This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1133

 

Michelle Eichinger,

Appellant,

 

vs.

 

Imation Corporation,

Respondent.

 

Filed April 4, 2006

Affirmed

Halbrooks, Judge

 

 

Washington County District Court

File No. C6-04-514

 

Leslie L. Lienemann, Culberth & Lienemann, LLP, 1050 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for appellant)

 

David M. Wilk, Sarah L. Beuning, Larson King LLP, 2800 Wells Fargo Place, 30 East 7th Street, St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges the district court’s grant of summary judgment and dismissal with prejudice of her complaint alleging discrimination based on sex, pregnancy, and marital status, and retaliation for requesting and taking parental leave.  Because there are no genuine issues of material fact and because the district court did not err in its application of the law, we affirm.

FACTS

            In July 2000, appellant Michelle Eichinger began working in respondent Imation Corporation’s treasury department in a treasury analyst/cash management position.  Jerry Halbach became appellant’s supervisor two months later.  Appellant was not married, had three children, and was living with her boyfriend at the time.  In January 2001, she notified Halbach that she was pregnant. 

            Appellant alleges that Halbach made religious references concerning unmarried cohabitation and negative comments both about appellant being pregnant and single and about the number of children that she had.  Appellant also alleges that when she notified Halbach about her pregnancy, he said, “You just can’t leave your life the way it is, you have to make it as complicated as possible, don’t you?” 

            When her child was born, appellant took a paid eight-week parenting leave.  She returned to work on September 4, working part-time hours but receiving full-time benefits for an additional eight weeks. 

            In October 2001, respondent announced the impending sale of one of its business units; as a result of the sale, certain corporate functions were eliminated.  Robert Edwards, respondent’s Chief Financial Officer, directed Halbach to reduce costs in the treasury department, including reducing personnel by one full-time equivalent.  Accordingly, Halbach eliminated two full-time positions and created two part-time positions, effective after May 31, 2002.  Halbach targeted the two least-senior positions for the reduction, concluding after an investigation that such action would cause the least disruption to the department.  Appellant’s position was one of those targeted for reduction to part-time. 

            In December 2001, Halbach notified appellant that her full-time position would be eliminated in May 2002.  The parties dispute whether Halbach told appellant at that time that the job was being reduced to part-time.  Respondent claims that appellant was notified in December, while appellant contends that she did not know until spring 2002.  Appellant claims that when she asked Halbach why she was not able to keep her job, he responded that she needed a full-time job because of her family situation. 

            Believing that her job would be eliminated and not trusting the stability of the part-time position, appellant took a different position with Imation in May 2002.  While appellant enjoyed the same wages and benefits in her new administrative-assistant position in the IT department, she was not doing the same work that she had in the treasury department, and she reported feeling bored and overpaid. 

            In spring 2002, respondent’s outside auditor discovered that the company had lost $1.5 million to fraud.  As a result, Edwards directed Halbach to hire a highly trained analyst to implement new cash-management procedures prescribed by the board of directors.  Edwards allegedly instructed Halbach “to hire a certified public accountant (CPA) with Big Four accounting experience and at least a bachelors’ degree.”  Accordingly, respondent posted an E3 treasury analyst/cash management position in June 2002.  Appellant does not deny that the E3 position was a different and higher-level position than the E2 position that she held before leaving the treasury department.  The new position included new higher-level functions and specifically required a bachelor’s degree, but the posting did not specify CPA and “Big Four” accounting-firm experience. 

            Appellant contends that she did not apply for the new E3 position because, when she asked Halbach why she was not given the job, he responded that she was welcome to return to the treasury department when she completed her degree and her son was older.  Appellant admits that her son was very ill in early 2002 and that she was only able to work half-time as a result.  Appellant reported the comment to the human-resources (HR) manager.  Appellant also complained about not being considered for the job, but the HR manager explained that it was not the same job that she had previously held. 

            Kristie Solberg, the individual hired for the new position, had a bachelor’s degree, was a CPA, and had “Big Four” accounting experience.  She was also married and had no children.  Solberg held the position for 18 months until she was promoted to another position.  Respondent filled the vacancy internally with an individual who was not qualified to perform all of the position’s duties.  As a result, Solberg continued to perform certain functions, with other high-level functions being fulfilled by others in the department.  As a result, the compensation for the position was reduced to reflect the employee’s diminished responsibilities. 

