Jennifer Woebke Tong, Appellant, vs. American Public Media Group, et al., Respondents.

Jennifer Woebke Tong, Appellant, vs. American Public Media Group, et al., Respondents. A05-432, Court of Appeals Unpublished, December 27, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-432

 

Jennifer Woebke Tong,

Appellant,

 

vs.

 

American Public Media Group, et al.,

Respondents.

 

Filed December 27, 2005

Affirmed Willis, Judge

 

Ramsey County District Court

File No. C1-04-792

 

 

William J. Egan, William J. Egan, PLC, 315 Edina Executive Plaza, 5200 Willson Road, Edina, MN  55424 (for appellant)

 

Karen G. Schanfield, Sara Gullickson McGrane, H. Le Phan, Felhaber, Larson, Fenlon & Vogt, P.A., 220 South Sixth Street, Suite 2200, Minneapolis, MN  55402 (for respondents)

 

            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Huspeni, Judge.*

           
U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant sued her former employers for alleged violations of the Minnesota Human Rights Act, Minn. Stat. §§ 363 A. 01 to .41 (2004), claiming (1) "sex and/or pregnancy" discrimination, (2) reprisal discrimination, and (3) the aiding and abetting of discrimination.  Appellant challenges the district court's grant of summary judgment to the employers.  Because appellant failed to establish a prima facie case for her claims of pregnancy and reprisal discrimination and, therefore, failed to establish any underlying discrimination to support her claim of aiding and abetting discrimination, we affirm.

FACTS

The facts are largely undisputed.  In August 1998, appellant Jennifer Tong was hired as manager of financial analysis for Minnesota Communications Groups, the predecessor of American Public Media Group (APMG).  APMG is the nonprofit parent organization of Minnesota Public Radio (MPR) and provides financial-management, human-resources, and administrative services to MPR.  Tong then became finance and projects manager, and later director of finance and content analysis, for MPR's content division.

In March 2002, Tong met with her supervisor, Jon McTaggart, the senior vice president of MPR's content division, for Tong's annual performance evaluation.  Tong received a positive evaluation and a three-percent raise, the maximum possible because she was at the top of her salary grade.  Tong claims that during this meeting she complained to McTaggart of pay inequity based on gender discrimination.

In late April or early May 2002, Tong told McTaggart that she was pregnant and that her due date was at the end of August.  According to Tong, McTaggart asked her if she was happy about being pregnant and whether it was planned.  Tong did not tell McTaggart or anyone else that she thought these comments were inappropriate.  Later, when Tong was talking with McTaggart about her maternity-leave plans, she mentioned that she was interested in limiting her work week to four days.

At the end of July, McTaggart told Tong that her job was going to be transferred from MPR's content division to APMG's finance division as a part of a business reorganization.  Tong was surprised by the transfer, and later learned that, after the transfer, her direct supervisor would be APMG's finance controller, Barbara Mock, but that Tong's job title and duties would remain the same.  Before Tong's maternity leave, she met with APMG's chief financial officer and its vice president of human resources, and requested a reduced work week when she returned from her leave.  APMG agreed to accommodate her with a reduced schedule, but no details had been agreed on when Tong went on maternity leave in August 2002. 

Tong claims that while she was on maternity leave, Mock told her that her duties were being performed by Mock and others and that some of Tong's budget duties would change because of the implementation of a new electronic budgeting tool.  Tong subsequently proposed that, upon her return, she would work 24 hours per week: 16 hours in the office and 8 hours working from home.  APMG approved this schedule. 

Before her maternity leave, Tong's duties included preparing budgets and assisting with the preparation of grant proposals and special projects.  Tong claims that after returning from her four-month leave in January 2003, her duties were limited to grants and special projects, and that these duties were less challenging and less important than her responsibilities had been before her leave. 

In February 2003, Tong submitted a letter of resignation, in which she stated that she believed that her transfer and the diminishment of her job duties were the result of the fact that she raised pay-equity issues during her March 2002 review.  Before her resignation became effective, Tong and MPR's Director of News, Bill Buzenberg, discussed the possibility that Tong might do budget work for Buzenberg on a contract basis.  APMG's chief financial officer denied Buzenberg's request to hire Tong as an independent contractor.

