United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
JANIE S. MAYERON, Magistrate Judge.
The above matter came before the undersigned on defendants' Motion for Summary Judgment [Docket No. 119]. Plaintiff Rozlon Thomas appeared pro se. Sandra L. Jezierski, Esq. and Melissa Brettingen, Esq. appeared on defendants' behalf. This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation by the District Court pursuant to 28 U.S.C. §636(b)(1)(A), (B), and Local Rule 72.1(c).
Plaintiff Rozlon Thomas alleged that her former employer, UnitedHealth Group, Inc. ("UHG") engaged in race discrimination, retaliation, and racial harassment under Title VII of the Civil Rights Act and the Minnesota Human Rights Act ("MHRA"). Amended Complaint, ¶¶ 68-79 [Docket No. 39]. Thomas further asserted common law claims against UHG for intentional infliction of emotional distress; negligence; negligent supervision, training, retention and hiring; negligent infliction of emotional distress; and intentional interference with an economic advantage. Id., ¶¶ 90-13. Thomas also alleged that Mark Gwin, a co-worker, defamed her. Id., ¶¶ 114-118. For the following reasons, this Court has concluded that summary judgment in defendants' favor is appropriate.
I. FACTUAL BACKGROUND
The relevant facts are recited in the light most favorable to Thomas.
Thomas began working for UHG in May 2006 as an Associate Employer Installation Analyst ("Associate Analyst"). Amended Complaint, ¶¶ 9, 10. Thomas held this position throughout her employment at UHG. Declaration of Sandra Jezierski ("Jezierski Decl.") Ex. B (excerpts of the Thomas's deposition) ("Thomas Dep."), pp. 16-21 [Docket No. 129-2]. Christine Wells, Project Director of Business Operations for Account Installations, supervised Thomas and Steve Wieman, Manager of Installation Operations. Declaration of Christine Wells ("Wells Decl."), ¶ 2 [Docket No. 124]. Wieman supervised Maria Higgins, Eligibility and Shared Services Group Supervisor, and Candace Hagan, Installation Analyst Group Supervisor, which included the Associate Analysts. Declaration of Steve Wieman ("Wieman Decl."), ¶ 5 [Docket No. 123]. The groups reporting to Wieman, Higgins and Hagan all worked in a cubicle environment. Id . After Hagan voluntarily resigned in 2009, her position was not refilled and Wieman directly supervised the Associate Analysts, including Thomas. Id., ¶ 6.
In early 2009, in an email to Wieman and Hagan, Thomas complained that it was unfair that Caucasian employees were issued laptop computers and allowed to work from home, while African-American employees were not. Id., ¶ 10, Thomas Dep., p. 69. Thomas made this same complaint to UHG's "HRdirect" in February, 2009. Id., p. 71. Thomas's complaint was investigated by Hagan and HRdirect. Wieman Decl., ¶¶ 10, 18. Two Caucasian employees on Hagan's team had been allowed to work from home: Christy Yakel, as a medical accommodation; and Sharon Wegener, who lived over 70 miles from work, as a weather-related accommodation. Id., ¶ 10. Wegener had worked at home five days in the previous year. Declaration of Sharon Wegener ("Wegner Decl."), ¶ 11 [Docket No. 128]. The findings of the investigation were communicated to Thomas. Jezierski Decl., Ex. C.
On or about May 8, 2009, Hagan told Wieman that Thomas's co-workers had complained that Thomas was talking loudly on the phone, making negative statements about management, and stating that she was "pissed." Wieman Decl., ¶ 11. Thomas was overheard the next day, again talking loudly and disruptively. Id .; Thomas Dep., Ex. 8 (UHG Group Corrective Action Plan) ("CAP")). Hagan investigated and determined that "70% of the employees in the area were disturbed and/or uncomfortable by Rozlon's behavior." Thomas Dep., Ex. 8, p. 1. Thomas admitted saying on the phone "Steve don't help me, he doesn't do anything, I'm pissed." Thomas Dep., p. 102; see also Transcript of Hearing (Tr.), p. 18 ("And I did say I was pissed. I told the director that."). Wieman met with Thomas on May 15, 2009, and warned her that she was expected to present herself in a professional manner. Wieman Decl., ¶ 12. UHG placed Thomas on a CAP. Id .; Thomas Dep., Ex. 8. As part of the CAP, Wieman agreed to meet with Thomas every other week to resolve any questions or issues she had. Id., ¶ 13, Thomas Dep., Ex. 8, p. 2.