            Appellant voluntarily left Imation in September 2002.  She subsequently filed a discrimination charge with the Minnesota Department of Human Rights (MDHR), but that charge was dismissed on the ground that the evidence did not support it.  Appellant then filed a complaint in district court, alleging that respondent violated the Minnesota Human Rights Act (MHRA) by discriminating against her on the basis of marital status, sex, and pregnancy, and that respondent violated Minnesota law by retaliating against her because she requested and used parenting leave. 

            Respondent moved for summary judgment, arguing that many of appellant’s claims were barred by the statute of limitations, that appellant lacked evidence that she had suffered an adverse employment action, and that appellant lacked evidence that her sex, marital status, or parenting leave were considered when respondent made employment decisions.  Appellant argued that her MHRA claims were not time-barred because of the doctrine of continuing violations, that Halbach’s comments constituted direct evidence of discrimination, and that genuine issues of material fact existed as to her retaliation claim and her allegations of MHRA discrimination under the McDonnell Douglas analysis. 

            The district court determined that the doctrine of continuing violations does not apply, that appellant’s discrimination claim concerning the reduction of her position to part-time is time-barred, that appellant failed to present a prima facie case of discrimination to support her MHRA claims, and that she had not presented sufficient evidence to sustain her retaliation claim.  The court granted summary judgment in favor of respondent and dismissed appellant’s complaint with prejudice.  This appeal follows.

D E C I S I O N

            “On appeal from summary judgment, we ask two questions: (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 (Minn. 1990).  “On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  “[T]he party resisting summary judgment must do more than rest on mere averments.”  Id.  If there are no genuine issues of material fact, this court will review the district court’s application of law de novo.  Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).

I.

            Appellant argues that summary judgment on her MHRA claim is inappropriate because Halbach’s comments constitute direct evidence of discrimination.  In the alternative, she argues that she has presented sufficient circumstantial evidence to show a prima facie case of discrimination under the McDonnell Douglas analysis. 

            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.

 

Minn. Stat. § 363A.08, subd. 2 (2004).  Sex discrimination under the MHRA includes discrimination because of “pregnancy, childbirth, and disabilities related to pregnancy or childbirth.”  Minn. Stat. § 363A.03, subd. 42 (2004).  When interpreting cases under the MHRA, this court gives “weight to federal court interpretations of Title VII claims because of substantial similarities between the two statutes.”  Wayne v. MasterShield, Inc., 597 N.W.2d 917, 921 (Minn. App. 1999) (citing Cont’l Can Co. v. State, 297 N.W.2d 241, 246 (Minn. 1980)).  Discriminatory intent may be proven by direct or circumstantial evidence.  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn. 2001).

A.        Direct evidence

            Appellant argues that she has presented direct evidence of discrimination and that the district court erred by classifying her evidence as stray remarks that do not rise to the level of adverse employment action.  Evidence need not constitute an adverse employment action to be probative of discrimination or discriminatory animus.  See, e.g., Ryther v. Kare 11, 108 F.3d 832, 844 (8th Cir. 1997) (stating that evidence of untruthfulness and negativity, when taken with other evidence, may be probative of discriminatory animus or discrimination).

            “[D]irect evidence is evidence showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.”  Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004) (quotation omitted).  “[D]irect evidence may include evidence of actions or remarks of the employer that reflect a discriminatory attitude.”  Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991) (quotation omitted).  But direct evidence “excludes stray remarks in the workplace, statements by nondecisionmakers, and statements by decisionmakers unrelated to the decisional process itself.”  E.E.O.C. v. Liberal R-II Sch. Dist., 314 F.3d 920, 923 (8th Cir. 2002) (quotations omitted).  And discriminatory comments that are remote in time from an adverse employment decision are not direct evidence unless there is a causal link between the decision and the comments.  Yates v. McDonnell Douglas, 255 F.3d 546, 549 (8th Cir. 2001).

            Here, appellant asserts that she presented direct evidence of discrimination in the form of her testimony (coupled with the absence of Halbach’s denial) that Halbach told her that (1) she needed full-time employment because of her family situation and (2) she was welcome to return to the treasury department when she completed her degree and her son was older. 

            Halbach’s comment that appellant needed full-time employment because of her family situation was made in the context of appellant and Halbach discussing the possibility of appellant remaining in the part-time position in the treasury department.  Drawing all inferences in favor of appellant, it is arguable that Halbach’s comment evidences a discriminatory attitude on his part.  But that is not enough to classify the evidence as direct evidence, because statements unrelated to the decisional process are not direct evidence of impermissible employment discrimination.  Liberal R-II Sch. Dist., 314 F.3d at 923.

