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US District Court : EMPLOYMENT - tortious interferance, orientation discrimination claims fail regarding worker's t-shirt

1 On a motion for summary judgment, the Court views the evidence in the light most favorable to
the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
Daniel Lussier,
Civil No. 06-1395 ADM/RLE
Wal-Mart Stores, Inc., d/b/a
Wal-Mart Supercenter,
Celeste E. Culberth, Esq., Culberth & Lienemann, LLP, St. Paul, MN, argued on behalf of
Stephanie D. Sarantopoulos, Esq. and Tyree P. Ayers, Esq., Littler Mendelson, P.C.,
Minneapolis, MN, argued on behalf of Defendant.
On May 30, 2007, oral argument before the undersigned United States District Judge was
heard on Defendant Wal-Mart Stores, Inc.s (Wal-Mart) Motion for Summary Judgment
[Docket No. 19]. In his Complaint [Docket No. 1], Plaintiff Daniel Lussier (Lussier) asserts
claims for aiding and abetting sexual orientation discrimination under the Minnesota Human
Rights Act (MHRA), Minn. Stat. 363A.08, subd. 2, and 363A.14, and tortious interference
with an employment contract. For the reasons stated herein, Wal-Marts Motion is granted.
On October 6, 2004, Lussier was hired as a job coach for the Bemidji, Minnesota, office
of the Occupational Development Center (ODC). Lussier Dep. (Culberth Decl. [Docket No.
24] Ex. 2; Sarantopoulos Aff. [Docket No. 22] Ex. A) Ex. 2. ODC is a non-profit organization
that provides vocational rehabilitation services for disabled adults (ODCs customers).
Molnar Dep. [Culberth Decl. Ex. 3] at 15. ODC solicits local businesses to employ its
customers. Id. at 16. ODC assists its customers with training and job coaching to provide onsite
supervision and support for ODC customers employed by local businesses. Lussier Dep. at
53. The ODC job coaches are employees of ODC. Molnar Dep. at 18-19; Nyland Dep.
[Culberth Decl. Ex. 4] at 36.
During his employment at ODC, Lussier was supervised by Community Employment
Specialist Jerri Nyland (Nyland). Nyland Dep. at 17-18, 31. Nyland was supervised by
Program Coordinator Jeff Molnar (Molnar), who had general responsibility for ODCs
Bemidji office. Molnar Dep. at 15; Nyland Dep. at 25. As part of Lussiers orientation, Nyland
instructed him regarding ODCs Team Personnel Policies. Lussier Dep. at 23-24, 33-34, Ex. 5;
Nyland Dep. at 22-29. ODCs Team Personnel Policies manual provides that employees are
expected to act and dress professionally:
Each Team Member is expected to perform his/her duties and responsibilities as
described in the job description, in a manner which is professional, conscientious and
adheres to basic practices as they relate to the unique personnel requirements of the ODC
and the position. Failure to meet these responsibilities may result in disciplinary
actions. . . .
. . . .
The dress code for the Team Members of this Company shall be in accordance with
appropriate professional attire. Attire shall be such that it reflects a positive image of the
ODC and the business that it conducts. The determination of appropriate attire shall be at
the discretion of the Senior Team Member in their respective departments of each
Lussier Dep. Ex. 5 at 7, 11.
ODC assigned Lussier to supervise a hearing impaired individual employed as a cart
attendant at the Wal-Mart Supercenter in Bemidji. Lussier Dep. at 54, 57-58. Andrew Abello
(Abello) was then the Store Manager at the Bemidji Supercenter, and Glen Virnig (Virnig)
was an Assistant Manager. Abello Dep. (Culberth Decl. Ex. 1) at 9; Virnig Dep. (Culberth Decl.
Ex. 5) at 8-9. Abello orally gave ODC permission for its job coaches to work on-site at the
Bemidji Wal-Mart. Abello Dep. at 34-36; Molnar Dep. at 20-23. Lussier worked 20 hours per
week at Wal-Mart, from 11:00 a.m. to 3:00 p.m., Monday to Friday. Lussier Dep. at 57. Lussier
mainly worked in the parking lot, the entryway, and the front area of the Supercenter. Id. at 43.
