This opinion will be unpublished and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
Reversed and remanded
Dodge County District Court
File No. 20CX03000858
Paul W. Iversen, Williams & Iversen, P.A., Suite 208, 1611 West County Road B, Roseville, MN 55113 (for appellant)
Ann R. Goering,
Ratwik, Roszak & Maloney, P.A., 300
Considered and decided by Willis, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.
Appellant sued respondent, her public employer, alleging that respondent eliminated her position to avoid the risk of being required, under the Local Government Pay Equity Act, to pay appellant 87% of what respondent’s male employees were paid “because [respondent] felt that she did not deserve to be paid that much . . . because she [is] a woman” and in reprisal for her continued complaints about pay equity. The district court granted summary judgment to respondent, concluding that appellant failed to establish a prima facie case of sex or reprisal discrimination. Appellant challenges the grant of summary judgment, arguing that the district court failed to view the evidence in the light most favorable to her claims and inappropriately made factual determinations on summary judgment. We reverse and remand.
From 1978 until 2002, appellant Kathleen Loew was employed by respondent Dodge County Soil and Water Conservation District (DCSWCD) as a clerk/accountant. Loew’s duties included answering telephones, fielding questions from members of the public and participants in DCSWCD programs, clerical duties, cleaning files, and bookkeeping. DCSWCD also employed two technicians, whose duties included office and field work, including surveying, designing conservation structures, farm planning, and maintaining the county ditch system. At all relevant times, the technicians have been male and Loew was the only female employee of DCSWCD. The employees were managed by DCSWCD’s board of supervisors, composed of five elected members who met monthly to make decisions directing the activities of DCSWCD.
DCSWCD is subject to the Minnesota Pay Equity Act (MPEA), Minn. Stat. §§ 471.991-.999 (2004). That law, enacted in 1984 (1984 Minn. Laws, ch. 651, § 2, at 1897), requires every political subdivision to “establish equitable compensation relationships between female-dominated, male-dominated, and balanced classes of employees in order to eliminate sex-based wage disparities in public employment in this state.” Minn. Stat. § 471.992, subd. 1 (2004).
When the MPEA became effective, Loew
and James Hruska, one of the technicians, created job descriptions and job
rankings for the DCSWCD positions by using existing city and county job
descriptions and rankings. As required
by the MPEA, the DCSWCD filed periodic reports covering wages for each fiscal
year with the Department of Employee Relations (DOER), which monitors
compliance with the MPEA. See
In July 1997, DOER notified DCSWCD that it was no longer in compliance with the MPEA. DCSWCD challenged the determination, asserting that it had failed to notify DOER that it had adopted a different job-ranking system and had mistakenly submitted pay information under the old rankings. DOER responded that because there had been no substantial change in the employees’ job duties, DCSWCD was required to continue paying Loew 87% of the technician’s salary. DCSWCD gave Loew raises in 1998 and 1999 to avoid paying a penalty of $46,500 and to remain compliant with MPEA through the reporting period that ended December 31, 1999. At the same 1998 meeting in which the board approved Loew’s pay raise to comply with MPEA, the board determined to “further investigate how [DCSWCD’s] salary schedule and the DOER can be compatible.” Board member Gary Gray testified at his deposition that even though DCSWCD could remain in compliance with the MPEA by paying Loew 87% of the technician’s salary, it was the board’s conclusion that “office” work and “technical” work were “drastically different” and that the clerk/accountant position should not be paid 87% of the technician’s pay.
The board contracted with the Fox Lawson consulting firm to review the employees’ job descriptions and rank the positions. Bob Bjorklund of Fox Lawson prepared job rankings using the “Decision Band Method” that ranked the technician job in the “B23” category and the clerk/accountant job in the “B21” category. Bjorklund attached a pay schedule that, if used with his rankings, would have continued Loew’s wage at approximately 87% of the wage received by the male employees.
Bjorklund left Fox Lawson shortly after completing the report. The board initially indicated it would continue to work with Bjorklund, but, according to the deposition testimony of board member Bryan West, Bjorklund never responded to questions about his report. The June 1998 board minutes reflect that Bjorklund’s rankings and report were received without comment but not adopted. The July and August 1998 minutes reflect that West questioned how Bjorklund’s rankings could be used for pay-equity reports, but there is no further discussion in the minutes of Bjorklund’s rankings after that point.
