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McKenzie v. Rider Bennett, LLP: US District Court : EMPLOYMENT - Title VII claims and others dismissed; no showing of pretext or hostile environment1
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Rae Anne McKenzie,
v. Civil No. 05-1265 (JNE/SRN)
Rider Bennett, LLP, and Gregory Erickson,
Rae Anne McKenzie claims that her former employer, Rider Bennett, LLP, discriminated
and retaliated against her in violation of Title VII of the Civil Rights Act of 1964. She also
asserts claims of negligent supervision, negligent retention, negligent infliction of emotional
distress, assault, and battery against Rider Bennett, and assault and battery against Gregory
Erickson, an attorney for whom she worked at Rider Bennett. McKenzie now appears pro se.
After the parties moved for summary judgment, Rider Bennett filed a petition for bankruptcy
under Chapter 11 of the Bankruptcy Code. The Court stayed the action as to Rider Bennett and
dismissed McKenzie’s claims against Erickson. Later, the United States Bankruptcy Court for
the District of Minnesota granted McKenzie relief from the automatic stay. For the reasons set
forth below, the Court dismisses McKenzie’s claims against Rider Bennett.
From April 2003 to June 2004, McKenzie worked at Rider Bennett as a legal secretary.
Initially, she worked for several attorneys. In September 2003, McKenzie was assigned to work
for Erickson. In late April 2004, McKenzie wrote a letter to Erickson. He disclosed the letter to
Rider Bennett, and the firm investigated whether Erickson had sexually harassed McKenzie.
McKenzie was placed on paid leave during the investigation. McKenzie returned to Rider
Bennett after the investigation, but she was no longer assigned to Erickson. After her return,
McKenzie sent e-mails to Erickson, and Rider Bennett terminated her employment.
Summary judgment is proper “if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The movant “bears the
initial responsibility of informing the district court of the basis for its motion,” and must identify
“those portions of [the record] which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant satisfies its
burden, the party opposing the motion must respond by submitting evidentiary materials that “set
out specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2); see Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In determining whether
summary judgment is appropriate, a court must look at the record and any inferences to be drawn
from it in the light most favorable to the party opposing the motion. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
A. Rider Bennett’s motion
1. Title VII
McKenzie claims that Rider Bennett violated Title VII by discriminating against her on
the basis of her gender and retaliating against her. With regard to McKenzie’s Title VII claim
based on a hostile work environment, Rider Bennett argues there is no evidence that McKenzie
experienced unwelcome harassment or that the alleged harassment affected a term, condition, or
privilege of her employment. See Cottrill v. MFA, Inc., 443 F.3d 629, 636 (8th Cir.), cert.
denied, 127 S. Ct. 394 (2006). In support, Rider Bennett cites several statements made by
McKenzie. For example, in her letter to Erickson, McKenzie stated that she loved the attention
Erickson allegedly gave her and felt flattered by it:
I say things are so different because it seems that ever since I brought up
the other “we never had this talk” subject, you also quit teasing, talking, with me,
and seem at times to be ill at ease with me. I feel bad about that because I was
really liking it, and I felt a lot of affection for you because of it, but I seemed to
have cut off my nose to spite my face by saying anything. I know I get touchy
feely when I feel affection for someone, and I hope it isn’t that what makes you ill
at ease if indeed you have been. . . .
. . . [S]o despite the fact that I love the attention, I have never thought of it
as anything more than what it was at the moment. I’d be a big fat liar to say I
wasn’t flattered you would pay that kind of attention to me.
In a letter to Grace Hall, Rider Bennett’s director of human resources, McKenzie stated that she
had not felt sexually harassed while working for Erickson:
My working relationship with [Erickson] was very good. I do have access
to the Offensive Behavior Policy. . . . I have never made a complaint about
[Erickson] because I had no complaint. When [Erickson] and I worked together,
we were professional but we also did joke, were silly, and teased, bantered and
bickered too, so we had fun while we worked really hard. If I had thought of
[Erickson’s] behavior then as offensive, I would have reported it as such. It was
only some recent behavior by [Erickson] that made me uncomfortable. . . .
When I wrote the letter to [Erickson], I did not feel sexually harassed.
What I was feeling was uncomfortable with some of [his] recent behavior. . . .
. . . .
. . . It was not my intention to accuse [Erickson] of sexual harassment, and
I did not. On Friday after I gave him the letter, [Erickson] asked me, via email, to
come to his office because we needed to talk. I told you and Pam [Harris, a
partner at Rider Bennett,] that [his] first words to me were, “I don’t know what I
said or did to make you think I was sexually harassing you.” I told him I did not
call it sexual harassment. That I had never thought of myself as being sexually
harassed. That if I had felt sexually harassed, I would have immediately gone to
see [Hall] or someone else in a position of authority without even talking with
him . . . .