On Thursday, December 23, 2004, Lussier worked his regular shift at Wal-Mart. Id. at
60. Wal-Mart was very busy with the approach of Christmas. Id. at 61-62. Lussier and the cart
attendant struggled to keep up, since the [t]he carts couldnt come into the store fast enough,
just chaos everywhere. Id. at 62. Shortly before 2:00 p.m., Lussier became warm and removed
his jacket, which exposed his black t-shirt. Id. Lussier wore a long-sleeve thermal shirt
underneath his t-shirt. Id. at 61. The front of Lussiers t-shirt bore the statement, Sorry I Dont
Do Girls, Dont Panic, in white letters. Id. at 61-62, Ex. 6. Lussier wore the shirt to openly
proclaim that he is homosexual. Id. at 70.
Around 2:00 p.m., Abello was advised that a Wal-Mart customer had complained that
Lussiers t-shirt was offensive because of its sexual nature. Abello Dep. at 53-55, 66. Abello
asked Virnig to address the issue with Lussier. Id. at 53; Virnig Dep. at 33. Virnig approached
Lussier, informed him of the customer complaint, and asked him to cover, remove, or reverse his
t-shirt because it was against Wal-Marts dress policy. Lussier Dep. at 62-63, 88; Virnig Dep. at
33. Lussier refused, stating that he did not work for Wal-Mart and that he had a right to free
2 Abello and Nyland testified that Abello spoke with Molnar. Abello Dep. at 60; Nyland Dep. at
76. Molnar testified that Abello spoke with Nyland. Molnar Dep. at 50-51.
speech. Lussier Dep. at 63, 88-89. Virnig warned Lussier that if he did not comply, Virnig
would notify Abello. Id. at 63. Lussier replied, [g]o ahead, Ill talk to him. Id. Shortly after
Virnig left, Lussier covered his shirt. Lussier Dep. at 63.
Upon learning from Virnig that Lussier refused to cover his shirt, Abello told [Virnig] to
leave it alone. Hes not one of our employees. Well let [ODC] deal with their employees.
Abello Dep. at 60. Abello called ODC and asked either Molnar or Nyland2 to address the
situation. Id. at 60-61. Abello stated that due to Lussiers stated refusal to cooperate, he did not
want Lussier to work as an ODC job coach at the Wal-Mart. Lussier Dep. at 89; Nyland Dep. at
76. In response, Molnar drove to the Wal-Mart at approximately 2:30 p.m. and asked Lussier to
return to ODCs office so they could discuss the situation. Lussier Dep. at 64; Molnar Dep. at
55. Molnar finished the remainder of Lussiers job coaching shift at the Bemidji Wal-Mart.
Molnar Dep. at 54-55. Molnar briefly spoke with Abello, and Molnar later observed Abello felt
bad about the situation and . . . he was in a cooperative type of state I think to try to work this
problem out. Id. at 60.
Later that day, Lussier met with Molnar and Nyland at ODCs office to discuss the events
at Wal-Mart. Lussier Dep. at 84; Nyland Dep. at 42. Nyland, with Molnars assistance,
prepared an Employee Warning Notice describing the incident:
Andy Abello, Wal-Marts General Manager, called and stated that [Glen] had asked
Daniel to turn his shirt inside out because it was against Wal-Marts dress policy. He
said that Daniel refused and said that he did not work for him so he wasnt doing it.
Andy stated that he did not want Daniel returning to Wal-Mart in any capacity as an
employee of ODC. After Jeff went to relieve Daniel I [Nyland] received a call from
another [ODC] employee stating that Daniel was standing in the entryway bragging about
3 Abellos testimony is consistent with Nylands account. Abello avers he told Molnar that Wal-
Mart did not require an apology, and that Lussier could return to Wal-Marts premises as an
ODC job coach if he did not wear anything that could be viewed as offensive. Abello Dep. at
the incident. He stated that he wanted a fight because it was freedom of speech.
Lussier Dep. Ex. 7. The warning notice stated Lussier violated ODCs policies for rudeness to
employees/customers and violation of company policies or procedures regarding ODCs
dress code. Id. Lussier signed the warning notice but marked that he disagreed with ODCs
statement of the incident. Id. Molnar and Nyland instructed Lussier to return to the office on
December 28, 2004, to further discuss the situation. Id. at 85, Ex. 7.
