United States District Court, D. Minnesota
Michael A. Fondungallah, Fondungallah & Kigham LLC, Counsel for Plaintiff.
James B. Sherman and Chad A. Staul, Wessels Sherman Joerg Liszka Laverty Seneczko P.C., Counsel for Defendant.
MEMORANDUM OPINION AND ORDER
MICHAEL J. DAVIS, Chief District Judge.
This matter is before the Court on Defendant's motion for summary judgment, and Plaintiff's motion to exclude the expert report of Suanne Grobe Ranheim.
I. Factual Background
Plaintiff was employed with Defendant Per Mar Security & Research Corp. ("Per Mar") from September 2005 through August 2011. Plaintiff is African American. Per Mar is a full-service security company. It provides Wells Fargo Bank with physical security guard services in various locations, including Shoreview, Minnesota and downtown Minneapolis (the "NOC" location). Plaintiff was hired by Per Mar as a security officer, but in December 2005, he was promoted to the position of Account Manager for the Wells Fargo NOC location. After his promotion, he reported directly to the General Manager. As Account Manager, Plaintiff was responsible for following Per Mar's policies and procedures, making hiring and firing recommendations, supervising security officers at Wells Fargo NOC location, overseeing training of new officers and supervisors, being on-call 24/7 and interacting with Wells Fargo client representatives.
A. Claims of Sexual Harassment
In September 2010, a Per Mar Security Guard named Robert Johnson filed a claim of sexual harassment against the Account Manager in the Shoreview location, Debbra Helmbrecht. Helmbrecht is white and Johnson is African American. Johnson alleged that Helmbrecht invaded his personal space by touching his knee, arms, back and leg, and that he perceived this touching to be sexual in nature. (Zumdome Decl. ¶ 12.) Human Resources Generalist Jodie Mortenson initiated an investigation, and asked General Manager Harlan Austin and HR/Payroll Specialist Tanisha Bradford to assist in the investigation. (Id. ¶ 11.) In a letter dated October 11, 2010, Mortenson informed Johnson that an investigation was conducted in which witnesses identified by Johnson and Helmbrecht were interviewed. (Fondungallah Decl. Ex. 9.) Mortenson informed Johnson that the investigation revealed that Johnson's specific allegations were not substantiated, but that it was determined that Helmbrecht engaged in conversations with Johnson that were against company policy, and that "disciplinary action and training are in process." (Id.) Because Human Resources Director Mindy Zumdome and Mortenson were not aware that Johnson had expressed any fear for his personal safety and did not allege any inappropriate sexual banter, they decided it was not necessary to suspend Helmbrecht during the investigation. (Zumdome Decl. ¶ 13.)
Two months later, in December 2010, Security Guard Cassandra Block filed a sexual harassment complaint against Plaintiff. (Id. ¶ 6.) An investigation was initiated Mortenson, and she was again assisted in the investigation by Austin and Bradford. (Id.; Staul Decl. Ex. C (Bradford Dep. at 64).) Block claimed that Plaintiff had squeezed her leg and engaged in repeated inappropriate sexual discussions with her, such as asking whether she had ever had an STD or whether she had ever been loved without being touched. (Zumdome Decl. ¶ 7; Staul Decl. Ex. M.) Block also reported that Plaintiff repeatedly asked her if she wanted to be his roommate, would call her cell phone, talk with her about his marriage and other personal topics, and would ask her to dinner. (Staul Decl. Exs. L, M.) She further reported that she was in fear of her personal safety at work from Plaintiff. In an attachment to an email sent to Bradford on December 12, 2010, Block wrote "The first thing I would like to discuss is that since Per Mar cannot guarantee that I will not be in harm's way (the same as Dedric on Monday) the day that I am scheduled to come in, what does Per Mar/HR suggest that I do? My main concern is for my safety and since I know that Per Mar is also concerned about my safety, I will wait to hear back from Per Mar/HR on when I should return back to my job out of harm's way." (Id. Ex. L.) Based on the severity of Block's allegations and her explicit fear for her safety, Zumdome and Mortenson decided to place Plaintiff on paid administrative leave while an investigation was completed. (Zumdome Decl. ¶ 9.)