On June 19, 2009, Thomas appealed her CAP through UHG's Internal Dispute Resolution ("IDR") process. Wieman ¶ 15, Ex. 1 (IDR policy), Thomas Dep., Ex. 9 (IDR filing form). In her IDR complaint, Thomas alleged that Hagan placed her on the "unfounded" CAP in retaliation for "asserting [her] civil rights." Thomas Dep., Ex. 9. Thomas amended her IDR complaint on July 1, 2009, this time alleging that she was placed on the CAP in retaliation for her February, 2009 internal complaint about Caucasian co-workers working from home. Thomas Dep., pp. 117-118, Ex. 10 (Amended IDR filing form). Thomas additionally stated that Hagan treated African-American employees unfavorably, creating a hostile work environment. Thomas Dep., Ex. 10.
Hagan and Higgins investigated the complaints about Thomas's conduct that led to the CAP and "verified that she did engage in an inappropriate conversation that negatively impacted a large majority of the employees who overheard it." Wieman Decl., ¶ 16. In connection with her amended IDR complaint, Thomas met with Hagan and Nicolyn Neighbors of HRdirect on July 8, 2009. Thomas Dep., Ex. 11 (letter to Thomas from Hagan dated July 10, 2009, summarizing meeting). In the letter summarizing the meeting, Hagan confirmed that Thomas had raised removing the CAP from her personnel file and being issued a laptop computer so she could work at home. Id . Hagan stated that no other member of the department was allowed to work from home, or had access to a laptop computer, but that from time-to-time, Wegener had been allowed to work from home due to inclement weather, and Yakel had a medical condition that necessitated working from home. Id . Hagan further noted that Thomas's phone call on May 6, 2009, had been disruptive and negatively impacted her coworkers. Id . As a result, UHG would not remove the CAP. Id., Wieman Decl., ¶ 16.
On June 22, 2009, Wieman received an email from Karla Cannizzaro, Group Installation Analyst, regarding Thomas. Wieman Decl., ¶ 14. Cannizzaro, who reported to Wieman, wrote that Thomas had another loud, disruptive telephone call on June 19, 2009, during which Thomas made derogatory comments regarding UHG's management team and co-workers, including Cannizzaro, and that she was overheard telling a coworker that "the company sucks, and it is full of the blame game." Id.
On July 23, 2009, Thomas filed a Step 2 IDR. Thomas Dep. Ex. 12 (level 2 appeal, IDR process). Thomas sought the removal of the CAP and stated "Black employees are [not] given the same opportunities for promotions and working at home as white employees." Id . Lisa DeLeon, HRdirect representative, and Wieman investigated Thomas's Step 2 IDR complaint. Wieman Aff., ¶ 18. Wieman and DeLeon found Thomas's complaints unsupported and refused to remove the CAP. Id . Wieman sent a letter to Thomas informing her of the outcome of the Step 2 investigation on August 26, 2009. Id .; Thomas Dep., Ex. 13.
On January 20, 2010, Thomas called HRdirect and complained that Caucasian employees were allowed to work from home. Jezierski Decl., Ex. D (Thomas's complaint to HRdirect). Thomas also alleged that she had been demoted, work was unequally allocated, and co-worker Wegener was "unfairly" auditing her work. Id . Thomas again alleged that white employees had been issued laptop computers and were allowed to work from home, although she stated that this practice stopped after she complained about it. Id., p. 3. Thomas also complained that Wegener should not be auditing her work "when Wegener is clearly retaliating against her for filing a report about discrimination." Id . Thomas also claimed she had been demoted and that Yakel and Wegener had suggested a change to the way departmental statistics were kept that would disadvantage Thomas. Id.