On December 28, 2004, Molnar and Nyland met to discuss Lussiers continued
employment with ODC. Nyland Dep. at 80. Nyland modified Lussiers Employee Warning
Notice to reflect that Lussier must apologize to ODC and Wal-Mart or he would be terminated.
Id. Why Molnar and Nyland added the condition that Lussier must apologize to Wal-Mart is
uncertain. Nyland avers Molnar said . . . he had talked to Wal-Mart and that if . . . Daniel
apologized he could return. Id. at 77. Nyland further avers Molnar did not specify whether
Wal-Mart required an apology. Id. at 78-80. Molnar, however, recalled that Nyland and Nancy
Cota in ODCs human resources department added the condition that Lussier apologize to Wal-
Mart. Molnar Dep. at 78. Molnar avers he was hopeful but uncertain as to whether Wal-Mart
would allow Lussier to return to its premises as an ODC job coach.3 Molnar Dep. at 79, 81.
Regardless, later that day Molnar and Nyland informed Lussier that he would need to
apologize to ODC and Wal-Mart or he would be terminated. Lussier Dep. at 94, Ex. 7. Lussier
agreed to apologize to ODC. Id. Ex. 7. However, Lussier would not apologize to Wal-Mart
4 At his deposition, Lussier claimed that Wal-Mart lied about his refusal to cover his shirt,
because if they would have waited five minutes, they would have saw my jacket was on.
Lussier Dep. at 96. Lussier also explained he believed Wal-Mart inaccurately portrayed his
conduct during the t-shirt incident as rude. Id.
because he believed Wal-Mart discriminated against him for being gay, being out, being proud
about it. Id. at 100. Lussier stated in the Employee Warning Notice, I cant say Im sorry to
Wal-Mart, I will not apologize for their lies. Id. Ex. 7. Lussier did not explain how Wal-Mart
had lied. Molnar Dep. at 67-69; Nyland Dep. at 62. ODC terminated Lussier for his refusal to
apologize to Wal-Mart.4 Lussier Dep. Ex. 7.
A. Summary Judgment Standard of Review
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue
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); see Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion
for summary judgment, the Court views the evidence in the light most favorable to the
nonmoving party. Ludwig, 54 F.3d at 470. The nonmoving party may not rest on mere
allegations or denials, but must demonstrate on the record the existence of specific facts which
create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
B. Tortious Interference with an Employment Contract
Minnesota courts recognize a cause of action for tortious interference with an at-will
employment contract. Nordling v. N. States Power Co., 478 N.W.2d 498, 505 (Minn. 1991). To
prevail on his tortious interference claim, Lussier must show: (1) the existence of a contract
between ODC and himself, (2) the alleged wrongdoers knowledge of the contract, (3)
intentional procurement of its breach, (4) without justification, and (5) damages. Kjesbo v.
Ricks, 517 N.W.2d 585, 588 (Minn. 1994). Wal-Mart does not dispute that the first, second, and
fifth elements are satisfied. Therefore, the question is whether there is sufficient evidence that
Wal-Mart was a procuring cause of ODCs termination of Lussier and, if so, whether Wal-Marts
actions were justified.
It is undisputed that Abello of Wal-Mart reported the t-shirt incident to ODC and told
ODC that he did not want Lussier to return to the Supercenter as an ODC employee. Abellos
report triggered the sequence of events that led to Lussiers termination. It is unnecessary to
decide whether this evidence establishes intentional procurement because the record
conclusively shows that Wal-Marts conduct was justified.
Justification or privilege is a defense to an action for tortious interference. Nordling,
478 N.W.2d at 506. Justification is lost, however, if a bad motive is present. Metge v. Cent.
Neighborhood Improvement Assn, 649 N.W.2d 488, 500 (Minn. Ct. App. 2002). Whether
interference is justified is ordinarily an issue of fact and the test is reasonable conduct under the
circumstances. Kjesbo, 517 N.W.2d at 588.
Lussier argues Wal-Mart was not justified in asking him to cover his t-shirt because he
was not a Wal-Mart employee. However, Lussier worked on Wal-Mart property in his capacity
as an ODC employee. During an average week, Lussier coached the Wal-Mart cart attendant
from 11:00 a.m. to 3:00 p.m., Monday through Friday. Lussier Dep. at 58. Lussier performed
his job duties in Wal-Marts entryway, parking lot, and storefront. Although he did not wear
clothing or a name tag with Wal-Mart identification, Lussiers job duties were entwined with the
Wal-Mart cart attendants job duties. Wal-Mart customers observing Lussier at the Bemidji
Supercenter could reasonably conclude Lussier was performing his work duties at Wal-Marts
behest or with Wal-Marts permission. See Abello Dep. at 43-44. Therefore, the record
conclusively shows Wal-Mart was justified in expecting that Lussier would wear appropriate
attire when he worked at the Bemidji Supercenter.
