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Woods v. Xcel Energy: US District Court : EMPLOYMENT - summary judgment dismissing discrimination & retaliation claims; harassment claims survive as credibility cannot be weighed

Case No. 06-CV-5014 (PJS/JJG)
Theresa A. Freeman, NEFF LAW FIRM, PA, for plaintiff.
Melissa Raphan and Nicole Haaning, DORSEY & WHITNEY LLP, for defendant.
Plaintiff Kenyata Woods brings claims of employment discrimination, harassment,
retaliation, breach of contract, promissory and equitable estoppel, intentional infliction of
emotional distress, and negligence against defendant Xcel Energy (Xcel). Xcel has moved for
summary judgment on all of Woodss claims. For the reasons described below, Xcels motion is
granted in part and denied in part. Specifically, the Court denies Xcels motion with respect to
Woodss harassment claim, but grants it with respect to Woodss other claims.
Woods, who is African-American, became a full-time, permanent employee of Xcel in
June 2004, after first working for the company as a contract employee. Woods was hired as a
rebate/load management representative; her main responsibility was entering data on a computer.
Woods remained employed by Xcel until May 2005, when she was fired. This lawsuit arises out
of that firing.
Xcel strongly disputes Woodss version of the events leading to her firing and, as will
be explained below, there is reason to believe that at least some of what Woods alleges may not
be true. But in deciding a motion for summary judgment, courts are required to view the facts
and draw reasonable inferences in the light most favorable to the party opposing the [summary
judgment] motion. Scott v. Harris, 127 S. Ct. 1769, 1774 (2007) (quoting United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). Thus the Court will recount undisputed
facts and recount disputed facts as Woods would have them.
A. Woodss Allegations of Harassment
Shortly after Woods became a permanent employee, Xcel hired Yvonne Pfeifer, who
became Woodss supervisor, and Deb Lutchen, who became one of Woodss coworkers. Both
Pfeifer and Lutchen are white. Woods was responsible for training Lutchen. That task soon
became frustrating for Woods, as the two women did not get along, and Lutchen required
repeated retraining.
The reason why Woods and Lutchen did not get along (according to Woods) was that
Lutchen was prejudiced against African-Americans and often made racially offensive remarks in
the workplace. Woods can recall two occasions on which Lutchen called Woods a dumb black
girl in Woodss presence. Woods Dep. 200-04. In addition, Woods often heard Lutchen
making insulting remarks about Lutchens African-American neighbors. Specifically, Lutchen
said that she knew that her neighbors were drug dealers because they owned nice cars. Lutchen
also called her neighbors dumb black people because they rented, rather than owned, their
home. Woods Dep. 97. On one occasion, when Woods won a gift card during a team meeting
for answering a work-related question correctly, Lutchen remarked, one card for the bad girl.
Woods Dep. 41. Lutchen would also sigh and use negative body language around Woods.
Woods Dep. 166.
In her memorandum opposing Xcels motion, Woodss attorney asserts that Woods was
subjected to hearing herself referred to as a nigger by her co-worker Lutchen. Pl.s Mem.
Opp. Summ. J. 18. But there is no support for that assertion in the record. Nowhere in Woodss
deposition, Woodss affidavit, the complaint that Woods filed with Xcel, the complaint that
Woods filed with the Equal Employment Opportunity Commission (EEOC), or the rest of the
record does Woods or anyone else claim that Lutchen used the word nigger in Woodss
presence. Indeed, although Woods testified that coworkers told Woods that Lutchen had
referred to her as nigger girl outside of Woodss presence, Woods specifically testified that she
could not remember hearing Lutchen use that phrase. Woods Dep. 366.
Lutchen made many other extremely offensive remarks outside of Woodss presence.
When talking to other coworkers, Lutchen would refer to Woods as black bitch, unproductive
black girl, dumb girl, and dumb black girl. Woods Dep. 97, 208, 210, 365-70; Woods Aff.
3. Lutchen would also refer to other black people as dumb, state that all black people are
drug dealers, and use phrases such as those black people. Woods Aff. 3. Several of
Woodss coworkers told Woods about Lutchens offensive remarks. Woods Dep. 95-98, 208,
210, 365-70. One of Woodss coworkers, Barb Olson, told Woods to stay away from Lutchen
because Lutchen had it out for [Woods] and did not like African-Americans. Woods Dep. 98.
In fact, Woods suspected that Lutchens requests for retraining were intended to make Woods
look bad and to paint[] a picture about black people being dumb. Woods Dep. 177.
Woods also offers the affidavit and testimony of her coworker Amber Buckner. Buckner
testified that Lutchen constantly made racially offensive remarks in Buckners presence. In
particular, Buckner testified that Lutchen routinely referred to Buckner (who is African-
American) as girl and made comments about black people all the time and about her
neighbors all the time. Buckner Dep. 28; see also Buckner Dep. 75, 87-88, 105. These
comments included that [Lutchens] neighbors are drug dealers, and theyre unproductive, and
theyre lazy, and theyre dumb, that theyre selling drugs, and its bringing her property value
down and that theyre dumb, stupid, lazy black people. Buckner Dep. 28, 40. Buckner
recalls overhearing comments like this weekly. Buckner Dep. 40. Lutchen also called Buckner
girl on a daily basis. Buckner Dep. 87. Buckner testified that Lutchen spoke in a voice loud
enough to be overheard by other people working in the office. Buckner Dep. 28, 30, 105.
Buckner also recalls several offensive comments that Lutchen made in Woodss presence
comments that Woods herself apparently does not remember. For example, Buckner testified
that Woods was present when Lutchen said that she wasnt going on break with those black
girls. Buckner Dep. 62-63. Woods was also present, according to Buckner, when Lutchen
asked a coworker whether the coworker was going to lunch with those black people or me.
Buckner Aff. at 3. Buckner further alleges in an affidavit that Lutchen spoke directly to Buckner
and Woods about Lutchens neighbors, saying that her neighbors were stupid, unproductive drug
dealers, unlike Woods and Buckner, whom Lutchen called productive black people. Buckner
Aff. at 1, 2. (In her deposition, however, Buckner testified that Woods was not present during
this last conversation. Buckner Dep. 25-26, 28, 64-65.)
B. Woodss Reports of Harassment
Woods spoke to Pfeifer (her supervisor) on several occasions about Lutchen. The record
evidence about these meetings is somewhat unclear, but it appears that Woods first met with
both Pfeifer and Lutchen sometime in October 2004 and then met with Pfeifer again sometime
before the end of 2004. Woods Dep. 178-79, 387-88. Woodss testimony is also somewhat
vague about what she told Pfeifer during these meetings, but Woods did state that she told
Pfeifer that Lutchen was a racist, that Woods was being subjected to a hostile work environment,
and that Lutchen had called her a dumb black girl. Woods Dep. 178-79, 187, 199, 203.
