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Naguib v. Trimark Hotel Corp.

United States District Court, D. Minnesota

February 14, 2017

ISIS NAGUIB, Plaintiff,
v.
TRIMARK HOTEL CORPORATION, a Texas corporation, and M&C HOTEL INTEREST INC., a Delaware corporation doing business as Millennium Hotel & Resorts, Defendants.

          ORDER

          JOAN N. ERICKSEN United States District Judge

         Plaintiff Isis Naguib is a former Executive Housekeeper for Millennium Hotel Minneapolis, which the Complaint implies is owned and operated by Trimark Hotel Corporation and/or M&C Hotel Interest Inc. (collectively “Millennium”). (See Compl., Dkt. No. 1-1.) Naguib claims Millennium discriminated against her on the basis of her age and retaliated against her because she refused to violate the law, opposed discriminatory practices, and took protected leave.[1] The matter is before the Court on Millennium's Motion for Summary Judgment on all of Naguib's claims. (See Dkt. No. 27.) For the following reasons, the Motion is granted.

         I. STANDARD OF REVIEW

         Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To support an assertion that a fact cannot be or is genuinely disputed, a party must cite “to particular parts of materials in the record, ” show “that the materials cited do not establish the absence or presence of a genuine dispute, ” or show “that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A)-(B). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3). In determining whether summary judgment is appropriate, a court views the record and all justifiable inferences in favor of the non-movant. Liberty Lobby, 477 U.S. at 255.

         II. BACKGROUND

         Naguib is currently 69 years old and an Egyptian-born American citizen. (See Deposition of Isis Naguib (“Naguib Dep.”) 15:25-17:7, Dkt. No. 30-1.) Millennium employed Naguib as its Executive Housekeeper until discharging her in 2014. (See Id. at 12:6-10.) In this role, Naguib was responsible for the entire housekeeping department, which comprised herself, three assistants (one of which was her daughter-in-law, Jelena Tkastenko), and about 50 housekeepers. (Id. at 20:16-23:25, 27:12-21.) One of her responsibilities was payroll, and she sometimes changed employee time punches if employees signed a sheet indicating they punched out later than they actually worked. (See Id. at 43:5-9, 82:6-10, 167:9-181:6.)

         The facts of this case revolve around a series of interactions Naguib had with Millennium management and human resources (“HR”). First, in November 2011, Naguib was called to testify in a deposition regarding the condition of Millennium's building. (See Id. at 230:13-15.) A lawyer for the company and Robert Rivers, then general manager of Millennium, met with Naguib to prepare her for the deposition. (See Id. at 232:7-234:1.) They told Naguib that Millennium did not follow the “Freeman” maintenance standards, which was at issue in the case. (Id.) Naguib disagreed, believing that Millennium followed the Freeman standards, and she testified accordingly. (See Id. at 230:16-19, 234:3-5.) Months later, Naguib met with an outside attorney for Millennium to prepare to testify at trial. (Id. 234:9-17.) He yelled at Naguib and threatened to have the president of Millennium call her and tell her that Millennium did not follow the Freeman standards, but she refused to change her testimony. (Id.) The matter settled, and, as a result, Millennium paid millions of dollars to renovate its building. (See Deposition of Dawn Robbins (“Robbins Dep.”) 82:7-14, Dkt. No. 30-2.)

         Millennium's renovation took place from late 2012 to spring 2013. (See Id. at 82:3-4.) The entire hotel was closed to guests. (Id. at 82:15-17.) Key employees continued working throughout, but the vast majority of employees were laid off, including all housekeepers. (See Robbins Dep. 82:25-83:17; Naguib Dep. 265:17-20.) Rivers notified Naguib that she would be laid off during the renovation, but shortly before she was to be laid off, Rivers permitted Naguib to work four days per week. (Naguib Dep. 266:13-20.) Due to her salaried position, she had to take one vacation day each week to cover the fifth day's pay. (Id.) None of the other executives received a cut in hours or was laid off during the renovation. (See Id. at 266:5-12.)

