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Campbell v. Rock Tenn Co.: US District Court : EMPLOYMENT - no hostile work environment shown; no discrimination

Willie Campbell )
v. ) ORDER
Rock Tenn Company )
This matter is before the Court on defendants motion for
summary judgment. Defendants motion is granted.
I. Background
The facts are viewed in the light most favorable to plaintiff.
Defendant, Rock Tenn Company (Rock Tenn), manufactures paper
products. Plaintiff, Willie Campbell, is an African-American
lesbian woman who operates a Michigan machine at defendants St.
Paul, Minnesota, plant. Most of Rock Tenns St. Paul employees are
white males. Plaintiff claims she has experienced discrimination
and harassment at work based on her race and sex. Notwithstanding
this lawsuit, she remains employed at Rock Tenn. All parties agree
the company considers her a good employee.
Plaintiff began work at Rock Tenn in February, 2000. Sometime
during 2001, Chris Gustafson, a co-worker, called her a lesbian.
Plaintiffs Answers to Interrogatories [Pl. Ans.] at 2. The
comment upset her. She felt her sexual orientation was no ones
business. Deposition of Willie Campbell, October 26, 2007
[Campbell Dep. 2"] at 12. She then used Rock Tenns sexual
harassment policy to report the comment to her supervisor, Chris
Jorgenson. Deposition of Willie Campbell, October 16, 2007
[Campbell Dep. 1"] at 80; Pl. Ans. at 2.
In April, 2001, plaintiff was in the break room with Randy
Johnson and Max Gambradt, two white male co-workers. She told them
she had just purchased a house in Como Park. Johnson then called
her a Como homo. Campbell Dep. 2 at 5-6. She reported this
comment to her supervisor, who investigated the incident. Since
that report, Johnson has never made another comment concerning
plaintiffs sexual orientation. Id. at 8.
In 2002, there were two more incidents. In March, plaintiff
went to tell co-workers Steve Cable and Tony Senske her machine
needed fuel. When she arrived, she found Cable and Senske holding
hands. They winked at each other, and Cable said to her, You know
we are lovers. Id. at 9. Plaintiff left the room to get fuel,
but never reported the incident to management. In April, plaintiff
was working the night shift. She encountered Max Gambradt, who
stopped her as she walked into the break room. He said, You know
what we do to gay people, and pantomimed shooting himself in the
head with a gun. Id. at 10. Plaintiff walked around him and took
her break. She did not report this incident.
In April, 2003, plaintiff was working the evening shift,
training to be a DCS Control operator with Randy Johnson. The
phone in the room rang. Johnson picked it up. Plaintiff heard
Johnson say, No, Max, I am not going to say that to her. Johnson
then handed plaintiff the phone. Max Gambradt was on the line. He
told her his wife was in Chicago and had been on the Oprah Winfrey
show. Plaintiff said that was nice. He then said he told his wife
to hurry up and come home, because you know how it is. You dont
want to be around all those jigaboos. Id. at 13. Although upset,
plaintiff hoped the situation would improve on its own. She did
not report this incident to management. Id. at 14-15.
In March, 2004, plaintiff had a seizure at work. Her
complaint does not allege, nor is there any evidence, that the
seizure was job related. In April of that year, plaintiff had
surgery to correct the vascular problem which caused the seizure.
Upon returning to work in October, a manager, Don Wilson,
approached her and whispered in her ear, You had to come back
because you were hungry, huh? Campbell Dep. 1 at 91. Plaintiff
apparently took this to mean Wilson thought she had no money to
live on. She was troubled that a manager made this statement. Id.
at 91-92.
Plaintiff complains of another conversation with Joel Powell,
a co-worker. They spoke in either 2004 or 2005. Plaintiff asked
Powell why she was having a hard time working with some fellow
employees. Powell told her, Number one, youre black. Number
two, youre a woman. Thats why the guys do not like you. Id. at
20-21, 24. Plaintiff understood him to be referring to her coworkers.
She never reported this conversation to management.
In March, 2005, plaintiff was eating lunch in the break room
with Randy Johnson. Johnson shared with plaintiff some meatballs
his wife had made. She told him they were delicious. Joe Cole,
another co-worker, overheard this and said, I got some balls you
can eat. Id. at 74. Plaintiff immediately reported this to her
supervisor, Chris Jorgenson, who said he would take care of it.