In March, April, and May 1999, DCSWCD employees were asked to list their job duties. Based on these lists of duties, the board asked Lisa Hagar of the county’s human-relations department to draft sample job descriptions. The board then contracted with DMG Maximus to develop a salary structure. According to the testimony of various board members, based on their recollection, job descriptions approved by and signed by the three employees were forwarded to DMG Maximus for ranking. But Loew’s extensive and contemporaneously written notes detail the board’s uncertainty about what information was provided to DMG Maximus for the job rankings. It is not clear that the board considered the list of duties prepared by the employees to be “job descriptions,” and Hagar’s job descriptions were found by the employees not to be accurate. Loew asserts that the employees gave the board corrections to Hagar’s job descriptions, but the board did nothing with the corrections because DMG Maximus had already completed the ranking process by the time the board received the corrections. Despite testimony about what the board members believe was supplied to DMG Maximus, a fact question remains on this issue.
DMG Maximus completed its evaluation of the three positions in December 1999, and Loew began complaining about the rankings, based on her belief that the rankings were based on inaccurate job descriptions. That belief, in turn, was based on the failure of the rankings to give her more credit in any category than the technicians were given. At the February 10, 2000 board meeting, Loew asserted a “grievance,” questioning the failure of DMG Maximus ratings to give her points for “fiscal responsibility” for bookkeeping, which, she asserted, was one-third of her work, and none of which was performed by the male employees. After being told that she was not “fiscally responsible” for county funds and that she was given points for bookkeeping in the “spreadsheets” category, Loew noted that she and the male employees were given the same number of points in that category even though the male employees worked with spreadsheets much less than she did. Loew repeatedly questioned the rankings and the information on which they were based over the course of board meetings, personnel meetings, and numerous conversations in 2000 and 2001.
DMG Maximus consultant David Riggs wrote to the board in March 2001, opining that because the job ranking prepared by DMG Maximus in 1999 rated Loew’s job at 65% of the male-dominated technician jobs (82 points versus 126 points), DCSWCD could be in compliance with the MPEA so long as the female-dominated position was paid at least 65% of what the male-dominated jobs were paid. Riggs further noted that Loew was currently being paid 85% of the technician’s salary. Riggs suggested a pay scale establishing the clerk/accountant pay at 70% of the technician’s pay. At the March 8, 2001 board meeting, the board adopted the DMG Maximus recommendations.
After approving the recommendations, the board approved raises for the technicians but not for Loew. Loew continued to question the equity of her pay and the basis of DMG Maximus’s rankings. She wrote to the board chair asking for the information, and when she did not get a response, raised data-practices issues with state officials and consulted an attorney. Loew’s saga of her ongoing attempts to determine what information DMG Maximus used to rank the jobs is, in part, the basis for her assertions that she was ignored, ridiculed, and marginalized by the board.
At the December 2001 personnel meeting, Loew pointed out that the personnel files contained three “job descriptions” (the list of duties written by the employees, the Hagar job descriptions, and the “corrected” Hagar job descriptions) and that no employees knew which were considered accurate. At the board meeting following the personnel meeting, a motion was passed to eliminate “irrelevant” job descriptions from the personnel files, but the record is unclear about what was actually removed from the files. The board discussed sending the job descriptions to Faith Zwemke at DOER for review, but board member Gary Gray said the board’s attorney had recommended against doing so. Gray also discussed how Loew’s request for information had caused him to incur attorney fees, and, without any prior warning to or discussions with Loew, moved to reduce Loew’s job from four to two days per week (32 to 16 hours per week).
At a subsequent board meeting, the board voted to explore contracting out the bookkeeping work. On March 28, 2002, about one week after board member Gary Gray asked Loew when the next pay-equity report would be due, the board eliminated Loew’s position altogether. Some of Loew’s duties were absorbed by the technicians, and an outside accounting firm was retained to perform the bookkeeping duties. Because the contract accountant is not employed by DCSWCD, it no longer has to justify the amount paid for bookkeeping under the MPEA.
