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Wagner v. Gallup, Inc.

United States District Court, D. Minnesota

December 20, 2013

Rodd Wagner, Plaintiff,
Gallup, Inc., Defendant

Decided: December 19, 2013.

Michelle D. Neumann appeared for Plaintiff Rodd Wagner.

Marko J. Mrkonich and Kristine D. Yen appeared for Defendant Gallup, Inc.


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JOAN N. ERICKSEN, United States District Judge.

Plaintiff Rodd Wagner filed this action against Defendant Gallup, Inc., alleging age discrimination in violation of the Minnesota Human Rights Act (" MHRA" ) and invasion of privacy based on appropriation of Plaintiff's name and/or likeness. Before the Court is Gallup's motion for summary judgment, seeking dismissal of the complaint. [1] For the reasons stated

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below, the Court grants the motion as to Wagner's claim of discrimination, but denies it as to his appropriation claim.


A. Wagner's Employment History at Gallup

Wagner began working for Gallup in January 1999 as a Managing Consultant in Gallup's Minneapolis office. Wagner subsequently received other designations and held the title of " Subject Matter Expert" or " SME" at the time that Gallup terminated his employment in October, 2011. At his deposition, Wagner described a SME as someone " with extensive experience at Gallup that knew one or more of the practice areas in tremendous depth." He characterized SMEs as likely to have significant experience and as tending to be " an older group within the Gallup workforce." Born in 1961, Wagner was 50 at the time that Gallup discharged him.

During his time at Gallup, Wagner performed billable work on projects for Gallup's clients. Wagner worked on focus areas such as " customer loyalty" and " employee engagement." In addition to his direct client work, Wagner co-authored two books for Gallup. The first book, 12: The Elements of Great Managing, became a New York Times bestseller after its publication in 2006. According to both parties, Gallup is widely known in human resources circles for its proprietary " Q12" employee engagement metric and that concept is the subject of the first book. In 2009 Gallup published Power of 2: How to Make the Most of Your Partnerships at Work and in Life, which was also co-authored by Wagner.

Gallup does not give employees formal performance appraisals and so Wagner never received one during his twelve years at the company. He did, however, receive various awards over the course of his time at Gallup, from an " All-Star Award" in 2000 for the creation and delivery of a customer loyalty and best-practice training program for a client to a " Brilliance in Government Consulting" award in 2011. Wagner was also appointed to the company's Board of Principals, on which he served until the company disbanded it. Additionally, Wagner testified that he received positive informal feedback when the managing partner for the Midwest region told him in 2010 that he was " the most productive SME" and had " more billable hours than anyone else." Wagner also recalled his supervisor, or " Go To" in Gallup parlance, [2] telling him in early 2011 that

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his hours were " great" and that he was in " great shape." In March 2011, Wagner was invited to participate in a stock purchase program that Gallup offered to a select and limited number of employees.

Gallup employees did receive Internal Customer Engagement (" ICE" ) scores twice a year based on surveys done by their coworkers aimed at measuring " intercompany relationships." Coworkers rated each other on items directed at assessing characteristics such as " timeliness," " promise," and " partnership." The record includes Wagner's ICE scorecards from September 2010, March 2011, and September 2011. His overall " GrandMean" number declined over that time period compared to the mean listed for the SMEs or " Strategic Consultants," as they had also been called. In September 2010, his score exceeded that of the group's mean, his score was at the group's mean in March 2011, and by September 2011 his score fell below the mean. Between September 2010 and September 2011, Wagner's overall score went from 4.75 to 4.15. While acknowledging that a half-point drop is " important," Wagner attributed the change in his numbers to differences in evaluators and numbers of evaluations at the different times.

B. Termination of Wagner's Employment

Sometime in 2011, Patrick Bogart became Wagner's Go To. Bogart was 35 at the time, but had worked for Gallup over a longer time period than Wagner. During the time that he was Wagner's Go To, Bogart worked out of Gallup's Washington D.C. office.

At the time that Bogart became his Go To, Wagner had been working on a third book. Wagner believed that the book needed to be finished by the end of 2011 based on conversations with his editor and co-author. Larry Edmond, who was the executive publisher of the Gallup Press during the relevant time, testified that Wagner had the idea for the book and had been told to write an overview or initial chapter so that it could be further assessed. Although he did not recall exactly how events played out, Edmond testified ...

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