Wells investigated Thomas's allegations. Wells Decl. ¶ 4. Wells concluded that Thomas had not been demoted. Id., ¶ 5. Rather, sometime in 2008, UHG mistakenly coded the Associate Analyst position as Senior Employer Installation Analysts. Wieman Decl. ¶ 8; Wells Decl. ¶ 5. When the mistake was discovered in June 2008, UHG recoded the position back to the correct title. Id . The change in title did not impact salaries, benefits, duties, or grade levels of any employees. Wells Decl., ¶ 5. Further, Wells determined that the work load was distributed by client based on the number of plan documents, such that each Associate Analyst processed a comparable amount of documents, even if he or she had a greater number of clients. Wells Decl. ¶ 6, Ex. 1 (email from Wells to Michele Smith dated March 1, 2010); Wieman Decl., ¶ 9. Sometime in September, 2009, Wieman assigned Wegener to conduct internal reviews of all of the work performed by all Associate Analysts, not just Thomas. Wieman Decl., ¶ 19; Wegener Decl., ¶¶ 4-10. This audit was prompted by a complaint one of Thomas's clients made to Wieman about repeated mistakes in Thomas's work. Wieman Decl., ¶ 19. "Scores" from the audit were not tracked and employees were not disciplined for errors discovered during the audit. Id., ¶ 20; Wegener Decl., ¶ 6.
Wells met with Thomas on or about February 16, 2010, to communicate the results of her investigation and also informed HRdirect representative Michele Smith of the results. Wells Decl., ¶ 5, Ex. 1 (email from Wells to Smith dated March 1, 2010).
On February 4, 2010, Wegener sent an email to Wieman and stated "Steve Could you please talk to Rozlon and ask her to lower her volume? It is very disrupting. I can hear her even with my headphones on." Thomas Dep., Ex. 29 (email from Wegener to Wieman dated February 4, 2010); Wegener Decl., ¶ 12.
On March 8, 2010, Higgins and Cannizzaro told Wieman that Thomas had a loud and distracting phone call on March 5, 2010, stating, among other things: "Christy [Yakel] should get her fat but[t] in here and work like the rest of us. She doesn't know who she is talking to;" "HR is worthless" so she (Thomas) filed a lawsuit and was trying to talk others into it; and "management is out to get me fired that's why they track our metrics with the PIF tracker." Thomas Dep., Ex. 30 (email from Wieman to Rachel Meinert dated December 21, 2010, recounting what Cannizzaro and Higgins told him on March 8, 2010); Wieman Decl., ¶ 22. Wieman warned Thomas that this conduct was inappropriate and that she was expected to act professionally. Wieman Decl., ¶ 22.
On March 24, 2010, Thomas placed an email in the group email box. Thomas Dep. Ex. 15 (email from Thomas). In the email, Thomas accused Wegener of "lying" and "sabotaging" her work when Wegener indicated that Thomas had made some errors in her work, which Thomas denied. Id .; Wieman Decl., ¶ 23. While investigating the matter, Wieman asked Thomas if she sent the email. Wieman Decl., ¶ 23. Thomas could not recall having sent the email, but later, when she was shown a copy, she told Wieman that he was not supposed to have seen it and that she was merely "venting." Id .; Thomas Dep., p. 146.
