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Thompson v. Buhrs Americas, Inc.: US District Court : EMPLOYMENT - evidence of pretext for age discrimination; Intentional Infliction of Emotional Distress claims barred; foreign corporation parent not plaintiff's employer

1
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Kevin Thompson,
Plaintiff,
v. Civil No. 07-2746 (JNE/JJG)
ORDER
Buhrs Americas, Inc.,
and Buhrs Holding BV,
Defendants.
Stephen W. Cooper, Esq., The Cooper Law Firm, Chartered, appeared for Plaintiff Kevin
Thompson.
Richard A. Ross, Esq., and Krista A.P. Hatcher, Esq., Fredrikson & Byron, PA, appeared for
Defendants Buhrs Americas, Inc., and Buhrs Holding BV.
Kevin Thompson brings this action against Buhrs Americas, Inc. (Buhrs Americas), and
Buhrs Holding BV (Buhrs Holding) claiming the termination of his employment as president of
Buhrs Americas violates the Age Discrimination in Employment Act (ADEA), 29 U.S.C.
621-634 (2000), and the Minnesota Human Rights Act (MHRA), Minn. Stat. 363A.01-.41
(2006). Specifically, Thompson alleges age discrimination, reprisal, and aiding and abetting age
discrimination and reprisal under the ADEA and MHRA. Thompson also brings a claim under
Minnesota law for intentional infliction of emotional distress.1 Buhrs Americas asserts
counterclaims against Thompson for breach of fiduciary duties and breach of the duty of loyalty.
The case is before the Court on Defendants motion for partial summary judgment on several of
1 Thompson brought additional claims under Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e to 2000e-17 (2000), and the MHRA for discrimination on the basis of national
origin and aiding and abetting national origin discrimination, state-law claims for breach of
contract and negligent infliction of emotional distress, and claims for violations of Minn. Stat.
181.11, .13, and .64 (2006). At the hearing on January 30, 2009, counsel for Thompson
stated that Thompson was abandoning those claims. Accordingly, those claims are dismissed.
2
Thompsons claims and Thompsons motion for summary judgment on Buhrs Americas
counterclaims. In addition, Thompson moves for sanctions under Rule 11 of the Federal Rules
of Civil Procedure. For the reasons set forth below, the Court grants in part and denies in part
Defendants motion for partial summary judgment and denies Thompsons motions for summary
judgment and for sanctions.
I. BACKGROUND
Buhrs Americas sells and services poly- and paper-wrapping equipment and envelopeinserting
equipment. Buhrs Americas is a U.S. subsidiary of Buhrs Mailing Solutions BV, a
Dutch corporation. Buhrs Holding, another Dutch corporation, owns Buhrs Mailing Solutions
BV, as well as a number of other entities. The parties refer to the entities held by Buhrs Holding
as the Buhrs Group; the Court does the same. Convent Holdings BV owns ninety-five percent
of Buhrs Holding, and the management of Buhrs Holding owns the remaining five percent.
Convent Holdings BV is owned by Adrian van der Klooster and his family. Van der Klooster is
the chairman of the board of directors of Buhrs Americas and president of Buhrs Holding.
Toward the end of 2005, Buhrs Americas began searching for a new president. Buhrs
Americas first offered the position to Michael Aumann. At that time, Aumann was the vicepresident
of marketing and sales at Streamfeeder, an equipment manufacturer for the mailing,
printing, and packaging industries. Aumann rejected the offer, and Buhrs Americas hired
Thompson as its president in February 2006. According to van der Klooster, Thompson was
then working as an individual sales representative, and lacked managerial and entrepreneurial
experience. Thompson was forty-nine years old when hired. He is nine years older than
Aumann.
Thompson began working for Buhrs Americas on March 1, 2006. Van der Klooster
testified during his deposition that he became concerned about Thompsons performance after
3
receiving Thompsons May 2006 monthly report because it included a forecast that was off by
hundreds of thousands of dollars. Van der Klooster identified several additional areas of concern
that arose over the next few months, including what he perceived as Thompsons inability to
make operational improvements to Buhrs Americas, Thompsons failure to understand the
business or build strong relationships with customers, and Thompsons lack of leadership with
respect to sales representatives. Ad Linssen, a member of the Buhrs Americas board of directors
and the chief financial officer for the Buhrs Group, testified during his deposition that
Thompsons monthly reports contained inaccurate forecasts. Linssen also testified that
Thompson was unable to explain the discrepancies and that his monthly reports failed to
improve. In October 2006, Linssen worked with Thompson on the Buhrs Americas budget for
2007. According to Linssen, Thompson had no clue about the budget, which Linssen
described as full of errors. Jan Clement, another member of the Buhrs Americas board of
directors, testified during his deposition that senior salespeople at Buhrs Americas were
unimpressed with Thompson. According to Clement, Thompson seemed to be lost when
trying to manage Buhrs Americas.