The investigation into the sexual harassment complaint against Plaintiff was inconclusive "due to [Plaintiff's] denial, denial made by the other named employee, and lack of documentation." (Staul Decl. Ex. I.) Plaintiff was allowed to return to work after less than one full day suspension. He did not lose any pay or other benefits as a result of the suspension. (Zumdome Decl. ¶ 10.) Block was transferred to another account, so when Plaintiff returned to work after his suspension, he never saw her again. (Fondungallah Decl. Ex. 3 (Plaintiff Dep. at 193).)
B. Claims of Race Discrimination
1. Ed Nolan
Ed Nolan is a Wells Fargo employee, and at the times relevant to this case, was the person in charge of operations at the Wells Fargo NOC location where Plaintiff also worked. In this position, Nolan interacted with Plaintiff and other security personnel. (Staul Decl. Ex. G (Nolan Dep. at 8-9).)
In 2009 or 2010, Austin proposed to Nolan that a single account manager oversee both the NOC and Shoreview locations, and suggested that Plaintiff take that position. (Id. Ex. A (Plaintiff Dep. at 144-45).) At first, Nolan was on board with the idea, but when he learned that Plaintiff would receive a pay raise, and that he would be making more money than Nolan, Nolan told Plaintiff he was not okay with Plaintiff making more money than him, and that he thereafter opposed the plan. (Id. at 145-46.) Plaintiff further claims that in or around May 2011, Plaintiff met with Nolan to discuss matters relating to Per Mar's account with Wells Fargo, and that during this meeting, Nolan was very disrespectful to Plaintiff, used foul language, and told Plaintiff to get out of his office. (Fondungallah Decl. Ex. 3 (Plaintiff Dep. at 169); Ex. 15 (Nolan Dep. at 83 (admitting that on one occasion he told Plaintiff to get out of his office, but only after Plaintiff had stormed into his office and slammed the door).)
On or about July 21, 2011, Plaintiff alleges that Nolan came into the control room where Plaintiff and three or four other officers were working. Nolan allegedly said to them "This isn't welfare, officers aren't going to get a free check to sit on their ass and do nothing." (Id. Ex. 3 (Plaintiff Dep. at 157).) Plaintiff told Nolan his comments were offensive and inappropriate, and reported the incident to Human Resources. (Id.)
Plaintiff claims that other Per Mar employees complained about Ed Nolan as well. Kenneth Henry complained about Nolan's behavior and his prejudice towards African Americans. (Id. Ex. 17.) Later, in an interview with then General Manager Doug Belton, Henry refused to discuss Nolan. (Id. Ex. 18.)
Another Per Mar employee, Chantelle Bunkley, allegedly complained that Nolan had racially profiled security guards. Nolan would say that they knew nothing, were stupid and below him. Bunkley also reported that Nolan wanted to get rid of Plaintiff because he is black. (Id. Ex. 23.)
On July 26, 2011, Jasmine Brown reported that she had witnessed Nolan make numerous racist comments. For example, Nolan questions why only black people from other countries who could not read and spell were sent to Wells Fargo, and that he said "No wonder why we can't get shit right it's mainly black people that work here." (Id. Ex. 24.)
Nolan did not restrict his negative comments to people of color. (Fondungallah Decl. Ex. 3 (Plaintiff Dep. at 143-43 ("Did you ever see or witness this Ed Nolan calling a white person stupid or asking them if they were dumb or that sort of treatment? A: Oh yeah, I did. I did.") For example, Alexia Nompeli, who is white, complained that Nolan was disrespectful to her and her fellow security officers. (Id. Ex. 19.) Nompeli also reported an incident in which Nolan yelled at her in front of others, and that it made her feel harassed. When she complained to management, she was told that Per Mar was in a delicate position with Wells Fargo, and that she would have to do what Nolan told her to do without question. (Id. Ex. 20.)
John Peaslee, another white employee, complained that Nolan had yelled at him to "shut the fuck up" and that Peaslee felt he was being disrespected. (Id. Ex. 25; Fondungallah Decl. Ex. 3 (Plaintiff Dep. at 148).)