Instead of feeling sexually harassed, it was quite the opposite. I told you
and Pam Harris frequently in our interview that I was not offended but, rather, I
was flattered by the attention, and that I had responded to it. Again, it was only
recently that I had become uncomfortable with some of [Erickson’s] behavior.
McKenzie responds by directing the Court to allegations in her Amended Complaint and
an unidentified page of a deposition transcript that does not appear in the record. She does not
direct the Court to any evidence that raises a genuine issue of material fact as to whether she
experienced unwelcome harassment that affected a term, condition, or privilege of her
employment. See Morgan v. A.G. Edwards & Sons, Inc., 486 F.3d 1034, 1039 (8th Cir. 2007)
(“The party opposing summary judgment cannot rest solely on the pleadings, but instead must
set forth specific facts showing there is a genuine issue of material fact for trial.”). The Court
therefore dismisses McKenzie’s Title VII claim based on a hostile work environment.
As to McKenzie’s Title VII claim based on disparate treatment, Rider Bennett contends
that McKenzie has not identified any similarly-situated male employee who received different
treatment. See Shaffer v. Potter, 499 F.3d 900, 905-06 (8th Cir. 2007); Thomas v. Corwin, 483
F.3d 516, 529-30 (8th Cir. 2007); Wells v. SCI Mgmt., L.P., 469 F.3d 697, 701 (8th Cir. 2006).
McKenzie compares herself to Erickson, but Erickson was the alleged harasser and McKenzie
was the alleged victim. The day prior to her termination, McKenzie agreed to cease all contact
with Erickson. McKenzie has not identified any similarly-situated male employee who received
different treatment. Viewing the record in the light most favorable to McKenzie, the Court
concludes that she has not raised a genuine issue of material fact on her Title VII claim based on
disparate treatment. The Court therefore dismisses the claim.
The Court turns to McKenzie’s retaliation claim. McKenzie must first make a prima
facie case by showing: (1) she engaged in protected conduct; (2) a reasonable employee would
have found the challenged retaliatory action materially adverse; and (3) the materially adverse
action was causally linked to the protected conduct. Carrington v. City of Des Moines, 481 F.3d
1046, 1050 (8th Cir. 2007). The second prong is objective, requiring consideration of whether a
reasonable employee in the plaintiff’s position might have been dissuaded from making a
discrimination claim because of the employer’s retaliatory action. Burlington N. & Sante Fe Ry.
Co. v. White, 126 S. Ct. 2405, 2414-15 (2006); Higgins v. Gonzales, 481 F.3d 578, 589 (8th Cir.
2007). If the plaintiff makes a prima facie case, the defendant must proffer a legitimate, nondiscriminatory
reason for the materially adverse action. Carrington, 481 F.3d at 1050. The
plaintiff then must show that the proffered reason was a pretext for retaliation. Id. Rider Bennett
contends that McKenzie has no evidence to support her retaliation claim.
McKenzie first claims that Rider Bennett retaliated against her by removing her from her
assignment. According to Hall, McKenzie’s “assignment was changed so that she would not be
forced to work with the person against whom she had lodged the complaint.” McKenzie does
not direct the Court to evidence that raises a genuine issue of material fact about her
reassignment. A reasonable employee would not find Rider Bennett’s reassignment of
McKenzie to separate her from her alleged harasser to be materially adverse. In addition,
McKenzie has not demonstrated that Rider Bennett’s reason for reassigning her was a pretext for
McKenzie next asserts that Rider Bennett retaliated against her by placing her on paid
leave. Erickson disclosed McKenzie’s letter to Rider Bennett on a Friday in late April 2004.
Two days later, Hall called McKenzie and asked to meet the next day. McKenzie responded that
she did not plan to go to work that Monday, but she ultimately agreed to meet with Hall. At the
end of their meeting, Hall advised McKenzie that Rider Bennett was investigating her complaints
and that McKenzie could go on paid leave during it. In a letter to Hall dated May 17, 2004,
McKenzie wrote that she was “grateful” for the paid leave because she was “not ready to return
to work.” McKenzie does not direct the Court to evidence that raises a genuine issue of material
fact about her placement on paid leave. A reasonable employee would not find Rider Bennett’s
placement of McKenzie on paid leave to be materially adverse.
McKenzie also argues that Rider Bennett retaliated against her by demoting her to a
floater position upon her return from leave. Rider Bennett contends that her assignment to a
floater position was not a demotion. According to Hall, secretaries at Rider Bennett were
assigned to particular attorneys or as floaters. Floaters assisted attorneys whose secretaries were
out of the office or needed additional assistance. There was no hierarchy with regard to the
secretarial positions and no difference with respect to salary or benefits. In response, McKenzie
does not direct the Court to evidence that raises a genuine issue of material fact as to whether her
assignment was a demotion. A reasonable employee would not find Rider Bennett’s assignment
of McKenzie to a floater position to be materially adverse.
