United States District Court, D. Minnesota
N. ERICKSEN United States District Judge
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. 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.
STANDARD OF REVIEW
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.
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.)
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.)
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.)
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.)
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.)
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.)
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.
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.)
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
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
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.)
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.)
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.)
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.(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.) All but two housekeepers
accepted the checks. (Id. ¶ 3.)
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.)
Retaliation Based on Refusals (Counts I and VI)
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).
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.)
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 ...