This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-853

 

Brenda Watson,
Appellant,

vs.

Ceridian Corporation, et al.,
Respondents.

 

Filed December 30, 2003

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. CT02008819

 

Eric D. Satre, Patrick M. Connor, Connor, Satre & Schaff L.L.P., 925 Lumber Exchange Building, 10 South 5th Street, Minneapolis, MN 55402 (for appellant)

 

R. Scott Davies, Briggs and Morgan, P.A., 2400 IDS Center, 80 South 8th Street, Minneapolis, MN 55402 (for respondents)

 

            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            On appeal from summary judgment dismissing her claims of defamation, disparate treatment, and reprisal discrimination, appellant Brenda Watson argues that the district court erred in granting summary judgment because (1) she established a prima facie case of disparate treatment and reprisal discrimination; (2) respondent Ceridian Corporation’s reasons for discharging her were pretextual; (3) the district court erred in concluding that Ceridian Corporation had a qualified privilege to publish the reason for her termination; and (4) even if Ceridian Corporation had a qualified privilege, it abused that privilege by acting with a retaliatory motive.  We affirm.

FACTS

 

Brenda Watson is an African-American woman who was employed with Ceridian Corporation (Ceridian) as an employee-assistance counselor from July 27, 1998, until she was terminated on June 18, 2001.  Ceridian provides human-resource programs and services to the general business community.  Watson’s duties were to provide employee-assistance services to customers, employees, and members of their families who were experiencing personal and work-related problems. 

From the time she started with Ceridian until May of 2000, Watson worked the evening shift and was supervised by Katie Collins and Vicky Guider.  She reported no problems with either supervisor and never alleged any race-related difficulties with her employment during that time.  Watson was, in fact, a highly rated employee. 

            In May 2000, Watson asked Ceridian if she could switch from the evening shift to the overnight team because it would free her to care for her grandchildren during the day.  She was aware that Greg Miner was the supervisor of the overnight shift.  Watson knew Miner and had no concerns about working with him.  Their discussions regarding her shift change were cordial.  Watson began working the overnight shift on June 19, 2000. 

            When Ceridian initiated a new program called Life Works On Line (LWOL) that allowed customers to communicate and receive information by e-mail, Watson expressed interest in working with this program because she believed that it might become a position that would allow her to work from home.  Watson was trained for this program and worked in the “E-mail a Consultant” component of the program.

            In this program, a LWOL online coordinator assigned cases to consultants, including Watson, as the cases came in by e-mail.  The consultant to whom a case was assigned opened a case log in the case-management-system (CMS) for each e-mail case, confirming that customer service action was being completed.  The consultant was required to respond to the e-mail request, completing whatever required actions the e-mail requested.  Customers were told a response would be made within 72 hours, but the internal goal for customer-response time was 24 hours.  When a case was entered in CMS, the computer automatically assigned a case number, allowing the case to be tracked in the system and accessed by all consultants.  The system provided for case coverage by multiple consultants and quality-assurance checks by supervisors to be certain the customer received prompt, accurate, and continuing attention.  If the case was not entered on the system, other consultants would not be made aware of it.  Miner conducted case reviews with Watson on a regular basis.

            Watson’s first performance issue occurred in September 2000, when Watson responded to an e-mail customer that the customer should telephone for a consultation.  The customer wanted to consult by e-mail.  Watson’s response caused a delay in services constituting a “customer service breakdown” under Ceridian’s policies.  Watson was not disciplined for this incident, but Miner advised her that she should have handled the entire matter by e-mail. 

            By the end of 2000, when it was apparent that the LWOL position would not become an at-home job, Watson requested that she be reassigned as a telephone consultant because she did not enjoy the e-mail work.  Center Manager Marsha Frey decided not to allow Watson to transfer out of the LWOL team because she had been trained and the team could not afford to let her go at that time. 

            Watson missed some work due to illness in January 2001, and had to leave work early on January 24 because she was ill.  Miner asked her about her cases before she left on January 24.  Miner and Watson dispute what was communicated in this exchange.  Miner claims that he asked if her cases were completed.  Watson claims he asked if her cases were “getting done.”  At any rate, Miner, on January 24, reviewed the case logs for all of the consultants he supervised and noticed that Watson had not recorded completing any LWOL cases after January 12, 2001.  Miner found after further review that Watson had no inventory of open cases although every other LWOL consultant had an inventory of open cases. 

