Kempf v. Hennepin Cnty.

987 F.3d 1192

Anita M. KEMPF Plaintiff - Appellant

v.HENNEPIN COUNTY Defendant - Appellee

No. 20-1308

United States Court of Appeals, Eighth Circuit.

Submitted: December 16, 2020

Filed: February 16, 2021

Ted Haller, IV, Benjamin Reid Kwan, Haller & Kwan, Minneapolis, MN, Joshua A. Newville, Zane Umsted, Madia Law, Minneapolis, MN, for Plaintiff - Appellant.

Beverly Jean Wolfe, Hennepin County Attorney's Office, Minneapolis, MN, for Defendant - Appellee.

Before GRUENDER, ERICKSON, and KOBES, Circuit Judges.

Erickson, Circuit Judge

Anita M. Kempf appeals the district court's¹ adverse grant of summary judgment on her claims that her former employer, Hennepin County ("County"), retaliated against her for participating in protected activity in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Minnesota Whistleblower Act ("MWA"), Minn. Stat. § 181.932. We affirm the dismissal of the Title VII claims and remand with instructions to dismiss the MWA claims without prejudice.

I. BACKGROUND

Kempf worked as an architect in the County's Facility Services Department from 1997 to 2016. A dispute arose on March 9, 2016, when Jay Biedny, Kempf's division manager, went to Kempf's office to discuss a project. In Kempf's version of the discussion, Biedny aggressively came into her office and asked her about the project in a "loud and hostile voice." Kempf, who was sitting at her desk facing away from the door, told Biedny that she needed to finish an email. Unsatisfied with that response, Biedny walked towards Kempf and yelled at her to stop emailing; Kempf turned around, found Biedny close to her, and involuntarily screamed. At her deposition, Kempf recounted that Biedny "was totally up against the back of [her] chair," "his crotch was within six inches of [her] face," and "it felt like an assault was imminent." Kempf said that she repeatedly told Biedny to leave and then shut her door to compose herself. According to Biedny, he tried to diffuse the situation but "a rage came over" Kempf, and she ordered him out of her office and slammed the door in his face.

Both Biedny and Kempf reported the incident to the Deputy Director of Facility Services, Barbara O'Brien, that very day. Biedny reported to O'Brien that Kempf yelled and slammed her door. Kempf reported to O'Brien that Biedny physically threatened her. The County has alleged that Kempf was agitated during her conversation with O'Brien and poked O'Brien in the chest. Kempf has admitted the poke but described it as "jovial." With the competing reports in hand, O'Brien launched an investigation.

On March 17, 2016, the County determined that Kempf committed "a continuing pattern of misconduct" and suspended her for five days without pay. The written suspension notice included the following: Kempf's disciplinary history, a determination that Kempf failed to meet performance expectations, and a finding that Kempf violated County rules when she shouted at Biedny and poked O'Brien.

Kempf returned to work on April 4, 2016, having served her suspension. The next day, she met with Michael Sable, Director of Facility Services, to discuss her concerns about management. Sable told Kempf that she had a number of options. She could file an informal, formal, or external complaint. On April 11, 2016, Kempf filed an informal complaint challenging the suspension notice's allegations and the County's investigation. Kempf specifically complained about the way in which the County handles "gender based threats" and noted "[m]any women leave their" jobs because of similar events, which contributes to the gender-pay gap. After review, the County upheld the suspension.

Throughout April 2016, the County documented several alleged instances of misconduct by Kempf and placed her on paid administrative leave on April 26, 2016. The County issued her a Notice of Intent to Dismiss on May 3, 2016, for "failure to meet job expectations and misconduct." Facing termination, Kempf chose to resign. For convenience, we refer to her resignation as a termination. Although Kempf alleged a number of claims, she appeals only her retaliation claims. These claims include her "suspension-based claims" and "termination-based claims."

II. DISCUSSION

We review a district court's grant of summary judgment de novo , viewing any facts in which there is a genuine dispute in a light most favorable to the nonmoving party. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quotations omitted). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a).

A. Title VII Suspension-Based Claim

The district court dismissed Kempf's suspension-based claim on two grounds: (1) failure to exhaust, and (2) lack of a prima facie case because Kempf did not make a statutorily protected report prior to her suspension. Because we conclude that Kempf has not shown a prima facie case, we need not address exhaustion which the district court raised sua sponte .

