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Musolf v. J.C. Penney Co., Inc.

United States District Court, Eighth Circuit

October 11, 2013

Loralie Ann Musolf, Plaintiff,
J.C. Penney Company, Inc., Defendant.

Nicholas P. Granath, appeared for Plaintiff Loralie Ann Musolf.

Sonja J. McGill, and Thomas J. Conley, appeared for Defendant J.C. Penney Company, Inc.


JOAN N. ERICKSEN, District Judge.

Plaintiff Loralie Ann Musolf ("Musolf") filed a complaint against Defendant J.C. Penney Company, Inc. ("JCP") asserting claims of sex discrimination and retaliation under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and the Minnesota Human Rights Act ("MHRA"), Minn. Stat. § 363A.01 et seq. Musolf worked for JCP as a Loss Prevention Supervisor. Her claims in this action stem primarily from three incidents of unwanted physical contact from a co-worker over the course of two days at the end of January, 2010. She complained to management and the undesired contact stopped. Subsequent events culminated in JCP suspending and then terminating Musolf's employment in September, 2010.

Musolf asserts claims for discrimination based on a hostile work environment, retaliation, and promissory estoppel.[1] JCP moves for summary judgment, seeking dismissal of Musolf's complaint. For the reasons stated below, JCP's motion is granted.


A. Musolf's Employment and General Performance

JCP hired Musolf as a Loss Prevention Supervisor in August, 2008. Musolf began working for JCP in St. Cloud, Minnesota. JCP employed Musolf as an at-will employee. As the Loss Prevention Supervisor, Musolf reported to the Store Manager, Craig Child.

As an employee, Musolf received certain written policies from JCP. One set of policies outlined in a publication entitled "The Associate Guide to Winning Together" strictly prohibited sexual harassment. The publication also spelled out JCP's no-retaliation policy and confirmed that employees could report good faith concerns about harassment without fear of retaliation. Another set of policies called the Statement of Business Ethics required confidentiality of all non-public information and records concerning any aspect of JCP's business. JCP considered violations of the policies outlined by the ethics statement to be grounds for termination of employment.

During her time at JCP, Musolf demonstrated great talent for loss prevention tasks and received multiple commendations from management. At the end of 2009, she received a Recognition ECard from the District Loss Prevention Manager, Grant Grassle, stating that her team had "been doing an outstanding job these last few months combating shrinkage" in the store and that they were "setting the standard for others to follow." In March, 2010 she received a certificate for "outstanding performance" in "Accident Claim Reduction" and a merit pay raise in May, 2010.

While acknowledging Musolf's skill at identifying and apprehending individuals attempting to steal JCP merchandize, Child had found the need to coach Musolf on effective management of the Loss Prevention Associates that reported to her and on improving her interactions with other employees. Child's performance evaluation for Musolf signed in April, 2009 stated that "Lori has a Great Ability to do Loss prevention work, she just needs to develop Team work within her staff and Store respect for her team." Musolf's evaluation the following year, signed by Child on February 19, 2010, reflected improved and overall positive ratings compared to the previous year.

B. January, 2010 Events Involving a Co-worker

Musolf's claims of sexual harassment implicate the actions of her co-worker, Joe Pekarna, who worked for JCP as the Men's Department Supervisor at the St. Cloud store. Musolf's claims focus on three incidents on January 30 and 31, 2010.[2] Musolf first mentioned the incidents to Child and he asked that she document them by email. Musolf sent Child an email on the evening of January 31 regarding the first two incidents and another on February 1 regarding the third one.

On January 30, 2010, Musolf had been in an altercation with two unruly customers who threatened to kill her and Cherri Waddell, one of JCP's Loss Prevention Associates on Musolf's team, when Pekarna approached them. According to Musolf's first email, "Joe walked past us from behind and rubbed my back while asking me if I was okay." On the morning of January 31, Pekarna had requested Loss Prevention assistance with a customer accident and Musolf responded. Musolf told Child that Pekarna then rubbed her shoulder and told her about the accident. Musolf's January 31 email voiced Musolf's shock at Pekarna's actions and requested that Child "speak to Joe as [she did] not appreciate him rubbing [her] back or [her] shoulder."

Musolf's email of February 1 reported another incident involving Pekarna on the evening of January 31. After Musolf had another altercation with a disorderly customer, Pekarna came up to her, grabbed her by the shoulder, and gave her a hug. Musolf's email communicated that "[t]his behavior needs to be stopped immediately as it is not appropriate [in] the workplace."

During the first week of February, Child met with Pekarna and Pekarna's direct supervisor, Paula Theisen, the Men's Department Manager, to discuss Musolf's complaints. Child told Pekarna that although expressing sympathy was acceptable, any type of unwelcome or unwanted touching was never permissible. Child instructed Pekarna never to touch another employee for any reason while working and Pekarna promised to comply.

According to Musolf, Child never followed-up with her. She asked him about the status of her complaint in the following months and he typically responded with words to the effect that he would take care of it. According to Child, he informed Musolf of his conversation with Pekarna in February itself. He claims that Musolf never complained about the matter to him again until she emailed his supervisor, Kobie Zimmerman, on September 2, 2010, following certain other events. There is no dispute, however, that Pekarna never touched Musolf again.

C. The August 18, 2010 Meeting

On August 18, 2010 Child scheduled a meeting that he characterized as a coaching session with Musolf. The Loss Prevention Manager, Grassle, also attended. Musolf made notes of the meeting, [3] as did Grassle. According to Musolf's notes of the meeting, Child started out by telling her that he wanted to discuss some complaints from members of the management team that he had been receiving in the past four months.

Child explained that the way she sometimes came across to people and their perception of her was causing problems. Child raised three recent incidents, one from a management meeting where Musolf seemed agitated, one involving Musolf's treatment of associates after an escalator accident, and one regarding a confrontation with Pekarna in front of other employees and a customer over the time at which certain doors needed to be locked. The incident with Pekarna occurred on August 13, 2010 and he had submitted a written complaint about it on August 16, 2010. Musolf did not feel ...

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