            When Watson arrived for her shift the next evening, Miner confronted her and told her he believed there were serious service breakdowns because 25 LWOL e-mails had been assigned to her during the previous weeks which had no corresponding open cases.  He told her he was going to investigate and that she was suspended with pay pending the investigation.  Watson told Miner that she thought the allegations were false and racially motivated. 

            Miner’s investigation determined that 24 e-mails had been mishandled in various ways, including several that had been deleted.  Watson disputes that she mishandled the e-mails, claiming that they should not have been assigned to her while she was absent due to illness and that co-workers had told her that they would handle some of the e-mails. Ceridian does not dispute that other employees had agreed to handle some of these e-mails but asserts that it was Watson’s responsibility to follow up to make sure that the e-mails had been serviced.  Watson was the only employee disciplined for the handling of these e-mails.  Ceridian determined that although Watson could be terminated for what it perceived as her mishandling of these e-mails, it would allow Watson to return to work under a performance improvement plan (PIP). 

            On January 30, 2001, Miner reviewed a PIP with Watson that identified areas of unacceptable performance based principally on the investigation of mishandled e-mails.  The plan established standards for acceptable performance and Watson’s compliance was a condition of her return to work.  The PIP was signed by Watson and Miner on January 30, but Watson accused Miner of placing her on a PIP because of her race. 

            In her deposition, Watson stated that she believes Miner’s actions were racially motivated because he distanced himself from her, was more assertive in administering discipline, and was stern in telling her that if she did not sign the PIP she would not be allowed to return to work.  But Watson agrees that Miner never displayed any behavior that indicated he was biased against African-Americans and never made any racial slurs or derogatory comments.  And Watson concedes that Miner stated in the January 30 meeting that he wanted her to succeed and that if she had any questions or concerns, she could come to him at any time.  She also understood that, in his opinion, she had not properly handled several e-mails that had been assigned to her.  Watson agreed that she was given an opportunity to express her views on the PIP during the course of the meeting. 

            Watson met with Ceridian’s Director of Diversity and Employee Dispute Resolution, Calvin Scott, on January 31, 2001.  Scott testified in his deposition that Watson did not mention in that meeting, or ever, that Watson believed she was a victim of race discrimination or that Miner had any racial bias.  Scott agrees that they discussed Watson’s assertion that she was not at fault for the mishandled e-mails and her belief that she was being treated unfairly in receiving all the blame.  But Watson claims she told Scott on January 31 that she believed Miner’s actions were racially motivated.  Scott told Watson to come back if she was terminated.

            Between February and May 31, 2001, Miner met with Watson on a weekly basis to evaluate her progress on the PIP.  Miner provided both positive and critical feedback.  In her performance review of April 2001, Miner noted that Watson  “partially meets” requirements on her PIP. 

            On May 4, 2001, Miner met with Watson regarding the status of her PIP.  He advised her that she had been successful with the LWOL portion of the plan, but needed improvement on her professional behavior.  He identified occasions when she displayed a negative tone, defensiveness, or was argumentative and described having observed her with her head down on the desk with her eyes closed, apparently sleeping.  Although Watson admits she never heard Miner use derogatory language about African-Americans, or make jokes or comments with racial overtones, she believes his statements about her negativity, defensiveness, and argumentativeness were stereotyping of African-Americans. 

            On May 15, 2001, Miner extended Watson’s PIP an additional 30 days, indicating that while she had met the objectives of the plan relating to her LWOL duties, she needed more work regarding her professional behavior, and she also had issues with attendance and productivity.  When Watson and Miner met again on June 1, 2001, for a two-week status report on her plan, Miner cited several specific instances regarding professional behavior, attendance, and productivity.  He noted that there were still problems with Watson referring customers to telephone services even though they had requested e-mail responses.  Miner asked Watson to review all e-mail responses with him before sending them.  Watson claims that the review was only to last for one week.

            Previously, in about March 2001, Miner raised the issue with Watson that he had seen her with her head on her worktable and told her that she needed to be alert.  When he addressed this issue with her at her annual performance review, she responded by saying, “Who do I have to appear alert to, my co-workers?  The callers can’t see me.”  Miner claims that on April 17 he talked to her again about remaining alert at work and that on several occasions he told Watson, “Brenda, look alert.” 

            Watson’s former supervisor, Vicky Guider, noted on the evening of April 24-25 that Watson appeared to be sleeping at work.  She reported this to Miner who approached Watson and found her leaning back in her chair with her eyes closed, but not asleep. Miner told Watson that she needed to be alert and appear alert.  Guider’s affidavit states, “I also observed Brenda Watson on numerous other occasions with her head down in her arms on the desk and it appeared that she was sleeping.”

