attorney Michael E. Douglas Attorney at Law
  Personal Injury Attorney
  St. Paul Workers Compensation Lawyer work comp attorney
 > About Me
   :: My Commitment
   :: Our Community
 > Legal Practice Areas
  twin cities comsumer lawPersonal Injury
   :: Traffic Accidents
   :: Medical Malpractice
   :: Social Security Disability
   :: Premises Liability
   :: Wrongful Death
   :: Dog Bite
   :: Back/Spinal/Neck Injuries
   :: Whiplash
   :: Defective Medical Devices
   :: Defective Drugs
  Minnesota Personal InjuryWorkers Compensation
  St. Paul personal injuryConsumer Law
   :: Debt Collection
   :: Repossessions
   :: Foreclosures
   :: Loan, Credit, Banking
   :: Arbitration Agreements
   :: Deception and Fraud
   :: Auto Fraud / Lemon Law
   :: Warranties
   :: Predatory Lending
 > Contact Us
   :: Contact Us

Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551

 Saint Paul Lawyer


USDC: EMPLOYMENT LAW - sex discrimination, reprisal claims fail

Robin Vincent,
v. Civ. No. 05-2995 (JNE/JJG)
Roundys, Inc.,
Peter J. Horejsi, Esq., McCloud & Boedigheimer, P.A., appeared for Plaintiff Robin Vincent.
Dawn C. Van Tassel, Esq., Maslon Edelman Borman & Brand, LLP, appeared for Defendant
Roundys, Inc.
This is an action by Robin Vincent against her former employer, Roundys, Inc. Vincent
asserts claims under the Minnesota Human Rights Act (MHRA), Minn. Stat. 363A.01-.41
(2006), for gender discrimination and reprisal. 1 The case is before the Court on a motion for
summary judgment filed by Roundys.2 For the reasons stated below, the Court grants the
Roundys operates Rainbow Foods grocery stores in Minnesota and other midwest states.
Roundys acquired Rainbow Foods out of bankruptcy in June 2003 from Fleming Companies.
At the time of the acquisition, Roundys hired Vincent, who had been working at the Rainbow
1 Prior proceedings resulted in the dismissal of all claims except Vincents claims against
Roundys for gender discrimination, reprisal, and respondeat superior. Because Vincents claims
against Steven Million, the Human Resources Manager at Roundys, have been dismissed, she
does not have a viable respondeat superior claim against Roundys. Anderson v. Minn. Ins.
Guar. Assn., 534 N.W.2d 706, 709 (Minn. 1995).
2 The Court has jurisdiction over this action pursuant to 28 U.S.C. 1332(a)(1) (2000).
Foods Northtown store in Blaine, Minnesota. Vincent worked thirty-two hours each week in the
dairy/frozen foods and receiving departments as a food handler. The duties of a food handler
included writing orders, customer service, working with vendors, cashiering, and stocking
shelves. When Vincent began working for Roundys in June 2003, she was working under
medical restrictions that limited her ability to push, pull, lift, and reach. 3
In June 2003, Roundys assigned Vincent to work exclusively in the receiving
department. Roundys eliminated Vincents hours in the receiving department in November
2003 and assigned her the duties of ordering agent in the dairy/frozen foods department. This
position required only fifteen work hours per week. Vincent believed gender discrimination
motivated the reduction in her hours, and she complained to her union representative and her
superiors. On May 18, 2004, Vincent raised her complaints of gender discrimination to Steven
Million, the Human Resources Manager for Roundys. On July 31, 2004, Roundys completely
removed Vincent from the work schedule. Vincent alleges Roundys illegally reduced and then
eliminated her work hours not because of her disability restrictions, but because she was a female
and in retaliation for her complaints of gender discrimination.
Summary judgment is proper if 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 the moving party is entitled to a judgment as a matter of law. Fed.
R. Civ. P. 56(c). The moving party 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
3 Vincents physician ordered the restrictions in December 2002 after Vincent injured her
right shoulder at work. Vincent made a workers compensation claim against Fleming, the
predecessor of Roundys, which was settled in August 2004.
demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the moving party satisfies its burden, Rule 56(e) requires the nonmoving
party to respond by submitting evidentiary materials that designate specific facts showing that
there is a genuine issue for trial. 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 nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A. Gender discrimination