Woods does not specifically remember when she reported the dumb black girl statement to
Pfeifer, however. Woods Dep. 203.
On January 8, 2005, Woods made a formal written complaint about Lutchen to Xcels
workforce-diversity department. Lewis Aff. Ex. D. In support of her claim that Lutchen had
engaged in racial harassment, Woods listed the following incidents in her complaint:
1. In August 2004, a coworker told Woods that Lutchen had asked where Woods
was and, on being told that Woods was out sick, Lutchen sighed and said yeah
2. In August 2004, a coworker told Woods that Lutchen had said that she did not
like Woods and made unspecified negative comments.
3. In October 2004, a coworker told Woods that Lutchen had often talked about
Woods and believed that Woods did not like Lutchen.
4. In October 2004, Woods met with Pfeifer and Lutchen to discuss issues and
5. In December 2004, a coworker told Woods that Lutchen had been checking
Woodss work, had called Woods a bitch, had made negative comments to the
effect that Woods was unproductive, and generally had a vendetta against
Woods (although the coworker [didnt] know why).
6. In December 2004, a coworker told Woods that Lutchen had complained to
Pfeifer that Woods was trying to turn everybody against Lutchen, that Lutchen
was watching [Woodss] every move, and that Lutchen would often remark on
Woodss absence when Woods was on break or otherwise not at work.
7. In December 2004, Pfeifer asked Woods to train Lutchen on a specific task
because Lutchen had claimed that Woods had not trained her on that task. Woods
performed the training and then told Pfeifer that she thought Lutchen was trying
to make her look incompetent.
8. In January 2005, after Woods won a gift card for answering a trivia question
correctly, Lutchen said, one card for the bad girl.
Lewis Aff. Ex. D.
1At oral argument, Woodss counsel represented that Woods had testified that she orally
reported the explicitly racist comments to Lewis. But Woods did not, in fact, provide such
testimony. The only assertion that Woods made about the substance of her meeting with Lewis
was that Woods provide[d] [Lewis] with additional information during the meeting. Woods
Dep. 25. Moreover, conspicuously absent from Woodss affidavit is any assertion that Woods
gave any information to Lewis other than what appears in Woodss written complaint.
Notably, although the purpose of Woodss complaint was to accuse Lutchen of racial
harassment, Woods said nothing in her complaint about the highly offensive racial insults that
Woods now claims Lutchen made. For example, Woods did not report that Lutchen had twice
called her a dumb black girl to her face or that Lutchen had referred to her as nigger girl in
conversations with coworkers. Instead Woods reported relatively trivial comments that Woods
heard about secondhand and that, on their face, seem to have nothing to do with race. Woods
did testify that her list was not necessarily complete because she was just giving examples, but
Woods also testified that she did not intentionally withhold any information and that I gave
them all of the information that I could think of at this date that I wrote this letter. . . . Some
things I tuned out that I may not have remembered this day [I wrote the letter]. Woods Dep. 36.
A few days after Woods submitted her complaint, Mary Lewis, an investigator with
Xcels workforce-diversity department, contacted Woods to schedule a meeting. Lewis Aff. 6.
During her meeting with Lewis, Woods essentially reiterated the information in her written
complaint and told Lewis that she could not think of any reason for Lutchens hostility other
than racial animus. Lewis Aff. 7. Again, while complaining of racial harassment, Woods did
not mention any of the explicitly racist comments that Woods now claims Lutchen made.1
After talking with Woods, Lewis interviewed Pfeifer and several of Woodss coworkers.
In addition to the types of comments that Woods had already listed in her complaint, the
coworkers reported hearing Lutchen make two comments with racist overtones outside of
Woodss presence: Patricia Charbonneau reported that Lutchen had complained about not being
able to understand Woodss jive talk, and John Gill reported that Lutchen had said they will
miss work for any reason, which Gill took to be a veiled reference to African-Americans.
Lewis Aff. 8-10, 13.
Lewis then questioned Lutchen, who acknowledged complaining about Woods and using
the phrase jive talk, although she could not remember calling Woods a bitch or making the
comment that they will miss work for any reason. Lewis Aff. 11. Lewis cautioned Lutchen
to refrain from using terms like jive talk or making comments like they will miss work for
any reason because such remarks could be construed as racist. Lewis Aff. 11. Lewis also
warned Lutchen to mind her own business, pay attention to her own work, and use the
companys e-mail system only for business-related purposes. Lewis Aff. 11.
Lewis produced a written report of her investigation in which she concluded that
Woodss allegations of racial harassment were unsubstantiated. Lewis Aff. Ex. E. Again,
Woods had not reported any racist comments being made in her presence, and Lewis had learned
of only two racist comments being made outside of Woodss presence neither of which had
been mentioned by Woods. Lewis recommended that Pfeifer monitor behavior in the workplace
and take action as necessary to resolve any conflicts. Lewis Aff. 14 & Ex. E. Lewis also
called Woods and told her that Lewis did not think that Woods had been subjected to racial
discrimination, but that Lewis thought that Woods had been subjected to general harassment and
that the harassment needed to stop. Woods Dep. 43-44.
The record is unclear concerning whether Lutchens alleged racial harassment of Woods
continued after Lewiss investigation. Woods was not asked during her deposition whether the
harassment continued after the investigation concluded, and the only specific comments that
Woods can remember predate the investigation. See, e.g., Woods Dep. 94, 200, 210, 369. But
Woods did testify that, in early February 2005 (three or four weeks after the investigation
concluded), she asked Pfeifer for a reduced work schedule because she felt overwhelmingly
stressed with the discrimination that was going on in the workplace, and that, at the same time,
she discussed with Pfeifer how she did not want to continue training Lutchen because of her
superior white attitude that she displayed toward [Woods]. Woods Dep. 152-53. Woods also
alleges that Pfeifer began retaliating against her after she complained by ignoring Woods and
subjecting Woods to negative body language. Woods Aff. 6.
C. Woodss Misreporting of Hours
In September 2004, just a few months after Woods became a permanent employee,
Pfeifer discovered that Woods had misreported the number of hours she worked on August 17
and August 27. Pfeifer Aff. 3. Specifically, Woods had worked four hours on the 17th and
eight hours on the 27th, but she reported (and sought to be paid for) working eight hours on the
17th and nine and a half hours on the 27th. Pfeifer Aff. 3. Pfeifer met with Woods on
September 17 to discuss the issue. Pfeifer Aff. 3. Woods claimed that the error was due to the
system automatically duplicating time entries from previous weeks. Pfeifer Aff. 3. A payroll
employee, Vivian Olson, later explained to Woods that it was not possible for the system to
automatically duplicate her hours without some input by Woods. Pfeifer Aff. Ex. B.
