This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Jennifer Woebke Tong,
American Public Media Group, et al.,
Filed December 27, 2005
Ramsey County District Court
File No. C1-04-792
William J. Egan, William J. Egan, PLC, 315 Edina Executive Plaza, 5200 Willson Road, Edina, MN 55424 (for appellant)
Karen G. Schanfield, Sara Gullickson McGrane, H. Le Phan, Felhaber, Larson, Fenlon & Vogt, P.A., 220 South Sixth Street, Suite 2200, Minneapolis, MN 55402 (for respondents)
Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant sued her former employers for alleged violations of the Minnesota Human Rights Act, Minn. Stat. §§ 363A.01 to .41 (2004), claiming (1) “sex and/or pregnancy” discrimination, (2) reprisal discrimination, and (3) the aiding and abetting of discrimination. Appellant challenges the district court’s grant of summary judgment to the employers. Because appellant failed to establish a prima facie case for her claims of pregnancy and reprisal discrimination and, therefore, failed to establish any underlying discrimination to support her claim of aiding and abetting discrimination, we affirm.
The facts are largely undisputed. In August 1998, appellant Jennifer Tong was hired as manager of financial analysis for Minnesota Communications Groups, the predecessor of American Public Media Group (APMG). APMG is the nonprofit parent organization of Minnesota Public Radio (MPR) and provides financial-management, human-resources, and administrative services to MPR. Tong then became finance and projects manager, and later director of finance and content analysis, for MPR’s content division.
In March 2002, Tong met with her supervisor, Jon McTaggart, the senior vice president of MPR’s content division, for Tong’s annual performance evaluation. Tong received a positive evaluation and a three-percent raise, the maximum possible because she was at the top of her salary grade. Tong claims that during this meeting she complained to McTaggart of pay inequity based on gender discrimination.
In late April or early May 2002, Tong told McTaggart that she was pregnant and that her due date was at the end of August. According to Tong, McTaggart asked her if she was happy about being pregnant and whether it was planned. Tong did not tell McTaggart or anyone else that she thought these comments were inappropriate. Later, when Tong was talking with McTaggart about her maternity-leave plans, she mentioned that she was interested in limiting her work week to four days.
At the end of July, McTaggart told Tong that her job was going to be transferred from MPR’s content division to APMG’s finance division as a part of a business reorganization. Tong was surprised by the transfer, and later learned that, after the transfer, her direct supervisor would be APMG’s finance controller, Barbara Mock, but that Tong’s job title and duties would remain the same. Before Tong’s maternity leave, she met with APMG’s chief financial officer and its vice president of human resources, and requested a reduced work week when she returned from her leave. APMG agreed to accommodate her with a reduced schedule, but no details had been agreed on when Tong went on maternity leave in August 2002.
Tong claims that while she was on maternity leave, Mock told her that her duties were being performed by Mock and others and that some of Tong’s budget duties would change because of the implementation of a new electronic budgeting tool. Tong subsequently proposed that, upon her return, she would work 24 hours per week: 16 hours in the office and 8 hours working from home. APMG approved this schedule.
Before her maternity leave, Tong’s duties included preparing budgets and assisting with the preparation of grant proposals and special projects. Tong claims that after returning from her four-month leave in January 2003, her duties were limited to grants and special projects, and that these duties were less challenging and less important than her responsibilities had been before her leave.
In February 2003, Tong submitted a letter of resignation, in which she stated that she believed that her transfer and the diminishment of her job duties were the result of the fact that she raised pay-equity issues during her March 2002 review. Before her resignation became effective, Tong and MPR’s Director of News, Bill Buzenberg, discussed the possibility that Tong might do budget work for Buzenberg on a contract basis. APMG’s chief financial officer denied Buzenberg’s request to hire Tong as an independent contractor.
Tong served a complaint on APMG and MPR in November 2003, claiming that they violated the Minnesota Humans Right Act (MHRA) by constructively discharging her on the basis of her “sex and/or pregnancy,” by retaliating against Tong by transferring her job and diminishing her job duties because of her complaint regarding pay inequity based on gender, and by aiding and abetting one another in discriminating against Tong. After the parties conducted discovery, the district court granted APMG and MPR’s motion for summary judgment on all of Tong’s claims. This appeal follows.
appeal from summary judgment, this court makes two determinations: (1) whether
there are any genuine issues of material fact and (2) whether the district
court erred in its application of the law.
State by Cooper v. French, 460 N.W.2d 2, 4 (
Tong argues first that the district court erred by granting summary judgment on her claim that APMG and MPR constructively discharged her because of her “sex and/or pregnancy.” The MHRA provides that
it is an unfair employment practice for an employer, because of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, membership or activity in a local commission, disability, sexual orientation, or age to:
(c) discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment.
analyzing a discrimination claim under a disparate-treatment theory, Minnesota courts
apply the three-step, burden-shifting test enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817
(1973). See, e.g., Sigurdson v. Carl
Bolander & Sons, Co., 532 N.W.2d 225, 228 (
The requirements of a prima facie case of employment discrimination vary according to the facts of each case. Sigurdson, 532 N.W.2d at 228 n.2. Although Tong refers to her claim as one of “sex and/or pregnancy” discrimination, we conclude from her argument that the claim is that APMG and MPR discriminated against Tong because of her pregnancy by constructively discharging her. To prevail on a pregnancy-discrimination claim, a plaintiff must show that she was “treated differently because of her pregnancy or a pregnancy-related condition.” Hietala v. Real Estate Equities/Village Green, LLC, 998 F. Supp. 1065, 1068 (D. Minn. 1998) (analyzing a pregnancy-discrimination claim under the MHRA) (quotation omitted). To establish a prima facie case of discrimination under a disparate-treatment theory, a plaintiff must present evidence demonstrating that “(1) she was a member of a protected group; (2) she was qualified for her position; and (3) she was discharged under circumstances giving rise to an inference of discrimination.” Hanenburg v. Principal Mut. Life Ins. Co., 118 F.3d 570, 574 (8th Cir. 1997) (analyzing a pregnancy-discrimination claim under the MHRA). If a plaintiff was not discharged but rather resigned, she must establish constructive discharge. See id.