            On the evening of June 12-13, Miner noticed Watson with her head down on her desk.  He called her name, she did not respond immediately, and then she stirred and raised her head.  Miner told her she needed to be awake.  The following evening Watson again had her head on her desk and her telephone was not activated to take calls. 

            The next evening, June 14-15, Miner noticed Watson leaning back in her chair with her eyes closed and her mouth open.  He approached her work cubicle and called her name but she did not respond.  When he called her name a second time, she stirred and opened her eyes.  Later the same evening, Miner noticed that Watson had her telephone turned off for a long time.  When he approached her cubicle, Watson’s head was down on her desk.  He called her name, and there was no response.  According to Miner, she was asleep.  He tapped her shoulder and called her name again, and then she awakened.

            That evening, Miner recorded in his manager’s notes three matters he labeled as major performance infractions by Watson: sleeping on the job, failing to follow directions regarding his review of e-mail responses, and not accurately advising him about the number of LWOL e-mails Watson had been assigned.  According to Ceridian, Watson was terminated for these reasons on June 18, 2001.

            Watson denies that she ever slept on the job and asserts that Miner fabricated these allegations because she had otherwise fulfilled the PIP and Miner wanted a reason to terminate her.  Watson admits that she closed her eyes on the job, as did others who, like her, suffer from migraine headaches, which seemed to be exacerbated by the fluorescent lights at Ceridian.  According to Watson, Miner never told her that he had found her asleep until he terminated her. 

            Watson sued Ceridian alleging that her termination was the result of race discrimination, that she was terminated in retaliation for contacting Ceridian’s Director of Diversity and Employee Dispute Resolution, and that statements made about her being terminated for sleeping on the job were defamatory.  Respondent moved for summary judgment on the grounds that appellant could not establish a prima facie case of discrimination, or reprisal, or defamation.  The district court granted Ceridian’s motion.  This appeal followed.

 

D E C I S I O N

 

            On appeal from summary judgment, this court must determine whether any genuine issues of material fact exist and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  In reviewing summary judgment, we examine the evidence in the light most favorable to the party against whom judgment was entered.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  Nonetheless, the party opposing summary judgment must do more than rest on mere averments; a genuine issue for trial must be established by substantial evidence.  DLH, Inc. v. Russ, 566 N.W.2d 60, 69-70 (Minn. 1997).  No genuine issue of material fact exists “where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. . . .”  Id. at 69 (quotation omitted).

            A motion for summary judgment shall be granted when “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 either party is entitled to a judgment as a matter of law.”  Minn. R. Civ. P. 56.03. 

[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions. 

 

Russ, 566 N.W.2d at 71.

I.          Discrimination claim

            Minnesota uses the three-part McDonnell-Douglas test to assess employment discrimination cases involving claims of disparate treatment.  Sigurdson v. Isanti County, 386 N.W.2d 715, 719-20 (Minn. 1986); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25 (1973).  Under this test, the plaintiff must first establish a prima facie case of discrimination.  Sigurdson, 386 N.W.2d at 720.  Second, the employer must present evidence of a legitimate, nondiscriminatory reason for its actions.  Id.  Third, the plaintiff must demonstrate that the employer’s proffered reasons are actually a pretext for discrimination, showing by a preponderance of the evidence either that it is more likely the defendant was motivated by race or that the defendant’s proffered explanation is unworthy of credence.  Shockency v. Jefferson Lines, 439 N.W.2d 715, 719 (Minn. 1989).  This three-part test also applies to motions for summary judgment; if the plaintiff fails to set forth sufficient evidence at the first or third stage of the test, summary judgment is appropriate.  Rademacher v. FMC Corp., 431 N.W.2d 879, 882 (Minn. App. 1988); see also Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 545-46 (Minn. 2001) (applying test in reviewing summary judgment).

            To establish a prima facie case of race discrimination, a plaintiff must show that (1) she is a member of a protected group; (2) she was qualified for the job she held; (3) despite her qualifications, she was discharged; and (4) that she was either replaced by a non-minority or that other similarly situated non-minority employees were not discharged for nearly identical behavior.  Swanigan v. Western Airlines, Inc.,396 N.W.2d 607, 612 (Minn. App. 1986).  It is undisputed that Watson is a member of a protected class and that she was discharged from her employment.