Board member West acknowledged in his deposition that Loew had stated to him that she thought the board was treating her unfairly. He noted she would get “upset” with “her pay equity.” But he testified that Loew never specifically told them that she felt the board was discriminating against her. West testified that Loew was asked at a personnel meeting whether she felt she was discriminated against by the district, and she said she did not. But minutes of the March 11, 2002 DCSWCD personnel committee meeting reflect a discussion about Loew’s “attitude” and document that Loew stated at that meeting that she “doesn’t think she has been treated fairly in the office” since the retirement of a previous technician and that “since she’s the only woman in the office, she is not treated as an equal.”
Technician Hruska testified that Loew told him she felt she was treated “differently,” but he could not remember specifics. He conceded that he was upset when the DCSWCD was found to be out of compliance with pay equity and he accused Loew of “crying” to Faith Zwemke at DOER. Loew testified that she first contacted Faith Zwemke when the board’s appeal of the non-compliance finding was pending to ask what needed to be done to bring DCSWCD into compliance and had ongoing contact with Zwemke concerning the situation. According to Loew, Zwemke is one of the people who suggested that she contact a lawyer and the human-rights department regarding discrimination.
Loew sued DCSWCD in March 2003, alleging discrimination on the basis of sex for eliminating her position to avoid complying with the MPEA and as reprisal for her opposition to discriminatory practices, in violation of the Minnesota Human Rights Act, Minn. Stat. §§ 363.03, subds. 1(2), (7). After discovery, DCSWCD moved for summary judgment, which was granted by the district court. This appeal followed.
On review of a grant of summary
judgment, this court determines (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 (
As correctly noted by the district
court, gender- and reprisal-discrimination claims under the MHRA are analyzed
under the three-part burden-shifting test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817
(1973). See Dietrich v. Canadian Pac.
Ltd., 536 N.W.2d 319, 323 (
I. Sex discrimination
Absent direct evidence of employment discrimination, a prima facie case is established by an employee showing that “(1) she is a member of the protected class, (2) she was qualified for the position, (3) she was subjected to an adverse employment action, and (4) the employer assigned a non-member of the protected class to do the same work.” Johnson v Canadian Pac., Ltd., 522 N.W.2d 386, 389 (Minn. App. 1994), rev’d on other grounds, Dietrich, 536 N.W.2d 319. A plaintiff who is discharged in the context of a genuine reduction in force may establish the fourth element of a prima facie case by an additional showing that gender was a factor in the discharge. Dietrich,536 N.W.2d at 324.
In this case, it is undisputed that Loew is a member of a protected class, was qualified for the position of clerk/accountant, and suffered an adverse employment action. The district court concluded, however, that Loew failed to show that her sex was a factor in the elimination of her position and her discharge. Loew asserts that she has made such a showing by presenting evidence that, days before her position was eliminated, a board member contacted her to ask when the next pay-equity report was due. She contends that this inquiry, taken together with the ongoing disregard of her repeated complaints that job rankings obtained by the board were based on inaccurate or unfairly weighted job descriptions, her specific complaint at the personnel-committee meeting that she was being treated unfairly because she was the only woman employee, and evidence that the board was attempting to justify reducing her wages in relation to the technicians under the pay-equity system, is sufficient to support an inference that gender was a factor in the board’s decision.
Loew argues that, to reach its conclusion, the district court failed to view the evidence in the light most favorable to her and made fact findings that are inappropriate in the context of summary judgment. Specifically, Loew points out that to support its conclusion, the district court made a factual finding that:
The Board’s inquiry [about when the pay-equity report was due] . . . is not evidence of anything other than ensuring compliance with the law. The record does not support the allegation of [Loew] that the [board] asked about the date to avoid complying with pay equity. According to the letter from David Riggs of DMG Maximus of March 8, 2001, the District was currently in compliance with pay equity.
Loew argues that Riggs’s opinion that DCSWCD was in compliance with pay equity was not binding on DOER, that the board had previously failed to persuade DOER that Loew’s position should be paid at less than 87% of the technician’s salary, and that there is no evidence in the record that Loew’s job description or duties had changed in a manner that would persuade DOER to accept the new ranking of the positions. DCSWCD argues on appeal that there was no mechanism that would have allowed Loew to present a challenge to DOER about the job descriptions or job rankings used by DCSWCD, but Loew’s contemporaneous notes demonstrate that she had complained to Faith Zwemke at DOER, and the record demonstrates that the board had discussed and decided against a pre-report review of the job descriptions by Zwemke, both of which are evidence that the parties believed that DOER could be asked to review job descriptions that form the basis of job rankings. Additionally, the pay-equity law specifically provides a mechanism for DOER to assess penalties against governmental units for noncompliance with the law. Minn. Stat. § 471.9981, subd. 6(c) (2004). The district court engaged in inappropriate fact-finding when it found that Riggs’s letter established the board’s compliance with the MPEA and that Gray’s inquiry related only to timely reporting.