Since that report, Cole has never again made a similar comment.
In June, 2005, there was another incident with co-workers John
Bain and Tim Bruley. Id. at 24-25. Bain had trained plaintiff to
be a refiner operator in 2002. Plaintiff states she respected him
and felt they were on good terms. Typically, Bain would relieve
her on the refiner, and they would talk briefly about work. Id. at
26-27. This day, however, when Bain came to relieve plaintiff, he
brought Bruley along. As he began to train Bruley on the refiner,
Bain said, for no apparent reason, If I had it my way, I would get
rid of all women and minorities. Id. at 10.
Plaintiff reported this comment to Don Wilson, the department
manager. Id. at 28; see also Affidavit of Don Wilson [Wilson
Aff.] 3. She told him she felt uncomfortable. Wilson said Bain
was probably just joking. Campbell Dep. 1 at 28. Wilson spoke
to Bain within the hour, telling him to avoid such jokes. Wilson
Aff. 3. The parties dispute whether Bain apologized. Compare
Wilson Aff. 3 and Campbell Dep. 1 at 86. According to plaintiff,
Bain still makes racial jokes and comments, but she concedes the
more recent comments are not as offensive. In any event, plaintiff
has not reported any other incidents concerning Bain to management.
Id. at 86-88.
In June, 2005, plaintiff claimed Rick Dvorak, a group leader
and acting supervisor, harassed her. She had promised him she
would be available to back up a co-worker being trained to qualify
as a refiner operator. She acknowledges signing up for overtime,
and knew she was expected to work. However, she became sick at the
beginning of her shift. She spoke to Dvorak, who let her work
elsewhere. Dvorak then followed her and told her to get a radio,
which she did. He followed her again, at which point she told him
she was sick and needed to go home. Plaintiff felt Dvorak was
nitpicking and harassing her. Dvorak called Don Wilson, who
arranged for someone else to come in. Dvorak then let plaintiff go
Several days later, Sid Tousley, a group leader and
supervisor, falsely reported to Wilson that plaintiff had lied
about being sick. Wilson called plaintiff into his office and
accused her of lying. He told her it had better not happen again,
because he backs his group leaders [Tousley and Dvorak] 100
percent, whether theyre right or wrong. Id. at 95-99; see also
Pl. Ans. at 8. Wilson did not ask for plaintiffs version of
events. Plaintiff felt Wilson was treating her less favorably than
her white male co-workers.
Finally, an incident took place on the August 29, 2005, day
shift. Plaintiff was operating her machine in the yard,
approximately 350 yards from Interstate Highway 94. Wilson Aff.
5; Campbell Dep. 1 at 34. Break time arrived, and everyone except
plaintiff went inside. While alone, working in the yard, she heard
a male voice speaking on her machines two-way radio. The voice
said, If you have a pussy or a vagina [pause] I dont expect you
to answer me if youre gay, over and out, Dave. Campbell Dep. 1
at 35.
Plaintiff states she was very, very upset by the radio
transmission because she felt it was directed at her because she
was the only one in the yard. Id. at 36. She did not, however,
recognize the speaker. No co-worker named Dave worked that shift,
and plaintiff has testified she knows the voices of all her coworkers.
Id. at 29-31.
Plaintiff reported the incident to Carl Brown, a supervisor,
and Sid Tousley. Brown, Tousley, and Wilson met with her shortly
thereafter. Plaintiff said she did not feel safe working in the
yard. They asked her to work inside the plant and remain available
to answer questions as they investigated the incident. Wilson Aff.
12. Plaintiff, however, claims she felt she couldnt safely
perform her job, and left work early. Id. 13; Campbell Dep. 1 at
41-42, 50. She returned to work the next day and was written up
for leaving work and refusing to participate in the investigation.
Campbell Dep. 1 at 43-44. She maintained she had a managers
permission to leave. She then filed union grievances, which were
ultimately found to be without merit. Id. at 41, 44-55.
Regardless of her departure, the investigation continued. No
one else heard the comment. Wilson Aff. 9-10. Defendant has
1Plaintiff claims pornographic magazines were left in her
machine from time to time. It is not clear when this started.