Disagreements arose between Thompson and directors of Buhrs Americas relating to the
hiring of new employees for Buhrs Americas. According to Thompson, van der Klooster
repeatedly instructed him to hire people who were younger than Thompson and said he wanted
Thompson to be the elder leader of Buhrs Americas. Thompson testified during his deposition
that when he informed van der Klooster that they could not take age into account when hiring in
the United States, van der Klooster expressed doubt that anyone would know that they had
considered age. According to Thompson, van der Klooster said on two occasions while in the
Netherlands that they could discuss age in the hiring context because they were on the European
4
side of the Atlantic Ocean. In addition, it is undisputed that Linssen told Thompson that he
needed to hire an angry young man as a controller.2 Thompsons notes from a meeting in
October 2006 indicate that van der Klooster told Thompson that the candidates Thompson had
identified for the service manager position were too old and that van der Klooster did not want to
hear him talk about age again. Thompson testified that he heard the Dutch word for old during
meetings of the Buhrs Group when Dutch speakers would talk amongst themselves, look at
Thompson, and mention his name.
In October 2006, Aumann spoke briefly with van der Klooster at a trade show and told
him that things had not turned out as Aumann had expected at Streamfeeder. On November 6,
2006, Aumann e-mailed van der Klooster announcing the acquisition of Streamfeeder by another
company and indicating Aumanns renewed interest in a position with Buhrs Americas.
On November 13 and 14, 2006, the Buhrs Group had a two-day meeting in Rotterdam
where the presidents or managing directors of the Buhrs Group subsidiaries presented their
budgets. Thompson presented the 2007 budget for Buhrs Americas. Van der Klooster and
Clement testified that the quality of Thompsons budget was poor and that his presentation was
unimpressive. According to Thompson, van der Klooster repeatedly used Thompsons budget to
illustrate budgeting errors in a humiliating manner. Van der Klooster also criticized Thompsons
budget during a subsequent dinner with Thompson, van der Kloosters wife, and one of
Thompsons peers.
Van der Klooster testified that it was clear from the atmosphere at the budget meeting
that Buhrs Group management had lost confidence in Thompson. Van der Klooster informed
2 The parties dispute the meaning of this phrase. Van der Klooster and Linssen testified
that in the Netherlands, the expression angry young man refers to a go-getter or an ambitious
person. Thompson testified that Linssen said the expression meant a young man who had
graduated within the last few years and had minimal experience.
5
Thompson the next day, November 15, that van der Klooster had decided that Thompson could
not continue as president of Buhrs Americas. November 15 was Thompsons 50th birthday, and
Thompson had plans to celebrate with his wife in London that weekend. Van der Klooster knew
that it was Thompsons 50th birthday and knew of Thompsons weekend plans. Van der
Klooster testified that he informed Thompson of his decision on November 15 because he
wanted to do so in person and had no plans to visit the United States in the near future. Van der
Klooster also testified that he wanted to tell Thompson as soon as possible so Thompson could
begin looking for new employment.
Thompson signed a separation agreement during his November 15 meeting with van der
Klooster. The separation agreement provided that Buhrs Americas would pay Thompson his
base salary and benefits for six months in exchange for Thompsons continued performance as
president during that period. At any time, Buhrs Americas could elect to pay Thompson his base
salary in lieu of his continued performance.
After executing the separation agreement, van der Klooster presented Thompson with an
Abraham. Van der Klooster testified that an Abraham is a cake representing the Biblical
figure Abraham that, in the Netherlands, is traditionally given to a man on his 50th birthday to
symbolize the wisdom he achieves when he reaches that age.3 According to van der Klooster,
the Abraham had been ordered before the meetings on November 13 and 14 and he was unsure
3 Thompson claims that van der Klooster told him the Abraham gives a man wisdom as he
is put out to pasture. However, Thompsons deposition testimony regarding what van der
Klooster said during the presentation of the Abraham is inconsistent. During his deposition on
June 24, 2008, Thompson testified that Adrian had told me, well, this gives a guy whos finally
reached the age of 50, it gives him wisdom, wisdom. Thompson then testified I took it as a
slap in the face to say that, okay, maybe its time for, you know, you to get out to pasture, old
guy, because of the way, because of what it represented. During Thompsons subsequent
deposition on September 17, 2008, Thompson testified [H]e explained to me that its . . . a
tradition, [van der Klooster] said, in Holland for when a man turns 50. This gives me, I forget
exactly what the words were, but something, as he goes out to pasture, this gives him wisdom.