            The district court concluded that at the time of her termination, Watson was not qualified for her position, and therefore Watson could not establish a prima facie case of race discrimination.  Although we concur that Watson has failed to establish a prima facie case, we disagree with the district court’s conclusion that Watson was not qualified for the position of e-mail consultant.  “The qualifications prong [of the McDonnell-Douglas test] generally relates to vocational skills and ability to perform the job’s functions.”  Ward v. Employee Dev. Corp., 516 N.W.2d 198, 201-02 (Minn. App. 1994) (citing Rutherford v. County of Kandiyohi, 449 N.W.2d 457, 462 (Minn. App. 1989) (noting fact that plaintiff was hired and retained for several years showed he had basic job qualifications), review denied (Minn. Feb. 28, 1990)).  For purposes of establishing a prima facie case under McDonnell Douglas, Watson was qualified for the position of e-mail consultant.

            Watson alleges in her brief that she was treated differently from similarly situated non-members of the protected class.  She alleges that other employees working in the same position were not subjected to the same standards that she was.  Specifically, she alleges that the e-mail service breakdown in January 2001, was not her fault, but rather the result of errors by her white co-workers.  She claims that she was disciplined for their errors.  But the cases were assigned to Watson and she was disciplined for the manner in which she handled them after assignment.  And, by including all Ceridian consultants, Watson is not making the appropriate comparison to similarly-situated employees.  The key to a comparison with similarly-situated employees, as Ceridian points out, is not all persons employed as consultants by Ceridian, but rather any consultants with a pattern of poor performance similar to her own who were not disciplined.  Watson has not identified any other consultants, supervised by Miner or otherwise, as the basis for comparison.  See Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000) (holding employee must have same supervisor, be subjected to same standards, and engage in similar conduct to the plaintiff’s to constitute a similarly situated employee).  Ceridian notes that a white e-mail consultant, not under Miner’s supervision, was placed on a PIP due to poor performance and was, like Watson, terminated for failing to meet the objectives of her PIP and its extension.  Watson has failed to establish that she was treated differently from others who are not members of a protected class who committed substantially similar acts.

            Even if Watson had established a prima facie case of discrimination, Ceridian has shown a legitimate non-discriminatory reason for her termination as required by McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824.  During the time when Watson was placed on the PIP up until her termination and throughout this litigation, Ceridian has maintained that Watson was not meeting the company’s legitimate performance expectations.  Poor performance is adequate grounds for dismissal.  See Evers v. Alliant Techsystems, Inc., 241 F.3d 948, 959 (8th Cir. 2001) (stating that it is not unlawful for employment decisions to be based upon poor job performance).  The evidence in the record, including statements by Ceridian management, the PIP signed by Watson, and several reports expressing concern about Watson’s performance, documents that Watson’s performance was below acceptable levels. 

            In order to satisfy the final requirement of the McDonnell-Douglas test, Watson would need to prove that Ceridian’s articulated legitimate non-discriminatory reasons for her termination are pretextual.  McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. at 1825.  In order to meet her burden under this requirement, she must provide “sufficient evidence for the trier of fact to infer that [Ceridian’s] proffered legitimate non-discriminatory reason is not only pretext but that it is pretext for discrimination.”  Hoover, 632 N.W.2d at 546.  Watson merely states her disagreement with the validity of Ceridian’s reasons for her termination but offers no evidence to prove that her discharge was actually due to discrimination.  As stated earlier, mere averments are not enough to support opposition to summary judgment.  Russ, 566 N.W.2d at 69-70.  The district court correctly determined that Ceridian was entitled to summary judgment on Watson’s claim of race discrimination.

II.        Reprisal claim

            Appellant Watson next alleges that the district court improperly dismissed her retaliation claim.  She asserted in her complaint that she was terminated in retaliation for claiming that her January 24, 2001, suspension and subsequent discipline were racially motivated.  This claim is also evaluated under the three-part McDonnell-Douglas test applied above.  Hubbard v. United Press Intern., Inc., 330 N.W.2d 428, 444 (Minn. 1983).  Under this test, Watson must establish a prima facie case of reprisal to make an inference of discrimination.  In order to establish a prima facie case of retaliatory discharge, an employee must establish: “(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two.”  Id.  If a prima facie case is established, an employer can negate the inference of discrimination by showing a legitimate non-discriminatory reason for the termination.  Id. at 445.  The employee would then need to prove that the employer’s proffered reasons for termination were pretextual.  Id.