            The alleged adverse employment action in question is respondent’s December 2001 decision to reduce or eliminate appellant’s treasury position.  Because of the lapse of time between the decision and the comments and because of the absence of evidence of any causal link between the two, the evidence is not sufficiently related to the decision to be considered direct evidence.  See, e.g., Yates, 255 F.3d at 549.   

            Appellant also takes issue with the district court’s holding that Halbach’s comment about being welcome back when her son was older was merely a stray remark.  The comment was allegedly made in response to appellant’s query to Halbach about why she was not offered the new E3 position awarded to Solberg.  As the district court concluded, “There is no evidence to suggest that the comments were made as part of any decision-making process on the part of Halbach or Imation.”  Because there appears to be no evidence demonstrating or alleging a relationship between Halbach’s comment and the decision to hire Solberg, the district court did not err by characterizing the comment as a stray remark.  See Liberal R-II Sch. Dist., 314 F.3d at 923 (holding that statements unrelated to the decisional process are not direct evidence).    

B.        Circumstantial evidence

            Discriminatory intent may also be demonstrated with “circumstantial evidence in accordance with the three-part burden-shifting test set out by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 . . . (1973).”  Hoover, 632 N.W.2d at 542.  Under the McDonnell Douglas test, the plaintiff must initially make out a prima facie case of discrimination.  411 U.S. at 802, 93 S. Ct. at 1824.  Generally, a prima facie case may be established by showing that (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for the opportunity in question; (3) the plaintiff suffered an adverse action, such as discharge or refusal to hire; and (4) the opportunity was given to someone with the plaintiff’s qualifications, particularly a nonmember of the protected class.  See id.  If a prima facie case is established, a presumption of unlawful discrimination arises, and the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the treatment.  Anderson v. Hunter, Keith, Marshall & Co., Inc., 417 N.W.2d 619, 623 (Minn. 1988).  “If the defendant can produce sufficient evidence to raise a genuine issue of fact that its stated motive for treating the claimant as it did arose from legitimate nondiscriminatory reasons, the burden shifts to the claimant to demonstrate that the defendant's asserted legitimate reasons were pretextual.”  Id.at 623-24.

            Utilizing a test substantially similar to that set forth above, the district court found that appellant was unable to establish a prima facie case of discrimination based on circumstantial evidence because she was not qualified for the newly created E3 position.  The job posting for the E3 position required a four-year bachelor’s degree and included additional responsibilities and duties that were different from those that appellant performed when she was employed in the treasury department.  Appellant concedes that she did not have a bachelor’s degree when the job was posted and that she was not qualified for the new position. 

            Appellant’s argument that “Imation’s normal practice is to promote from within even when the internal candidate does not possess all of the minimum qualifications” is unpersuasive.  Solberg held the E3 position for 18 months until she was promoted to another position; respondent filled the vacancy internally with an individual who was not qualified to perform all of the position’s duties, although he did have a four-year degree.  But the job was transformed after the internal replacement was hired, so that Solberg continued to perform certain functions, other high-level functions were fulfilled by others in the department, and the compensation for the position was reduced to reflect the replacement’s resulting responsibilities—an equivalent of an E1 or E2 job position.  And while evidence shows that respondent commonly hires individuals who are not able to satisfy all the requirements of the job when filling internal job postings, the position in question here was posted both internally and externally.  There is no genuine issue of material fact related to this issue, and the district court did not err by concluding that appellant has failed to demonstrate a prima facie case of discrimination using circumstantial evidence.

II.

            Appellant contends that the district court erred in holding that her claims concerning the reduction of her position to part-time status are barred by the statute of limitations.  Claims under the MHRA must be filed with the MDHR or the district court within one year of the allegedly discriminatory conduct.  Minn. Stat. § 363A.28, subd. 3 (2004).  The one-year limitations period begins to run when the discriminatory act occurs, not “when the consequences of that act become most painful.”  Turner v. IDS Fin. Servs., Inc., 471 N.W.2d 105, 107-08 (Minn. 1991).  Accordingly, the district court correctly concluded that the statute of limitations for appellant’s claim regarding the elimination or reduction of her position began to run in December 2001, when she was first notified about the elimination of the full-time position.  See id.; Anderson v. Nw. Nat’l Life Ins. Co., 480 N.W.2d 363, 365 (Minn. App. 1992) (holding that statute of limitations begins to run when employee receives notice of workforce reduction).