6
whether he should present it to Thompson in light of his decision to terminate Thompsons
employment. Van der Klooster testified that he decided to present the Abraham to Thompson
because the termination meeting passed amicably.
Shortly after Thompson returned to the United States, a disagreement arose between
Thompson and directors of Buhrs Americas regarding the termination of Sherrie Healy, a sales
representative over the age of fifty. In the fall of 2006, Thompson had recognized the need to lay
off a sales representative and identified Healy as the sales representative to be terminated. Sales
manager Gary Harris testified during his deposition that Thompson told him in early November
2006 that Thompson planned to terminate Healy. Thompson claims he determined at the end of
November that Michael Martinis, a man in his thirties, should be terminated instead of Healy.4
Thompson testified that after he decided to terminate Martinis, he received a phone call
from Clement informing him that he had to terminate Healy rather than Martinis. Despite this
instruction, Thompson refused to effectuate Healys termination. According to Thompson, he
believed Healys termination was motivated by her age. Harris called Thompson on December
6, 2006, to discuss Healys performance. At that time, Thompson informed Harris that Buhrs
Americas had decided to terminate Healy, that Thompson was refusing to effectuate her
termination, and that Harris had to effectuate it. Harris contacted Clement, who told him to
terminate Healy immediately. Thompson e-mailed a draft termination letter and a draft
separation agreement and release to Linssen. Thompson also e-mailed the separation documents
to Harris.
4 Healys termination is the subject of a separate lawsuit that is currently pending in the
District of Minnesota. See Healy v. Buhrs Ams., Inc., Civil No. 08-304 (D. Minn. filed Feb. 1,
2008). The Court expresses no opinion as to the merit of any claims or the truth of any
allegations in that lawsuit.
7
On December 13, 2006, Harris met with Healy, notified her that Buhrs Americas was
terminating her employment, and gave her the termination letter and separation agreement and
release. Healy signed the separation agreement and release. Harris gave Healy two checks, both
signed by Thompson. The separation agreement and release gave Healy seven days to rescind
her release, which she did on December 20, 2006. She retained the severance payments.
Meanwhile, Aumann flew to Rotterdam and accepted an offer of employment as
president of Buhrs Americas some time between Thanksgiving and Christmas of 2006. Linssen
flew to the United States and ended Thompsons continued performance as president on
December 19, 2006, approximately one month into the six-month period. Aumanns
employment began on January 8, 2007. Thompson filed a charge of age discrimination with the
Equal Employment Opportunity Commission, which issued a notice of right-to-sue on March 1,
2007. Thompson commenced this lawsuit in state court on May 31, 2007. Defendants removed
to federal court on June 11, 2007.
II. DISCUSSION
Summary judgment is proper 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). The movant bears the
initial responsibility of informing the district court of the basis for its motion, and must identify
those portions of [the record] which it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant satisfies its
burden, the nonmovant must respond by submitting evidentiary materials that set out specific
facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e)(2); see Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In determining whether summary judgment is
8
appropriate, a court must look at the record and any inferences to be drawn from it in the light
most favorable to the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A. Defendants Motion for Partial Summary Judgment
Buhrs Holding moves for summary judgment on Thompsons claims of age
discrimination and aiding and abetting age discrimination; reprisal and aiding and abetting
reprisal; and intentional infliction of emotional distress (IIED). Buhrs Americas moves for
summary judgment on Thompsons claims of age discrimination and aiding and abetting age
discrimination and IIED. The Court addresses each claim in turn.
1. Thompsons Age Discrimination and Reprisal Claims against Buhrs Holding
Buhrs Holding moves for summary judgment on Thompsons age discrimination and
reprisal claims under the ADEA and MHRA on the ground that neither statute covers Buhrs
Holding because it is a foreign corporation without operations or employees in the United States.
Thompson responds that Defendants employed him and had operations in the United States.5
The parties dispute whether 29 U.S.C. 623(h)(2), which states [t]he prohibitions of [section
623 of the ADEA] shall not apply where the employer is a foreign person not controlled by an
American employer, excludes Buhrs Holding from liability under the ADEA and whether Buhrs
Holding is an employer under the MHRA. The Court need not decide these issues because, for
the reasons explained below, Thompson has not shown an issue of fact as to whether Buhrs
Holding employed him or is otherwise liable under the ADEA and MHRA for his termination
regardless of Buhrs Holdings status as a foreign corporation.
5 Defendants ask the Court to strike the exhibits and deposition transcripts filed by
Thompson in support of his response to their motion because they were filed and served two
days after the deadline established by District of Minnesota Local Rule 7.1(b)(2). The Court will
consider Thompsons summary judgment evidence.