Vincent alleges Roundys discriminated against her on the basis of her gender. The
MHRA makes it an unlawful employment practice for an employer to discharge an employee or
to discriminate against a person with respect to compensation, terms, conditions, or privileges of
employment on the basis of sex. Minn. Stat. 363A.08, subd. 2.
The parties agree that McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-04 (1973),
applies here. See Cronquist v. City of Minneapolis, 237 F.3d 920, 926 (8th Cir. 2001); Anderson
v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 623-24 (Minn. 1988) (MHRA gender
discrimination). Under McDonnell Douglas, a presumption of discrimination is created when
the plaintiff meets [her] burden of establishing a prima facie case of employment
discrimination. Pope v. ESA Servs., Inc., 406 F.3d 1001, 1006-07 (8th Cir. 2005). Once the
plaintiff establishes a prima facie case of discrimination, the employer must come forward with a
legitimate, non-discriminatory reason for its conduct. Sprenger v. Fed. Home Loan Bank of Des
Moines, 253 F.3d 1106, 1111 (8th Cir. 2001). If the employer meets its burden, the
presumption of discrimination disappears, requiring the plaintiff to prove that the proffered
justification is merely a pretext for discrimination. Pope, 406 F.3d at 1007. The plaintiff has
the burden of persuasion at all times. Id.
1. Prima facie case
To establish a prima facie case of gender discrimination, Vincent must demonstrate that:
(1) she is a member of a protected class; (2) she was qualified; (3) she was subjected to an
adverse employment action; and (4) some evidence of record supports the inference of gender
discrimination. See McDonnell Douglas, 411 U.S. at 802; Kindred v. Northome/Indus. Sch. Dist.
No. 363, 154 F.3d 801, 803 (8th Cir. 1998); Sigurdson v. Isanti County, 386 N.W.2d 715, 720
(Minn. 1986). The first and third elements are not in dispute. Roundys contends Vincent has
failed to demonstrate that she was qualified to perform her job and that she was treated
differently on the basis of her gender.
While a minimal evidentiary showing will satisfy the burden of production at the prima
facie stage, see Turner v. Honeywell Fed. Mfg. & Techs., LLC, 336 F.3d 716, 720 (8th Cir.
2003), the Court need not decide whether Vincent has met her burden here. Where the
defendant has done everything that would be required of [it] if the plaintiff had properly made
out a prima facie case, whether the plaintiff really did so is no longer relevant. U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983); see also Riser v. Target Corp., 458
F.3d 817, 820-21 (8th Cir. 2006). Here, Roundys has met its burden of coming forward with
legitimate, non-discriminatory reasons for its reduction and later elimination of Vincents work
2. Legitimate, non-discriminatory reasons
Roundys proffers two legitimate, non-discriminatory reasons for its actions regarding
Vincents work hours. First, Millions affidavit indicates that Vincent was assigned to work full
time in the receiving department in June 2003, to fill a position that was vacated when Jerry
Adelman went out on medical leave. Million testified that when Adelman returned from medical
leave, Roundys eliminated Vincents hours in the receiving department because she was no
longer needed there. Roundys did not have an available position with duties consistent with
Vincents work restrictions when Adelman returned from leave. In order to provide Vincent the
opportunity to continue to work during her progression toward medical release from her
restrictions, Roundys created a position for her. It was a fifteen-hour per week ordering agent
position in the dairy/frozen food department compatible with her work restrictions.
Second, Roundys proffers evidence that Vincents work restrictions were inconsistent
with the essential functions of her job as a food handler. See Palesch v. Mo. Commn on Human
Rights, 233 F.3d 560, 565, 569 (8th Cir. 2000) (inability to perform essential functions of job is
legitimate, non-discriminatory reason for adverse employment action). According to the job
descriptions submitted by Roundys, a food handlers duties include stocking products on store
shelves. Stocking requires an employee to be able to grasp, push, pull, turn, and lift products
that weigh up to eighty pounds. Reaching is also noted as a continual physical demand of the
job. Roundys presents Vincents own deposition testimony that in November 2003, her work