Plaintiff says she threw them away without reporting this to
management. In March, 2007, she gave them to her supervisor, Ann
Davis, who did report it to management.
provided evidence showing the companys two-way radios occasionally
pick up passing conversations from trucks using Highway 94 or other
streets near plaintiffs location. Wilson Aff. 6-8. Plaintiff
acknowledges having heard outside radio transmissions on the radios
in older machines, but denies hearing any in the new machine she
used that day. Campbell Dep. 1 at 30-31.
On August 31, 2005, the day after she returned to work,
plaintiff filed a charge of discrimination with the St. Paul
Department of Human Rights. Her charge refers to three 2005
incidents - Bains joke, Dvoraks nitpicking, and the August 29
two-way radio transmission. She also claimed the presence of adult
magazines in her machine.1 On May 11, 2006, the Department issued
a finding of probable cause. Plaintiffs Exhibit 10, at 8.
Plaintiff claims additional incidents occurred after she filed
her charge. In February or March 2006, plaintiff was demoted from
Michigan operator to extra helper. She initially felt the
demotion was due to discrimination. Defendant responded with
evidence that plaintiff was one of several employees - including
white males - who, under the companys collective bargaining
agreement, were bumped to lower positions when a more senior
employee transferred into the department. In October, 2006,
plaintiffs previous position opened up again. She was reinstated
at slightly higher pay than before. Affidavit of Jackie Lauzon,
10. At her deposition, plaintiff agreed a bump probably caused
the temporary demotion. Campbell Dep. 1 at 84-85.
On another occasion, plaintiff felt she was not promoted
because she was a minority. She says she applied once for
promotion to group leader, either in 2003 or 2004, id. at 11; or in
2005. Campbell Dep. 2 at 28. She claims two white male coworkers,
Dale Erickson and Dave Evenson, came into her department
and were immediately promoted to group leader. In one deposition,
plaintiff testified Evenson received the promotion she applied for
in 2005. Id. at 29-30. In another, she testified Evenson became
a group leader in 2006, after she filed her discrimination charge.
Campbell Dep. 1 at 18. She also claims Erickson, a managers son,
was groomed for promotion to group leader and supervisor. Her coworkers
told her Erickson had a bad record in his previous
department and was transferred to let him start over with a clean
record. Campbell Dep. 1 at 15-20. Plaintiff admits she is not
personally familiar with the employment records or background of
either Erickson or Evenson.
On April 4, 2006, plaintiff claims co-worker, Paul Lallas,
asked her to punch him in on the time clock. Pl. Ans. at 3.
Punching another employee in or out results in automatic
termination. Id. at 4. At the time, a group leader was standing
near the time clock waiting to see if plaintiff was going to punch
Lallas in. Id. at 3-4. Plaintiff felt this was harassment. Two
days later, another incident occurred, when after spending a few
minutes in the break room prior to the end of her shift, plaintiff
approached the time clock to punch out. Sid Tousley waited for her
there, and holler[ed] in her ear, mocking her, in front of
another co-worker, who laughed. Id. at 4.
On June 1, 2006, Joel Powell relieved plaintiff at the end of
her shift. He asked plaintiff to hand him a piece of equipment for
the machine, saying, Give me my prick. Plaintiff let him know
the comment made her uncomfortable, but he continued to say it.
Pl. Ans. at 4. She never reported these incidents.
Plaintiff filed her complaint on August 29, 2006. Defendant
moves for summary judgment.
II. Analysis
Summary judgment is appropriate when the evidence, viewed in
the light most favorable to the nonmoving party, presents no
genuine issue of material fact. Fed. R. Civ. P. 56; Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 246 (1986). The party opposing summary
judgment may not rest upon the allegations in its pleadings, but
must produce significant probative evidence demonstrating a genuine
issue for trial. See Anderson, 477 U.S. at 248-49.
The Court explicitly finds plaintiffs complaint to be
considerably less than a model of clarity. Giving the document a
very generous reading, the Court discerns claims under 42 U.S.C.
2The complaint alleges violations of the Minnesota
Constitution in count 5. The next count, alleging negligence, is
also styled count 5. Compl. at 6.