On April 15, 2010, Cannizzaro and Mark Gwin, Group Installation Analyst, reported to Wieman that Thomas had engaged in another loud and distracting phone call, making them uncomfortable. Wieman ¶ 24; Thomas Dep. Exs. 14 (Elevated CAP), 30 (email from Wieman to Meinert dated December 21, 2010). On May 6, 2010, after consulting with HRdirect, Wieman placed Thomas on a 90-day Elevated CAP for inappropriate conduct. Thomas Dep. Ex. 14 (Elevated CAP); Wieman Decl. ¶ 25. In her comments on the Elevated CAP, Thomas remarked that it was untrue that she had been speaking badly about UHG, Wegener - a "hostile white co-worker" - should not be auditing her work, and Wieman was discriminating and retaliating against her. Thomas Dep., Ex. 14. Thomas alleged that Wieman backdated the CAP because he had received a call from another manager from UHG for a reference for Thomas. Id . Wieman denied that was so. Wieman Decl., ¶ 25. Thomas sent an email to Carol Cordell, an HRdirect representative, with a list of complaints but she did not file an official IDR complaint. Id., ¶ 8. Wells made several attempts to meet with Thomas, but Thomas declined Wells' meeting invitations. Id . Wells concluded that some of the issues Thomas raised had already been investigated and deemed unfounded. Id., ¶ 9. Wells also investigated Thomas's new allegations: (1) Hagan was forced to write Thomas's Initial CAP and was then forced to resign; (2) Wieman backdated the Elevated CAP to prevent Thomas from seeking a promotion; and (3) Thomas was denied a promotion because of the elevated CAP. Id., ¶ 10. Wells found that Hagan consulted with Wieman on the CAP and resigned her position voluntarily; Wells concluded that Wieman opened Thomas's Elevated CAP on May 4, 2010, not knowing that Thomas had applied for another position; and Wells concluded that the Elevated CAP would stand and that Thomas's allegations about why she was denied a promotion lacked merit. Id . Wells communicated the results of her investigation to Thomas. Id.
While still on the Elevated CAP, Thomas was overhead in a July 13, 2010 telephone call to say "they might as well be putting dogs on us" and "they are gonna get lesson 101 from me." Wieman Decl., ¶ 26. On July 29, 2010, Gwin told Wieman that Thomas made another loud telephone call in which she stated, "I hope they do fire me, then I can file a wrongful termination suit" and "this company is gonna get their paycheck. I'm just gonna wait them out." Id., ¶ 27. Wieman closed the Elevated CAP and placed Thomas on a Final CAP on August 17, 2010. Id., ¶ 28, Thomas Dep., Ex. 18 (Final CAP).
In September, 2010, after Thomas was placed on the Final CAP, Wells held a "town hall" meeting for the Account Installations Department to discuss departmental issues. Wieman Decl., ¶ 30; Wells Decl., ¶ 11. At that meeting, Thomas was observed talking with co-workers, facing the wall while Wells was speaking, and from Wells' perspective, generally being disrespectful during the meeting. Wells Decl., ¶ 11. At the end of the meeting, Wells directed Wieman to discuss with Thomas and others who were engaging in the same conduct, how their behavior was inappropriate. Id . Wieman and Thomas met on September 15, 2010, and Carla Supanich from UHG appeared by telephone. Wieman Decl., Ex. 2 (notes of meeting prepared by Supanich). Wieman stated that Thomas's conduct during meetings had been unacceptable and that he and Supanich expected Thomas to exhibit polite and respectful behavior. Id . Wieman told Thomas that any violation of this directive would be cause for immediate termination. Id .; Wieman Decl., ¶ 30. Thomas stated that she understood the need to be respectful in the office. Wieman Decl., Ex. 2.
On October 27, 2010, Wieman received an email from Gwin in which Gwin stated that Thomas "continues to be a disturbance in the office." Gwin Decl., ¶ 4, Ex. 1 (email dated October 27, 2010, from Gwin to Wieman). Gwin reported that Thomas was complaining about where she was sitting in the department (adjacent to the manager and supervisor), how they needed to hear what she was saying, and "mostly making derogatory comments about the management." Id.
In the spring of 2010, Thomas had applied for the position of Accumulator Research Analyst. Wieman Decl., ¶ 33. Narciza Rider was the hiring supervisor for the position and Wieman sat in on the interviews. Id . Rider was the sole decision-maker with respect to the hiring decision. Id .; Declaration of Narciza Rider ("Rider Decl."), ¶ 4 [Docket No. 126]. Rider interviewed Thomas on April 7, 2010, but did not select her for the position. Rider Decl., ¶ 5; Wieman Decl., ¶ 33. According to Rider, she hired the individuals she believed were the most qualified and the best fit for the position, and did not select Thomas because Thomas was not as qualified as the other individuals who were hired. Rider Decl., ¶ 5. Wieman noted that none of the four individuals hired had been on CAPS for engaging in disruptive, insubordinate behavior. Wieman Decl., ¶ 33.
