Boettcher v. Express Servs., Inc.

James Boettcher, Plaintiff, v. Express Services, Inc., Defendant.

Case No. 13-cv-01231 (SRN/JJG)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Dated: June 27, 2014

MEMORANDUM OPINIONAND ORDER

Ryan H. Ahlberg, Ahlberg Law, P.L.L.C., Minneapolis, MN, for Plaintiff.

Elizabeth Scott Wood and Philip R. Bruce, McAfee & Taft, P.A., Oklahoma City, OK, and Margaret Ann Santos, O'Meara, Leer, Wagner & Kohl, P.A., Minneapolis, MN, for Defendant.

SUSAN RICHARD NELSON, United States District Judge

I. INTRODUCTION

Plaintiff James Boettcher brought this suit against his former employer, Express Services, Inc. ("Express"), alleging that Express wrongfully terminated his employment in violation of Minn. Stat. § 181.932 (the Minnesota Whistleblower Act), and in violation of public policy grounded on Minnesota common law.¹ Express moves for summary judgment on both of Boettcher's claims [Doc. No. 15]. For the reasons set forth below, Defendant's Motion is granted.

II. BACKGROUND

Express is a franchisor engaged in providing employment-related services to third-party businesses. (Moody Decl. [Doc. No. 21] ¶ 4.) As a core part of its operations, its independently-owned franchises place employees (known as "Express Associates") in temporary positions with other companies. (Id.)

In early May, 2012, Grant Moody, owner of the Express franchise in Mankato, Minnesota, hired Boettcher as an Express Associate. (Id. at ¶ 5.) Boettcher worked three temporary assignments from May 9, 2012 through September 2, 2012, before being placed at Imperial Plastics, Inc. ("Imperial"),² a plastic products manufacturer located in Kasota, Minnesota. (Notice of Removal [Doc. No. 1], Ex. 1 ("Compl.") ¶ 5.) As a primary duty, Boettcher was assigned to operate an injection mold plastic press. (Becker Decl. [Doc. No. 18] ¶ 5; Bruce Decl. [Doc. No. 19], Ex. 10.) At some point during his work at Imperial, he was also asked to provide training to new hires on use of the machinery. (Bruce Decl., Ex. 8 ("Boettcher Dep.") at 52.) However, Boettcher was not placed in a supervisory position over other employees, and did not consider himself to be a supervisor. (Becker Decl. ¶ 7; Boettcher Dep. at 52.)

A. The Incident

Boettcher worked at Imperial without apparent incident from September until early November of 2012. (Compl. ¶ 12.) On November 7, however, a confrontation occurred between Boettcher and another Express Associate working at Imperial, Faysal Jama.According to Boettcher, he had been requested by the Quality Auditor, Courtney Frost, to observe the actions of a third press operator, Fatuma Abdalla, who was "leaving the machine down and talking." (Boettcher Dep. at 63.) Boettcher claims that he observed Abdalla conversing with Jama in a manner that appeared to be intentionally calculated to prevent Jama from working. (Id. at 61.) Accordingly, Boettcher took it upon himself to speak with Jama and to encourage him to avoid unnecessary conversation. (Id. at 63.) Boettcher contends that Jama responded by accusing him of racism. (Id. at 62.) Nonetheless, both men apparently returned to their machines.

Approximately five minutes later, Boettcher noticed that Jama appeared to have trouble operating his press. (Id. at 63-64.) He again approached Jama, and asked him if anything was wrong. According to Boettcher, Jama replied that he was not having any difficulties, and that "[i]f you come over here again, I will get a gun and shoot and kill you." (Id. at 64.)

Jama's account of the incident differs markedly from Boettcher's. Following his first interaction with Boettcher, Jama complained to his immediate supervisor, Corey Wandersee, that Boettcher was bothering him, a fact which Wandersee subsequently confirmed. (Moody Decl., Ex. 4.) When Boettcher approached for the second time, Jama told him that he was "not [his] boss," to which Boettcher replied that "the Company is owned by whites and that [Jama] will get fired, because all the blacks will be the first to go." (Id.) Jama insisted subsequently that he did not threaten to shoot Boettcher, and that he did not even own a gun. (Id.; Becker Decl., Ex. 1.)