The district court’s finding also did not recognize the evidence concerning a sharply disputed material fact: whether the Board’s action in seeking out different job rankings from Bjorklund and DMG Maximus was based on a legitimate purpose or was an ongoing effort to justify its opinion that the female-dominated job was worth less than 87% of the male-dominated job. There is evidence in the record that supports Loew’s contentions, and the district court failed to view the record in the light most favorable to her claims.
The MPEA provides that local-governmental units shall
maintain and update a job-classification system to account for “any changes in
factors affecting the comparable work value of existing classes” and that a
political subdivision that “substantially modifies its job evaluation system or
adopts a new system shall notify the commissioner.”
DCSWCD argues that the board rejected Bjorklund’s report
because the county pay scale, which included many steps and cost of living
increases, was “too complicated,” and the district court made a finding that
adopted this view of the evidence. But the
board members’ testimony is not so straightforward. Board member Bryan West testified that he “was
just taking it for granted” that Bjorklund used the old pay scale from the
county that was “thrown out” by DOER and that the DCSWCD salaries “wouldn’t
necessarily line up” to the county schedule.
Additionally, the assertion by West that Bjorklund’s report was rejected
for Bjorklund’s failure to respond to inquiries about his report involves a
credibility determination, and we note that the record contains no indication
in the Board meeting minutes that Bjorklund was unreachable, as West
testified. Rather, the minutes reflect
that the Bjorklund report was simply not discussed after it was received. Such credibility determinations are
inappropriate on summary judgment. Powell v.
Also, on appeal, DCSWCD attempts to refute Loew’s argument that Bjorklund recommended that her salary continue at 87% of the technician’s wages by pointing out that Bjorklund did not recommend adoption of the pay schedule he attached to his rankings. He recommended that DCSWCD contact other counties to determine their salary ranges for “B23 and B21 jobs” then “take the average maximum and average minimum and set your pay ranges.” But DCSWCD’s argument appears to confuse the recommendation concerning job rankings with the recommendation concerning salary ranges. Bjorklund’s report clearly ranked Loew’s job closer to the technician’s job than did the rankings rejected by DOER even though both rankings were presumably based on the same “Decision Band” scale. This fact supports a finding that Bjorklund’s rankings required paying Loew a salary closer to what the technicians were paid than the rejected rankings required, which in turn supports an inference that, as Loew asserts, the board was unhappy with the results provided by Bjorklund’s rankings because it would have required paying Loew a salary closer to the technician’s salary than the board was willing to accept.
In Dietrich, the supreme court noted that the “additional showing” required in reduction-in-force cases may take many forms and can be made by circumstantial evidence, and courts should not be “overly rigid” in considering the evidence presented to make such a showing. 536 N.W.2d at 324 (quotation omitted). Based on the record viewed in the light most favorable to Loew, a reasonable fact-finder could find that the board went to great lengths to justify its preconceived opinion that Loew’s work was not worth 87% of a technician’s salary and that this preconceived notion about the relative value of the work performed has its origins in the very gender discrimination that the MPEA is designed to eliminate.
Loew has framed her claim as sex
discrimination based on evidence that DCSWCD manipulated or disregarded the
comparable-worth ranking under which it was in compliance with MPEA, as well as
the rankings it obtained from Bjorklund, to justify its gender-based opinions
of the relative value of work. See
The parties agree that DCSWCD met
its burden of going forward with evidence of legitimate, non-discriminatory
reasons for eliminating Loew’s position but dispute whether Loew has
demonstrated a factual dispute that the reasons advanced were pretextual. Under the McDonnell
Douglas analysis, the ultimate inquiry under the third (pretext) prong of
the test is “whether or not the court is persuaded that the employee has been
the victim of intentional discrimination.”
Hasnudeen v. Onan Corp., 552
N.W.2d 555, 557 (
A genuine issue of fact regarding
unlawful discrimination may be present “notwithstanding the plaintiff’s
inability to directly disprove the defendant’s proffered reason for the adverse
employment action.” Strate v.
