 21, Kevin Walsh Deposition ("Kevin Walsh Dep.") at 13.

In November 2007, after hearing that the Administrative Assistant position at Flint Hills was being vacated, Walsh submitted an application to CEDA for that position. Shannon Aff. Ex. 19, Carol Walsh Deposition ("Carol Walsh Dep.") at 66. Walsh filled out and submitted the application on site. Carol Walsh Dep. at 67. Although Nikki Pevito ("Pevito"), the Administrative Assistant at Flint Hills at the time, was considering leaving, Pevito did not actually resign and the position never became available. July 2009 Werkheiser Aff. ¶ 8.

In June or July 2008, Kevin obtained an application for a General Laborer position with CEDA for Walsh to fill out. Carol Walsh Dep. at 73. General Laborers perform miscellaneous manual labor at the direction of higher ranking employees. Shannon Aff. Ex. 22, James LehrkeDeposition ("Lehrke Dep.") at 20-21. The requirements for a General Laborer position are the ability to lift fifty pounds and willingness to travel; additionally, a commercial driver's license and good work history are preferred. Shannon Aff. Ex. 20, Andrew Werkheiser Deposition ("Werkheiser Dep.") at 74. Kevin believed a General Laborer position would be opening up to monitor the loss of equipment at the Ham Lake facility and to meet increased seasonal labor needs. Carol Walsh Dep. at 73-74.

In late July or early August 2008 Walsh filled out the application and gave it to Kevin to be submitted. Carol Walsh Dep. at 76-77. Division Manager Andrew Werkheiser ("Werkheiser") is the person in charge of hiring at CEDA's Minnesota locations. November 2010 Werkheiser Aff. ¶ 2. Werkheiser has no recollection of seeing Walsh's application for a General Laborer position and never considered her for such a position. Werkheiser Dep. at 33-34. Pevito, however, states that she gave Kevin an application for Walsh, the application was returned, and she then forwarded the application through CEDA internal mail to Ham Lake. Pevito Dep. at 14-16. Pevito recalls that the application was for an opening as a General Laborer assigned to track protective equipment. Id. At Ham Lake, Administrative Assistant Cindy Voss ("Voss") recalls seeing an application filled out by Walsh coming from Flint Hills. Shannon Aff. Ex. 26, Cindy Voss Deposition ("Voss Dep.") at 31. However, Voss believes that the application was for an Administrative Assistant position. Id. at 32.

Walsh called Werkheiser several times to inquire about her General Laborer application. See Werkheiser Dep. at 34-36. Walsh admits, however, that she did not specify which application she was inquiring about. Carol Walsh Dep. at 85. Werkheiser claims that he believed Walsh was inquiring about her 2007 application for an Administrative Assistantposition. Werkheiser Dep. at 41-48. During her conversations with Werkheiser, Werkheiser told Walsh that he would need to look into whether CEDA had a nepotism policy that would disqualify her on account of her marriage to Kevin. Werkheiser Dep. at 36-39; Carol Walsh Dep. at 86. During these conversations, Walsh also indicated to Werkheiser that she would be willing to get a commercial driver's license if necessary. Carol Walsh Dep. at 87. Walsh called CEDA several more times in the fall of 2008 to no avail. Id. at 88-91. Walsh then made no further inquiries regarding the application except for approaching Werkheiser at a Super Bowl party in early 2009. At the party she told Werkheiser, "If I had a penis, I would have got the job," to which Walsh claims Werkheiser responded by pursing his lips and nodding. Carol Walsh Dep. at 93-94. Kevin also made several phone calls to Werkheiser during this period and talked with Chris Morel, manager at Flint Hills. Both expressed hesitation at hiring women for field positions due to sexual harassment allegations by previous female field employees. Kevin Walsh Dep. at 48.

CEDA generally considers applications for at least six months after the time they are filed due to the high turn over and seasonal needs of its business. Werkheiser Dep. at 17; see also Voss Dep. at 15-16 (stating that application are kept for six months to a year). During the six months after Walsh claims to have submitted an application for General Laborer, CEDA hired several men for the similar field position of Operator. Shannon Aff. Ex. 16; Werkheiser Dep. at 72-74; Pevito Dep. at 48; Voss Dep. at 12-13. In January 2009, CEDA also hired Paul Ellingson ("Ellingson") as a General Laborer. Werkheiser Aff. j 8. Ellingson is male and not married to a CEDA employee; he was previously employed by CEDA as a General Laborer but was discharged due to attendance problems and his status had been listed as ineligible for rehire.Werkheiser Dep. at 75-76 (stating reasons for termination); Shannon Aff. Ex. 11 (showing status as ineligible for rehire); Shannon Aff. Ex. 3 ¶ 29 Resp. (stating that Ellingson is not married to a CEDA employee).

Walsh filed this lawsuit in November 2009, alleging gender discrimination in violation of Title VII and the MHRA, and martial status discrimination in violation of the MHRA. CEDA now moves for summary judgment, arguing that Walsh cannot establish a prima facie case of any type of discrimination because she never applied for a General Laborer position and no such position was open at the time she claims to have applied. CEDA also argues that even if Walsh could establish a prima facie case of some form of discrimination, CEDA had legitimate, non-discriminatory reasons for hiring Ellingson and others.

III. DISCUSSION

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue "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 judgment as a matter of law." Fed. R. Civ. P. 56(c); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d at 470. The nonmoving party may not "rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial." Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).

B. Gender Discrimination Claims

Both Title VII and the MHRA prohibit discrimination in hiring based on gender. 42 U.S.C. § 2000e-2(a)(1); Minn. Stat. § 363A.08, subd. 2(1). Claims under Title VII and the MHRA are both analyzed under the McDonnell Douglas framework. McDonnell Douglas v. Green, 411 U.S. 792, 802-06 (1973) (articulating framework); Devin v. Schwan's Home Service, Inc., 491 F.3d 778, 788-90 (8th Cir. 2007) (analyzing Title VII and MHRA gender discrimination claims under McDonnell Douglas framework). To establish a prima facie case of gender discrimination in a failure to hire case, such as this, a plaintiff must show: "1) that she is a member of a protected class; 2) that she applied and was qualified for a job for which the employer was seeking applicants; 3) that she was rejected; and 4) that after rejecting plaintiff the employer continued to seek applicants with plaintiff's qualifications." Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1223 (8th Cir. 1997) (quoting Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). Once a plaintiff has established a prima facie case, the...