Next, Lussier argues Wal-Mart was not justified in asking him to remove his shirt
because the slogan I dont do girls. Dont panic, is not sexually explicit. Pl.s Mem. in Oppn
to Mot. for Summ. J. [Docket No. 23] at 23 n.6. However, the employment-discrimination laws
have not vested in the federal courts the authority to sit as super-personnel departments
reviewing the wisdom or fairness of the business judgments made by employers, except to the
extent that those judgments involve intentional discrimination. Hutson v. McDonnell Douglas
Corp., 63 F.3d 771, 781 (8th Cir. 1995). Abello, Molnar, and Nyland all concluded that
Lussiers t-shirt was inappropriate workplace attire. Abello Dep. at 66; Molnar Dep. at 102;
Nyland Dep. at 45. Lussier conceded at his deposition that to do a girl has a sexual
connotation. Lussier Dep. at 70-71. Further, Lussiers brief states he wore a t-shirt about who
he would not be interested in sexually. Pl.s Mem. in Oppn to Mot. for Summ. J. at 14. The
record conclusively shows that Lussiers t-shirt was sexually suggestive, and Wal-Mart was
justified in asking Lussier to cover his t-shirt. Abello Dep. at 66.
Lussier argues Wal-Marts justification is defeated, however, because there is evidence
that Abello discriminated against him because he is homosexual. Lussier first contends that
Abello untruthfully told ODC that [Lussier] refused to cooperate in covering up his shirt.
Mem. in Oppn to Mot. for Summ. J. at 11. However, it is undisputed that Lussier initially
refused Virnigs request to cover his t-shirt. Although Lussier may have subsequently covered
his t-shirt, he did not advise Abello or Virnig of his belated acquiescence. There is no factual
basis to show Abello lied when he told ODC that Lussier had refused to cover his t-shirt.
Lussier also argues Abello untruthfully told ODC that Lussier was rude when he refused
Virnigs request that he cover his t-shirt. This argument also has no basis in the record. Abello
reported to ODC that Lussier refused to cooperate and that Lussier told Virnig he did not work
for Wal-Mart. Molnar and Nyland independently determined that Lussiers refusal to cover his
t-shirt and his comments amounted to rudeness. Molnar Dep. at 69-70; Nyland Dep. at 50-51.
Lussiers disagreement with Abello, Molnar, and Nylands characterization of his conduct fails
to demonstrate that Abello was motivated by a discriminatory animus when he characterized
Lussiers behavior as rude.
Lussier also claims Abello lied about whether a customer complained about his t-shirt.
To support this argument, Lussier relies on a discrepancy in Abello and Virnigs testimony.
Abello testified that he was informed of a customer complaint and then he called Virnig on the
Bemidji Wal-Marts internal phone line to tell him to address Lussiers t-shirt. Abello Dep. at
53-54. Virnig recalled somebody coming up to me, saying there was a customer complaint.
Virnig Dep. at 36. Lussier argues this discrepancy is evidence that Abello lied about a customer
complaint. However, both Abello and Virnig recalled learning of a customer complaint; the
minor discrepancy regarding the manner in which Virnig learned of the complaint is not
Lussier also relies on his own testimony that some time after he was terminated,
Jeannette Parker, then an associate supervisor at the Bemidji Wal-Mart, told him at a bar that she
had notified Abello and Virnig about Lussiers t-shirt and she apologized for getting him fired.
Lussier Dep. at 102-06. Abello disputes that Parker notified him, and Virnig could not recall her
doing so. Abello Dep. at 53-54; Virnig Dep. at 32. Putting aside the considerable evidentiary
issues of the admissibility of Parkers statement, it does not alter the undisputed testimony that
Abello of Wal-Mart, and Molnar and Nyland of ODC, all determined that Lussiers t-shirt was
inappropriate work attire because of the sexual nature of the phrase I Dont Do Girls.