            The district court found that Watson could not establish a prima facie case on the retaliation claim.  Specifically, the court stated that “[n]either her request to leave the LWOL program or her January 2001 meeting with Mr. Scott fall within the ambit of statutorily protected conduct.”  The court further concluded that even if she could show these activities were protected by statute, she had not shown any evidence of a causal connection between these events and her termination.  We agree that Watson has failed to show any evidence of a causal connection between her complaints of race discrimination and her termination.  The alleged retaliatory action by Ceridian was her termination in June 2001, five and a half months after she met with Scott and allegedly told him that she thought Miner’s actions were racially motivated.  The district court properly concluded that the long delay between her action and her termination precluded a determination that there was a causal connection between the two.  See Feltmann v. Sieben, 108 F.3d 970, 976-77 (8th Cir. 1997) (termination six months after engaging in protected conduct, by itself, insufficient to support causal connection). 

            Watson also alleges that she continually complained to Miner that his assessment of her performance was racially motivated, and that he terminated her in retaliation for those assertions.  She states that she made the last allegation on June 5, 2001, two weeks before she was terminated.  But she provides no evidence to show that Miner’s motivations were based on racial bias or that he reacted negatively to her assertion of such a bias.  Miner had instituted a discipline program for Watson before she asserted racial bias and did not change that program after she made the allegations.  Watson has no evidence that Ceridian’s proffered legitimate, non-discriminatory reasons for her termination are pretext or that the real reason for her termination is reprisal for complaints of race discrimination. 

III.       Defamation claim

            To establish a claim for defamation, Watson must prove that (1) the statement was false; (2) it was communicated to someone other than Watson; and (3) it tended to harm her reputation.  Bol v. Cole, 561 N.W.2d 143, 146 (Minn. 1997).   Watson claims that she was defamed by Miner at her termination meeting when he told her she was sleeping on the job, and the defamation is ongoing because she is forced to self-publish the proffered reasons for termination to future prospective employers.  See Lewis v. Equitable Life Assurance Soc’y, 389 N.W.2d 876, 888 (Minn. 1986) (holding that publication requirement of defamation action may be satisfied when plaintiff is compelled to publish a defamatory statement to third person if it was foreseeable to defendant that plaintiff would be so compelled).

            A statement only constitutes actionable defamation if it is untrue, or in substance untrue.  Id.  Ceridian asserts that Watson has not shown that the statement that she was terminated for sleeping on the job is untrue.  But “the truth or falsity of a statement is inherently within the province of the jury.”  Id. at 888-89.  For purposes of summary judgment, we are compelled to accept Watson’s allegations that the statement was not true.

            “Even though an untrue defamatory statement has been published, the originator of the statement will not be held liable if the statement is published under circumstances that make it conditionally privileged and if privilege is not abused.”  Id. (citing Restatement (Second) of Torts § 593 (1977)).  “[A]n employer’s communication to an employee of the reason for discharge may present a proper occasion upon which to recognize a qualified privilege.”  Id.  at 890.  The initial determination of whether a communication is privileged is a question of law for the court to decide.  Id. at 889.  We conclude that the district court did not err in determining that the circumstances of the statement that Watson was sleeping on the job make it conditionally privileged.   Watson was observed by her own supervisor and her former supervisor in a position that led them to believe that she was sleeping.  Their observations were documented and Miner discussed with Watson the importance of looking alert.

            Statements made in good faith and for a legitimate purpose protect an employer from liability for defamation unless the plaintiff can show malice.  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 257 (Minn. 1980).   Because Ceridian is protected by a qualified privilege, Watson has the burden to prove that this privilege was abused because the defamatory statements were made with malice.  Bol, 561 N.W.2d at 150 (citing Stuempges, 297 N.W.2d at 257).  “Malice is generally a question of fact.  On review of summary judgment, however, this court determines whether the evidence submitted raises any genuine issues of material fact.”  Id. (citation omitted). 

Malice is defined as

actual ill-will or a design causelessly and wantonly to injure plaintiff.  Malice cannot be implied from the statement itself or from the fact that the statement was false.  Malice can be shown by extrinsic evidence of personal spite, as well as by intrinsic evidence such as the exaggerated language of the libel, the character of the language used, the mode and extent of publication, and other matters in excess of the privilege.

 

Id. (citations omitted).  In this case, the record supports the district court’s conclusion that Watson’s assertion that the statements were made with malice are based on speculation alone and not supported by the evidence.  Such speculation is insufficient to establish liability for defamation.  See Harvet v. Unity Med. Center, Inc., 428 N.W.2d 574, 579 (Minn. App. 1988).  We agree that the evidence in the record, when viewed in the light most favorable to Watson, is insufficient to create a genuine issue of material fact as to the issue of malice.  The district court did not err in granting summary judgment to Ceridian on Watson’s defamation claim. 

            Affirmed.