         As the renovation neared completion, Rivers transferred out of his position, making way for Katie Neufeld to become Millennium's new general manager. (See Id. at 69:1-3; Deposition of Katie Neufeld (“Neufeld Dep.”) 15:21-25, Dkt. No. 30-1.) During this transition, Rivers sent an email to Bryan Schiffauer, the renovation project manager, asking if Neufeld “appear[ed] to be taking control, especially of Mike and Isis.” (See Dkt. No. 30-4 at 52-58.) The email was not addressed to Naguib, though she later received the email. (See id.) Millennium's renovation completed in April 2013. (See Naguib Dep. 69:4-6; Neufeld Dep. 15:21-25.)

         Over one year later, in June 2014, one of Naguib's housekeepers retired. Neufeld remarked to Naguib, “good for him, you will probably never retire . . . we are going to have to carry you out of here in a box.” (Compl. ¶ 25; Neufeld Dep. 252:16-21.) Neufeld also occasionally asked Naguib, usually over lunch or breakfast, when she was going to retire. (See Naguib Dep. 132:16-133:4.)

         Throughout summer 2014, management increased its oversight of the housekeeping department. (See, e.g., Compl. ¶ 26; Declaration of Kibinesh Fufa ¶ 2(l), Dkt. No. 42.) During this time, Naguib experienced minor inconveniences relating to personnel and operations, brought on by managerial decisions. (See Naguib Dep. 266:24-271:9.) Millennium corporate also proposed a revised dress code policy. (See Dkt. No. 30-4 at 59-68.) The policy permitted reasonable accommodations for employees whose religious beliefs or practices conflicted with uniform requirements. (See id.) Naguib testified that Neufeld directed Naguib to ask three employees to bring notes from a mosque in order to grant them accommodations to wear hijabs at work. (Naguib Dep. 240:22-242:3.) Naguib refused to request notes unless the policy required notes. (Id. at 242:8-10.) It did not. (See Dkt. No. 30-4 at 59-68.) Nevertheless, Naguib testified she asked for notes, but none were provided. (Naguib Dep. 243:3-5, 241:13-14.) Neufeld denies ever asking for notes from a mosque, but admits she discussed with Naguib that a few employees wore hijabs intermittently. (Neufeld Dep. 114:1-115:3.)

         In September 2014, Naguib's son, Omar Naguib, who also worked at Millennium, was suspended after inquiring as to his available vacation balance. (Declaration of Isis Naguib (“Naguib Decl.”) ¶ 24, Dkt. No. 41.) His wife, Tkastenko, was demoted from senior assistant executive housekeeper to housekeeping supervisor the same day. (See Id. ¶ 25; Naguib Dep. 129:14-17.) Shortly thereafter, Omar sent an email to Millennium HR complaining of discrimination, harassment, and retaliation. (See Dkt. No. 40-1 at 58-61.) He generally referenced, among other things, how management previously treated Naguib and Tkastenko. (See Id. at 61.) Robbins followed up with Omar by asking for specifics, but Omar mostly declined to provide details. (See Id. at 49-56.) By the end of her investigation, Robbins found no evidence of discrimination toward Omar. (See Robbins Dep. 36:14-37:21.)

         In October 2014, HR directed Naguib to take 80 hours of vacation before the end of the year because Naguib had accumulated 280 hours of vacation time, but could only hold 200 hours per company policy. (See Dkt. No. 30-4 at 22; Dkt. No. 30-3 at 3.) Prior to 2014, Naguib had received exceptions from the policy, leading to her 280-hour balance. (See Dkt. No. 30-4 at 29.) Although Naguib was previously allowed to accumulate excess vacation time, Millennium corporate decided to strictly enforce its policies, in an effort to reduce vacation pay liability on Millennium's balance sheet. (Neufeld Dep. 56:3-23.)