In this case, the same evidence that gives rise to Loew’s prima facie case creates a fact question regarding DCSWCD’s motivation for eliminating her job. Additionally, the reason asserted by DCSWCD for its action was budget concerns. But the only documentary evidence of budget concerns in the record is a letter written several months after Loew’s position was eliminated. DCSWCD’s 2002 budget, which included Loew’s position at four days per week, was approved prior to reduction of her hours and elimination of her job. No actual budget cut was made until a year after the position was eliminated. Furthermore, there is no evidence in the record that contracting the bookkeeping to an outside accounting firm was less costly than retaining Loew at her reduced hours to perform that function. Respondent’s counsel asserted at oral argument that the accounting-firm bids were prepared and compared to the cost of retaining Loew at two days per week rather than four, but there is nothing in the record that supports this factual assertion. Based on the record as a whole, viewed in the light most favorable to Loew, we conclude that there is a genuine issue of fact about whether DCSWCD’s proffered non-discriminatory reasons for eliminating her position are pretextual, making summary judgment on her claim of sex discrimination inappropriate.
II. Reprisal discrimination
The MHRA forbids reprisal
against an employee who opposes a practice forbidden under the Act.
The “causal connection” prong
may be demonstrated with circumstantial evidence justifying an inference of a
retaliatory motive. Cokley v. City of
The district court held that Loew failed to make out a prima facie case of retaliation or reprisal because she did not show that she engaged in protected activity. The district court also found that Loew made an insufficient showing of causation or a retaliatory motive because DCSWCD had been told it was in compliance with MPEA and had no reason to retaliate against Loew for asserting otherwise.
Federal cases decided under Title
VII hold that an employee can be found to have engaged in a protected activity
as long as the employee at leasthad
a good-faith, reasonable belief that her activity was protected by Title
e.g., Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997)
(stating that employee need not prevail on underlying Title VII claim to
establish he engaged in protected activity but must at least have a reasonable
belief that activity was protected). An
employee may not avoid scrutiny of a retaliation claim “merely by claiming such
“An employee need not utter the magic words ‘Title VII’ to put an employer on notice of unlawful discrimination.” Bahri v. Home Depot USA, Inc., 242 F. Supp. 2d 922, 956 (D. Or. 2002) (refusing to grant summary judgment on ground that plaintiffs’ complaints were not protected activity because they were “too amorphous to alert [defendant] that plaintiffs were opposing unlawful gender or age discrimination,” when generalized complaints about “harassment” and “discrimination” viewed in context of specific activities complained of had a “gender component”).
In this case, Loew repeatedly proclaimed her belief that the wrong job descriptions were supplied to DMG Maximus, that DMG Maximus failed to appropriately credit her with points for bookkeeping, and that it was unfair to equate her bookkeeping duties to the limited work with spreadsheets done by the technicians. Loew’s complaints were made in the context of a law designed to ensure comparable-worth pay for female- and male-dominated positions. Loew may have failed to say the magic words “sex discrimination” in her ongoing discussions, but she clearly articulated several times that she felt the male employees were unfairly being given points their jobs did not merit and stated at least once to supervisors that she felt she was treated unfairly because she was the only female employee. We conclude that the gender-based context of Loew’s complaints and her specific complaint that she was treated differently because she is the only female employee are sufficient to conclude that her complaints were protected as complaints of sex discrimination.
We next address the district court’s finding that Loew presented no evidence of a retaliatory motive or a causal connection between the protected activity and elimination of her position. This finding ignores the context of Loew’s complaints, ignores her specific complaint two weeks before elimination of her job that she was treated unfairly because she is a woman, and involved fact-finding inappropriate in a summary judgment. See Peterson, 406 F.3d at 525 (stating a termination two weeks after protected activity is sufficiently close temporal proximity to establish causation in a prima facie case). We therefore conclude that the district court erred in determining that Loew failed to establish a prima facie case of reprisal discrimination.
Reversed and remanded.
 Loew’s notes reflect that Gray called her on March 20, 2002, and in that conversation asked about the due-date for the pay-equity report.
 The parties do not dispute that elimination of Loew’s position was a genuine reduction in force for purposes of application of the analysis of a prima facie case established in Dietrich.