1981 and 1983, Title VII of the Civil Rights Act of 1964 (Title
VII), the Minnesota Constitution, the Minnesota Human Rights Act,
Minn. Stat. 363A.01-41 (MHRA), as well as state tort claims of
negligent supervision, negligent and intentional infliction of
emotional distress, and defamation. The Court finds defendant is
entitled to summary judgment on each claim.
A. Section 1983 and Minnesota Constitution
The complaint claims plaintiff is entitled to recover under
both 42 U.S.C. 1983 and the Minnesota Constitution. Defendant
states, and at oral argument plaintiffs counsel acknowledged,
defendant is not a government entity. As such, it is not acting
under color of state law. Because defendant is a private actor,
there can be no claim under 1983. Defendant is entitled to
summary judgment on count 2.
For the same reason, plaintiff has no valid Minnesota
constitutional claims. Plaintiff acknowledges - as she must -
defendant is not a state actor. The Minnesota Constitution does
not accord affirmative rights to citizens against each other; its
provisions are triggered only by state action. State v. Wicklund,
589 N.W.2d 793, 801 (Minn. 1999). Accordingly, defendant is
entitled to summary judgment on this count,2 as well.
B. Race and Sex Discrimination
Plaintiff claims her employer discriminated against her based
3Title VII does not address discrimination or harassment based
on sexual orientation. Williamson v. A.G. Edwards and Sons, Inc.,
876 F.2d 69, 70 (8th Cir. 1989). The MHRA does. See Minn. Stat.
363A.08, subd. 2 (2006).
4Plaintiff, in her complaint and discovery, cites events
occurring in 2006 - 2007. These occurred after filing her
administrative charge. She does not appear to have filed separate
charges reflecting the later incidents. Therefore, she has not
exhausted her administrative remedies. As a result, claims of
events occurring after August 31, 2005, are not properly before
this Court and must be dismissed. See Briley v. Carlin, 172 F.3d
567, 571 (8th Cir. 1999); Duncan v. Delta Consol. Indus. Inc., 371
F.3d 1020, 1025 (8th Cir. 2004). However, where plaintiff presents
both exhausted and unexhausted claims, the Court has jurisdiction
to consider those which were properly exhausted. Patrick v.
Henderson, 255 F.3d 914, 916 (8th Cir. 2001).
5Title VII mandates filing an administrative charge within 300
days of an allegedly discriminatory event. 42 U.S.C. 2000e-
5(e)(1). For the MHRA, the limitations period is one year. Minn.
Stat. 363A.28 subd. 3 (2006). Racial harassment claims under
1981 are subject to a four year limitations period. See Jones v.
R. R. Donnelly & Sons Co., 541 U.S. 369, 383 (2004); 28 U.S.C.
1658. Plaintiff filed her administrative charge August 31, 2005.
This may bar some of plaintiffs claims, absent waiver, estoppel or
a continuing violation - none of which has been alleged. As the
Court grants summary judgment, it need not resolve limitations
questions. A timely charge is not jurisdictional. Gordon v.
Shafer Contracting Co., 469 F.3d 1191, 1194 (8th Cir. 2006).
on her race and sex, in violation of Title VII, the MHRA, and 42
U.S.C. 1981. She makes no allegation of discrimination based on
sexual orientation,3 nor does she allege retaliation.
The events to which plaintiff refers occurred between 2001 and
2007. Not all claims are properly before the Court; some newer
ones have not been fully exhausted,4 while certain older ones may
be time-barred.5 The Court may consider only those claims that
have been properly exhausted. Patrick v. Henderson, 255 F.3d 914,
916 (8th Cir. 2001). However, even if the Court considers all the
events plaintiff alleges, summary judgment is appropriate.
Plaintiff presents no direct evidence of discrimination by
Rock Tenn, itself. In such cases, each statute she invokes
requires application of the McDonnell Douglas burden-shifting
analysis at summary judgment. See Riser v. Target Corp., 458 F.3d
817, 820 & n. 2 (8th Cir. 2006), citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973).
Under this familiar analytic, plaintiff first must establish
a prima facie case of discrimination. If she does so, the burden
shifts to defendant to provide a legitimate, non-discriminatory
reason for its actions. If defendant does so, the burden shifts
back to plaintiff to show defendants reason was a pretext for
discrimination. Riser, 458 F.3d at 819-20. Plaintiff claims
defendants failure to promote her to group leader was
discriminatory, as was her temporary demotion.
