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McNeal v. University of Minnesota Physicians

United States District Court, D. Minnesota

January 23, 2017

Brett McNeal, Plaintiff,
University of Minnesota Physicians, Defendant.

          Megan A. Spriggs, Richard A. Williams, Jr., R.A. Williams Law Firm, P.A., St. Paul, Minnesota, for Plaintiff.

          Samuel W. Diehl, Matthew P. Webster, Gray, Plant, Mooty, Mooty & Bennett, P.A., Minneapolis, Minnesota, for Defendant.


          RICHARD H. KYLE United States District Judge


         In this action, Plaintiff Brett McNeal has sued his former employer, Defendant University of Minnesota Physicians (“UMP”), alleging that it terminated his employment on account of his race and in retaliation for his complaints about racism, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. Presently before the Court is UMP's Motion for Summary Judgment. For the reasons that follow, the Motion will be granted.


         Viewed in the light most favorable to McNeal, the record reveals the following facts, most of which are undisputed.[1]

         I. UMP and McNeal

         UMP is the multi-specialty group medical practice for the University of Minnesota Medical School faculty. See (last visited January 19, 2017). It is an independent nonprofit governed by a board of directors, employing more than 900 physicians and 1, 600 other health professionals and staff, and providing healthcare services through more than 50 specialty clinics and five family-medicine clinics. Id.

         McNeal, an African American, has worked in human resources (“HR”) since the late 1990s. (McNeal Dep. at 15.) From 1997 to 2007, he was employed as an HR generalist for the City of Minneapolis. (Id.) There, his supervisor was Ann Eilbracht, the City's HR Director. (Id. at 16-17.) McNeal and Eilbracht had a good working relationship and, after being hired as UMP's Vice President of HR, she recruited McNeal to UMP. (Id. at 17, 20-21.) In January 2007, she offered him a position as UMP's Manager of Diversity and Recruitment, which he accepted. (Id. at 21.) In this role, McNeal managed diversity recruitment at UMP, performed HR training sessions, reviewed and revised UMP's HR policies, conducted investigations of HR complaints, and handled other HR-related duties. (Id. at 25-26.) Several HR employees reported to McNeal, who in turn reported to Eilbracht. (Nyhus Aff. Ex. B; McNeal Dep. at 22-23.)

         The record contains little information regarding McNeal's performance during his employment with UMP. The only review in the record, entitled “2010 Performance Review Tool, ” shows that he was generally meeting expectations, although he was below expectations in several areas. (Spriggs Aff. Ex. A at UMP254-55.) He received annual raises during most of his employment, although he did not receive a raise in 2009 because his performance was rated below expectations. (2d Nyhus Aff. Ex. G.) By 2010, he was making nearly $100, 000 per year. (Id.)

         According to McNeal, he succeeded in his job despite UMP being permeated with institutional racism. The thrust of his claims is that he was hired to diversify UMP's workforce but was met with “continuing efforts” to undermine him when he performed those duties, due to UMP's “racist” culture. For example, he claims that on several occasions, UMP ignored protocols designed to ensure race was not factored into hiring decisions and, when he raised the issue, he was accused of being racist and favoring black employees. (McNeal Aff. ¶¶ 16-17.) Along the same lines, he claims that on several occasions, he was accused by management of unfairly protecting African Americans who had been charged with misconduct. In one instance, according to McNeal, Senior Vice President Ann Peterson recommended to Eilbracht that she terminate McNeal's employment because he was a racist, but Eilbracht declined to do so. (McNeal Dep. at 107.) McNeal also asserts that when non-minority job applicants were passed over in favor of minority ones, he was accused by managers of unfairly favoring minorities and being intent upon “protect[ing] African Americans, ” even though the non-minorities had inferior qualifications. (Washington Decl. ¶ 18; McNeal Dep. at 74-75.)

         McNeal also points to a handful of harassing incidents he claims he suffered at UMP. For instance, he alleges that various employees “spread rumors” about him engaging in inappropriate relationships with subordinates. (McNeal Dep. at 111-12.) He also notes that in 2008, he received several racially charged emails over a six month period, using terms such as “ghetto boy” and “piece of black shit.” (Spriggs Aff. Ex. A at UMP84-128.) The emails were anonymous but purportedly were sent by someone who had attended one of McNeal's training programs. (Id. at UMP87.) McNeal forwarded the emails to Eilbracht, who found them “disgusting” and “disturbing” and asked UMP's information-services department to attempt to trace them. (Id. at UMP85, 89-90, 98.) The sender could not be determined, but UMP still tried to block the sender from sending further emails to McNeal. (Id. at UMP90, 93.)