Here, there is no dispute that Tong satisfies the first two elements necessary to establish a prima facie case of pregnancy discrimination. As a woman, and then as a pregnant woman, Tong was a member of a protected group while employed with APMG and MPR. And neither APMG nor MPR disputes that Tong was qualified for her position. But because Tong resigned, to satisfy the third element, she must show that she was constructively discharged.
employee is constructively discharged when an employer forces her to quit by
deliberately making the employee’s working conditions intolerable.
Tong argues that the following facts show that she was constructively discharged: (1) she was transferred to a department that was managed by the chief financial officer, who “clearly” had interpersonal issues with Tong; (2) the vice president of human resources called her “petty” for asking what her responsibilities would be after her job transfer; (3) her “principal responsibilities” were reassigned “to junior analysts while she [was] on [maternity] leave”; (4) she was given a “simplistic job” after returning from her leave; and (5) after her resignation, the vice president of human resources told her that people were glad she was leaving and that she was offensive.
Accepting the facts that Tong alleges as true, they do not establish intolerable working conditions, and more importantly, none of these facts allows an inference that any of the actions was taken because of Tong’s pregnancy. Tong’s job was transferred to APMG’s finance division, and APMG’s chief financial officer told her that her job title and duties would not change. Tong admits that her pay rate did not change and does not claim that her benefits changed as a result of the transfer of her job. Any changes that occurred were the result of Tong’s decision to work only 24 hours per week after returning from maternity leave. There is no evidence that APMG would not have allowed Tong to work 40 hours per week after her leave or that APMG or MPR wanted Tong to quit. Instead, the evidence shows that APMG accommodated Tong’s requested post-leave work schedule so that it could retain her as an employee. In addition, because Tong did not tell either APMG or MPR that she believed she was being discriminated against because of her pregnancy, Tong did not give APMG or MPR an opportunity to address the issue before she resigned.
Because Tong is unable to show that APMG or MPR deliberately made Tong’s working conditions intolerable intending to force her resignation, Tong is unable to establish that she was constructively discharged. We conclude, therefore, that Tong has not established a prima facie case of pregnancy discrimination.
argues that the district court erred by applying the wrong legal standard in
assessing whether she had established a prima facie case of pregnancy
discrimination. Although it appears that
the district court applied the test appropriate for a claim of reprisal
discrimination to Tong’s pregnancy-discrimination claim, the error is harmless
because the district court’s conclusion that Tong failed to establish that she
was constructively discharged is sound and is dispositive of her pregnancy-discrimination
claim. Tong’s proposed alternative test
for establishing a prima facie case of pregnancy discrimination does not
require a showing of circumstances that give rise to an inference of
discrimination and has no basis in
The district court did not err by granting summary judgment on Tong’s pregnancy-discrimination claim.
also appeals from the district court’s grant of summary judgment on Tong’s
claim of reprisal discrimination. Tong
claims that APMG and MPR retaliated against her for complaining about pay inequities
based on gender by transferring her job and diminishing her job duties and by
refusing to hire her as an independent contractor. The MHRA provides that it is an “unfair
discriminatory practice” for an employer to “intentionally engage in any reprisal”
against a person because that person opposed the employer’s alleged
McDonnell Douglas test applies to
retaliation claims. Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 444 (
argues that her oral complaint of pay inequity to McTaggart during her March
2002 review was statutorily protected conduct.
Statutorily protected activities include “opposing ongoing
discriminatory treatment.” Smith v. DataCard Corp., 9 F. Supp. 2d
1067, 1080 (D. Minn. 1998) (analyzing a claim of reprisal discrimination under
the MHRA) (quotation omitted). But oral
complaints and letters to management alleging nothing more than unfair
treatment are not statutorily protected activity. Dietrich
v. Canadian Pac. Ltd., 536 N.W.2d 319, 327 (
argues that the transfer of her job from MPR to APMG’s finance division was an
adverse employment action. An adverse
employment action is one that “materially alters the terms or conditions of the
plaintiff’s employment.” Ludwig v. Nw. Airlines, Inc., 98 F.
Supp. 2d 1057, 1069 (D. Minn. 2000) (analyzing a claim of retaliation
discrimination under the MHRA) (quotation omitted). A job transfer with “no difference … in wages,
benefits, workload or duties” is not an adverse employment action.
Tong’s employment relationship with APMG and MPR did not entitle her to work for
APMG or MPR on a contract basis and because the MHRA does not apply to
independent contractors, we decline to determine whether Tong’s complaint in
her letter of resignation that she was transferred “in response to [her]
complaints of unequal pay compared to [her] male peers” was statutorily protected
activity or whether APMG’s subsequent refusal to allow Tong to be hired as an
independent contractor was an adverse employment action. See Hanson v. Friends of
Because Tong failed to establish a prima facie case of reprisal discrimination, the district court did not err by granting summary judgment on that claim.
also appeals from the grant of summary judgment on her claim that APMG and MPR aided
and abetted one another in discriminating against her. The MHRA provides that it is an “unfair
discriminatory practice” for a person to intentionally aid or abet another to
engage in any discrimination prohibited by the MHRA.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.