The following week, on September 20, Pfeifer discovered that Woods had again
misreported her time for several days in the preceding pay period. Pfeifer Aff. 4. These errors
included reporting nine and a half hours of work on a day that Woods did not work at all, eight
hours of work on a holiday, and nine and a half hours of work on a day that Woods worked for
two hours. Pfeifer Aff. 4 & Ex. C. Pfeifer e-mailed Woods about the errors, told her to track
her hours more carefully, and invited her to respond with any questions or concerns. Pfeifer Aff.
Ex. C. Woods apparently did not respond to the e-mail.
In early February 2005, Pfeifer discovered that Woods had misreported her time yet
again. This time, Woods reported that she worked eight hours on each of two days when she had
not actually worked at all. Pfeifer Aff. 6. Pfeifer again met with Woods and again advised her
to be more careful with her time reporting. Pfeifer Aff. 6. Over the next couple of days,
Pfeifer observed Woods arrive late and leave early. Pfeifer Aff. 7. Pfeifer also noted that
Woods was frequently away from her desk or on the phone and saw Woods give a coworker a
neck rub during work hours. Pfeifer Aff. 7 & Ex. A at 420. Pfeifer met with Woods, who did
not dispute Pfeifers observations. Pfeifer Aff. 8. Pfeifer then contacted Mary Jane Griebler,
an Xcel workforce-relations consultant. Pfeifer Aff. 9; Griebler Aff. 3. Greibler
recommended that Pfeifer give Woods a written warning. Griebler Aff. 3; Pfeifer Aff. 9.
With Pfeifers input, Griebler prepared the warning, and both Griebler and Pfeifer met
with Woods on February 25 to deliver it. Griebler Aff. 5; Pfeifer Aff. Ex. D (written warning).
The warning outlined all of Woodss time-reporting errors and also characterized the neck rub as
both inappropriate and a misuse of work time. Pfeifer Aff. Ex. D. The warning required Woods
to be honest and accurate in all aspects of [her] work and time reporting, to accurately record
[her] time and enter it daily, and conduct [herself] in a professional manner while at work.
Pfeifer Aff. Ex. D. The warning concluded by advising Woods that if she failed to meet any of
those requirements, she could be subject to more serious discipline. Pfeifer Aff. Ex. D. Written
warnings are active for a period of nine months. Griebler Aff. Ex. F; Pfeifer Aff. Ex. D.
Woods again tried to excuse the errors by claiming that they were the result of automatic
duplication of previous time entries. Pfeifer Aff. 10; Griebler Aff. 5. Griebler responded
that Woods could appeal the written warning through Xcels internal dispute-resolution process,
and that, if she appealed, a panel made up of both managerial and non-managerial employees
would review the relevant information and vote on whether to uphold the warning. Griebler Aff.
5. Griebler gave Woods the forms she needed to appeal, but Woods did not appeal the
warning. Griebler Aff. 5; Pfeifer Aff. 10.
During the following month (March), Woods twice failed to report any hours, forcing
Vivian Olson to contact Pfeifer to ensure that Woods would get paid. Pfeifer Aff. 11-12.
Pfeifer reminded Woods that Woods was required to enter her time daily. Pfeifer Aff. 12.
D. Woodss Request for Reduced Hours and Application for Disability Benefits
About the time that Pfeifer discovered Woodss third instance of misreporting her time
(that is, early February 2005), Woods asked Pfeifer for a reduced work schedule and gave Pfeifer
a form from a certified nurse practitioner recommending that Woodss hours be reduced to
thirty-two hours per week. Woods Aff. 7. Pfeifer denied Woodss request. Woods Aff. 7.
Woods then applied for leave under the Family Medical Leave Act (FMLA), but that
application was denied because Woods was not yet eligible for FMLA leave. Woods Aff. 9.
Woods next applied for short-term disability benefits, after missing work during the
entire week of March 7. Woods Aff. 9. Woods provided medical documentation that she was
suffering from stress, and she also provided documentation showing that she had been caring for
her sick child during the week that she was absent from work. Woods Aff. 9. VPA, Inc.,
which administers Xcels short-term disability plan, denied Woodss claim for lack of objective
medical evidence to support it. Woods Aff. Ex. A. In its denial letter, VPA also noted that
someone at Xcel VPA did not say who had informed it that the majority of Woodss
intermittent days off work were scheduled leave and not days on which Woods had called in
sick. Woods Aff. Ex. A. In Woodss appeal letter, she contended that most of her time off was
unscheduled and that she called in sick every day during the week of March 7 because she had
migraines and her son was sick. Woods Aff. Ex. A. Woods did not provide any additional
medical documentation, and her appeal was apparently denied.
E. Xcels Investigation, Discipline, and Termination of Woods
On March 29, Pfeifer saw Woods arrive at work late, take a one-and-a-half-hour lunch
(she was entitled to only one hour), and then leave shortly after 5:00 p.m. Pfeifer Aff. 13.
A few days later, one of Woodss coworkers told Pfeifer that Woods, who was enrolled in
massage-therapy school, was looking at massage-therapy websites during work hours. Pfeifer
Aff. 13. Pfeifer asked Griebler to look into Woodss Internet use and to investigate how much
time Woods actually spent at work on March 29. Pfeifer Aff. 13.
Griebler interviewed Woods, who denied taking excessive lunches or breaks, denied
using the Internet for personal reasons except during breaks, and stated that on March 29 she had
worked from 8:30 a.m. to 5:00 p.m. with a one-hour break for lunch. Greibler Aff. 7. Griebler
told Woods that Griebler would be able to verify her work hours and Internet use and asked her
if she wanted to add anything else. Griebler Aff. 7. Woods did not. Greibler Aff. 7.
Griebler then reviewed a report of activity for Woodss access badge as well as time- and datestamped
photos from the buildings security cameras. Griebler Aff. 8-9. (Because employees
do not need to use access badges to leave the work floor, and sometimes enter the work floor at
the same time as other employees, access-badge reports do not necessarily capture every time an
employee enters or leaves a work floor. Jarpey Aff. 3.) The photos showed that Woods left
the work floor twice that day, for about an hour each time, and returned from the second break
carrying a shopping bag. Griebler Aff. 10; Jarpey Aff. Ex. A. All told, the photos showed that
Woods worked less than six hours on March 29. Griebler Aff. 10. Woods had reported
working eight hours that day. Pfeifer Aff. 14.
Griebler also obtained reports of Woodss Internet use, including details of the websites
Woods visited, for the period February 4 through March 5, 2005. Griebler Aff. 13. The report
showed that, on three days during that period, Woods spent more than an hour (in one case, more
than two hours) on the Internet visiting massage-therapy and other websites. Griebler Aff.