To establish a prima facie case of failure-to-promote
discrimination, plaintiff must show (1) she is a member of a
protected class; (2) she was qualified and applied for a promotion
to an available position; (3) she was rejected; and (4) similarly
situated employees, not members of the protected group, were
promoted instead. Shannon v. Ford Motor Co., 72 F.3d 678, 682 (8th
Cir. 1996).
As an African-American female, plaintiff falls within the
statutory protections. Based upon the discovery, it appears that,
at a not-altogether-clear-point during a three year period,
plaintiff applied to be a group leader. Her application was
rejected. Other than this bare-bones allegation, she has failed to
offer any evidence either of her qualifications for the position,
or of those of the person who got the job. If that person was Dave
Evenson, she acknowledges she knows nothing of his background.
Campbell Dep. 2 at 18. Plaintiff suggests two white males in her
department, Evenson and Erickson, received preferential treatment -
but proffers no evidence showing they were similarly situated to
herself. Accordingly, she has failed to make a prima facie showing
of discrimination on her failure-to-promote theory.
To establish a prima facie case of discrimination based on her
2006 demotion, plaintiff must show (1) she is a member of a
protected class; (2) she was meeting the employers legitimate
expectations or was qualified for the position; (3) she experienced
an adverse employment action; and (4) some evidence allowing an
inference of unlawful discrimination, for example, that similarly
situated employees outside the protected class were treated
differently. Id.; see also Devin v. Schwans Home Serv., Inc., 491
F.3d 778, 789 (8th Cir. 2007).
The Court assumes plaintiff can establish a prima facie case.
But defendant is still entitled to summary judgment. Plaintiffs
temporary demotion to extra helper occurred six months after her
6Plaintiff offers no evidence suggesting the demotion was
7These correspond to complaint counts 1 (Section 1981) and 4
(MHRA). Plaintiffs claims under Title VII are referenced in the
complaints introduction, see Compl. 1, but not identified in a
separate count. Similarly, plaintiffs harassment and hostile work
environment allegations also appear in the Introduction and the
Facts, see id. 1, 7. They are also seen in her Section 1983
claim, see id. 22-23. These allegations are not alluded to in
plaintiffs Title VII, MHRA or Section 1981, claims. The Court,
however, has construed plaintiffs sexual and racial harassment
claims as if they were properly pleaded under Title VII, the MHRA
and Section 1981.
charge.6 Defendant has produced a legitimate, nondiscriminatory
reason for its action; it swears plaintiff was bumped by more
senior employees, pursuant to her unions collective bargaining
agreement. Rock Tenn has also shown that three white male
employees were bumped at the same time, for the same reason.
Plaintiff offers no contrary evidence.
Lacking any evidence suggesting defendants proffered reason
is a pretext for discrimination, plaintiff has failed to produce
evidence from which a jury could conclude she suffered intentional
discrimination at her employers hand. Defendant is entitled to
summary judgment on plaintiffs claims of discrimination under
Section 1981, Title VII, and the MHRA.7
A plaintiff may show a violation of these statutes in the
absence of any tangible adverse employment action if there is
evidence of a hostile work environment. Here again, each statute
applies a common standard to establish such a claim. See Ross v.
Kansas City Power & Light Co., 293 F.3d 1041, 1050 (8th Cir. 2002)
(Title VII and Section 1981); Hervey v. County of Koochiching, 527
F.3d 711, 719 (8th Cir. 2008) (Title VII and MHRA). A hostile work
environment exists when the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the
victims employment and create an abusive working environment.
Gordon v. Shafer Contracting Co., 469 F.3d 1191, 1194 (8th Cir.
2006) (internal quotation omitted). To establish a prima facie
case of hostile work environment, a plaintiff must show (1) she is
a member of a protected group; (2) she was subject to unwelcome
harassment sufficiently severe or pervasive as to affect a term,
condition or privilege of employment; and (3) a causal nexus
between the two. See id. at 1194-95.
Only severe or pervasive harassment is actionable. Id. at
1195. A court, therefore, must consider the totality of the
circumstances, including whether the conduct was frequent and
severe; whether it was physically threatening or humiliating, as
opposed to merely an offensive utterance; and whether it
unreasonably interfered with the employees work performance.