9
To impose liability under the ADEA, an employment relationship must exist between the
plaintiff and the defendant. Palmer v. Ark. Council on Econ. Educ., 154 F.3d 892, 895 (8th Cir.
1998). Liability under the MHRA similarly requires an employment relationship. See Minn.
Stat. 363A.08, subd. 2(2) ([I]t is an unfair employment practice for an employer, because
of . . . age to . . . discharge an employee.); Sandoval v. Am. Bldg. Maint. Indus., Inc., 552 F.
Supp. 2d 867, 872-73 (D. Minn. 2008). Thompsons employment and severance agreements
were between Buhrs Americas and Thompson. Both agreements indicate that van der Klooster
executed them in his capacity of chairman of the board of Buhrs Americas. Moreover, van der
Klooster stated in a declaration that Buhrs Holding has no employees or operations in the United
States. Thompson has not identified any evidence establishing a direct employment relationship
with Buhrs Holding, and therefore has not shown an issue of fact as to whether Buhrs Holding
employed him.
Thompson contends that in the absence of a direct employment relationship, the parent
Buhrs Holding is liable under the ADEA and MHRA as either a single entity or joint employer
with its subsidiary Buhrs Americas under the four-factor test set forth in Baker v. Stuart
Broadcasting Co., 560 F.2d 389, 392 (8th Cir. 1977).6 However, when determining whether a
parent may be held liable for its subsidiarys employment decisions, the Eighth Circuit applies
the test set forth in Brown v. Freds, Inc., 494 F.3d 736, 739 (8th Cir. 2007), rather than the
Baker factors.7 As explained in Brown, [t]here is a strong presumption that a parent company
is not the employer of its subsidiarys employees, and the courts have found otherwise only in
6 The four factors are (1) interrelation of operations, (2) common management,
(3) centralized control of labor relations; and (4) common ownership or financial control. Baker,
560 F.2d at 392.
7 The Court notes that Buhrs Americas is an indirect subsidiary of Buhrs Holding, but
discerns no reason why this fact would negate the applicability of Brown.
10
extraordinary circumstances. 494 F.3d at 739 (quoting Frank v. U.S. West, Inc., 3 F.3d 1357,
1362 (10th Cir. 1993)). A parent may employ its subsidiarys employees if the parent company
so dominates the subsidiarys operations that the two are one entity and therefore one employer.
Id. (citing Johnson v. Flowers Indus. Inc., 814 F.2d 978, 981 (4th Cir. 1987)). Alternatively, the
parent may employ its subsidiarys employees if the parent company is linked to the alleged
discriminatory action because it controls individual employment decisions. Id. (quoting
Leichihman v. Pickwick Intl, 814 F.2d 1263, 1268 (8th Cir. 1987)). More than a normal parentsubsidiary
relationship is required to hold a parent liable for its subsidiarys employment
decisions. Iverson v. Ingersoll-Rand Co., 125 Fed. Appx 73, 76 (8th Cir. 2004).
Thompson contends that Buhrs Holding so dominates the operations of Buhrs Americas
that the two are one employer. He argues that Buhrs Holdings complete ownership of Buhrs
Americas supports imposing liability on Buhrs Holding. Sole ownership of a subsidiary by a
parent, however, is insufficient to establish liability. See Frank, 3 F.3d at 1364; Lusk v.
Foxmeyer Health Corp., 129 F.3d 773, 778 (5th Cir. 1997). Thompson also presents evidence
that sales managers of Buhrs Americas had reporting obligations to Europe as well as to
himself and that Pim Aarden, the Buhrs Holding comptroller, was indirectly the supervisor of
the Buhrs Americas controller. The existence of those reporting obligations is insufficient to
establish liability. See Frank, 3 F.3d at 1362 (holding that the fact that project supervisors
ultimately reported to officers in the parent was not enough to present a material factual dispute
because that exercise of control did not exceed the control normally exercised by a parent).
Thompson asserts that the participation of Aarden in the design of the pricing and commission
tools used by Buhrs Group subsidiaries supports imposing liability on Buhrs Holding. Van der
Klooster testified that Aarden developed those tools in cooperation with suppliers and
11
distributors, including Buhrs Americas, and that Buhrs Americas could set higher prices or,
within certain limits, offer rebates. Thompson presents no evidence suggesting that Aardens
development of those tools constitutes such domination of Buhrs Americas by Buhrs Holding as
to justify imposing liability on Buhrs Holding. See generally Lusk, 129 F.3d at 778 (A parent
corporations possession of a controlling interest in its subsidiary entitles the parent to the normal
incidents of stock ownership, such as the right to . . . set general policies, without forfeiting the
protection of limited liability.). Thompson has not demonstrated an issue of fact as to whether
Buhrs Holding dominated Buhrs Americas based on reporting obligations to Europe or Aardens
design of the pricing and commission tools.
