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Wesman v. United Parcel Service, Inc.: US District Court : EMPLOYMENT - marital status claim included within disability association claim; Statute of Limitations discrete for each date

Civil No. 08-457(DSD/SRN)
George F. Wesman,
United Parcel Service, Inc.,
Konstandinos Nicklow, Esq. and Meshbesher & Spence, Ltd.,
1616 Park Avenue, Minneapolis, MN 55404, counsel for
G. Abam Mambo, Esq., Mary E. Stumo, Esq. and Faegre &
Benson, 90 South Seventh Street, Suite 2200, Minneapolis,
MN 55402, counsel for defendant.
This matter is before the court on defendants partial motion
to dismiss. After a review of the file, record and proceedings
herein, and for the following reasons, defendants motion is
granted in part.
This dispute arises from the termination of plaintiff George
Wesman (Wesman) by defendant United Parcel Services, Inc. (UPS)
in May 2006. Wesman began working for UPS in January 1985 and was
forty-nine years old at the time of his termination. Wesman worked
as a driver until May 1985 when he was promoted to Human Resources
Supervisor. Thereafter, Wesman held various supervisory positions
until his promotion to Employment Manager in January 1988, after
which he held certain manager positions until his termination.
In 1991, Wesman reported that UPS had destroyed documents
connected to a pending civil litigation. As a result, Wesman
claims that UPS transferred him to a highly undesirable position as
an Operations Manager at the lowest producing center in the
Minnesota District, and that UPS further retaliated against him by
transferring him to a Pre-Load Manager position in January 1993.
After returning to his Employment Manager position in January
1994, UPS informed Wesman that he was a top candidate for a
District Human Resource Manager position. Asked if he would be
willing to relocate, Wesman told UPS that he could not unless the
relocation would permit his wife to continue receiving treatment
from her team of physicians. UPS did not accommodate Wesman but
instead continued to inquire each year until 2000 about his ability
to relocate. Wesman responded to each inquiry by telling UPS that
his wifes medical condition prevented him from relocating. As a
result, UPS eliminated Wesman from consideration for a District
Human Resources Manager position.
In December 2000, UPS transferred Wesman to St. Cloud,
Minnesota as an Operations Manager. Soon thereafter, in response
to a Division Managers inquiry, Wesman indicated that he was
willing to permanently relocate to St. Cloud or Duluth, Minnesota.
Wesman, however, alleges that he was not permanently transferred
because of his refusal to relocate beyond a distance that would
have prevented his wife from continuing her medical treatment.
UPS transferred Wesman back to the lowest producing Minnesota
center in January 2001. From that time until 2004, UPS repeatedly
told Wesman that he was a top candidate for the Package Division
Manager position but removed him from consideration each time after
he indicated his unwillingness to relocate. In January 2004, UPS
transferred Wesman to the second-lowest performing center in the
Minneapolis District and in May 2004 assigned him the Labor
Relations Manager job there. UPS then informed Wesman that he was
a top candidate for the District Labor Relations Manager position
but again removed him from consideration because of his inability
to relocate.
Finally, in September 2004, UPS transferred Wesman to an
allegedly undesirable position at the lowest performing operation
center in the St. Paul, Minnesota division. Soon thereafter,
Wesman complained to Greg Barr (Barr), the District Human
Resource Manager, about perceived discrimination against Wesman
based on age, race, gender and his wifes medical condition.
Wesman alleges that Barr retaliated against him beginning in August
2005 by investigating Wesmans work history and soliciting
complaints dating back more than ten years for the purpose of
finding grounds for termination. In May 2006, Barr terminated
Wesman purportedly for violating a UPS policy regarding doubleshifting.