         Millennium gave Naguib eight days to decide when to take two weeks' paid vacation sometime in the upcoming few months, but Naguib did not make a decision, and management assigned her vacation from October 21 to November 3, 2014. (See Naguib Dep. 97:22-25; Dkt. No. 30-4 at 29.) Naguib might have been able to simply lose-instead of use-her 80 hours if she had said, “Uncle, I want to lose my vacation.” (Robbins Dep. 204:8-14.) But Naguib avoided discussing the matter with management, and Naguib did not explicitly offer to forfeit her vacation time. (Id. at 204:19-205:25.) After her vacation dates were decided, but before the vacation, Naguib emailed HR to complain that the vacation was a “way to punish [her] and [her] son, Omar Naguib, because he ha[d] raised certain complaints about discrimination, harassment, and retaliation.” (Dkt. No. 30-4 at 26-27, 29-32.) No other employee was forced to take vacation that year or has been since. (See Neufeld Dep. 61:1-7.)

         During Naguib's paid vacation, Millennium brought in David Simmons to run the housekeeping department. (Deposition of David Simmons (“Simmons Dep.”) 11:17-25, Dkt. No. 30-2.) He was not directed to investigate the department, but he was asked to review operations for improvements. (See id.; Neufeld Dep. 53:18-54:15.) Within the first few days, Simmons noticed housekeepers punching out after 4:00 PM, but signing for punch corrections with a 4:00 PM end time, even though the housekeepers worked past 4:00 PM. (Simmons Dep. 32:12-33:8.) He inquired as to why, and the housekeepers said they would get into trouble with housekeeping management if they worked overtime. (Id. at 33:21-34:12, 104:13-22.) Simmons flagged this issue with Millennium management on October 29, 2014. (See Dkt. No. 30-4 at 72.) He also shared that an employee was working as an at-home seamstress after hours. (See id.) Jay Moliter, then-Vice President of Operations, responded, “Interesting, could change our plans.” (Id.)

         Upon receiving Simmons's initial report, HR immediately audited the timekeeping system across the entire hotel. (Neufeld Dep. 62:22-63:5.) The audit showed that five departments made punch corrections in 2014. (Declaration of Debbie Daggett (“Daggett Decl.”) ¶ 5, Dkt. No. 31.) Housekeeping had 178 edits, and the other departments had 4, 7, 8, and 40 edits. (Id.) HR also interviewed housekeeping employees, who reported that Naguib told them to write down 4:00 PM even if they worked later. (See Dkt. No. 30-4 at 34-38.) Some employees now declare that they signed for punch corrections because they forgot to punch out, they punched out after changing into street clothes, or they engaged in non-work activities before punching out. (See, e.g., Declaration of Alvina Legun ¶ 2(b), Dkt. No. 43.)

         While on forced vacation, Naguib was hospitalized and diagnosed with hypertension. (Dkt. No. 40-1 at 19-20.) Naguib requested documents for leave, under the Family and Medical Leave Act of 1993 (“FMLA”), sometime from October 30 to November 1, 2014. (See Naguib Dep. 108:5-115:15; Dkt. No. 40-1 at 9.) Millennium was investigating her timekeeping practices prior to then. (See Dkt. No. 30-4 at 34, 72.) HR approved Naguib's leave request, which was backdated to begin October 27, 2014. (See Naguib Dep. 117:9-12, 272:3-6; Dkt. No. 40-1 at 9.)

         On November 7, 2014, after Naguib returned from leave, Janice Crane, an HR Director from Chicago, interviewed Naguib about the uncovered wage and hour issues. (See Dkt. No. 40-1 at 113-30.) Crane suspended Naguib pending the results of Millennium's investigation. (See Id. at 128.) Shortly thereafter, on November 13, Naguib sent an email to corporate HR complaining that the forced vacation was punishment for Omar's complaint. (See Dkt. No. 30-4 at 40-41.) She also claimed that Neufeld was trying to find reasons to discharge her and other “non-white” employees, as shown by the investigation of her department. (See id.)