In addition, Thompson cites deposition testimony establishing that Buhrs Americas
employees were in daily contact with van der Klooster, Linssen, and Clement via telephone and
e-mail and that van der Klooster and Linssen had control over Buhrs Americas employment
decisions. Clement testified that he, van der Klooster, and Linssen were directors of Buhrs
Americas. It is a well established principle of corporate law that directors and officers holding
positions with a parent and its subsidiary can and do change hats to represent the two
corporations separately, despite their common ownership. United States v. Bestfoods, 524 U.S.
51, 69 (1998) (quoting Lusk, 129 F.3d at 779). Consequently, there is a presumption that van der
Klooster, Linssen, and Clement were wearing their subsidiary hats and not their parent hats
when making decisions for Buhrs Americas. See id. Thompson offers no evidence rebutting this
presumption, and therefore has not shown an issue of fact as to whether Buhrs Holding
sufficiently dominated Buhrs Americas as to warrant imposing liability on Buhrs Holding.
Finally, Thompson contends that Buhrs Holding is liable because van der Klooster
controlled the decision to terminate his employment. When determining whether a parent is
12
liable for its subsidiarys employment decisions, the crucial question is what entity made the
final decisions regarding employment matters related to the person claiming discrimination?
Frank, 3 F.3d at 1363. The Court presumes that van der Klooster was wearing his subsidiary
hat with respect to Thompsons termination. See Bestfoods, 524 U.S. at 69. Thompson
identified no evidence indicating that van der Klooster was acting for Buhrs Holding rather than
Buhrs Americas in connection with Thompsons termination, and therefore has failed to raise an
issue of fact regarding whether Buhrs Holding controlled the decision to terminate him. See
generally Lusk, 129 F.3d at 779-81 (finding no parent liability under the ADEA when officers of
the parent participated in the challenged decision because the officers were also officers of the
subsidiary and no evidence rebutted the presumption that they were acting on behalf of the
subsidiary). The Court therefore dismisses Thompsons age discrimination and reprisal claims
under the ADEA and MHRA against Buhrs Holding.
2. Thompsons Aiding and Abetting Claims
Defendants seek summary judgment on Thompsons claims for aiding and abetting under
the ADEA and MHRA.8 Thompson bases his aiding and abetting claims against Buhrs Holding
on the acts of van der Klooster, Linssen, and Clement. As previously explained, there is a
presumption that those directors acted on behalf of Buhrs Americas when engaging in the
challenged conduct, see Bestfoods, 524 U.S. at 69, and Thompson has not presented evidence
rebutting this presumption. Thompson has not shown a genuine issue of fact as to whether Buhrs
Holding aided and abetted age discrimination or reprisal because he has not identified any
conduct attributable to Buhrs Holding. In addition, Thompson has not shown a genuine issue of
fact as to whether Buhrs Americas aided and abetted age discrimination because he identified no
8 Buhrs Americas did not move for summary judgment on Thompsons claim of aiding and
abetting reprisal under the ADEA and MHRA.
13
evidence of discriminatory conduct on the part of Buhrs Holding that Buhrs Americas could have
aided and abetted. Moreover, Buhrs Americas cannot aid and abet itself. See United States v.
Clark, 980 F.2d 1143, 1147 (8th Cir. 1992) (Beam, J., concurring); see also United States v.
Hassoun, 476 F.3d 1181, 1183 n.2 (11th Cir. 2007). The Court therefore dismisses all of
Thompsons aiding and abetting claims under the ADEA and MHRA against Buhrs Holding and
his aiding and abetting age discrimination claims under the ADEA and MHRA against Buhrs
Americas.
3. Thompsons Age Discrimination Claims Against Buhrs Americas
Buhrs Americas seeks summary judgment on Thompsons age discrimination claims
under the ADEA and MHRA. Age discrimination claims under the [MHRA] are considered
under the same analysis as claims under the ADEA. Chambers v. Metro. Prop. & Cas. Ins. Co.,
351 F.3d 848, 855 (8th Cir. 2003). Thompson may avoid summary judgment by creating the
requisite inference of unlawful discrimination under the framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Griffith v. City of Des Moines, 387 F.3d
733, 736 (8th Cir. 2004). Under the McDonnell Douglas framework, once the plaintiff
employee establishes a prima facie case of discrimination, the burden shifts to the defendant
employer to articulate a legitimate, nondiscriminatory reason for its actions. Gilbert v. Des
Moines Area Cmty. Coll., 495 F.3d 906, 914 (8th Cir. 2007). If the defendant offers a legitimate,
nondiscriminatory reason, the burden shifts back to the plaintiff to put forth evidence showing
the defendants proffered explanation is a pretext for unlawful discrimination. Id.