In response to his termination, Wesman initiated UPSs
alternative dispute resolution program. After a full hearing with
evidence, a three-person panel - composed of peers or co-managers -
determined that Wesmans termination was unjust and that he should
be immediately reinstated. In March 2007, Wesman filed a Charge of
Discrimination with the Equal Employment Opportunity Commission
(EEOC) that was cross-filed with the Minnesota Department of
Human Rights (MDHR). The EEOC issued a right to sue letter on
November 15, 2007. Through letters dated December 17 and 27, 2007,
the MDHR adopted the EEOCs dismissal, permitting Wesman to
commence civil litigation. On February 1, 2008, Wesman filed suit
in Minnesota state court, and UPS removed the action to this court
on February 21, 2008. Wesman filed an amended complaint on
February 26, 2008, asserting claims for marital status
discrimination and retaliation under the Minnesota Human Rights Act
(MHRA), punitive damages, wrongful discharge under the Minnesota
Whistleblower Act and age, race and gender discrimination and
retaliation under Title VII of the Civil Rights Act of 1964. UPS
now moves for partial dismissal.
I. Standard of Review
Pursuant to Federal Rule of Civil Procedure 8(a)(2), a
complaint must contain a short and plain statement of the claim
showing that the pleader is entitled to relief. This statement
does not require detailed factual allegations so long as it
give[s] the defendant fair notice of what the ... claim is and the
grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47
(1957). However, a court will dismiss a complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failing to state a
claim upon which relief can be granted if, after taking all facts
alleged in the complaint as true, those facts fail to raise a
right to relief above the speculative level. Bell Atlantic Corp.
v. Twombly, 127 S. Ct. 1955, 1965 (2007). Where the allegations
show on the face of the complaint there is some insuperable bar to
relief, dismissal under Rule 12(b)(6) is appropriate. Benton v.
Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008) (citation
II. Marital Status Discrimination
The parties agree that, at the latest, Wesman must have filed
a charge of discrimination or brought suit alleging marital status
discrimination under the MHRA within one year of his termination.
See Minn. Stat. 363A.28, subdiv. 3. Wesman timely filed his MHRA
charge of discrimination. UPS maintains, however, that the charge
1 Williams involved a Title VII claim. Because of the
similarities between Title VII and the MHRA, however, courts give
strong weight to federal court interpretations of Title VII
claims, when interpreting the MHRA. Wayne v. MasterShield, Inc.,
597 N.W.2d 917, 921 (Minn. Ct. App. 1999).
did not assert marital status discrimination and thus his
subsequent claim in the state court complaint is time barred.
A MHRA charge of discrimination must set out a summary of the
details of the practice complained of. Id. 363A.28, subdiv. 1.
This requirement serves two purposes: (1) to provide the state
agency with information and an opportunity to eliminate the alleged
unlawful practices through informal methods of conciliation; and
(2) to provide formal notice to the employer and prospective
defendant of the charges that have been made against it. Anderson
v. Nw. Natl Life Ins. Co., 480 N.W.2d 363, 365 (Minn. Ct. App.
1992) (citations and quotations omitted). Thus, to determine
whether a charge encompasses a later asserted claim in a judicial
proceeding, a court asks whether investigation of the allegations
contained in the charge would have led to discovery of that claim.
Cf. id. at 367. In other words, a plaintiff may allege claims in
a judicial complaint that are like or reasonably related to the
substance of the charges timely brought. Williams v. Little Rock
Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994);1 see also
Stuart v. Gen. Motors Corp., 217 F.3d 621, 631 (8th Cir. 2000) (a
plaintiff may seek relief for any discrimination that grows out of
or is like or reasonably related to the substance of the
2 As noted earlier, Wesmans EEOC charge was cross-filed with
the MDHR. Title VII, however, does not provide a cause of action
for marital status discrimination. Thus, there was no box for
marital status.
3 Defendant submitted as exhibits Wesmans charge of
discrimination filed with the MDHR, the EEOCs dismissal and notice
of rights and the letter from the MDHR dismissing Wesmans charge.
The court has considered these exhibits on this motion to dismiss
because they are necessarily embraced by the complaint. See
Enervations, Inc. v. Minn. Mining & Mfg. Co., 380 F.3d 1066, 1069
(Though matters outside the pleading may not be considered in
deciding a Rule 12 motion to dismiss, documents necessarily
embraced by the complaint are not matters outside the pleading.
