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Stewart v. Rise, Inc.

United States District Court, Eighth Circuit

October 31, 2013

Bernadine Stewart, Plaintiff,
Rise, Inc., Defendant.

Stephen C. Fiebiger, Stephen C. Fiebiger Law Office, Chartered, 2500 West County Road 42, Suite 190, Burnsville, Minnesota 55337, for Plaintiff.

Michael D. O'Neill and Pamela M. Harris, Martin & Squires PA, 332 Minnesota Street, W2750, Saint Paul, Minnesota 55101, for Defendant.




Plaintiff Bernadine Stewart sued her employer, Rise, Inc., ("Rise") for discrimination on account of her race, sex, and national origin in violation of Title VII of the Civil Rights Act of 1964, the Minnesota Human Rights Act, and 42 U.S.C. § 1981 (Counts 1, 3, and 4). (Compl. ¶¶ 42-43, 46-48 [Doc. No. 1].) Ms. Stewart also sued Rise for retaliation under Title VII (Count 2). (Id. ¶¶ 44-45). Ms. Stewart further alleges a whistleblower claim against Rise under Minn. Stat. § 181.932 (Count 5). (Id. ¶ 49.)

This matter is before the Court on Rise's Motion for Summary Judgment [Doc. No. 20]. For the reasons that follow, the Court grants Rise's motion.


A. The Parties

Rise is a non-profit organization that supports people with disabilities and other barriers to employment through vocational programs and services. (Decl. of Lynn Marie Noren ¶ 3 [Doc. No. 26].) The Rise Pathways program, started in 1999, serves recipients of the Minnesota Family Investment Program ("MFIP"), Minnesota's primary welfare program for low-income families with children. (Id. ¶ 8.) MFIP aims to help clients obtain employment and achieve self-sufficiency. (Id.)

From January 22, 2007 until March 12, 2012, Ms. Stewart was the coordinator of MFIP at Rise's Minneapolis office. (Compl. ¶ 5 [Doc. No. 1].) In this role, Ms. Stewart supervised staff who handled cases of program participants. (Id.) Ms. Stewart was supervised by Truc Pham, who primarily worked out of Rise's office in Spring Lake Park, Minnesota. (Id. ¶ 6.)

B. Rise's Anti-Discrimination Policy and Training

In the first year of her employment, Ms. Stewart reviewed and acknowledged receipt of Rise's 2007 Personnel Manual. (Ex. 1 to Stewart Dep. [Doc. No. 23-2].) This Manual explained that discriminatory conduct would not be tolerated, and it set forth the procedures for reporting discriminatory conduct.[1] (Dep. of Bernadine Stewart at 21-22 [Doc. No. 23-1]; Ex. 2 to Stewart Dep. [Doc. No. 23-2].) In addition, Ms. Stewart reviewed, acknowledged, and signed Rise's Code of Conduct each year from 2007 to 2011, affirming that:

To the best of my knowledge, I am unaware of any possible violations of the standards described in the attached Code of Conduct and/or potential conflict of interests either by me, managers, supervisors, or other employees. I further agree to comply with the standards in the future and to report promptly any questions or concerns that I may have, as noted in the Code.

(Ex. 5 to Stewart Dep. [Doc. No. 23-2].) The Code of Conduct prohibits discrimination "of any kind, " including "on the basis of race, color, creed, religion, sex, sexual orientation, national origin, age, disability, veteran status, marital status, or status with regard to public assistance." (Ex. 2 to Stewart Dep. at 5 [Doc. No. 23-2].)

Rise organized quarterly meetings and trainings to discuss "all aspects of our HR department, " including discrimination and harassment issues. (Dep. of Mary Stransky at 18-21 [Doc. No. 23-4].) Rise also sent all supervisors, including Ms. Stewart, to a ten-week supervision class that addressed managing employee performance and behavior. (Id. at 18-19.)