To make a prima facie case of discrimination, Thompson must show that he was a
member of a protected class when he was terminated, that he was otherwise qualified for the
position from which he was terminated when terminated, that Buhrs Americas terminated him,
and that his termination occurred under circumstances giving rise to an inference of unlawful
14
discrimination. See Riley v. Lance, Inc., 518 F.3d 996, 1000 (8th Cir. 2008). Replacement by a
substantially younger person gives rise to the necessary inference of age discrimination. Id.
Buhrs Americas contends that Thompson has not made a prima facie case of
discrimination. First, Buhrs Americas argues that Thompson cannot show that he was otherwise
qualified for the position of president because he was not meeting his employers legitimate
expectations. Thompson need not make this showing at the prima facie stage. See id. (holding it
was error for the district court to require the plaintiff to show a genuine issue of fact as to
whether he was performing his job at a level that met the employers legitimate expectations at
the prima facie stage). Second, Buhrs Americas contends that the nine-year difference in age
between Thompson and Aumann is insufficient to give rise to an inference of discrimination.
The Court declines to impose a bright-line rule that a nine-year difference in age cannot give rise
to an inference of age discrimination. Thompson has made a prima facie case of age
discrimination.
Buhrs Americas identifies van der Kloosters belief that Thompson lacked the necessary
skills to be its president as its legitimate, nondiscriminatory reason for Thompsons termination.
Thompson responds that Buhrs Americas explanation is pretext for discrimination. A plaintiff
may establish a question of fact regarding pretext in at least two ways. Wallace v. DTG
Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006). A plaintiff may show pretext with
evidence that the employers explanation is unworthy of credence because it has no basis in fact.
Id. Alternatively, a plaintiff may show pretext by persuading the court that a prohibited reason
more likely motivated the employer. Id. Success on the second route does not necessarily
involve disproving the underlying factual claims of the employer. Id. at 1121. Instead, success
15
depends on showing that sufficient evidence exists for a jury to believe the plaintiffs
allegations and find that the proffered explanation was not the true motiving explanation. Id.
The record contains evidence from which a juror could infer that van der Klooster was
sensitive to Thompsons age. The terms 1980 and 50? are written on the first page of a copy
of Thompsons resume that was faxed to Buhrs Holding on January 13, 2006. The resume
indicates that Thompson graduated from university and began working in 1980, and Thompson
testified that the handwriting is van der Kloosters. Thompsons deposition testimony and notes
from a May 17, 2006, meeting in Amsterdam indicate that van der Klooster asked Thompson
how old he was during that meeting. Moreover, van der Klooster referred to Thompson as the
elder leader of Buhrs Americas. These statements, even if unrelated to the adverse
employment decision, may support an inference of age discrimination when considered together
with other evidence of pretext. See Bevan v. Honeywell, Inc., 118 F.3d 603, 611 (8th Cir. 1997).
In addition, the evidence that van der Klooster repeatedly instructed Thompson to hire
candidates younger than Thompson for open positions at Buhrs Americas and dismissed his
concerns about age discrimination may support a finding of pretext. See McDonnell Douglas,
411 U.S. at 804-05; see also Madel v. FCI Mktg., Inc., 116 F.3d 1247, 1252 (8th Cir. 1997)
(Evidence of a corporate atmosphere hostile to older employees can, if sufficient together with
other evidence of pretext, support a reasonable inference of age discrimination.) (quoting
Ryther v. KARE 11, 108 F.3d 832, 842 (8th Cir. 1997) (en banc)). Finally, the record contains
evidence of age-related comments made by other directors of Buhrs Americas. These comments
may give rise to a reasonable inference of age discrimination when considered together with the
other evidence. See Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 922-23 (8th Cir. 2000).
16
When making all reasonable inferences in favor of the non-moving party, the Court
concludes that Thompson has adduced, by a thin margin, enough admissible evidence to raise
genuine doubt as to whether Buhrs Americas proffered reason for its termination of Thompson
after 259 days of employment was the true motive for his termination. The Court denies Buhrs
Americas motion for summary judgment on Thompsons age discrimination claims under the
ADEA and MHRA.9
4. Thompsons IIED Claim
Defendants move for summary judgment on Thompsons claim for IIED. To succeed on
this claim, Thompson must show that Defendants conduct was extreme and outrageous, that
their conduct was intentional or reckless, that their conduct caused emotional distress, and that
the distress was severe. See Hubbard v. United Press Intl, Inc., 330 N.W.2d 428, 438-39 (Minn.
1983). Defendants conduct must be so atrocious that it passes the boundaries of decency and is
utterly intolerable to the civilized community, and Thompsons distress so severe that no
reasonable man could be expected to endure it. See id. at 439. IIED claims are sharply limited
to cases involving particularly egregious facts, and a high threshold standard of proof is
required to submit the claim to a jury. Id.