2. Deb Helmbrecht
On October 29, 2010, Helmbrecht used the term "nigger-rig" during a meeting with Charles Laitinen and Wells Fargo employee Bill Law, who is African American, to describe a procedure used to fix a vehicle. (Staul Decl. Ex. D (Laitenan Dep. 132-33).) Nothing was said about the comment during the meeting, but after the meeting, Laitinen approached Law and apologized for Helmbrecht's comment. (Id. at 133.) Laitinen then spoke with Tanisha Bradford, Harlan Austin and Per Mar's Vice President Steve Sabatke. (Id.) Sabatke told Laitinen to talk with Helmbrecht and tell her the comment was "not okay." (Id.) Helmbrecht was told to apologize to Bill Law. (Id. at 134.)
3. Complaints of Disparate Treatment Based on Race
In February 2011, Austin sent an email to Zumdome and Sabatke about his perception of disparate treatment of employees based on race. (Staul Decl. Ex. N.) One example was the perceived disparate treatment of Helmbrecht and Plaintiff in response to claims of sexual harassment being made against them - in which Plaintiff was suspended during the investigation and Helmbrecht was not. (Id.) Austin also felt that white employees were treated more favorably than employees of color, specifically referencing the fact that Helmbrecht was not disciplined for using the term "nigger-rig." (Id.)
In response to this email, Austin met with Zumdome and Per Mar's Chief Operating Officer Dean Guyette in Davenport, Iowa on February 15, 2011. (Zumdome Decl. ¶ 19.) At this meeting, they discussed Helmbrecht's use of a racially derogatory term and that she was showing favoritism toward certain employees. (Id.) Zumdome then issued a formal disciplinary writeup to Helmbrecht regarding her use of the racially derogatory term. (Id ¶ 20; Ex. J.) At the meeting, Zumdome also explained to Austin the differences between the two claims of sexual harassment, and that Plaintiff was suspended because the complainant had stated that she feared for her personal safety because of Plaintiff, and that the complainant in the Helmbrecht claim did not assert a fear from his safety. (Zumdome Decl. ¶ 21.) Guyette followed up with Austin by email one month later and asked him how things were going, to which Austin responded that "so far things have been going relatively smoothly. Thanks for following up with me." (Fondungallah Decl. Ex. 8 (Austin Dep. at 116, 118).)
In March 2011, Zumdome and Sabatke traveled to Minnesota from Davenport, Iowa, and met with Plaintiff, Austin and Bradford. (Staul Decl. Ex. A (Plaintiff Dep. at 104-05).) Zumdome asserts that Plaintiff, Austin and Bradford told her they were satisfied with Per Mar's handling of their concerns of disparate treatment. (Zumdome Decl. ¶ 22.)
In April 2011, Zumdome dispatched Dan Conroy, Per Mar's Director of Investigations, to Minnesota to conduct a thorough investigation of Helmbrecht's conduct. (Id. ¶ 23.) Conroy spent six days in Minnesota over a two week period, and interviewed over two dozen employees. (Id.) Conroy forwarded his notes to Zumdome in late May 2011, and in June 2011, Helmbrecht was terminated. (Id. ¶ 24; Ex. Y; Ex J at 000256.)
4. Investigation into Claims Against Plaintiff and Ed Nolan
In April 2011, Sabatke received a call from Plaintiff, who asked that they meet about Plaintiff's workplace concerns. (Sabatke Decl. ¶ 14.) The two met at a fast food restaurant in northeast Minneapolis. (Id. ¶ 15.) During the meeting, Plaintiff told Sabatke he had information that would embarrass Per Mar and that he wanted $100, 000 to make the information go away, as well as his complaints about Helmbrecht. (Id.) Plaintiff also told Sabatke he knew one of the Presidents of Wells Fargo and that if Wells Fargo learned of the information Plaintiff had, Per Mar would lose the Wells Fargo account. (Id.) Sabatke told Plaintiff that Per Mar would not be giving him any money but asked if Plaintiff would work with him to address his concerns. (Id.)
In May 2011, Zumdome received a call from Plaintiff during which he told her that he had a conversation with Sabatke about workplace concerns, and that he told Sabatke for $100, 000, such concerns would go away and that Sabatke had not responded to his demand. (Zumdome Decl. ¶ 25.) As Sabatke had not responded to his demand, Plaintiff informed Zumdome that he was now making the same demand to her instead of filing suit. (Id.) Zumdome told Plaintiff that she believed Per Mar had done nothing wrong and would not be paying Plaintiff his demand. (Id. ¶ 26.) She told Plaintiff she would set up a phone conference with Sabatke and Guyette to ...