C. Interactions between Ms. Stewart and Her Staff

Ms. Stewart alleges that her staff created a hostile working environment and discriminated against her on the basis of her race, national origin, and sex. She claims that they called her a "black female bitch." (Stewart Dep. at 108.) She also claims that male Somali staff refused to follow her instructions. (Pl.'s Answers to Def.'s Interrogatories at 5-6 [Doc. No. 36-1].) For example, when she told them to answer incoming telephone calls, they allegedly refused because they viewed answering the telephone as "women's work." (Id. at 17; Dep. of Assata Damani at 55-56 [Doc. No. 23-9].) When Ms. Stewart re-directed them from discussing non-work related topics to performing work-related tasks, they allegedly ignored Ms. Stewart. (Pl.'s Answers to Def.'s Interrogatories at 17.) Additionally, Ms. Stewart claims that male Somali staff made comments about women who wore black as "needing a man." (Id.) Ms. Stewart further alleges that Somali counselors often spoke in the Somali language, knowing that Ms. Stewart could not understand them. (Id.) Ms. Stewart generalizes that male Somali workers discriminate against black women who are born in the United States. (Stewart Dep. at 105-06.)

Ms. Stewart also alleges conduct by specific individuals at Rise, including Abdi Haid, Youssouf Robleh, Abdisalon Abdirahman, Yasin Jama, and Stephanie Ableiter. Abdi Haid, a male Somali-American counselor, was allegedly "rude, condescending, and disrespectful toward Ms. Stewart." (Pl.'s Answers to Def.'s Interrogatories at 17.) Ms. Stewart claims that Mr. Haid once threw a case file at her in the office. (Id.) Ms. Stewart also claims that on February 18, 2009, Mr. Haid yelled at her, "fuck you, everyone around here does not like you!" (Id.)

Youssouf Robleh, a male Somali counselor, allegedly yelled and slammed his office door in an intimidating manner around Ms. Stewart. (Id. at 18.) Ms. Stewart claims that Mr. Robleh made comments such as "Americans owe Somalis; it's okay for Somali pirates to kill Americans and hijack their boats." (Id. at 19.)

Abdisalon Abdirahman, a Somali-American male, allegedly intimidated Ms. Stewart. (Pl.'s Answers to Def.'s Interrogatories at 20.) Ms. Stewart claims that after Mr. Abdirahman was placed on a performance improvement program in January 2012, he would move closer to her while she was seated, standing over her in a "confrontational and defiant manner." (Id.) This conduct made Ms. Stewart feel "threatened and intimidated in the workplace." (Id.) Ms. Stewart allegedly informed Mr. Pham about Mr. Abdirahman's conduct. (Id.)

Yasin Jama, a male Somali counselor, allegedly commented on Ms. Stewart's attire on a regular basis and asked whether Ms. Stewart was "looking for a husband or a man" when she wore African clothing. (Pl.'s Answers to Def.'s Interrogatories at 6.) Ms. Stewart claims that Mr. Jama disrespected her and ignored her directions. (Id.)

Stephanie Ableiter, a Caucasian female, allegedly became insubordinate toward Ms. Stewart at least twice and shouted, "no one here likes you" and "we're trying to get you out of here." (Id. at 17.) Ms. Ableiter also allegedly stated in a loud voice at the office that Ms. Stewart "was sick, " which Ms. Stewart found "offensive and humiliating." (Id. at 20.) Ms. Stewart claims that Mr. Pham overheard the comment but did not intervene or take any corrective action. (Id.)

During her employment with Rise, Ms. Stewart did not make any written reports to Rise that she had been discriminated against on the basis of race, national origin, or sex. (Stewart Dep. at 30-31.) Mr. Pham states that Ms. Stewart never reported any improper conduct by Rise employees against her to him. (Dep. of Truc Pham at 119 [Doc. No. 23-7].) Ms. Stewart, however, maintains that she verbally reported the hostile work environment and discrimination that she allegedly experienced to Mr. Pham and Ms. Stransky, but they did not provide guidance or assistance. (Stewart Dep. at 228-29; Pl.'s Answers to Def.'s Interrogatories at 20.)