         II. The 2010 complaint

         In June 2009, UMP hired Kimberly VanCleave as a paralegal in its Risk Management and Contacting departments. (Spriggs Aff. Ex. A at UMP173.) Beginning in August or September of that year, she worked with McNeal on a weekly basis, addressing matters involving employment-practices liability insurance. (Id. at UMP174.)

         According to VanCleave, approximately one week after her first meeting with McNeal, he invited her to a happy hour after work, which VanCleave attended; upon arrival, however, only McNeal was present. (Id. at UMP175.) The two discussed work and had limited conversations about their families and other topics over 30-45 minutes. (Id.) VanCleave felt that McNeal was “flirty” and appeared to be a “ladies' man, ” although she did not find his conduct that evening inappropriate. (Id.) Later that night, she received a text message from McNeal asking if she was planning to go out that evening, as McNeal wanted to join her if so. (Id.)

         According to VanCleave, McNeal invited her to a second happy hour later that month, and she again attended. (Id.) On this occasion, however, McNeal was more overtly flirtatious, referring to her as “baby” and asking about her boyfriends. (Id. at UMP176.) He conveyed that he was unhappily married and asked, “you wouldn't date me because I'm married?” (Id.) VanCleave interpreted McNeal's conduct as “testing the waters” to see if she would object. (Id.) He later gave her a ride to her car and, when she exited, touched her on the knee. (Id.) VanCleave did not say anything to McNeal at the time or mention the incident to others.

         Following these interactions, VanCleave had difficulty working with McNeal. She felt that he lacked focus and organization and would pepper their conversations with sexual innuendo or propositions, often commenting on her attire or “look.” (Id. at UMP176-77.) He repeatedly asked her out or to attend events with her, such as basketball games. (Id.) He also sent her text messages, asking about her plans after work, her clothing, or asking her on dates. VanCleave either ignored McNeal's overtures or responded simply with “thank you” or other pleasantries. (Id. at UMP177.)

         In January 2010, VanCleave finally confronted McNeal about his behavior. (Id.) She told him that she was not interested in playing “flirting games” and that she was offended by his conduct. (Id.) According to VanCleave, McNeal began yelling at her, and she told him that she was going to talk to her supervisor, Ruth Flynn. (Id. at UMP178.) VanCleave spoke with Flynn later that same day but reported only that McNeal was “impossible” to work with. (Id.) Following the confrontation, however, McNeal stopped making sexual comments and propositioning her. (Id.)

         On Friday, April 30, 2010, VanCleave attended a meeting with McNeal and Eilbracht, at which she reported her concerns about his work; she did not mention his “inappropriate” advances, however. (Id.) McNeal responded that he believed VanCleave was incompetent and that he did not need her help to perform his job. (Id.) VanCleave became angry and stormed out of the meeting. (Id.) After thinking things over that weekend, on Monday, May 3, 2010, she reported McNeal's repeated advances to Flynn; she submitted a written complaint three days later. (Id. at UMP178-79.) Her complaint summarized the allegations discussed above and mentioned that other UMP employees had warned her McNeal was a “womanizer” who “tries to relate to women on a sexual level rather than a professional one, ” and that he had made inappropriate comments (including by text message) to other female employees. (Id. at UMP173.)

         III. UMP investigates

         The record does not disclose how Eilbracht became aware of VanCleave's complaint to Flynn, but it is undisputed that on May 6, 2010, Eilbracht retained outside counsel to investigate VanCleave's allegations. (Eilbracht Aff. ¶ 5.) Eilbracht sought outside involvement because McNeal was a member of UMP's HR department, which normally would be responsible for investigating reports of sexual harassment. (Id.) Eilbracht retained the Littler Mendelson law firm (“Littler”) to conduct the investigation.

         Between May 7 and 11, 2010, Littler reviewed documents relevant to VanCleave's allegations and interviewed nine persons, including VanCleave, Flynn, other HR employees, and McNeal. The results of Littler's investigation, including the witness interviews, were summarized in a report dated May 26, 2010 (the “Littler Report”), which appears several times in the record. (See, e.g., Eilbracht Aff. Ex. A.) According to the Littler Report:

• VanCleave provided cell phone records that corroborated her contacts with McNeal on the nights of the two ...

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