Ex. D. On six other days, Woods spent more than a half hour on the Internet. Griebler Aff.
Ex. D. Woodss job duties did not require her to access the Internet for any reason. Pfeifer Aff.
Xcel still did not terminate Woods. Rather, based on her investigation, Griebler
recommended to Pfeifer that Woods be placed on decision-making leave. Pfeifer Aff. 14;
Griebler Aff. 15. According to Xcels employee handbook, decision-making leave is used
when an employees commitment to improve is not met following an Oral or Written Reminder
or when an employee commits a very serious offense or has a very serious performance, conduct
or attendance problem, whether or not previous discipline has taken place. Griebler Aff. Ex. F.
When a supervisor decides to place an employee on decision-making leave, the supervisor
prepares a memo outlining the specific performance or other problem and explaining how the
employee must improve. Griebler Aff. Ex. F. The supervisor then meets with the employee to
discuss the problem and gives her a copy of the memo. Griebler Aff. Ex. F. The employee is
given a day off with pay to review the memo and consider whether she can and will make the
required improvements. Greibler Aff. Ex. F.
On April 11, Griebler and Pfeifer met with Woods to put Woods on decision-making
leave. Pfeifer Aff. 17 & Ex. E. Pfeifer gave Woods a memo stating, among other things, that
2Now, for purposes of this litigation, Woods also alleges that she needed to call home
occasionally because Woodss mother, who provided childcare for Woods, was experiencing
health problems. Woods Aff. 11. Woods claims that Pfeifer was aware of this issue and
approved of Woodss periodic use of the phone to check in with her mother. Woods Aff. 11.
Woods will not use Company computers, resources, equipment or time for personal business,
that Woods will accurately record and enter her time daily, and that Woodss break times must
be limited to one hour per day, including lunch. Pfeifer Aff. Ex. E. When Woods returned from
the leave, she gave Pfeifer a letter stating that she accepted the conditions. Pfeifer Aff. Ex. F.
Pfeifer then gave Woods a second memo summarizing Woodss deficiencies, the disciplinary
steps taken, and the fact that failure to meet any of the conditions could result in termination.
Pfeifer Aff. Ex. G.
About a week later, Pfeifer discovered that Woods had failed to enter any time for the
previous week or the current week. Pfeifer Aff. 19. Pfeifer reminded Woods that failing to
enter her time daily was grounds for termination. Pfeifer Aff. 19. Several days later, Pfeifer
concluded, based on her own observations, that Woods was spending an excessive amount of
time on personal phone calls. Pfeifer Aff. 20. Pfeifer asked Griebler to investigate. Pfeifer
Aff. 20. Griebler reviewed a report of the phone calls made from Woodss phone and
discovered that, in April, Woods had made three phone calls lasting over one hour each.
Griebler Aff. 18. Griebler then interviewed Woods about her phone use. Woods did not deny
that the three calls were personal calls, but argued instead that the calls were not a problem
because she was working while she was on the phone. Griebler Aff. 19.2 After meeting with
Woods, Griebler recommended to Pfeifer that Woods be terminated, and Pfeifer agreed.
Griebler Aff. 20. On May 5, 2005, Pfeifer and Griebler met with Woods to tell her that she
was fired. Griebler Aff. 20.
F. Findings of the Unemployment-Law Judge
After being fired, Woods applied for and received unemployment compensation, and
Xcel appealed that decision. In July 2005, the unemployment-law judge (ULJ) issued a
decision denying Xcels appeal and finding that [t]he evidence does not display clearly a
serious violation of the standards of behavior the employer has the right to reasonably expect of
the employee or a substantial lack of concern for the employment. Woods Aff. Ex. B at 2.
G. Woodss EEOC Charge
In November 2005, Woods filed a charge of discrimination with the EEOC. Lewis Aff.
Ex. F. Woods alleged that
Starting in July of 2004, I was subjected to racial harassment,
racial discrimination, age discrimination, and retaliation in my
workplace. I was required to train an older, white, female
employee named Deb Lutchen, who became a permanent
employee of Xcel Energy in July of 2004. Ms. Lutchen repeatedly
and derogatorily referred to African-American[s] as those black
people them people and specifically referred to me to coworkers
as that black bitch.
Lewis Aff. Ex. F at 1. She also stated that I experienced age discrimination such that older
employees were treated differently and better than I was by my former employer. Lewis Aff.
Ex F. at 4. Notably, once again Woods failed to include many of the allegations that she now
makes in this lawsuit, including her allegations that Lutchen call her a dumb black girl to her
face and nigger girl in conversations with coworkers. Woods has not suggested any
explanation for why, in pursuing a racial harassment claim with the EEOC, she chose not to
inform the agency of the strongest evidence she had of racial harassment.
3Woodss complaint mentions age discrimination, see Compl. 13, 35, but Woods does
not appear to be pursuing such a claim, nor does she attempt to explain how she could meet the
prima facie elements of such a claim (particularly in light of her argument to the EEOC that Xcel
treated older workers better than younger workers).
A. Standard of Review
Summary judgment is appropriate 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). A dispute
over a fact is material only if its resolution might affect the outcome of the suit under the
governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute over a fact is genuine only if the evidence is such that a reasonable jury could return a
verdict for either party. Ohio Cas. Ins. Co. v. Union Pac. R.R., 469 F.3d 1158, 1162 (8th Cir.
2006). In considering a motion for summary judgment, a court must view the evidence and the
inferences that may be reasonably drawn from the evidence in the light most favorable to the
non-moving party. Winthrop Res. Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 468 (8th Cir.
B. Discrimination3
Xcel asserts, and Woods does not dispute, that Woodss claim of racial discrimination
should be analyzed under the indirect method, using the familiar McDonnell Douglas
framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Darke v.