(citations and quotations omitted)).
allegations in the administrative charge. (citation and quotation
In his MHRA charge, plaintiff checked the boxes for age and
disability discrimination and retaliation but did not check the
box for other.2 Wesman further articulated in the charge that he
believed he was terminated because of [his] age, association with
a disabled person, and in retaliation for [his] complaints of
discrimination. (Def. Ex. C.3) Wesman now argues that his
marital status discrimination claim is like or reasonably related
to his charge of discrimination based upon his association with a
disabled person because the disabled person he referenced was his
wife. The court agrees. Specifically, the court determines that
an investigation into Wesmans charge that UPS discriminated
against him on the basis of his association with a disabled
person would have led to the discovery that the disabled person
was his wife. Therefore, Wesmans marital status discrimination
4 The MHRAs prohibition on discrimination based upon marital
status extends to discrimination on the basis of the identity,
situation, actions, or beliefs of a spouse or former spouse.
Minn. Stat. 363A.03, subdiv. 24, 363A.08, subdiv. 2.
5 It is unclear whether UPS seeks dismissal of Wesmans claims
under the MHRA and Title VII. UPSs motion only seeks dismissal of
counts I and II - both MHRA claims. UPSs reply brief, however,
argues that Wesmans only remaining claims under Title VII or the
MHRA are his allegations of retaliatory termination. (Reply Br.
at 9.) The courts analysis applies equally to both statutes.
Therefore, the court concurrently addresses Wesmans MHRA and Title
VII claims.
6 In states that do not have an agency with authority to grant
or seek relief with respect to the alleged unlawful practice, the
charge must be filed within 180 days. 42 U.S.C. 2000e-5(e)(1).
claim is reasonably related to the substance of the charges in his
administrative complaint.4 Accordingly, UPSs motion to dismiss
Wesmans marital status discrimination claim in its entirety as
untimely is denied.
III. Statute of Limitations
UPS argues that Wesmans many claims based on its alleged
failure to promote, refusal to transfer and retaliatory transfer
are time-barred discrete acts.5 Wesman contends that his claims
are not time barred because they constitute a continuing violation.
A MHRA claim must be filed within one year of the alleged
discriminatory conduct. Minn. Stat. 363A.28, subdiv. 3. A Title
VII discrimination charge must be filed with the EEOC within 300
days after the alleged unlawful employment practice occurred.6
42 U.S.C. 2000e-5(e)(1); see also Wilson v. Brinker Intl, Inc.,
382 F.3d 765, 769 (8th Cir. 2004). The limitations period is
triggered upon occurrence of the discriminatory act, 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). The date a
discriminatory act occurred depends on whether the discriminatory
conduct is a continuing violation or a discrete act. See Taxi
Connection v. Dakota, Minn. & E. R.R. Corp., 513 F.3d 823, 825 (8th
Cir. 2008); see also Mems v. City of St. Paul, Dept of Fire &
Safety Servs., 327 F.3d 771, 784 (8th Cir. 2003). A continuing
violation occurs when the acts complained of are part of the same
unlawful employment practice. Mems, 327 F.3d at 774 (citing Natl
R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)). For example,
hostile environment claims are continuing violations because
[t]heir very nature involves repeated conduct, and the unlawful
practice cannot be said to occur on any particular day. Morgan,
536 U.S. at 115; see also Walsh v. Natl Computer Sys., 332 F.3d
1150, 1157 (8th Cir. 2003) (Because [plaintiff] has alleged a
continuing pattern of related discriminatory events rather than
discrete discriminatory actions, her hostile environment claim
falls squarely within the Morgan continuing violation theory.).
If the alleged unlawful practice is a continuing violation, only
one of the alleged discriminatory acts need fall within the
limitations period. Morgan, 536 U.S. at 115. A discrete act, on
the other hand, occurs the day that it happened and is its own
unlawful employment practice. Id. at 110. Discrete acts include
7 Because Morgan addressed only Title VII claims, Wesman,
citing two pre-Morgan Minnesota state cases, argues that
Minnesotas continuing violation doctrine under the MHRA applies to
a series of discrete acts. See Sigurdson v. Isanti County, 448
N.W.2d 62, 68 (Minn. 1989) (failure to promote a continuing
violation); Kohn v. Minneapolis Fire Dept, 583 N.W.2d 7, 12 (Minn.