McKenzie also contends that Rider Bennett retaliated against her by assigning her to a
different floor. According to Hall, McKenzie asked to be moved from the floor where Erickson
worked. Although McKenzie later sought to remain on the floor where Erickson worked, Rider
Bennett moved her to a different floor upon her return from leave. A reasonable employee
would not find Rider Bennett’s move of McKenzie to a different floor to be materially adverse.
See Turner v. Gonzales, 421 F.3d 688, 697 (8th Cir. 2005). In addition, McKenzie has not
demonstrated that Rider Bennett’s reason for moving her was a pretext for retaliation.
McKenzie maintains that Rider Bennett retaliated against her by denying her annual
review. McKenzie’s annual review was scheduled in early May 2004, but it did not take place
because McKenzie was on leave. After McKenzie’s return, Hall stated that McKenzie’s annual
review would take place in early June 2004. A reasonable employee would have not found the
delayed review to be materially adverse.
Finally, McKenzie claims that Rider Bennett retaliated against her by terminating her
employment. Rider Bennett contends that it terminated her employment because she continued
to contact Erickson after Rider Bennett had ordered her to cease contact with him and that
McKenzie cannot show this reason is a pretext for retaliation. According to Hall, she and Harris
met with McKenzie in early June 2004 and instructed McKenzie to cease all contact with
Erickson. Nevertheless, after the meeting, McKenzie sent several e-mails to Erickson. Rider
Bennett terminated McKenzie’s employment the following day. In her affidavit, McKenzie
states that there was no mention of a no-contact order at the meeting. Instead, according to
McKenzie, Harris told McKenzie of Erickson’s discomfort with McKenzie’s continued contact.
McKenzie responded by agreeing to cease contact with him. Based on the temporal proximity of
her complaint and termination, McKenzie concludes that Rider Bennett retaliated against her.
Viewing the record in the light most favorable to McKenzie, the Court concludes that she has not
raised a genuine issue of material fact as to whether Rider Bennett’s legitimate, nondiscriminatory
reason for her termination was a pretext for retaliation. See Carrington, 481 F.3d
at 1053; Arraleh v. County of Ramsey, 461 F.3d 967, 978 (8th Cir. 2006) (“[T]emporal proximity
alone is generally insufficient to prove pretext.”), cert. denied, 127 S. Ct. 2100 (2007).
In short, McKenzie has not directed the Court to evidence that raises a genuine issue of
material fact on her retaliation claim against Rider Bennett. The Court therefore dismisses the
2. State-law claims
Rider Bennett asserts that McKenzie’s claims of negligent supervision and negligent
retention should be dismissed because she did not experience a physical injury or a threat of
physical injury. To prevail on claims of negligent supervision or negligent retention, a plaintiff
must have experienced a physical injury or a threat of physical injury. Johnson v. Peterson, 734
N.W.2d 275, 277 (Minn. Ct. App. 2007) (negligent supervision); Bruchas v. Preventive Care,
Inc., 553 N.W.2d 440, 443 (Minn. Ct. App. 1996) (negligent supervision and negligent
retention). In an e-mail to Hall dated May 28, 2004, McKenzie wrote, “I have never felt my
physical safety threatened.” McKenzie does not direct the Court to evidence that raises a
genuine issue of material fact as to whether she was ever threatened with or experienced a
physical injury. The Court therefore dismisses her claims of negligent supervision and negligent
Rider Bennett argues that McKenzie’s claim of negligent infliction of emotional distress
should be dismissed because she cannot establish that she was in a zone of danger of physical
impact or that she reasonably feared for her safety. See Engler v. Ill. Farmers Ins. Co., 706
N.W.2d 764, 767 (Minn. 2005); Wall v. Fairview Hosp. & Healthcare Servs., 584 N.W.2d 395,
408 (Minn. 1998). McKenzie does not direct the Court to any evidence that raises a genuine
issue of material fact as to whether she was in a zone of danger of physical impact or reasonably
feared for her safety. The Court therefore dismisses her claim of negligent infliction of
Finally, McKenzie alleges that Rider Bennett is liable for Erickson’s assault and battery
of her. On August 9, 2007, the Court dismissed McKenzie’s assault and battery claims against
Erickson because McKenzie had not supported the claims with any evidence. Accordingly, the
Court dismisses the assault and battery claims against Rider Bennett.
B. McKenzie’s motion
In addition to the claims addressed above, McKenzie asserts that Rider Bennett violated
Minn. Stat. § 481.071 (2006) and that Rider Bennett intentionally inflicted emotional distress on
her. The Amended Complaint asserts neither a violation of section 481.071 nor a claim of
intentional infliction of emotional distress. The Court therefore declines to consider McKenzie’s
arguments about section 481.071 and intentional infliction of emotional distress.
Having dismissed all claims against Rider Bennett and Erickson in this Order and the
Order dated August 9, 2007, the Court directs the Clerk of Court to close this case and enter
judgment. Based on the files, records, and proceedings herein, and for the reasons stated above,
IT IS ORDERED THAT:
1. The Amended Complaint is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: January 8, 2008
s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge
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