Finally, Lussier argues he can establish discrimination against him by proof of disparate
treatment. Lussier relies on Abellos deposition testimony of a customer complaint about
another ODC job coach on-site at Wal-Mart who was kissing and snuggling with his girlfriend.
Abello Dep. at 39-41. Abello recalled in that instance he contacted Molnar and that it wasnt a
huge deal because once we addressed it[,] it stopped. Id. at 40-41. Lussier argues that Abello
of Wal-Mart did not ask ODC to remove the heterosexual snuggling job coach from the store,
whereas he asked ODC to remove Lussier, who is homosexual. However, Lussier has failed to
show that he and the heterosexual job coach were similarly situated, since there is no evidence
that the snuggling job coach refused a request that he stop kissing and snuggling with his
girlfriend. See Johnson v. Univ. of Iowa, 431 F.3d 325, 330 (8th Cir. 2005) (discussing that
disparate treatment claim requires showing that individuals were similarly situated). The record
conclusively establishes that Wal-Marts conduct was justified, and Lussier has failed to present
5 Given that Lussiers tortious interference claim fails to survive summary judgment on its
merits, Wal-Marts argument that the MHRA preempts Lussiers tortious interference claim is
not addressed here.
evidence of bad motive. Therefore, Wal-Mart is granted summary judgment on Lussiers claim
of tortious interference with contract.5
C. MHRA Claims
Under the MHRA, it is an unfair discriminatory practice for any person intentionally to
aid, abet, incite, compel, or coerce an employer to engage in sexual orientation discrimination,
or to intentionally attempt to do so. Minn. Stat. 363A.08, subd. 2; 363A.14(1), (2). The
definition of sexual orientation includes having or being perceived as having an emotional,
physical, or sexual attachment to another person without regard to the sex of that person or
having or being perceived as having an orientation for such attachment. Minn. Stat. 363A.03,
subd. 44. Lussier claims Wal-Mart intentionally aided and abetted ODC in discriminating
against him on the basis of his sexual orientation. In the alternative, Lussier argues Wal-Mart
attempted to incite ODC to discriminate against him on the basis of sexual orientation.
1. Aiding and Abetting Sexual Orientation Discrimination
An underlying discrimination claim is necessary to prevail on a claim of aiding and
abetting discrimination. Smith v. DataCard Corp., 9 F. Supp. 2d 1067, 1081 (D. Minn. 1998).
Therefore, to survive summary judgment on his claim that Wal-Mart aided and abetted ODCs
sexual orientation discrimination, Lussier must present sufficient evidence that ODC engaged in
sexual orientation discrimination.
At the summary judgment stage, the issue is whether the plaintiff has sufficient evidence
that unlawful discrimination was a motivating factor in the defendants adverse employment
action. Griffith v. City of Des Moines, 387 F.3d 733, 735 (8th Cir. 2004). A plaintiff may
preclude summary judgment in one of two ways. A plaintiff may present direct evidence that
show[s] 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 challenged decision. Thomas v. First Natl Bank of Wynne, 111 F.3d 64, 66 (8th
Cir. 1997) (quotation marks and citation omitted).
Lacking direct evidence of an illegal motive, a plaintiff can avoid summary judgment by
creating an inference of unlawful discrimination through the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, a plaintiff must
establish a prima facie case of discrimination by showing that (1) he was a member of a
protected class, (2) he was qualified for his position, and (3) he suffered an adverse employment
action under circumstances giving rise to an inference of discrimination. Bergstrom-Ek v. Best
Oil Co., 153 F.3d 851, 857 (8th Cir. 1998). The burden then shifts to the employer to establish a
legitimate, nondiscriminatory reason for the alleged discriminatory action. Id. If the employer
meets this burden, then the plaintiff must show that the legitimate reason asserted by the
employer is merely a pretext for discrimination. Id. at 857-58.
a. Direct Evidence of Discrimination by ODC
Lussier argues the McDonnell Douglas analysis is inapplicable because he has sufficient
direct evidence of discrimination by ODC. Lussier argues that Molnar selectively enforced
ODCs dress code against Lussier because his t-shirt revealed him as a gay man. Lussier
emphasizes ODCs dress code does not explicitly prohibit employees from wearing t-shirts with
slogans on them. Molnar Dep. at 72-73. However, Lussiers argument does not address that the
language, Sorry I Dont Do Girls, Dont Panic, could be construed as sexual in nature. The
relevant inquiry for Lussiers disparate treatment argument is not whether ODC permitted
employees to wear t-shirts with slogans, but whether ODC allowed heterosexual employees to
wear t-shirts with sexual remarks. The record contains no evidence on this issue. Therefore,
Lussier has no proof that ODC selectively enforced its dress code against him on the basis of his
sexual orientation.