Ct. App. 1998) (failure to promote a continuing violation because
result of ongoing discriminatory policy). In interpreting the
MHRA, however, Minnesota courts often appl[y] principles developed
in the adjudication of claims arising under Title VII . . . because
of the substantial similarities between the two statutes.
Sigurdson v. Isanti County, 386 N.W.2d 715, 719 (Minn. 1986).
Therefore, Morgan equally affects the vitality of the continuing
violation doctrine as it applies to the MHRA. Mems, 327 F.3d at
784 n.9; cf. Spencer v. Minn. Dept of Corr., No. A07-462, 2008
Minn. App. LEXIS 240, at *7-8 (Minn. Ct. App. March 11, 2008)
(applying Morgan to MHRA claim); Eichinger v. Imation Corp., No.
A05-1133, 2006 Minn. App. LEXIS 313, at *17-18 (Minn. Ct. App.
April 4, 2006) (cites Mems and Morgan and concludes doctrine of
continuing violations inapplicable to series of discrete acts under
termination, failure to promote, denial of transfer [and] refusal
to hire. Id. at 114. Such acts are not actionable if time
barred, even when they are related to acts alleged in timely filed
charges.7 Id. at 113.
In this case, Wesman asserts that he was denied promotions and
transfers on several occasions because of his wifes medical
condition and for other allegedly unlawful reasons. Wesman further
maintains that he was transferred to undesirable locations and
ultimately terminated in retaliation for his complaints about UPSs
conduct. These allegations do not establish a continuing violation
but rather are a series of discrete acts with each act constituting
its own employment practice. Thus, the applicable limitations
period began the date of each occurrence. Because Wesman filed his
8 The court notes, however, that Wesman is not barred from
using the prior acts as background evidence in support of a timely
claim. Morgan, 536 U.S. at 113.
charge of discrimination on March 7, 2007, he may only pursue
claims for discriminatory conduct under the MHRA and Title VII that
occurred one year or 300 days before that date. Therefore, the
court grants UPSs motion for dismissal of Wesmans MHRA and Title
VII claims to the extent they are based on conduct that occurred
outside of the limitations periods.8
IV. Minnesota Whistleblower Act
Wesman amended his complaint on February 26, 2008, to add a
claim under the Minnesota Whistleblower Act. UPS argues that the
MHRAs exclusionary provision precludes such a claim.
Minnesota Statutes 363A.04 provides that as to acts
declared unfair by sections 363A.08 to 363A.19, and 363A.28,
subdivision 10, the procedure herein provided shall, while pending,
be exclusive. Thus, an employee may not seek redress for the
same allegedly discriminatory practices on the same facts under
both the MHRA and the Whistleblower Act. Abraham v. County of
Hennepin, 639 N.W.2d 342, 347 (Minn. 2002) (citing Williams v. St.
Paul Ramsey Med. Ctr., 551 N.W.2d 483, 486 (Minn. 1996)).
Wesmans amended complaint relies on the same factual
allegations as his original complaint but alleges that UPS violated
the Whistleblower Act by discharging him because he complained to
[UPS] about the various ways [he] felt [UPS] ... continuously
9 This holding renders moot UPSs argument that Wesmans
amended complaint prematurely seeks punitive damages under the
Whistleblower Act.
subjected [him] and others to discriminatory acts on the basis of
age, race and gender, as well as the fact [UPS] had an ongoing
history of retaliating against employees who filed complaints
against [UPS]. (Am. Compl. 73.) Based upon these allegations,
it is evident that Wesman seeks relief under the Whistleblower Act
pursuant to the same facts and alleged discriminatory practices as
his MHRA claims. Therefore, the MHRA provides his exclusive
remedy, and his Whistleblower Act claim is dismissed.9
Accordingly, IT IS HEREBY ORDERED that UPSs partial motion to
dismiss [Doc. No. 6] is granted in part.
Dated: June 24, 2008
s/David S. Doty
David S. Doty, Judge
United States District Court


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