restrictions included fifty-pound push/pull limitations and a ten-pound overhead lifting
limitation, as well as a limitation that her duties not require a fully outstretched arm. It is
undisputed that Vincents physician had not released her from these work restrictions when she
was removed from the schedule in July 2004.
3. Pretext
Vincent responds by alleging the reasons proffered by Roundys are but pretext for
gender discrimination. Vincent asserts Roundys gave her receiving department position to
Adelman, a male who had retired. However, Vincent does not support her argument with
admissible evidence. In her deposition she asserted, without stating a foundation for her belief,
that Adelman retired. Vincent provides no evidence to contradict Millions affidavit that
Adelman in fact left his position in the receiving department to take temporary medical leave and
resumed his position when he returned to work. Mere allegations are insufficient to raise a
genuine issue of material fact on the issue of pretext. See, e.g., Fed. R. Civ. P. 56(e) (nonmovant
must submit affidavits made on personal knowledge that set forth such facts as would be
admissible in evidence); Krenik v. County of LeSueur, 47 F.3d 953, 957 (8th Cir. 1995).
Vincent also contends that she was physically capable of performing the essential duties
of her job at all times and that a bias against women in the workplace motivated the reduction
and elimination of her hours. The evidence in the record does not support Vincents assertions.
It is undisputed that Vincents work restrictions were inconsistent with the pushing, pulling,
lifting, and reaching requirements associated with the stocking duties of her job. It is also
undisputed that Vincent had not obtained a medical release from her work restrictions at the time
her hours were eliminated in July 2004.
Next, Vincent contends Millions deposition testimony evinces a discriminatory animus
towards females in the workplace. Specifically, Vincent, in her memorandum of law, portrays
Million as having testified that the reason there is only one (1) female store director out of 31
Minnesota store locations is because it is a very demanding job, a huge time commitment,
and tends to be very disruptive to their lifestyle and family time. Millions actual deposition
testimony was [s]tore directors may work anywhere from 50 to 70 hours in a week, including
weekends, including nights. It tends to be very disruptive to awhether it is a male or femaleto
their lifestyle and their family. This statement, given after the litigation was begun, is
insufficient to raise a genuine issue of fact regarding a discriminatory motive on the part of
Roundys in reducing and eliminating Vincents work hours. In any event, there is no question
that Vincent was not applying for a store manager position.
Vincent also alleges that in conversations with her store manager, Steve Noon, and also
with her direct supervisor, Doug Devito, they referred to the good old boys at Roundys and
the treatment of Vincent as unfair. Courts must distinguish comments that demonstrate a
discriminatory animus in the decisional process from stray remarks in the workplace, statements
by non-decisionmakers, or statements by decisionmakers unrelated to the decisional process.
Rivers-Frison v. Se. Mo. Cmty. Treatment Ctr., 133 F.3d 616, 619 (8th Cir. 1998). It is
undisputed that Noon and Devito took no part in the decision to reduce Vincents hours or to
remove her from the work schedule. It is also undisputed that Noon was not employed at the
Northtown store when Vincents hours were reduced from thirty-two to fifteen. To the extent
Vincent offers the statements as proof of the discriminatory animus of the decisionmaker or
decisionmakers, they are hearsay. See Fed. R. Evid. 801(c).
Vincent also claims that two co-workers, Ginny Tierny and Gary Sellner, made
supportive comments to her about the way she was treated by management. These alleged
statements have not been submitted by affidavit or sworn testimony of the speaker. Apart from
relevance concerns, they are hearsay. See id. A motion for summary judgment cannot be
defeated with hearsay. See Fed. R. Civ. P. 56(e); Howard v. Columbia Pub. Sch. Dist., 363 F.3d
797, 801 (8th Cir. 2004). Moreover, Vincent does not allege that Tierny or Sellner was involved
in the decision to reduce her hours or to remove her from the schedule.
Vincent next contends that Roundys treated her differently than similarly situated male