Brenneman v. Famous Daves of Am., Inc., 507 F.3d 1139, 1143 (8th
Cir. 2007). It is well established that isolated incidents of
harassment, unless extremely serious, do not rise to this level.
Where the alleged harassers are co-workers, a plaintiff must
show her employer knew or should have known of the harassment and
failed to take proper action. Gordon, 469 F.3d at 1195. If, on
the other hand, the harassers are supervisors, the employer is
vicariously liable, unless it can establish it exercised
reasonable care to prevent and promptly correct any harassing
behavior, and plaintiff unreasonably failed to take advantage of
the preventive or corrective opportunities it provided. Id.,
citing Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 765 (1998).
The employer may assert this affirmative defense only where, as
here, no tangible employment action occurs. Gordon, id., citing
Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998).
Here again, the Court finds plaintiff has failed to establish
a prima facie case. While she undeniably belongs to a protected
group, she has failed to establish the remaining elements, and
defendant is entitled to the Ellerth-Faragher affirmative defense.
As an initial matter, not all incidents of alleged harassment
show a connection to plaintiffs race or gender. For example, coworker
comments dating from 2001 and 2002 address only plaintiffs
sexual orientation. Other incidents - such as Wilsons remark that
plaintiff had to return to work because she was hungry, Dvoraks
nitpicking, Tousleys false report and shouting, and Lallas
request to punch him in - lack any obvious connection to
plaintiffs membership in any protected class.
Even if the Court were to assume these events were based on
race or sex, and were to take them together with the remaining
incidents, the Court would find the alleged harassing acts, spread
as they were over more than half-a-decade, were neither severe nor
pervasive enough to establish a legally cognizable hostile work
environment. In April, 2003, one co-worker made the comment about
the Oprah Winfrey show. Sometime in 2004 or 2005, another coworker
suggested plaintiffs co-workers had difficulty getting
along with her because she was black and female. On unspecified
dates plaintiff found adult magazines in her machine. In 2006, a
co-worker repeatedly told her, Give me my prick. Through all of
this, plaintiff knew of defendants sexual harassment policy, and
had used it successfully in the past, yet did not report any of
these incidents to supervisors.
It has been amply shown that when plaintiff did avail herself
of the employers harassment policy, and made defendant aware of a
problem, defendant responded appropriately. By way of example,
when in 2005 a co-worker said I got some balls you can eat, the
plaintiff reported it. As a result, the co-worker was given
counseling, and plaintiff reported no further problems. Another
co-worker said, If I had my way, Id get rid of all women and
minorities; again, after a simple complaint, the co-worker was
counseled and plaintiff reported no further problems. Finally, in
August, 2005, when plaintiff heard a voice over the two-way radio,
8These undifferentiated claims are made in count 5, titled
Negligence, which seems to allege negligent infliction of
emotional distress and negligent supervision. Count 9 alleges
intentional infliction of emotional distress and defamation. The
Court is constrained to state that it is very difficult to clearly
differentiate multiple claims, when - as here - the complaint
inexplicably lacks a count 3, 4, 6, 7 or 8. Nevertheless, summary
judgment is granted as to count 1 (Section 1981), count 2 (Section
1983), the first count 5 (MHRA), the second count 5 (Negligence),
and count 9 (Intentional Tort).
she reported it. Upon receiving the report, and despite
plaintiffs unwillingness to participate in the investigation, Rock
Tenn investigated. The investigation did not reveal the
perpetrator, but it is undisputed that no further incidents
While these incidents were undoubtedly crass and offensive,
they represent isolated incidents to which defendant appropriately
responded. The Court finds, as a matter of law, that based upon
these facts, no reasonable jury could find plaintiff was subject to
severe or pervasive harassment.
Accordingly, defendant is entitled to summary judgment on
plaintiffs claims of a hostile work environment.