Lussier also relies on evidence of a conversation between Abello and Molnar at the
Calvary Church in Bemidji in December 2004. Abello testified that Molnar said he was shocked
Lussier was freely expressing he was a homosexual because Molnar thought Lussier, as a former
member of the Calvary Church, believed homosexuality was wrong. Abello Dep. at 51-52.
Molnar did not recall this conversation. Molnar Dep. at 86. Lussier argues Molnars alleged
comments are strong evidence that Molnar discriminated against him on the basis of his sexual
orientation. However, there is no evidence that Molnars alleged surprise at Lussiers
homosexuality influenced his decision-making process regarding Lussiers employment at ODC.
The evidence of Molnars comments is not direct evidence that clearly points to the presence of
an illegal motive.
Lastly, Lussier again argues disparate treatment based on the incident of the ODC job
coach who kissed and snuggled with his girlfriend while he worked on-site at Wal-Mart.
However, as previously discussed, Lussier has not shown that he and the snuggling job coach
were similarly situated. Lussier has failed to present direct evidence that ODC discriminated
against him on the basis of his sexual orientation. Accordingly, whether Lussier has created an
inference of discrimination under the McDonnell Douglas framework is next analyzed.
b. McDonnell Douglas Analysis
i. Prima Facie Case
The parties do not dispute that Lussier is protected by the MHRAs sexual orientation
discrimination provision. However, Wal-Mart argues Lussier was not qualified for his job
coaching position because (1) he failed to comply with ODCs request that he apologize to Wal-
Mart for his conduct regarding the t-shirt, (2) he refused to immediately comply with Wal-Marts
request that he cover his t-shirt, (3) Lussiers t-shirt violated ODCs dress code, and (4) Lussier
had a previous oral warning in his file for performance issues. See Lussier Dep. Ex. 7. Wal-
Mart cites the Eighth Circuits decision in Richmond v. Bd. of Regents of the Univ. of Minn.,
957 F.2d 595, 598 (8th Cir. 1992) for the proposition that an employees poor performance can
demonstrate that an employee is not qualified for his job.
However, the Eighth Circuit has recently clarified that whether an employee performs his
duties satisfactorily should not be considered to determine whether the employee was qualified.
Arnold v. Nursing & Rehab. Ctr. at Good Shepherd, LLC, 471 F.3d 843, 846 (8th Cir. 2006).
Instead, such evidence is appropriately considered at the second and third stages of the
McDonnell Douglas analysis. To establish that he was qualified to job coach, it suffices for
Lussier to show that he met the minimum objective qualifications of the job. Kobrin v. Univ. of
Minn., 34 F.3d 698, 702 (8th Cir. 1994). Before working at ODC, Lussier had previously
worked as a job coach, and there is no evidence that he failed to meet the objective qualifications
necessary to coach the Wal-Mart cart attendant. Lussier Dep. at 23-24. Therefore, Lussier has
established that he was qualified for the job coach position.
Lussier must also demonstrate that he suffered an adverse employment action under
circumstances giving rise to an inference of discrimination. Lussiers termination is an adverse
employment action. As evidence of causation, Lussier relies on the same evidence discussed
above. Lussiers claims of disparate treatment based on selective enforcement of ODCs dress
code and based on the incident of the snuggling job coach fail to provide support for an inference
of discrimination for the reasons stated above. Thus, Lussiers only evidence that ODC
discriminated against him on the basis of his sexual orientation is Molnars alleged comments to
Abello at the Calvary Church that he was surprised Lussier was homosexual and would openly
express it. Given the comments were allegedly made shortly after the t-shirt incident, a close
temporal proximity exists between Molnars alleged comments and Lussiers termination. The
Court will assume, without deciding, that Lussier could establish a prima facie case of sexual
orientation discrimination by ODC.
ii. Legitimate, Non-Discriminatory Reasons and Pretext
ODC disciplined Lussier for violating ODCs dress code and it terminated him for his
refusal to apologize to Wal-Mart for his behavior during the t-shirt incident. Lussier does not
dispute that ODC has stated legitimate, non-discriminatory reasons for its actions. However,
Lussier argues these reasons are pretextual.