employees. At the pretext stage, the similarly situated test is rigorous and requires that the
plaintiff and the proposed comparator be similarly situated in all relevant respects. Rodgers v.
U.S. Bank, N.A., 417 F.3d 845, 853 (8th Cir. 2005). Vincent claims Adelman and Dale Lewis
are similarly situated male employees who were treated differently by Roundys after they were
Adelman and Lewis are not similarly situated to Vincent in all relevant respects. As
previously noted, the record does not support Vincents assertion that Adelman retired when he
left the receiving department. The only admissible evidence on this point is Millions affidavit,
in which he states that Adelman left on medical leave and that he returned fully recovered from
his injuries. By her own admission, Vincent never requested medical leave, and it is undisputed
that she remained under pushing, pulling, lifting, and reaching restrictions when her hours were
reduced and when she was removed from the schedule. As for Lewis, he was an assistant store
manager with job duties and responsibilities that differed from Vincents duties as a food
handler. See LaCroix v. Sears, Roebuck & Co., 240 F.3d 688, 694 (8th Cir. 2001) (individuals
with different job responsibilities and those who work in other departments are not appropriate
comparators). Consequently, neither Adelman nor Lewis is a proper comparator.4 Vincent has
not identified any similarly situated male food handlers at the Northtown store who were
scheduled for full-time hours despite working under physician-ordered work restrictions.
Finally, Vincent relies on her own deposition testimony that she believed her gender was
part of the reason for the reduction and elimination of her work hours. Roundys observes that in
her deposition, Vincent specifically testified that she did not believe her gender was a factor and
challenges the admissibility of the deposition errata sheet submitted by Vincent in support of her
4 Vincents memorandum also mentions Gary Sellner and Mr. Applebaum as similarly
situated male employees who were scheduled despite work restrictions. However, Vincent
provides no details regarding these employees job duties, supervisors, or places of employment.
Thus, Vincent has not demonstrated that they are proper comparators.
post-deposition assertions. The dispute about the errata sheets admissibility need not be
resolved here. Even if the Court considers Vincents testimony to be as asserted in the errata
sheet, her own subjective beliefs that gender discrimination motivated Roundys, without more,
cannot raise a genuine issue of material fact regarding a discriminatory motive. Mills v. First
Fed. Sav. & Loan Assn of Belvidere, 83 F.3d 833, 841-42 (7th Cir. 1996) (stating if the
subjective beliefs of plaintiffs in employment discrimination cases could, by themselves, create
genuine issues of material fact, then virtually all defense motions for summary judgment in such
cases would be doomed).
In sum, viewing the record in the light most favorable to Vincent, a reasonable factfinder
could not find that Roundys discriminated against Vincent because of her gender. The Court
therefore grants summary judgment to Roundys on Vincents MHRA gender discrimination
B. Reprisal
Vincent claims Roundys retaliated against her in violation of the MHRA by reducing
and then eliminating her work hours after she had raised complaints of discrimination. Under the
MHRA, it is an unfair employment practice to retaliate against those who oppose practices
forbidden by the statute. Minn. Stat. 363A.15. McDonnell Douglas applies to MHRA reprisal
claims. See Ray v. Miller Meester Adver., Inc., 664 N.W.2d 355, 367 (Minn. Ct. App. 2003),
affd, 684 N.W.2d 404 (Minn. 2004).
To establish a prima facie case of reprisal, Vincent must show: (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. See Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2415 (2006) (Title
VII); Devin v. Schwans Home Serv., Inc., No. 06-3551, 2007 WL 1948310, at *4 (8th Cir. July
6, 2007) (Title VII and MHRA); Higgins v. Gonzales, 481 F.3d 578, 589 (8th Cir. 2007) (Title
VII). Roundys argues that Vincent has failed to establish a prima facie case of reprisal because
she has not presented evidence of a causal link between the reduction or elimination of her work
hours and Vincents protected activity.
To demonstrate a causal link, an employee must present evidence sufficient to create a