Thompson primarily bases his IIED claim on van der Kloosters criticism of Thompsons
budget and Clements criticism of one of Thompsons direct mailings in front of Buhrs Group
executives. While it may have been embarrassing, this criticism of his work product does not
constitute extreme and outrageous conduct. See Langeslag v. KYMN Inc., 664 N.W.2d 860, 868
(Minn. 2003) ([A]n employers criticism of an employees job performance, even if intended to
harass, does not constitute extreme and outrageous behavior.). Thompson also bases his claim
9 The Court declines to consider the parties arguments regarding direct evidence because
Thompson has avoided summary judgment by creating the requisite inference of unlawful
discrimination under McDonnell Douglas.
17
on the embarrassment of being asked his age by van der Klooster during a business meeting and
the resulting laughter from his peers on learning that he would turn 50 in November. Van der
Kloosters question and the subsequent amusement of Thompsons peers do not constitute
extreme and outrageous conduct. See id. at 865 (Liability for intentional infliction of emotional
distress does not extend to insults, indignities, threats, annoyances, petty oppressions, or other
trivialities.) (quoting Restatement (Second) of Torts 46 cmt. d (1965)).
Finally, Thompson bases his IIED claim on the circumstances surrounding his
termination. Van der Klooster testified that he notified Thompson of his termination as soon as
possible to allow him to begin searching for a new job and that he presented the Abraham to
Thompson after his termination because van der Klooster believed the termination meeting
ended amicably. Thompson speculates that van der Klooster intended the timing of his
termination and the presentation of the Abraham to humiliate him, but identified no evidence
supporting this contention. While the Court must draw all reasonable inferences in favor of
Thompson on Defendants motion for summary judgment, the Court shall do so without resort
to speculation. See Twymon v. Wells Fargo & Co., 462 F.3d 925, 934 (8th Cir. 2006).
Moreover, even if van der Klooster had intended to humiliate Thompson by presenting
him with the Abraham after his termination, the combination of the presentation, the criticism of
Thompsons work, and the question about his age would not constitute extreme and outrageous
conduct. See Hubbard, 330 N.W.2d at 439-40 (finding employment discipline, verbal and
written criticism, and accusing employee of chickening out of trip insufficient); Glass v. IDS
Fin. Servs., Inc., 778 F. Supp. 1029, 1070, 1074 (D. Minn. 1991) (holding that announcing
employees termination at a meeting, awarding him his 35-year company pin and requesting a
standing ovation on his behalf, and then asking him to give a talk to the group was insufficient).
18
Thompson has not met the threshold of proof required to submit his IIED claim to the jury. The
Court therefore grants summary judgment on this claim.
B. Thompsons Motion for Summary Judgment
Thompson moves for summary judgment on Buhrs Americas counterclaims for breach
of fiduciary duties and breach of the duty of loyalty.10 Buhrs Americas claims that Thompson
breached his fiduciary duties by causing or knowingly permitting the payment of severance to
Healy before the end of the rescission period and encouraging Healy to rescind the release while
retaining the severance. As an officer of Buhrs Americas, Thompson had a duty to discharge his
duties in good faith, in a manner [he] reasonably believe[d] to be in the best interests of the
corporation, and with the care an ordinarily prudent person in a like position would exercise
under similar circumstances. Minn. Stat. 302A.361 (2006). Moreover, Thompson had a
common-law fiduciary duty to Buhrs Americas. See Bolander v. Bolander, 703 N.W.2d 529,
548 (Minn. Ct. App. 2005) ([A]n officer or director owes a fiduciary relationship to the
corporation under common law.).
Thompson first contends that an employees fiduciary duties, including the duty of
loyalty, are limited to avoiding unfair trade practices. Thompson cites no cases that support this
proposition.11 In the absence of any supporting authority, the Court declines to impose such a
limitation on claims for breach of fiduciary duties.
10 Buhrs Americas contends that the Court should not consider the documents filed by
Thompson in support of his motion because they are not properly authenticated. The Court
would still deny summary judgment even if it were to consider the supporting documents, and
therefore declines to determine their admissibility.
11 Thompson cites Eaton Corp. v. Giere, 971 F.2d 136 (8th Cir. 1992); Sanitary Farm
Dairies, Inc. v. Wolf, 112 N.W.2d 42 (Minn. 1961); Rehabilitation Specialists, Inc. v. Koering,
404 N.W.2d 301 (Minn. Ct. App. 1987); Loxtercamp, Inc. v. Belgrade Co-op Assn, 368 N.W.2d
299 (Minn. Ct. App. 1985). These cases involve allegations of unfair trade practices, but do not
limit claims for breach of fiduciary duties to such situations.