Lurie Besikof Lapidus & Co., 550 F. Supp. 2d 1032, 1041 (D. Minn. 2008) ([W]hen the
plaintiffs evidence is weaker, McDonnell Douglas gives the Court a framework for analyzing
4In Woodss first claim for relief, titled Race, National Origin/Ancestry and Color
Discrimination, Woods cites both Minnesota law and federal law. Compl. 53 (the numbering
in Woodss complaint restarts at 50 after 54; this citation refers to the second 53). Woodss
remaining claims, and in particular her claims titled Hostile Work Environment and
Reprisal, cite only state law. Compl. 67, 71. But despite its title, Woodss first claim for
relief discusses her harassment and retaliation claims as well as her discrimination claim, and the
Court therefore understands Woods to be asserting these claims under both Title VII of the Civil
Rights Act of 1964, 42 U.S.C. 2000e-2 and 2000e-3, and the Minnesota Human Rights Act
(MHRA), Minn. Stat. 363A.08 and 363A.15. Because the same analysis applies to claims
under Title VII and the MHRA, the Court will not discuss Woodss state employmentdiscrimination
claims separately. See Wittenburg v. Am. Express Fin. Advisors, Inc., 464 F.3d
831, 842 n.16 (8th Cir. 2006) (discrimination); LaCroix v. Sears, Roebuck, & Co., 240 F.3d 688,
691 (8th Cir. 2001) (retaliation); Thorn v. Amalgamated Transit Union, 305 F.3d 826, 832 (8th
Cir. 2002) (harassment).
whether the evidence is nevertheless sufficient to support a verdict of discrimination.).4 Under
this framework, Woods must show that: (1) she is a member of a protected class; (2) she was
meeting her employers legitimate job expectations; (3) she suffered an adverse employment
action; and (4) similarly situated employees outside the protected class were treated differently.
Carpenter v. Con-Way Cent. Express, Inc., 481 F.3d 611, 616 (8th Cir. 2007); Darke, 550
F. Supp. 2d at 1042. If Woods succeeds in establishing a prima facie case, Xcel must provide a
legitimate nondiscriminatory explanation for the adverse action. Canady v. Wal-Mart Stores,
Inc., 440 F.3d 1031, 1034 (8th Cir. 2006). If Xcel does so, Woods must then establish that
Xcels proffered explanation is pretextual and that discrimination is the real reason for the
adverse action. Id.
Woods argues that Xcels denial of her request for reduced work hours, Xcels
interference with her application for short-term disability benefits, the discipline to which she
was subjected, and her ultimate termination were all the result of racial discrimination. The
Court examines each of these allegations in turn.
1. Reduced Work Hours
Woods argues that Pfeifers denial of her request to work reduced hours was
discriminatory because similar requests from white employees were granted. When pressed,
though, Woods can point to only one white employee who was allowed to work reduced hours:
Theresa Lummis. But Woods knows next to nothing about Lummis. In particular, Woods does
not know when Lummis asked to work reduced hours, what reason Lummis gave, who granted
Lummiss request, or why the request was granted. Woods Dep. 154-55.
Woodss evidence is insufficient even under what the Eighth Circuit has called the lowthreshold
test for determining whether employees were similarly situated at the prima facie
stage. Cf. Fields v. Shelter Mut. Ins. Co., 520 F.3d 859, 864 (8th Cir. 2008) (describing the two
standards used in the Eighth Circuit and noting that the low-threshold standard requires that
the employees are involved in or accused of the same or similar conduct and are disciplined in
different ways). To show that Lummis was similarly situated, Woods would, at a minimum,
have to point to some evidence demonstrating that Lummiss reasons for requesting reduced
hours were somewhat comparable to Woodss. But Woods offers no such evidence. Even if
Woods had made out a prima facie case, the Court would nevertheless enter summary judgment
in favor of Xcel on this claim, as Pfeifer has provided a legitimate nondiscriminatory explanation
for denying Woodss request (as described below), and Woods has offered no evidence that
Pfeifers explanation is a pretext. Woodss claim of discrimination on the basis of Pfeifers
denial of request for reduced hours therefore fails.
2. Short-Term Disability
Woods also argues that Xcel intentionally discriminated against her on the basis of race
by informing VPA, the administrator of Xcels short-term disability plan, that the majority of
Woodss intermittent days off work were scheduled and not days on which Woods had called in
sick. There are several problems with this claim. First, Woods identifies no similarly situated
white employee who was treated differently. Second, although the denial of short-term disability
benefits could be considered an adverse action, there is no causal connection between Xcels
allegedly wrongful statement and the denial of benefits to Woods. According to VPAs letter,
VPA denied her claim because Woods provided no objective medical evidence to support her
claim that she was unable to perform her job. Woods Aff. Ex. A. In response to that letter,
Woods did not submit any additional medical evidence, but instead argued that she had actually
called in sick during the week of March 7 both because of her migraines and because her son
was ill (an argument that undermines her own claim that she was unable to work due to illness).
It is not clear how Xcel could be held liable for a discriminatory denial of benefits when Xcel
neither made the decision to deny benefits nor caused the administrator to deny benefits.
Finally, Woods does not know who at Xcel communicated the information to VPA, and thus her
argument that the communication was motivated by racial animus is pure speculation. Woodss
discrimination claim on the basis of Xcels interference with her claim for short-term disability
benefits therefore fails.
3. Discipline and Termination
Finally, Woods alleges that both her discipline and her ultimate termination were the
result of racial discrimination. Xcel argues that Woods cannot make out a separate claim of
discrimination on the basis of the discipline to which Woods was subjected because none of that
discipline constituted an adverse employment action. This argument is largely academic,
however, as the progressive discipline of Woods ultimately led to her termination, an act that
was indisputably adverse.
Assuming that Woods has established a prima facie case of racial discrimination in
connection with her discipline and termination, her claim nevertheless fails because no
reasonable jury could find that Xcels profferred reason for those actions was pretextual. As
described earlier, Woodss misconduct in the reporting of her hours and in her misuse of the
phone and Internet is well-documented and essentially undisputed. Xcel gave Woods numerous
chances, over a period spanning almost nine months, to correct her behavior, yet Woods
continued to violate the conditions under which Xcel permitted her to keep her job.
Woods argues that Xcels reasons for disciplining and terminating her are nevertheless
pretextual because white employees engaged in the same misconduct and were not disciplined or
terminated. Specifically, Woods claims that white employees also failed to properly record their
time and used the phone and the Internet for personal reasons. There are several problems with
Woodss argument:
First, there is no evidence that any white employee did all of these things, as did Woods.
Obviously, a white employee who has just used the Internet for personal reasons is not similarly
situated to an employee who has used the Internet for personal reasons and used the phone for
personal reasons and failed to properly record her time.
Second, there is no evidence that the infractions committed by white employees were
similar in number or nature to the infractions committed by Woods. An employee who uses the
phone for personal reasons for a few minutes is not similarly situated to an employee who makes
at least three personal phone calls exceeding an hour. An employee who makes a couple of
5At oral argument, Woodss counsel claimed that both Woods and Buckner had testified
that Pfeifer must have been aware of other employees misuse of the phone and the Internet
because it was so pervasive. There is, in fact, no such testimony in the record. To the contrary,
Woods testified that she did not know whether Pfeifer was aware of other employees phone and
Internet usage. Woods Dep. 229-31, 233.
minor errors in entering time is not similarly situated to an employee who repeatedly makes
significant errors after being warned to be more careful entering her time.