reasonable inference that a retaliatory motive played a part in the challenged adverse action. See
Kipp v. Mo. Highway & Transp. Commn, 280 F.3d 893, 897 (8th Cir. 2002). Vincent claims
Roundys reduced her hours in retaliation for her complaints to Noon that her hours had been
reduced because of her gender. Vincent also contends Roundys removed her from the work
schedule after she had raised discrimination claims to Million at the meeting on May 18, 2004.
The record does not support Vincents assertions.
First, it is undisputed that Vincents hours were reduced from thirty-two to fifteen before
Noon began working at the Northtown store. Thus, Vincent could not have raised her
discrimination complaint to Noon until after her work hours were reduced. Consequently,
Vincent cannot rely on this evidence to demonstrate a causal connection between her complaints
of gender discrimination to Noon and the reduction of her hours by Roundys.
Next, Vincent contends that she complained to Million about gender discrimination at the
May 18 meeting and that Million retaliated by removing her from the work schedule at the end
of July. An inference of a causal connection between a charge of discrimination and
termination can be drawn from the timing of the two events, but in general more than a temporal
connection is required to present a genuine factual issue on retaliation. Peterson v. Scott
County, 406 F.3d 515, 524 (8th Cir. 2005). A mere coincidence of timing can rarely be
sufficient to establish a submissible case of retaliatory discharge. Kipp, 280 F.3d at 897
(quotations and citations omitted); cf. Peterson, 406 F.3d at 525 (termination two weeks after a
claim of discrimination close enough to establish causation in a prima facie case); Kipp, 280
F.3d at 897 (interval of two months between discrimination complaint and termination could not
justify finding a causal link because two months so diluted any inference of causation).
Assuming Vincent complained of discrimination to Million on May 18, it is undisputed
that Roundys continued to schedule Vincent as an ordering agent for fifteen hours each week
through the end of July. This was the same schedule Vincent had worked since November 2003,
when Roundys created the position for her. Vincent relies exclusively on the temporal
connection between her May 18 complaint and her removal from the schedule in July 2004, but
this connection is too attenuated to demonstrate a causal connection. Instead, the record
indicates that at the time Roundys removed Vincent from the schedule in July 2004, she
remained under medical restrictions that were inconsistent with the essential functions of her job,
and that she had failed to obtain a medical release from these restrictions despite being given the
opportunity to do so over a period of many months.5
In sum, the record, viewed in the light most favorable to Vincent, reveals no causal
connection between Vincent s complaints of discrimination and the reduction and later
elimination of her work hours. Vincent has, therefore, failed to establish a prima facie case of
reprisal. Thus, the Court grants summary judgment to Roundys on Vincents MHRA reprisal
5 It is undisputed that on March 30, 2004, as part of her workers compensation claim,
Vincent was approved for a Functional Capacity Examination to determine the extent of her
capabilities regarding her job as a food handler. It is also undisputed that Vincents treating
physician was unable to determine her work abilities without the results of this examination.
There is no dispute that Vincent did not undergo a Functional Capacity Examination before she
was removed from the schedule in July 2004.
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
1. Roundys motion for summary judgment [Docket No. 20] is GRANTED.
2. Vincents respondeat superior claim and Minnesota Human Rights Act
claims of gender discrimination and reprisal are DISMISSED WITH
Dated: July 31, 2007
s/ Joan N. Ericksen
United States District Judge


  What day were you injured?

  / /

  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall

  How have your injuries affected

  your life?


  What kinds of medical care
  professionals have you seen?


  What has your treatment cost?


  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



          By visiting this page or clicking the
  "submit" button above, you agree
  that you have read and accept this   "disclaimer".
Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.