         Millennium discharged Naguib on November 19, 2014 for “wage and hour violations” uncovered by its investigation. (Id. at 79.) The company also disciplined two managers and suspended another. (Neufeld Dep. 66:9-68:17.) HR concluded that Naguib's case was different from the others due to the larger number of edits, the use of a “Sign In and Out Sheet” to routinely change time punches, and Naguib's bonus incentive to meet her payroll budget.[2](Daggett Decl. ¶ 5.) Also related to the decision was the fact that Naguib routinely submitted payroll adjustments, without reporting overtime, for a full-time employee who also worked as an at-home seamstress after hours. (See id.) Millennium issued 46 checks to housekeepers for unpaid overtime based on its audit. (See Declaration of Paul Krejci (“Krejci Decl.”) ¶ 2, Dkt. No. 52.)[3] All but two housekeepers accepted the checks. (Id. ¶ 3.)

         Since Naguib's discharge, the Executive Housekeeper position has not been filled; Nina Seriram, an assistant housekeeping manager who worked under Naguib, and an unnamed Director of Operations are jointly covering the position's duties. (See Neufeld Dep. 253:4-254:1; Robbins Dep. 224:25-225:7; Naguib Decl. ¶ 23.)

         III. DISCUSSION

         A. Retaliation Based on Refusals (Counts I and VI)

         Naguib brings two retaliation claims arising out of her refusal to testify that Millennium did not follow the Freeman standards: Count I, under the Minnesota Whistleblower Act (“MWA”), Minn. Stat. § 181.932, subd. 1 (2016), and Count VI, under the common law, as first recognized in Phipps v. Clark Oil & Ref. Co., 396 N.W.2d 588 (Minn.Ct.App. 1986). (Compl. ¶¶ 49-55, 89-94.) Both claims prohibit employers from discharging an employee or otherwise discriminating against an employee with respect to the conditions of employment when an employee “refuses an employer's order to perform an action that the employee has an objective basis in fact to believe violates any . . . law or rule or regulation adopted pursuant to law, and the employee informs the employer that the order is being refused for that reason.” § 181.932, subd. 1(3); see Phipps v. Clark Oil & Ref. Corp., 408 N.W.2d 569, 571-72 (Minn. 1987) (similar). These claims may be proven either with direct evidence or using the McDonnell-Douglas burden-shifting framework. Wood v. SatCom Mktg., LLC, 705 F.3d 823, 828 (8th Cir. 2013).

         1. Direct Evidence

         Naguib argues the following direct evidence shows retaliation for her Freeman testimony: the taking-control email, the uncle justification, management's desire to investigate the housekeeping department, and the change-of-plans email. (See Plaintiff's Response Memorandum in Opposition (“Pl. Br.”) 28, Dkt. No. 49.) Millennium argues that none of this conduct exhibits retaliatory animus. (See Defendants' Reply Memorandum (“Def. Reply Br.”) 4, Dkt. No. 51.)

         Direct evidence is that which shows “a specific link between the alleged [retaliatory] animus and challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.” Wood, 705 F.3d at 828 (quoting Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004)). On their face, the email conversations do not display retaliatory animus, and they do not refer to Naguib's Freeman testimony. See Torgerson v. City of Rochester, 643 F.3d 1031, 1045 (8th Cir. 2011) (“Direct evidence does not include statements by decisionmakers that are facially and contextually neutral.”). Management's desire to look into the housekeeping department does not show retaliatory animus on its face or in context, nor does the uncle justification, which was made during a deposition for this case. None of this conduct hints at a specific link between (1) any retaliatory animus resulting from Naguib's Freeman testimony, and (2) her discharge or any other claimed adverse employment action. The Court will not speculate as to ...


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