            Appellant did not file a claim with the MDHR until May 2003, well over a year later.  But appellant argues that the doctrine of continuing violations relieves her of the statute of limitations’ claim-barring effect.  The doctrine of continuing violations applies “when the discriminatory acts of an employer over a period of time indicate a systematic repetition of the same policy and constitute a sufficiently integrated pattern to form, in effect, a single discriminatory act.”  Hubbard v. United Press Int’l., Inc., 330 N.W.2d 428, 440-41 n.11 (Minn. 1983).  “To establish a continuing violation, a plaintiff must show that at least one incident . . . occurred within the limitations period.”  Giuliani v. Stuart Corp., 512 N.W.2d 589, 595 (Minn. App. 1994).

            The allegedly discriminatory action consists of the reduction of appellant’s position to part-time status, Halbach’s alleged misrepresentation that appellant’s position was being eliminated, and Halbach’s refusal to consider appellant for the new E3 position.  The refusal to consider appellant for the new position occurred within the limitations period.  Appellant contends that the doctrine of continuing violations applies here because respondent’s actions are not separate acts but constitute “one unlawful employment practice that manifested itself over the course of six months.”  Caselaw indicates that “[a] discrete act ‘occur[s] on the day that it happen[s]’ and constitutes its own unlawful employment practice” and that “[e]xamples of discrete acts include ‘termination, failure to promote, denial of transfer, or refusal to hire.’”  Mems v. City of St. Paul, 327 F.3d 771, 785 (8th Cir. 2003) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002)).

            Appellant argues that Minnesota courts have not adopted the standard set forth in Mems and Morgan and that this court’s decision in Kalia v. St. Cloud State Univ., 539 N.W.2d 828, 832-36 (Minn. App. 1995), controls.  But in Kalia, this court explicitly declined to rule on the issue at hand—the extension of liability beyond the limitations period—instead “address[ing] merely the admissibility of evidence essential to proving [appellant’s] timely claims.”  Kalia, 539 N.W.2d at 834 (emphasis added).  Thus, appellant’s argument is unpersuasive.  

            Because the actions complained of here constitute a series of discrete actions, we conclude that the doctrine of continuing violations does not apply.  The district court did not err in determining that appellant’s claims concerning the reduction of her position to part-time status are barred by the statute of limitations.

III.

            Finally, appellant asserts that the district court erred in granting summary judgment on her retaliation claim.  Minnesota law provides that “[a]n employer must grant an unpaid leave of absence to an employee who is a natural or adoptive parent in conjunction with the birth or adoption of a child.”  Minn. Stat. § 181.941, subd. 1 (2004).  The statute also prohibits employers from retaliating against employees for requesting or obtaining a leave under the section.  Id., subd. 3 (2004).

            Halbach’s comment that “You just can’t leave your life the way it is, you have to make it as complicated as possible, don’t you?” does not rise to the level of direct evidence.  It occurred months before appellant requested or obtained parental leave and, thus, constitutes a stray remark.  See Yates, 255 F.3d at 549.  Nor does the comment constitute sufficient circumstantial evidence.  Minnesota courts commonly utilize the McDonnell Douglas test when analyzing reprisal claims involving protected conduct.  E.g., Hoover, 632 N.W.2d at 548; Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999); Hubbard, 330 N.W.2d at 444.  Therefore, an employee claiming unlawful retaliation must establish “(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two.”  Hubbard, 330 N.W.2d at 444. 

            Here, the district court found that appellant failed to present evidence demonstrating a causal connection between her parental leave and any adverse employment action.  A “causal connection may be demonstrated indirectly by evidence of circumstances that justify an inference of retaliatory motive, such as a showing that the employer has actual or imputed knowledge of the protected activity and the adverse employment action follows closely in time.”  Hubbard, 330 N.W.2d at 445.  But timing alone is generally not enough to sustain the inference.  Kipp v. Missouri Highway & Transp. Comm., 280 F.3d 893, 897 (8th Cir. 2002).  Something more than a temporal connection is necessary to promote the discriminatory inference when the time period between the protected activity and the adverse employment action is only a month or two.  See id.

            Appellant received eight weeks of paid parenting leave.  When she returned from leave, she worked part-time hours but received full-time benefits for another eight weeks.  Appellant has failed to demonstrate direct evidence of retaliation or evidence of a causal connection between her parenting leave and an adverse employment action.  Because there is no genuine issue of material fact, summary judgment on that component of her complaint is appropriate.  

            Affirmed.