Third, there is no evidence about any interaction with white employees about possible
misconduct. An employee who truthfully admits an error in entering her time, expresses regret,
and vows to do better is not similarly situated to an employee who gives an implausible
explanation. Nor is an employee who truthfully admits using the Internet for personal reasons or
taking excessively long breaks similarly situated to an employee who lies about both.
Fourth, there is no evidence that any white employee who committed a workplace
infraction was on probation at the time of the infraction, as was Woods. Needless to say, an
employee who has been formally disciplined and put on probation for past infractions is not
similarly situated to an employee who has not.
Finally, and most importantly, Woods has offered no evidence that Pfeifer or any other
manager at Xcel was aware of the infractions allegedly committed by white employees.5 Cf.
Kipp v. Mo. Highway & Transp. Commn, 280 F.3d 893, 897 (8th Cir. 2002) (noting the
plaintiffs failure to offer any proof that management was aware of other employees allegedly
similar misconduct). Obviously Pfeifer cannot be accused of discriminating when she took
action in response to infractions of which she was aware but did not take action in response to
infractions of which she was not aware. Woods suggests that she was unfairly put under a
microscope, but of course the fact that Woods repeatedly sought to be paid for hours that she had
not worked a fact that she does not dispute is what attracted Pfeifers attention in the first
place. Having failed to offer evidence of any similarly situated white employees who were
treated differently, Woods cannot establish pretext. Cf. Wheeler v. Aventis Pharms., 360 F.3d
853, 858 (8th Cir. 2004) (the burden of establishing similarly situated at the pretext stage is
rigorous and requires proof that the employees were similarly situated in all relevant
Woods also points to the findings of the ULJ to argue that she was not terminated for
misconduct. There are at least three problems with Woodss attempt to use the ULJs findings as
evidence of pretext. First, Minnesota law prohibits the use of a ULJs findings as evidence in
any separate or subsequent action in any other forum. Minn. Stat. 268.105, subd. 5a. Second,
even assuming that 268.105 does not bar the admission of the ULJs findings in this federal
forum, the findings are hearsay and thus would not be admissible in evidence. Fed. R. Civ.
P. 56(e)(1); cf., e.g., U.S. Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1286-87 (11th Cir. 2001)
(judicial factual findings are hearsay that do not come within the public-records exception to the
hearsay rule). Finally, even if the ULJs findings were admissible, they would not support an
inference of pretext; if anything, they would support Xcels position that it terminated Woods for
excessive phone usage. After all, the ULJ expressly found that Xcel discharged Woods for
excessive use of the telephone while on probation. Woods Aff. Ex. B. The ULJ then went on
to conclude that Woodss conduct did not render her ineligible for unemployment compensation
because it did not meet the high standard for employee misconduct as defined by Minnesota law.
That latter finding is irrelevant to the issue in this case, which is whether Xcel terminated Woods
because of her workplace misconduct (serious or not) or because of her race.
Finally, Woods quibbles about Xcels proffered reasons arguing, for example, that
Xcel has no proof that she actually used the Internet during work time, and contending that
Pfeifer knew of Woodss need to call home periodically. The first assertion is untrue; Woodss
allotted break and lunch time each day totaled one hour, and Xcel has proof that Woods used the
Internet for more than an hour on several occasions. More importantly, the assertion is
irrelevant. The question is not whether Xcel was correct in concluding that Woods used the
Internet for personal reasons during work time; the question is whether Xcels conclusion,
correct or not, was the basis for its adverse actions against Woods. Nothing in the record
provides any reason to doubt the sincerity of Xcels claim that it fired Woods in part because she
used the Internet when she was supposed to be working.
It is similarly irrelevant that Woods thought that, because her mother was ill, Woods had
the right to spend hours on the phone so long as, in Woodss opinion, her work was not affected.
Xcel had the right to terminate Woods on the basis of what Xcel concluded was Woodss
excessive phone usage, so long as that reason was not mere pretext for racial discrimination.
Again, nothing in the record would permit a reasonable jury to doubt the sincerity of Xcels
claim that it fired Woods in part because she engaged in lengthy personal phone calls while she
was supposed to be working.
In short, Woods has not offered any evidence suggesting that Xcel was looking for a
pretext to disguise a racially motivated termination. To the contrary, Xcel time and again
offered Woods the chance to correct her misconduct before it finally terminated her. On this
record, no reasonable jury could find that Xcel discriminated against Woods on account of her
race when it disciplined and then fired her.
C. Retaliation
Like her discrimination claims, Woodss retaliation claims are analyzed under the
McDonnell Douglas burden-shifting framework. Recio v. Creighton Univ., 521 F.3d 934, 938-
39 (8th Cir. 2008). To establish a prima facie case of retaliation, Woods must show that: (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. Carpenter, 481 F.3d at 618.
Woods contends that Pfeifers denial of her request for reduced work hours, Xcels
interference with her application for short-term disability, the discipline to which she was
subjected, and her ultimate termination were all in retaliation for her complaints about Lutchens
harassment. Woods also claims that Pfeifer retaliated against her by treating her rudely and
ignoring her.
Woodss claims of retaliatory discipline and termination fail for the same reason that her
claims of discriminatory discipline and termination fail: no reasonable jury could find that
Woods was disciplined and terminated for any reason other than Woodss longstanding, welldocumented,
and essentially undisputed misconduct misconduct that began before Woods
ever complained of discrimination. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th
Cir. 1999) (an employees intervening misconduct erodes any inference of a causal link between
protected conduct and a challenged retaliatory action). Similarly, Woodss claim of retaliatory
interference with her application for short-term disability fails because, as noted earlier, Woods
does not know who communicated with the benefits administrator and therefore cannot establish
any causal link between her protected conduct and Xcels actions. With respect to Woodss
claim that Pfeifer retaliated against her by giving her the cold shoulder, such conduct does not
constitute a materially adverse action. See Recio, 521 F.3d at 940-41 (ostracism and the silent
treatment amounted to no more than nonactionable petty slights that were not materially
adverse) (citations and quotations omitted).
Pfeifers denial of Woodss request for reduced work hours presents a closer question,
inasmuch as Pfeifer denied Woodss request shortly after Woods made a formal written
complaint of discrimination, and Pfeifer knew about Woodss complaint. Nevertheless, Woods
has failed to offer evidence sufficient to permit a reasonable jury to reject Pfeifers testimony
that her denial of Woodss request had nothing to do with Woodss earlier complaint of
discrimination. Pfeifer testified that she could not grant Woodss request for reduced hours in
light of the departments heavy workload a workload that was so heavy that Xcel was hiring
contract workers to help meet it. Pfeifer Aff. 25. Contemporaneous documents support
Pfeifers testimony that her department had a heavy workload and was bringing in contract
workers at the time that Woods asked to reduce her hours. See Pfeifer Aff. Ex. D (Feb. 25, 2005
memo from Pfeifer to Woods stating that we also discussed how this is a critical time for our
department and we need all to focus on completing the necessary tasks to prepare for the CRS
Phase 3 conversion). Also supporting Pfeifers testimony is the fact that Pfeifer has never
given an employee permission to work part-time. Pfeifer Aff. 25 n.6. (Theresa Lummis, the
one Xcel employee working reduced hours, received permission long ago from a predecessor of
Pfeifer. Id.)