While the exact nature of the confrontation is unclear, it is undisputed that Boettcher subsequently approached his supervisor, Tom Feldman, and reported Jama's alleged threat. (Boettcher Dep. at 69.) After inquiring into the incident, Feldman chose to send both men home for the day. (Becker Decl., Ex. 1.) Boettcher called the Le Sueur County Sheriff's Department from the parking lot to report that he had been threatened by a co-worker. (Moody Decl., Ex. 3.) Sheriff's deputies investigated the incident, but ultimately no charges were filed against Jama because there was "a distinct lack of evidence" that he had engaged in any "terroristic threats." (Bruce Decl., Ex. 9.)

B. Investigation by Imperial and Express

Immediately following the report of the altercation between Boettcher and Jama, both men were placed on paid leave while Imperial and Express began separate investigations. (Moody Decl. ¶ 13; Becker Decl. ¶ 14.) Express investigated the incident in accordance with its policy requiring an investigation after any allegation of harassment. (Moody Decl. ¶ 9.)

In the course of their investigations, both Mark Becker, Vice President of Manufacturing at Imperial, and Grant Moody of Express, interviewed Boettcher and Jama. (Becker Decl. ¶ 12; Moody Decl. ¶ 11.) Both men subsequently concluded that Jama was more credible than Boettcher. (Becker Decl. ¶ 21; Moody Decl. ¶ 22.) In particular, both noted that Boettcher's account of the interaction appeared to change during re-telling. (Becker Decl. ¶ 15; Moody Decl. ¶ 14.) Ultimately, Becker requested that both men be removed by Express from their temporary assignments at Imperial. (Becker Decl. ¶ 24.) InBecker's opinion, "the alleged incident would not have occurred if [Boettcher] had stayed at his work space as expected instead of attempting to tell Mr. Jama what to do." (Id. ¶ 23.)

Boettcher was subsequently terminated as an employee of Express on November 11, 2012.³ (Moody Decl. ¶ 24.) Moody attests that he made the termination decision because he was no longer comfortable placing Boettcher at other companies given his conclusion that Boettcher had indeed made a racist remark to Jama in violation of Express's anti-discrimination policy.⁴ (Id. ¶ 23.) In contrast, Boettcher contends that Moody informed him that the decision to terminate his employment was "corporate's decision." (Boettcher Decl. [Doc. No. 23] ¶ 4.)

Boettcher subsequently commenced this suit in state court on May 3, 2013, and Express timely removed to federal court on May 23. Express now moves for summary judgment, arguing that there are no genuine issues of material fact as to whether Boettcher was retaliated against in violation of the Minnesota Whistleblower Act or state common law.

III. DISCUSSION

A. Legal Standard

Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the declarations, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgmentas a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of establishing a lack of a genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden may be discharged by "pointing out to the district court . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 325. The Court must view the evidence and any reasonable inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the nonmoving party must do more than proffer mere allegations or denials. Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir. 2010). Instead, it must show through the presentation of admissible evidence that a genuine issue of fact exists such that a "jury could reasonably find [in its favor]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Further, "[t]here is no 'discrimination case exception' to the application of summary judgment, which is a useful pretrial tool to determine whether any case, including one alleging discrimination, merits a trial." Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc) (quoting Berg v. Norand Corp., 169 F.3d 1140, 1144 (8th Cir. 1999)).

B. The Claims

1. Retaliatory Discharge

Minnesota Statute § 181.932 (the Minnesota Whistleblower Act) declares, in relevant part, that an employer may not discharge an employee because he or she "reports a violation, suspected violation, or planned violation of any federal or state law . . . to an employer or to any governmental body or law enforcement official." Minn. Stat. § 181.932,subd. 1(1). Where direct evidence of retaliation is lacking, as here, Minnesota Whistleblower Act claims are analyzed under the familiar McDonnell Douglas burden-shifting framework. See Hilt v. St. Jude Med. S.C., Inc., 687 F.3d 375, 378 (8th Cir. 2012) (citing Cokley v. City of Otsego, 623 N.W.2d 625, 630 (Minn. Ct. App. 2001)). Boettcher thus has the initial burden of establishing a prima facie case of retaliation, at which point the burden of production shifts to Express to articulate a legitimate, non-retaliatory reason for his dismissal. Cokley, 623 N.W.2d at 630. Assuming Express meets this burden, the onus is on Boettcher to establish that the reason proffered by Express is pretext. Id. "At all times the employee has the burden to prove by a preponderance of evidence that the employer's action was for an impermissible reason." Id. (citing Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569, 572 (Minn. 1987)).

Under the Minnesota Whistleblower Act, Boettcher must establish three elements in making his prima facie case: (1) statutorily protected conduct; (2) an adverse employment action by Express; and (3) a causal connection between the two....