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Fleener v. Wrigley Sales Co., LLC

United States District Court, D. Minnesota

September 2, 2014

DAVID A. FLEENER, Plaintiff,
WRIGLEY SALES COMPANY, LLC, d/b/a Wm. Wrigley Jr. Company, Defendant

Ian S. Laurie and Gerald T. Laurie, LAURIE & LAURIE, P.A., for plaintiff.

Thomas R. Davies, Laura Bailey Gallagher, and Harry R. Harmon, HARMON & DAVIES, P.C.; Douglas P. Seaton and Martin D. Kappenman, SEATON, PETERS & REVNEW, P.A., for defendant.

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Patrick J. Schiltz, United States District Judge.

Plaintiff David Fleener brings this action under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., and the Minnesota Human Rights Act (" MHRA" ), Minn. Stat. § 363A.01 et seq., against his former employer, defendant Wrigley Sales Company, LLC (" Wrigley" ). Fleener also brings a claim of retaliation under Minn. Stat. § 181.964, which prohibits an employer from retaliating against an employee for requesting a copy of his or her personnel file. This matter is before the Court on Wrigley's motion for summary judgment. For the reasons stated below, Wrigley's motion is granted.


Fleener first began working for Wrigley in 1990 as a territory sales manager. Fleener Dep. 11. He worked his way up through the ranks until he was promoted to regional market manager in March 2012. Fleener Dep. 13. As a regional market manager, Fleener was in charge of two broker-supervisors and their teams of territory sales managers. Fleener Dep. 13. Fleener worked mostly in the field; his territory consisted of North Dakota, Minnesota, and Wisconsin, and parts of South Dakota, Iowa, and Illinois. Fleener Dep. 15. Fleener was a valuable employee; he received various performance awards over the years and had no record of disciplinary problems or negative performance reviews. Fleener Aff. ¶ ¶ 1-5; Hand Dep. 10-11.

When Fleener was promoted to regional market manager, Joseph Schalberg became his supervisor. Fleener Dep. 13. Fleener and Schalberg spoke over the phone once or twice per week. Fleener Dep. 126. Each time they spoke on the phone, Schalberg would begin the conversation by making crude or vulgar remarks.[1] Fleener Dep. 126. For example, after Fleener hired three women as territory sales managers, Schalberg told Fleener that hiring three women at the same time would create " problems" and, in conversations with Fleener, Schalberg referred to the women as the " three bitches club." Fleener Dep. 18-19. Schalberg would also comment on female employees'

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appearance and breast size and expressed his desire to have sex with them. Fleener Dep. 21-26, 29-31. On one occasion, after Fleener copied upper management on an email to Schalberg, Schalberg lectured Fleener about keeping his " dick in [his] pants." Fleener Dep. 26-27. On another occasion, when Fleener circulated a photo of the three new female employees, Schalberg replied with an image of a logo for the television show " Charlie's Angels" with an arrow indicating that " Charlie's" should be changed to " Davie's." Fleener Dep. Ex. 32.

With the exception of the " Davie's Angels" email, Fleener does not claim that Schalberg ever made any of these inappropriate remarks directly to any female employee (or to anyone else, for that matter). Instead, Fleener claims only that Schalberg made the remarks during private phone calls with Fleener. Fleener Dep. 125-26. Fleener says that he nearly always objected to these comments, telling Schalberg that they were unwanted and inappropriate and made Fleener uncomfortable. Fleener Dep. 132-33. Fleener did not mention his concerns about Schalberg to anyone but Schalberg. Fleener Dep. 32, 57, 131.

In early September 2012, Fleener sent a message to his subordinates stating that anyone who failed to make certain performance goals by October 31 would be placed on a performance improvement plan (" PIP" ). Laurie Aff. Ex. 7. Schalberg was unhappy with this threat, telling Fleener that it was " totally off base" and that mentioning PIPs in a mass email " has the possibility of destroying morale . . . ." Dutton Aff. Ex. 6 at DEF000575.[2] Fleener sent an apology to his subordinates. Dutton Aff. Ex. 6 at DEF000601.

A few days later, Fleener sent an email to his subordinates regarding an upcoming national sales meeting in Tucson. Laurie Aff. Ex. 5. Among other things, Fleener told his subordinates that " [a]ll eyes and ears are watching and listening at all times (even listening in restrooms during breaks), [so] be careful what you say and do." Id. Fleener also stated that " [m]anagement watches closely and notes who is late" and that attendees' attitudes are " being observed by management." Id.

During the national sales meeting, Fleener made comments that caused some of his subordinates to feel uncomfortable. At a break-out session, Fleener told one of his female subordinates that he liked her earrings and thought that it was " sexy" when a woman has her nails done. Dutton Aff. Ex. 6 at DEF000607. He also said, " Guys, let's take a poll, who likes it when a woman gets her nails done?" Id. Later, the same subordinate handed Fleener a napkin to wipe some chocolate off of his face and asked him if he needed help. Id. Fleener turned around, pointed to his backside, and said, " wipe this." Id.

The female subordinate complained about these comments to Thomas Dutton, a manager in Wrigley's " People and Organization" department (which handles human resources). Id. ; George Dep. 16-17; Schalberg Dep. 27-28; Dutton Dep. 21. In consultation with his boss, Michael Hand, Dutton decided to gather feedback from Fleener's subordinates in a process known as a " 360 survey." Dutton Dep. 21; Schalberg Dep. 28; Hand Dep. 23 (describing 360 surveys). As part of the 360

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survey, Dutton interviewed all of Fleener's subordinates and also obtained comments through a written questionnaire. Dutton Dep. 33-34; Dutton Aff. Ex. 6 at DEF000585; id. at DEF000555-60. Fleener knew about the 360 survey and in fact insisted that he had a legal right to see both the questions posed to his subordinates and his subordinates' answers to those questions. Dutton Aff. Ex. 6 at DEF000585.

On September 25, Dutton forwarded the subordinates' feedback to Hand, Schalberg, and Phil George (Schalberg's boss, George Dep. 9) for review. Dutton Aff. Ex. 6 at DEF000555. A few days later, Schalberg notified Fleener that he and Dutton wanted to meet with Fleener in Buffalo, Minnesota on October 8 to discuss the results of the 360 survey.[3]Id. at DEF000550. Fleener seemed concerned about the location, asking, " Why are we meeting in Buffalo?" Id. at DEF000549. When Schalberg responded that they could meet in Minneapolis instead, Fleener responded, " Does this mean I'm getting fired?" Id ...

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