Various employees at Rise, former and current, believe that Ms. Stewart treated African-American staff and clients more favorably than those of Somali origin. (Decl. of Marsha Rasheed ¶ 6 [Doc. No. 25]; Decl. of Abdi Haid ¶ 7 [Doc. No. 29]; Decl. of Abdirahman Abdisalan ¶ 12 [Doc. No. 30].) For example, Ms. Stewart allegedly permitted Assata Damani, [2] an African-American counselor at Rise, to arrive late and leave work early, whereas she monitored Mr. Haid's time very carefully and criticized him if he arrived slightly late. (Haid Decl. ¶ 8.) In addition, Ms. Stewart was allegedly "very hard" on Somali clients, not granting their paperwork or bus passes as freely as she did to African-American clients. (Id. ¶ 7.) Further, Ms. Stewart allegedly required Somali clients to make an appointment if they visited the office without an appointment, even if they raised issues that required immediate attention. (Id. ¶ 8.)

The record shows that Ms. Stewart struggled with the interpersonal aspects of working with her staff. For instance, Ms. Stewart sat inside her office with the door locked for most of the day. (Haid Decl. ¶ 12; Rasheed Decl. ¶ 5.) Also, Ms. Stewart would not let her staff work when she was not in the office. (Haid Decl. ¶ 6.) She allegedly would not give them keys to the office, causing employees to wait outside the office until Ms. Stewart arrived. (Rasheed Decl. ¶ 5.) In her working relationships, Ms. Stewart allegedly started out "fine" with counselors, but once they challenged her, Ms. Stewart "would change on them and take it out on them going forward." (Id. ¶ 6.) Various employees contrasted Ms. Stewart with her predecessor, Amina Gesale, who worked collaboratively with her staff and allowed them more flexibility with office hours. (Haid Decl. ¶ 6; Decl. of Youssouf Robleh ¶14 [Doc. No. 31].)

D. Ms. Stewart's Performance Evaluations from 2009-2011 and the Work Participation Rate

In the formal evaluations for Ms. Stewart from 2009 through 2011, Mr. Pham rated her interpersonal and leadership skills as falling below the performance standard. (Stewart Dep. at 158-61.) On March 11, 2009, Mr. Pham commented that Ms. Stewart needed to improve her "working relationships with other supervisors, co-workers, partners, especially staff, " as well as her interpersonal skills and communication style so that her team would view her as a leader. (2009 Performance Appraisal at 1-2 [Doc. No. 23-3].) On February 23, 2010, Mr. Pham gave similar feedback, additionally noting the need for Ms. Stewart to maintain Rise's performance standards and increase the work participation rate. (2010 Performance Appraisal at 1-2 [Doc. No. 23-3].) On February 23, 2011, Mr. Pham wrote that despite some improvement, Ms. Stewart needed to "continue improving the interpersonal skills and communication style before she [Ms. Stewart] can gain her leadership qualities." (2011 Performance Appraisal at 1-2 [Doc. No. 23-3].) Again, Mr. Pham stated the need for Ms. Stewart to increase Rise's work participation rate. (Id. at 2.) Mr. Pham also attached a chart reflecting the decrease in Rise's work participation rate from 2008 to 2011, with each year failing to meet the goal of 50%.[3] (Annual Average WPR Trend [Doc. No. 23-3].)

During her employment with Rise, Ms. Stewart did not dispute the work participation rates. On January 12, 2011, Ms. Stewart signed an acknowledgement statement that

... performance toward client outcomes will be measured on a monthly basis or more frequently and I will be required to show progress toward attainment of monthly goals because failure to show progress may be grounds for reduction or reallocation of ...

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