Title VII prohibits employers from, among other things, retaliating against employees for opposing unlawful employment practices, making a charge, or participating in an investigation under the statute. 42 U.S.C. § 2000e-3(a). For her suspension-based claim, Kempf alleged that the County suspended her in retaliation for opposing Biedny's conduct, which she asserts was "unlawful sexual harassment." Because Kempf's suspension notice indicated she was suspended, in part, for "shouting loudly" at Biedny and having an agitated conversation with O'Brien, Kempf argues that the suspension and notice are direct evidence of retaliation since the County knew she did those things to resist and report Biedny's "sexual harassment." See Barrett v. Omaha Nat'l Bank, 726 F.2d 424, 428 (8th Cir. 1984) (noting Title VII protects an employee from retaliation for reporting sexual harassment).

Kempf failed to show that she engaged in statutorily protected activity because she did not communicate or report any sexual harassment before her suspension. To establish a prima facie retaliation claim, Kempf must present evidence demonstrating that she opposed a practice made unlawful and either explicitly or implicitly communicated her belief that Biedny's conduct constituted unlawful sexual harassment to her employer. See EEOC v. N. Mem'l Health Care, 908 F.3d 1098, 1101 (8th Cir. 2018) ; EEOC Compliance Man. § 8–11–B(2) (2006). While Kempf alleged that Biedny physically threatened her prior to her suspension, she never indicated to her employer that Biedny's conduct was overtly sexual or gender based. Kempf conceded during oral argument that she never mentioned Biedny's "crotch" being in her face in her conversation with O'Brien or during the course of the investigation. Kempf first made this characterization during her deposition and then pursued it during litigation, long after she was suspended. Likewise, Kempf's first report of a "gender based threat" to the County was in her informal complaint filed after her suspension. Kempf's pre-suspension actions are too vague to support a finding that she opposed unlawful sexual harassment. See Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1311 (11th Cir. 2016) (Title VII only protects employees who communicate a belief about an unlawful employment practice). We affirm the grant of summary judgment on the suspension-based claim.

B. Title VII Termination-Based Claim

For her termination-based claim, Kempf contends the County terminated her in retaliation for complaining about Biedny, the investigation, and the way the County handles gender-based threats. Without direct evidence of retaliation, we apply the familiar burden-shifting analysis under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework, Kempf bears the initial burden of showing that she engaged in protected conduct, that a reasonable employee would have found the retaliatory action materially adverse, and the existence of a causal link between the protected conduct and materially adverse action. See Mahler v. First Dakota Title Ltd. P'ship, 931 F.3d 799, 805 (8th Cir. 2019). If Kempf establishes a prima facie case, "the burden shifts to [the County] to articulate a legitimate, non-retaliatory reason for the adverse action." Id. If the County articulates such a reason, then "the burden shifts back to [Kempf] to demonstrate that [the County's] proffered reason is pretextual." Id. To succeed, she must both discredit the County's explanation for her termination and "show the circumstances permit drawing a reasonable inference that the real reason for [that action] was retaliation." Gilbert v. Des Moines Area Cmty. Coll., 495 F.3d 906, 918 (8th Cir. 2007).

Following her suspension, Kempf submitted an informal complaint that expressly made allegations about improper investigations regarding gender-based threats. Assuming a prima facie case, the burden shifts to the County to provide a legitimate, non-retaliatory reason for Kempf's termination. The County asserts the termination was supported by four instances of misconduct documented in April 2016. First, on April 5, 2016, Kempf used her badge to enter the office suite of Chester Cooper, Director of the Department of Community Corrections and Rehabilitation ("DOCCR"), without express permission.

Second, on April 11, 2016, Kempf approached Cooper in the skyway in the County building and loudly and aggressively complained about her job. Third, on April 15, 2016, Kempf missed a deadline. Fourth, on April 20, 2016, Kempf was "abrasive, disrespectful, and unprofessional" at a client meeting. Each of these are legitimate, non-retaliatory reasons sufficient to shift the burden back to Kempf to demonstrate that the reasons given are pretextual.

Below, Kempf challenged only two of the County's proffered reasons as pretextual, which caused the...