Thomas also applied for the position of Insurance Services Consultant on March 22, 2010. Thomas Dep., Ex. 34 (Thomas's application for Insurance Services Consultant position). Wieman was unaware that Thomas applied for or was interviewing for the position. Wieman Decl., ¶¶ 25, 34; Thomas Dep., pp. 164-165. The hiring manager, James Assali, interviewed Thomas. Thomas Dep., p. 283. Thomas testified that there was no reason to think that Assali knew of Thomas's internal complaints. Id . On May 3, 2010, the requisition for the position was closed with no hire. Thomas Dep., Ex. 33 (job requisition). Thomas's Amended Complaint implied that she applied for two additional positions, but Wells has stated under penalty of perjury that Thomas did not apply for the positions she referenced. See Amended Complaint, ¶ 45, n. 19; Wells Decl., ¶ 13.
On October 29, 2010, Higgins reported to Lisa Woolery, HRdirect representative, that during an October 27 team meeting, Thomas and another employee sat as far away from Wells, the speaker, as possible, had their heads down the whole time, and passed notes back and forth. Wells Decl., ¶ 12; Jezierski Decl., Ex. G (email from Higgins to Woolery dated October 29, 2010, detailing behavior by Thomas at the team meeting and asking Woolery "how long [do] we let this go on?").
In November 2010, Tyler Moore, Vice President of Shared Service Operations, visited UHG's Bloomington office in connection with a corporate realignment under his leadership. Declaration of Tyler Moore ("Moore Decl."), ¶¶ 1-4 [Docket No. 125]. Moore met with Wieman, Sharon McCullough, Associate Vice President of Installation & Maintenance Operations, Higgins, Supanich and Meinert. Id., ¶ 4. Moore stated that during that meeting he learned that the department was struggling with a problem employee, identified as Thomas. Id . Moore learned that Thomas had been placed on a Final CAP and after the Final CAP was opened, Thomas had behaved disrespectfully to Wells at the team meeting. Id., ¶ 9. Moore also learned that Wieman was in the process of recommending Thomas's termination because she had continued to engage in disruptive and disrespectful behavior after being placed on the Final CAP. Id., ¶ 8. Based on Thomas's failure to comply with the terms of the Final CAP, Moore agreed that she should be terminated - a decision that was approved by Employee Relations and Human Capital. Id., ¶¶ 10, 11. On November 5, 2010, Moore met with Thomas and informed her that due to her failure to meet the expectations reflected in the Final CAP, she was being terminated effective immediately. Id., ¶ 14. Moore did not know Thomas's race before terminating her. Id., ¶ 13.
Thomas filed an IDR complaint five days later, which was immediately elevated to Step 3 pursuant to UHG policy. Thomas Dep., p. 230, Exs. 21 (complaint by Thomas to Moore dated November 10, 2010, asking for a "fair investigation" of disparate treatment of African-American employees reporting to Wieman and McCollough); 22 (email from Thomas to Nicole Linbeck dated November 8, 2010, regarding her termination); 23 (email from Linbeck to Thomas dated November 10, 2010, telling Thomas that her IDR automatically escalated to Step 3 upon termination). Thomas complained that she was terminated while her previous IDR complaint regarding the town hall meeting was pending. Thomas Dep., Ex. 23. Thomas also complained that she was wrongfully terminated in retaliation for making complaints about discrimination; her work quality was high and, therefore, the CAPS were not justified; and the CAPS were part of a pattern of discrimination aimed at African-American employees. Thomas Dep., Ex. 25 (letter from Lloyd Dyer, Chief Operating Officer of Thomas's division, to Thomas dated January 18, 2011). Dyer investigated Thomas's Step 3 IDR complaint and determined that her termination was warranted based on Thomas's pattern of disruptive behavior. Thomas Dep., pp. 239-240, Ex. 25. Dyer wrote that he had reviewed all of the CAPS, Thomas's IDR filings, and the complaints from Thomas's coworkers. Id . Dyer also spoke with Supanich and Wells. Id . Based on this information, Dyer determined that Thomas's termination would stand. Id . Dyer did not find merit in Thomas's contention that her termination was retaliatory, instead finding that she had failed to comply with the conditions in the Final CAP by behaving disruptively as late as October, 2010. Id . As to Thomas's complaint that her work was of high quality, Dyer stated that Thomas was not placed on the CAPs because of work quality issues, but because of inappropriate workplace behavior. Id . Regarding Thomas's allegation that the CAPS were part of a pattern of discrimination against African-American employees, Dyer concluded that it was Thomas's behavior and not a pattern of discrimination by management that led to her termination. Id . Dyer rejected Thomas's request that she be reinstated with compensation for the time she had been off work. Id.