Lussiers pretext arguments are without support in the record. For the reasons already
stated, Lussiers disparate treatment arguments provide no support for a finding of pretext. The
only new argument Lussier raises as evidence of pretext is that because Wal-Mart did not require
an apology, it was pretextual for ODC to require Lussier to apologize to Wal-Mart, especially
when Lussier had already stated he believed that Wal-Mart had discriminated against him.
Lussier argues Molnar knew that requiring him to apologize to Wal-Mart would be an
insurmountable barrier that would give Molnar an excuse to terminate Lussier. Pl.s Mem. in
Oppn to Mot. for Summ. J. at 31. However, again, this Court will not second-guess ODCs
business judgments. Hutson, 63 F.3d at 781. Regardless of whether Wal-Mart required an
apology, Molnar and Nyland were within the bounds of their discretionary business judgment
when they required that Lussier apologize to Wal-Mart. Lussier can not show that ODCs
reasons were pretextual. Therefore, Lussier does not have a viable sexual orientation
discrimination claim against ODC. As a result, Wal-Mart is entitled to summary judgment on
Lussiers claim that Wal-Mart aided and abetted ODCs sexual orientation discrimination.
2. Attempting to Aid and Abet Sexual Orientation Discrimination
Lussiers claim that Wal-Mart attempted to incite ODC to discriminate against him on the
basis of his sexual orientation is almost identical to Lussiers tortious interference claim. As
with his tortious interference claim, Lussiers claim that Wal-Mart attempted to incite sexual
orientation discrimination can not survive summary judgment.
Lussier again argues that Wal-Mart had no basis to be concerned about his work attire
because he did not wear Wal-Mart identification. However, for the reasons discussed
previously, Wal-Mart was justified in asking Lussier to cover his t-shirt because it contained a
sexual slogan and he was performing tasks on Wal-Mart property leading to a reasonable
conclusion he was affiliated with Wal-Mart. Therefore, Wal-Marts request that Lussier cover
his shirt is not evidence that Wal-Mart intended to cause ODC to engage in sexual orientation
6 The dismissal of Lussiers claim that Wal-Mart attempted to incite ODC to engage in sexual
orientation discrimination provides an independent basis for the dismissal of Lussiers aiding and
abetting claim.
Next, Lussier complains that Abello never spoke directly with him after he refused
Virnigs request. However, given Lussiers comments to Virnig that he did not work for Wal-
Mart, Abello had no reason to believe that Lussier would listen to him. Therefore, Abellos
failure to confront Lussier is not evidence of sexual orientation discrimination.
Lussier also conclusorily asserts that Abello sought to have him removed from Wal-Mart
because he wore a t-shirt that revealed his homosexuality. Again, however, Lussiers t-shirt
revealed his homosexuality by means of the sexually suggestive slogan I dont do girls. There
is no evidence that Abello allowed heterosexual Wal-Mart employees or ODC job coaches at the
Bemidji Supercenter to wear t-shirts with sexually suggestive slogans.
Next, Lussier again argues that Abello lied about a customer complaint. However,
Lussier relies exclusively on the hearsay statement of Jeannette Parker. Even assuming
arguendo that no customer had complained, Lussiers t-shirt bore a sexually suggestive slogan
and there is no evidence that Wal-Mart allowed its heterosexual employees or ODCs
heterosexual job coaches to wear sexually suggestive slogans.
Finally, Lussier again argues disparate treatment as compared to the snuggling job coach.
However, as discussed above, Lussier has not shown that he and that coach were similarly
situated. Lussier has failed to raise a genuine issue of material fact as to whether Wal-Mart
intentionally attempted to incite ODC to engage in sexual orientation discrimination.6
Accordingly, all of Lussiers claims fail and Wal-Marts Motion for Summary Judgment is
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendant Wal-Mart Stores, Inc.s Motion for Summary Judgment
[Docket No. 19] is GRANTED.
s/Ann D. Montgomery
Dated: August 28, 2007.


  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



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