C. State Law Claims
Plaintiff invokes the Courts supplemental jurisdiction to
bring claims of negligent and intentional infliction of emotional
distress, negligent supervision, and defamation. Defendant is
entitled to summary judgment on these, also.8
To establish a claim for negligent infliction of emotional
9At oral argument, plaintiffs counsel for the first time
argued a hostile work environment caused plaintiffs March, 2004,
seizure. The complaint contains no such allegation. While
plaintiff provided her personal medical records, she offers no
expert medical opinion suggesting, let alone establishing, that her
workplace experiences caused her seizure. Counsel conceded no
medical evidence supported this argument. Accordingly, the Court
finds no evidence upon which a reasonable jury could conclude any
alleged discrimination or harassment caused plaintiffs physical
distress, plaintiff must show she was within the zone of danger of
physical impact, reasonably feared for her safety, and suffered
severe emotional distress with physical manifestations. Stadler v.
Cross, 295 N.W.2d 552, 553 (Minn. 1980). Taking every fact
plaintiff alleges as true, the Court finds she has failed to
establish any of these elements. She fails, because she has no
credible evidence showing she was ever in a zone of physical impact
causing her to reasonably fear for her safety. There is no
evidence of causation, or of the physical manifestations required
for severe emotional distress.9 Defendant is entitled to summary
judgment on this claim.
The same is true for plaintiffs claim of intentional
infliction of emotional distress. To establish this claim,
plaintiff must show defendants conduct was extreme and outrageous,
as well as intentional or reckless, and it caused severe emotional
distress. See Langeslag v. KYMN Inc., 664 N.W.2d 860, 864 (Minn.
2003). The tort is sharply limited to cases involving
particularly egregious facts. Id. (internal quotation omitted).
Extreme and outrageous conduct is so atrocious that it passes
the boundaries of decency and is utterly intolerable to the
civilized community. Id. at 865. Even taken in the light most
favorable to plaintiff, none of defendants alleged conduct can be
so regarded. Defendant is entitled to summary judgment on this
Defendant is also entitled to summary judgment on plaintiffs
claim of negligent supervision. Liability for negligent
supervision is imposed under a theory of respondeat superior; the
employer is liable because the employee committed a tortious act
while acting in the scope of employment. See Bruchas v. Preventive
Care, Inc., 553 N.W.2d 440, 443 (Minn. Ct. App. 1996). The tort,
however, requires some form of physical injury. Id., citing Semrad
v. Edina Realty, Inc., 493 N.W.2d 528, 533-34 (Minn. 1992).
Plaintiff has entirely failed to identify the employees she claims
were negligently supervised, nor does she allege her co-workers
statements were made within the scope of employment. Finally, she
fails to allege physical injury or threat of bodily harm. On these
facts, there is no evidence to submit to a jury. Summary judgment
is granted as to this claim.
Finally, summary judgment is appropriate on plaintiffs
defamation claim. A defamatory statement must be false, must be
communicated to another, and must tend to harm the plaintiffs
reputation. Bol v. Cole, 561 N.W.2d 143, 146 (Minn. 1997). If the
statement is true, it cannot be defamatory. See Stuempges v.
Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980). Even if the
statement is defamatory, defendant may not be liable if the
statement is protected by a qualified privilege. Bol, 561 N.W.2d
at 149. The privilege applies if the statement was based upon
reasonable or probable cause, and was made in good faith upon a
proper occasion, from a proper motive. Id. However, the privilege
does not protect malicious statements - that is, ones made from
ill will and improper motives, or causelessly and wantonly for the
purpose of injuring the plaintiff. See Stuempges, 297 N.W.2d at
Plaintiff has not precisely specified the statements she
alleges are defamatory. The record discloses two statements made
about plaintiff to third parties. The first occurred in 2001, when
a co-worker called her a lesbian. This statement cannot be
defamatory; plaintiff acknowledges it is true. The second occurred
in 2005, when Tousley told Wilson plaintiff had lied about being
sick. Even if defamatory, the Court finds this statement protected
by a qualified privilege as a matter of law.
Tousley, plaintiffs supervisor, spoke to Wilson, her manager
at work, about an incident related to plaintiffs job performance.
This is a proper occasion and proper motive. Even if the statement
was false, the record discloses no evidence showing Tousley spoke
in bad faith or with malice. Similarly, there is no evidence that
the statement tended to injure plaintiffs reputation at work.
Therefore, defendant is entitled to summary judgment on this claim.
III. Conclusion
For the foregoing reasons, the Court grants defendants motion
for summary judgment.
Dated: November 18, 2008
s/ James M. Rosenbaum
United States District Judge


  What day were you injured?

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Work-Related Injury
Wrongful Death
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