19
Next, Thompson contends that no evidence supports Buhrs Americas allegations of
breach of fiduciary duties. Thompson initially selected Healy for termination and did not object
to her termination until after he learned of his own termination. Although Thompson claims in
his supporting memorandum that he merely pass[ed] the decision to terminate Healy on to
Harris, there is evidence of Thompsons continued involvement with Healys termination.
Thompsons signature is on the checks given to Healy. Thompson testified that the Buhrs
Americas controller told Thompson that the controller was to get [the checks] to Gary Harris,
who was going to be delivering them personally to Sherrie Healy. Harris testified that when he
asked Thompson if the checks for Healy were ready, Thompson replied Ill check and let you
know. According to Harris, Thompson told him these are the two documents that you have to
provide to Sherrie. We have to pay her the money if she agrees to them. Moreover, Thompson
testified that he had previously terminated employees who had received a severance package in
exchange for the release of claims against the employer. Finally, Thompson had a prior working
relationship with Healy, was responsible for her employment at Buhrs Americas, and knew,
possibly as early as 2006, that Healy had rescinded her release while retaining the payments.
A reasonable juror could infer from this evidence that Thompson caused or knowingly
permitted Harris to give Healy the checks before the end of the rescission period or, while
Thompson was still president of Buhrs Americas, encouraged Healy to rescind her release and
retain the severance, and that those acts breached Thompsons fiduciary duties or his duty of
loyalty.12 Because Buhrs Americas has demonstrated the existence of an issue of fact on its
12 Thompson contends that Buhrs Americas may not bring a claim for breach of fiduciary
duties based on his alleged encouragement of Healy to pursue age discrimination claims. The
Court does not base its denial of summary judgment on any such encouragement.
20
counterclaims, the Court denies Thompsons motion for summary judgment.13
C. Thompsons Motion for Sanctions
Thompson brings a motion for sanctions pursuant to Rule 11 of the Federal Rules of Civil
Procedure against Defendants and their counsel for asserting counterclaims. The Court finds that
sanctions are not warranted because the Court has denied Thompsons motion for summary
judgment on the counterclaims. See Fed. R. Civ. P. 11 advisory committee notes (1993
amendments) ([I]f a party has evidence with respect to a contention that would suffice to defeat
a motion for summary judgment based thereon, it would have sufficient evidentiary support for
purposes of Rule 11.). Moreover, Thompson presented no evidence supporting his contention
that sanctions are warranted because Buhrs Americas brought the counterclaims to punish him
for his claims of age discrimination. Finally, Thompsons motion is untimely because it was
filed ten days before the hearing date, see D. Minn. LR 7.1(a)(1), and is improper as to Buhrs
Holding because it was brought against both Defendants when only Buhrs Americas has asserted
counterclaims. The Court denies Thompsons motion for sanctions.
13 Thompsons motion for summary judgment was brought against both Defendants, but
only Buhrs Americas asserted counterclaims against Thompson.
21
III. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1. Defendants motion for partial summary judgment [Docket No. 91] is
GRANTED as to Count I insofar as it asserts claims against Buhrs
Holding and insofar as it asserts claims for aiding and abetting age
discrimination under the ADEA and MHRA against Buhrs Americas.
Defendants motion for partial summary judgment [Docket No. 91] is
DENIED as to Count I insofar as it asserts claims for age discrimination
under the ADEA and MHRA against Buhrs Americas.
2. Defendants motion for partial summary judgment [Docket No. 91] is
GRANTED as to Count III insofar as it asserts claims against Buhrs
Holding.
3. Defendants motion for partial summary judgment [Docket No. 91] is
GRANTED as to Count V.
4. Defendants motion for partial summary judgment [Docket No. 91] is
DENIED AS MOOT as to Counts II, IV, and VI-VIII.
5. Plaintiffs motion for summary judgment [Docket No. 97] is DENIED.
6. Plaintiffs motion for sanctions [Docket No. 125] is DENIED.
7. Count I of Plaintiffs Complaint [Docket No. 1] is DISMISSED WITH
PREJUDICE insofar as it asserts claims against Buhrs Holding and insofar
as it asserts claims for aiding and abetting age discrimination under the
ADEA and MHRA against Buhrs Americas.
8. Count III of Plaintiffs Complaint [Docket No. 1] is DISMISSED WITH
PREJUDICE insofar as it asserts claims against Buhrs Holding.
9. Counts II and IV-VIII of Plaintiffs Complaint [Docket No. 1] are
DISMISSED WITH PREJUDICE.
Dated: March 3, 2009
s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge
 

 
 
 

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