There is some debate within the Eighth Circuit about whether the temporal proximity of
protected conduct and adverse action is sufficient to establish causation for purposes of making
out a prima facie case of retaliation, but there is no debate that temporal proximity is not
sufficient to show pretext that is, to overcome a showing by the employer that the adverse
action was unrelated to the protected conduct. Green v. Franklin Natl Bank of Mpls., 459 F.3d
903, 915-16 (8th Cir. 2006) (stating that the court need not decide the question of when or
whether timing alone can establish a prima facie retaliation claim because timing alone is
insufficient to show pretext). Woods can point to nothing but temporal proximity in this case.
Moreover, the temporal proximity in this case is particularly weak evidence of pretext because
the timing of Pfeifers denial was outside Pfeifers control. Pfeifer did not, on her own initiative,
decide to take adverse action against Woods. Rather, Woods made the request for a reduced
work schedule shortly after Woods had filed her discrimination complaint, and Pfeifer had to
respond to Woodss request. In short, because the only evidence supporting Woodss retaliation
claim is temporal proximity, and because that evidence is insufficient to permit a reasonable jury
to find pretext, Woods claim must be dismissed.
D. Harassment
To prevail on her claim that Xcel maintained a racially hostile work environment, Woods
must show that: (1) she is a member of a protected group; (2) she has been subjected to
unwelcome harassment; (3) the harassment was because of her membership in the protected
group; (4) the harassment affected a term, condition, or privilege of her employment; and (5) the
employer knew or should have known about the harassment and failed to take proper remedial
action. Green, 459 F.3d at 910.
Xcel argues that Woodss harassment claim fails because the harassment was not severe
or pervasive enough to be actionable. For harassment to be actionable under Title VII, it must be
so severe or pervasive that it alters the conditions of the plaintiffs employment and creates an
abusive working environment. Carpenter, 481 F.3d at 618. The environment must be hostile or
abusive both as it would be viewed objectively by a reasonable person and as it was actually
experienced by the plaintiff. Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). Whether an
environment is hostile or abusive is determined by looking at all the circumstances, including the
frequency and severity of the discriminatory conduct; whether the conduct was threatening or
humiliating, or merely an offensive utterance; and whether the conduct unreasonably interfered
with the employees work performance. Id. at 23.
Although this is a close case, the Court concludes after viewing the evidence as a
whole, and assuming the facts are as Woods alleges that Woods has offered sufficient
evidence to create an issue of fact about whether Lutchens conduct created a hostile work
environment. Xcel argues that Woods can only identify two instances of racially offensive
comments that Lutchen made to her, and that because Lutchen made the remaining offensive
comments outside of Woodss presence, the evidence is insufficient to show a hostile work
environment. But Xcel is not entirely correct: Woods recalled not only the two dumb black
girl statements, but also numerous offensive discussions of Lutchens African-American
neighbors being dumb and drug dealers and unemployed, and Woods testified that
Lutchen made such comments on a daily basis. Woods Dep. 97, 199.
Moreover, Xcels argument does not take into account the testimony of Amber Buckner,
Woodss coworker. Buckners testimony is consistent with and largely echoes Woodss
testimony while at the same time providing a more complete picture of the environment at Xcel.
For example, Buckner recalled that Lutchen commented that her neighbors were dumb, stupid,
lazy black people and that Lutchen made these kinds of comments weekly. Buckner Dep. 40.
Buckner also testified that Lutchen called Buckner girl on a daily basis, Buckner Dep. 87,
and that Lutchen was always saying black this, black that, these black people while speaking
loud enough that anyone could hear her, Buckner Dep. 105. Buckner also recalls two
incidents in which Lutchen, in Woodss presence, made derisive comments about another
coworker spending time with those black people or those black girls (meaning Buckner and
Woods). Buckner Dep. 62-63; Buckner Aff. at 3. True, Woods did not testify about many of
these incidents or include them in her affidavit, which weakens the evidentiary value of
Buckners testimony. But that does not mean that the Court can simply ignore Buckners
testimony, particularly in light of the fact that Woods testified that she could not remember all of
Lutchens conduct but that it was repeated and happened on a daily basis. Woods Dep. 199.
Aside from comments that were addressed to or overheard by Woods and Buckner, both
Woods and Buckner heard secondhand accounts about Lutchens offensive racial insults,
including her use of the repulsive epithet nigger girl in referring to Woods. It is true that those
comments carry less weight because Lutchen made them outside of Woodss presence. But they
provide additional context supporting Woodss allegations of harassment and are relevant for the
purpose of demonstrating that Lutchens offensive conduct was pervasive. Cf. Howard v. Burns
Bros., Inc., 149 F.3d 835, 838 (8th Cir. 1998) (harassment of employees other than the plaintiff
is relevant to show the pervasiveness of the hostile environment).
Finally, although it is possible to argue that the conduct that Woods actually witnessed
was not as severe as in many cases in which the Eighth Circuit has upheld a grant of summary
judgment, Woods can prevail by establishing that the harassment was either severe or pervasive
enough to alter a term or condition of her employment. Bowen v. Mo. Dept of Social Servs.,
311 F.3d 878, 884 (8th Cir. 2002) (A claimant need only establish discriminatory conduct
which is either pervasive or severe.). Given the testimony that Lutchen made offensive
comments weekly or on a daily basis, the Court believes that Woods has offered sufficient
6Xcel also complains that some of Lutchens conduct on which Woodss harassment
claim depends was not explicitly race-based. But Woods has alleged many explicit racial slurs.
These slurs permit an inference that racial animus motivated not only [Lutchens] overtly
discriminatory conduct but all of her offensive conduct towards [Woods]. Bowen, 311 F.3d at
evidence to create a factual question concerning whether the harassment was pervasive enough
to alter the terms and conditions of her employment.6
Xcel next argues that Woodss claim fails as a matter of law because Woods admitted
that the harassment did not prevent her from performing her job. Although the effect of the
harassment on Woodss job performance is relevant, [h]arassment need not be so extreme that it
produces tangible effects on job performance or psychological well-being to be actionable.
Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999). Under Xcels theory, Woods would
not have a racial harassment claim even if Lutchen had daily subjected Woods to a continuous
stream of racial invective, as long as Woods was able to keep inputting data into the computer.
Title VII is not so toothless.
Finally, Xcel argues that Woods has failed to show that Xcel knew or should have known
of the harassment and failed to take proper remedial action. To the contrary, Xcel argues,
Woods failed to report most of the alleged harassment and, with respect to the harassment that
Woods did report, Xcel promptly investigated and put an end to it. The problem with Xcels
argument is that Woods testified that she reported Lutchens discrimination to Pfeifer, which
discrimination Woods describes as Ms. Deb Lutchen calling me a dumb black girl, calling
me a black bitch, calling me unproductive, looking for me, asking Mr. John Gill, where is
the unproductive black girl, the black neighbors being dumb and drug dealers and
unemployed . . . . Woods Dep. 199. Woods also specifically testified that she reported the
7In its reply brief, Xcel argues that events prior to November 2004 are outside the
limitations period for her MHRA claim and that events prior to January 2005 are similarly timebarred
with respect to her Title VII claim. It is not clear whether Xcel is making this argument
only with respect to Woodss discrimination claims or if it is also meant to apply to Woodss
harassment claim. In any event, however, Xcel raised this argument for the first time in its reply
brief, and the Court therefore will not consider it. See Torspo Hockey Intl, Inc. v. Kor Hockey
Ltd., 491 F. Supp. 2d 871, 878 (D. Minn. 2007) (courts do not consider arguments made for the
first time in a reply brief).
dumb black girl remark to Pfeifer. Woods Dep. 203. The Court must assume that this
testimony is true for purposes of ruling on Xcels summary judgment motion, and the testimony
is sufficient to create an issue of fact as to what Woods told Pfeifer about Lutchens conduct.
Whether Xcel took proper remedial action is a close question. On this issue, as on so
many others, the record is simply not clear. But looking at the evidence in the light most
favorable to Woods, there is evidence that Woods reported Lutchens harassment to Pfeifer in
October 2004. Moreover, there is some indirect evidence that Woods continued to experience
harassment after Xcel investigated her complaint. See Woods Dep. 152-53 (testifying that when
Woods requested a reduced work schedule in February 2005 she also complained about how
Ms. Deb Lutchen was discriminating and about Lutchens superior white attitude). In light of
this evidence, whether Xcels response in January 2005 can be considered proper remedial action
is a factual question for the jury. Cf. Carter, 173 F.3d at 702 (noting that factors in assessing the
reasonableness of remedial action include the amount of time that elapsed between the complaint
and the remedial action and whether the action ended the harassment).
In sum, the Court holds that Woods has offered sufficient evidence on each element of
her harassment claim to survive summary judgment.7 The Court takes no pleasure in this
holding. As explained above, there is substantial reason to believe that Woods has succeeded in
avoiding summary judgment only by providing false testimony. Also as explained above, in
opposing Xcels motion, Woodss attorney made several assertions that were either unsupported
or flatly contradicted by the record. But in ruling on Xcels motion, the Court must assume that
the facts alleged by Woods are true, and the Court must avoid making credibility determinations.
In light of those constraints, the Court must deny Xcels motion for summary judgment with
respect to Woodss harassment claim.
E. Woodss Remaining Claims
In her kitchen-sink complaint, Woods also brings claims of breach of contract,
promissory and equitable estoppel, intentional infliction of emotional distress, and negligent
supervision, training, and retention. The reason for asserting these claims is not apparent.
Woods admitted at oral argument that these claims are all based on the same conduct that
underlies her statutory employment-discrimination claims and that she is seeking to recover the
same damages under these claims that she would recover if she prevailed on her statutory claims.
It is undisputed that Woods was an at-will employee and that Xcels employee handbook
expressly states that it does not create a contract. Lewis Aff. Ex. C (Nothing in this handbook
is intended to be or should be construed as an express or implied contract.); Ewald v. Wal-Mart
Stores, Inc., 139 F.3d 619, 622 (8th Cir. 1998) (under Minnesota law, an employers clear
disclaimer of intent to form a contract precludes the formation of a contract based on an
employee handbook); Aberman v. Malden Mills Indus., Inc., 414 N.W.2d 769, 772-73 (Minn. Ct.
App. 1987) (if a promise was not sufficient to support an employment contract, it is not
sufficient to support a claim of promissory estoppel). Woods cites no authority for the
proposition that she can maintain separate breach-of-contract or estoppel claims on the sole basis
that her employer violated Title VII and the MHRA. These claims are therefore dismissed.
With respect to Woodss negligence claims, Minnesota does not recognize a cause of
action against an employer for negligent training of an employee. Johnson v. Peterson, 734
N.W.2d 275, 277 (Minn. Ct. App. 2007). Although Minnesota courts have held that a claim for
negligent retention may be maintained when an employee is subjected to harassment, there must
be some evidence of a threatened or actual physical injury resulting from the harassment.
Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 442-43 (Minn. Ct. App. 1996). Similarly,
some form of physical injury is necessary to recover under a claim of negligent supervision. Id.
at 443. As Woods testified that Lutchen never physically threatened her, Woods Dep. 95,
Woodss negligence claims must fail.
Finally, although it may theoretically be possible for Woods to maintain a claim of
intentional infliction of emotional distress on the basis of racial harassment, Minnesota requires
a very high showing of emotional distress. Langeslag v. KYMN Inc., 664 N.W.2d 860, 868-69
(Minn. 2003) (plaintiffs must meet a high threshold of proof regarding the severity of the
mental distress). Woods has not made such a showing. She saw a therapist once during her
employment, she is not currently being treated for emotional distress of any kind, and she has
never been diagnosed with or sought treatment for depression, anxiety, loss of appetite, or
insomnia. Woods Dep. 9, 12-13; cf. Hubbard v. United Press Intl, Inc., 330 N.W.2d 428, 440
(Minn. 1983) (testimony that the plaintiff was depressed, vomited, had stomach disorders, and
developed a skin rash and high blood pressure was insufficient to establish requisite mental
distress because the plaintiff never missed work and [m]edical evidence as to [the plaintiffs]
injuries is conspicuously absent from the record). Woodss claim for intentional infliction of
emotional distress is therefore dismissed.
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
1. Defendants motion for summary judgment [Docket No. 32] is GRANTED IN
2. Defendants motion is GRANTED with respect to plaintiffs claims of
discrimination, retaliation, breach of contract, promissory and equitable estoppel,
intentional infliction of emotional distress, and negligent supervision, training,
and retention, and these claims are DISMISSED WITH PREJUDICE AND ON
3. Defendants motion is DENIED in all other respects.
Dated: July 22, 2008 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge


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