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Grimm v. Target Corp.

United States District Court, D. Minnesota

February 6, 2017

Ivan J. Grimm, Plaintiff,
Target Corporation, Defendant.

          Ivan Grimm, 1413 Holdridge Lane South, Wayzata, MN 55391, plaintiff pro se.

          Matthew E. Damon, Esq. and Nilan Johnson Lewis, PA, counsel for defendant.


          DAVID S. DOTY, JUDGE

         This matter is before the court upon the motion for judgment on the pleadings by defendant Target Corporation and the motions to amend, exclude unreliable evidence, and defer dispositive judgment by pro se plaintiff Ivan J. Grimm. Based on a review of the file, record, and proceedings herein, and for the following reasons, the court grants the motion for judgment on the pleadings and denies the remaining motions.


         This whistleblower dispute arises out of Grimm's termination from Target on December 14, 2015. Grimm, an employee of TEKsystems, worked for Target as a contractor from September 2013 to December 14, 2015. Am. Compl. ¶ 8.7; Answer ¶¶ 8.6, 8.7. Grimm worked on a project referred to as “Hashkey” during his tenure at Target. The Hashkey project, which is still in development, would allow Target to provide relevant offers to its customers when online or using mobile devices. See Answer Ex. B, at 4. Grimm was supervised by Evan Hovorka.

         According to Grimm, he first reported wrongdoing by Target on December 1, 2015, when he sent a “white paper” entitled “Assessing The Viability Of Target's Proposed Data Collection And Sharing Activities Within The Context of A Progressively Unfavorable Political Environment” to Hovorka and others at Target. Am. Compl. ¶ 9.4; Answer Ex. O, at 2. Grimm alleges that he discovered “statistical evidence of widespread illegality involving disruption of communications between defendants and attorneys and between attorneys and outside parties in the U.S. Judicial System, as well as possible changes in the political environment, all of which would affect laws regarding data sharing which would affect certain parts of HASHKEY.” Am. Compl. ¶ 9.4; see also Answer Ex. O, at 3-6. He further stated that he “personally believe[s] that the collection and sharing of information between Target and its partners is entirely legitimate and should proceed ....” Answer Ex. O, at 3. He noted, however, that the “political environment” would change in the next three to five years leading to a “prohibition of the sharing of information between Target and its partners.” Id. He recommended that Target “speed up” Hashkey, rather than “abandon” or “change” it, “so as to derive maximum benefit ... in advance of the coming prohibition.” Id.

         The white paper neither alleges nor reports fraudulent conduct by Target, but references, without explanation, the allegedly low success rate of Sarbanes-Oxley whistleblower actions. Id. at 6. Grimm concluded by stating, “It is possible to conclude from the available evidence that there will eventually be changes in the political environment which will eventually negate all of Target's work in collecting and sharing data with its partners. Target must now decide what to do with this information.” Id. The record does not indicate if Target responded to the white paper.

         On December 8, Grimm sent an email to Hovorka and others complaining about low data quality on the project. Id. Ex. P. The record does not contain a response. Then, on December 11, Grimm sent an email to several Target employees, excluding Hovorka, recommending that Hashkey be restructured due to a “parade of [recent] problems.” Id. Ex. Q, at 2. Grimm blamed the problems on the Target team based in India and touted his discovery of the issues. Id. Hovorka, who apparently received a copy of the email, responded later the same day by defending the project and warning Grimm that his placement at Target was in jeopardy. See id. Ex. R, at 1 (“Your attitude has to change dramatically and immediately to continue working here. Let me know your response by Monday.”). Hovorka also indicated that Grimm's concerns were not well founded and appeared to be grounded in self promotion: “These are critical improvements that you seem[] to overlook in favor of your [own work].” Id.

         Grimm replied soon after, sending an email to another Target employee, Edward Chenard, on which he copied Hovorka. See id. Ex. T. In the email, entitled “Essential Issue, ” Grimm questioned whether “sharing guest device information with parties outside of Target” is moral, legal, and a wise business decision as it would “[a]t the very least alienate guests.” Id. He further questioned whether “something illegal is going on.” Id. He specifically cited Target's potential use of the project to allow it to track customers “after they left Target, ” as a basis of concern. Id. He closed the email by saying, “Please consult with Sarbanes Oxley legislation in crafting your response.” Id.

         Chenard responded that evening asking Grimm to provide the following information about his allegations: (1) the information Grimm believes Target shares with third parties and the identity of those third parties, (2) the basis for Grimm's claim that Target tracks customers once they leave the store, and (3) the sources for Grimm's information. Id. Ex. U, at 1. At 7:30 a.m. the next business day, and presumably before Grimm could respond to Chenard, Hovorka terminated Grimm's contract with Target, effective immediately. Id. Ex. V. Grimm responded as follows:

In so far as I quote Sarbanes Oxley Legislation and I assumed the role of whistleblower and referred to my concern of illegal activity in relating to the use of 40, 000, 000 million American's data, what you are doing is a violation of the Sarbanes Act. Since it also references illegal activity, firing someone is retaliation which is prohibited by Federal Law. It carries a 5 to 7 year prison term. Do you seriously wish to continue?

Id. Ex. W. As Hovorka escorted him from the building that morning, Grimm threatened to file a Sarbanes-Oxley complaint against Target. Am. Compl. ¶ 9.16.

         Thereafter, Grimm apparently requested that TEKsystems place him on another team at Target. Answer Ex. S, at 2. Hovorka explained to TEKsystems that Grimm was not welcome to join any team at Target due to his “attitude and social skills” which “progressively got worse” during his tenure there. Id. at 1. Hovorka cited issues dating back six months. Id.

         On December 21, 2015, Grimm filed a complaint against Target with the Occupational Safety and Heath Administration (OSHA), alleging that Target breached the whistleblower provision of Sarbanes-Oxley by terminating him for reporting possibly criminal activity relating to customer data. See Answer Ex. A. Target responded, denying the allegations, and Grimm submitted numerous supplemental filings in support of his position. See id. Exs. B-M. In July 2016, Grimm advised OSHA that he would proceed in federal court rather than pursue his OSHA claim. See id. Ex. M, at 7.

         Although the details are hard to discern, Grimm alleges that after his termination, he reported Target to the Securities and Exchange Commission for potential Sarbanes-Oxley violations due to possibly illegal data sharing through the “reckless” Hashkey project. Am. Compl. ...

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