In summary, Thomas was placed on an Initial CAP on May 21, 2009, for disruptive conduct. Thomas Dep., Ex. 8. On May 6, 2010, Wieman placed Thomas on a 90-day Elevated CAP for inappropriate conduct. Id., Ex. 14. On August 17, 2010, Wieman placed Thomas on a Final CAP. Id., Ex. 18. The Final CAP provided that "[t]his warning is to be considered a onetime final warning" and "another incident of inappropriate conduct (negative statements, distracting behavior, angry outbursts, or challenging the company to terminate her) may result in immediate termination." Id . Moore terminated Thomas on November 5, 2010. Moore Decl., ¶ 14. At that time, Wieman and others were in the process of recommending Thomas's termination. Id., ¶ 8.
Thomas filed three charges of discrimination with the Equal Employment Opportunity Commission ("EEOC") dated October 2, 2009, June 22, 2010, and January 19, 2011. Amended Complaint, ¶ 5. On October 31, 2011, the EEOC dismissed Thomas's charges with findings of no probable cause. Jezierski Decl., Ex. H (EEOC Dismissal and Notice of Rights). Thomas commenced this lawsuit on January 6, 2012. See Complaint [Docket No. 1].
II. LEGAL STANDARDS
A. Thomas's Failure to Respond to Defendants' Motion for Summary Judgment
Thomas did not respond to defendants' motion for summary judgment, which was filed and served on April 1, 2014. On May 28, 2014, this Court's judicial assistant sent Thomas an email regarding her lack of response and asking Thomas to respond by return email if and when she planned to respond to UGH's motion. Thomas did not respond to this email. Thomas appeared at the hearing on June 3, 2014, and explained that she did not respond because she did not have access to a computer at home, did not have email, and was working ten hours a day. Tr., pp. 5, 17, 25-26. The Court stated: "That didn't prevent you from responding [to the motion] in handwriting; is that correct?" Thomas responded: "No, it didn't... I could have done that." Tr., pp. 6-7. Thomas further stated that rather than respond in writing, she "thought [she] would come here to the hearing today to explain my side." Id., p. 6. Thomas also stated that she believed that defendants were required to meet and confer with her before the motion. Tr., p. 6.
Thomas has long shown that she is a sophisticated pro se litigant. For example, Thomas has filed and responded to many motions in this case. See, e.g. Docket Nos. 24 (Plaintiff's Motion to Amend Complaint), 42 (Plaintiff's Motion to Compel Discovery), 66 (Plaintiff's Letter Request for Leave to File a Motion for Reconsideration); 72 (Plaintiff's Second Motion to Compel and for Sanctions); 90 (Plaintiff's Memorandum in Opposition to Defendant's Motion to Compel Discovery); 102 (Plaintiff's Letter Request for Leave to File a Motion for Reconsideration); 104 (Plaintiff's Motion to Compel Discovery). It was clear to this Court that Thomas chose not to respond to UHG's motion because she was busy and would have been inconvenienced by handwriting a response or borrowing a computer. Thomas never contacted UHG's counsel or this Court seeking additional time to respond in light of her lack of access to a computer.
Thomas's excuse that she expected defendants to contact her for a meet-andconfer is also meritless. Local Rule 7.1 does not require a meet-and-confer before filing a motion under Rule 56. Further, under no circumstances does the meet-and-confer requirement for motions other than summary judgment and temporary restraining orders excuse a party from responding to a motion. Thomas's excuses for not responding are unavailing. See Wickelgren v. Midwest Special Servs., Inc., Civ. No. 09-3729(RHK/JSM), 2011 WL ...