Tong served a complaint on APMG and MPR in November 2003, claiming that they violated the Minnesota Humans Right Act (MHRA) by constructively discharging her on the basis of her "sex and/or pregnancy," by retaliating against Tong by transferring her job and diminishing her job duties because of her complaint regarding pay inequity based on gender, and by aiding and abetting one another in discriminating against Tong.  After the parties conducted discovery, the district court granted APMG and MPR's motion for summary judgment on all of Tong's claims.  This appeal follows.

D E C I S I O N

On appeal from summary judgment, this court makes two determinations: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  "A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  A "reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted."  Id.  "A defendant is entitled to summary judgment as a matter of law when the record reflects a complete lack of proof on an essential element of the plaintiff's claim." Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).

I.

            Tong argues first that the district court erred by granting summary judgment on her claim that APMG and MPR constructively discharged her because of her "sex and/or pregnancy."  The MHRA provides that

it is an unfair employment practice for an employer, because of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, membership or activity in a local commission, disability, sexual orientation, or age to:

 

…

 

(c) discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment.

 

Minn. Stat. § 363 A. 08, subd. 2 (2004).  Sex discrimination under the MHRA includes discrimination because of "pregnancy, childbirth, and disabilities related to pregnancy or childbirth."  See Minn. Stat. § 363 A. 03, subd. 42 (2004).  When interpreting cases under the MHRA, this court gives weight to federal court interpretations of Title VII claims because of the substantial similarities between the two statutes.  Wayne v. MasterShield, Inc., 597 N.W.2d 917, 921 (Minn. App. 1999) (citing Continental Can Co. v. State, 297 N.W.2d 241, 246 (Minn. 1980)). 

When analyzing a discrimination claim under a disparate-treatment theory, Minnesota courts apply the three-step, burden-shifting test enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).  See, e.g., Sigurdson v. Carl Bolander & Sons, Co., 532 N.W.2d 225, 228 (Minn. 1995) (applying the McDonnell Douglas test); Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978) (adopting the McDonnell Douglas test).  Under the McDonnell Douglas test, a plaintiff has the initial burden of establishing a prima facie case of discrimination.  Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (1986).  The burden then shifts to the employer to articulate a "legitimate, non-discriminatory reason" for any adverse employment action.  Id.  The burden then shifts back to the plaintiff to show that the employer's reason is a "pretext for discrimination."  Id. 

The requirements of a prima facie case of employment discrimination vary according to the facts of each case.  Sigurdson, 532 N.W.2d at 228 n.2.  Although Tong refers to her claim as one of "sex and/or pregnancy" discrimination, we conclude from her argument that the claim is that APMG and MPR discriminated against Tong because of her pregnancy by constructively discharging her.  To prevail on a pregnancy-discrimination claim, a plaintiff must show that she was "treated differently because of her pregnancy or a pregnancy-related condition."  Hietala v. Real Estate Equities/Village Green, LLC, 998 F. Supp. 1065, 1068 (D. Minn. 1998) (analyzing a pregnancy-discrimination claim under the MHRA) (quotation omitted).  To establish a prima facie case of discrimination under a disparate-treatment theory, a plaintiff must present evidence demonstrating that "(1) she was a member of a protected group; (2) she was qualified for her position; and (3) she was discharged under circumstances giving rise to an inference of discrimination."  Hanenburg v. Principal Mut. Life Ins. Co., 118 F.3d 570, 574 (8th Cir. 1997) (analyzing a pregnancy-discrimination claim under the MHRA).  If a plaintiff was not discharged but rather resigned, she must establish constructive discharge.  See id. 

Here, there is no dispute that Tong satisfies the first two elements necessary to establish a prima facie case of pregnancy discrimination.  As a woman, and then as a pregnant woman, Tong was a member of a protected group while employed with APMG and MPR.  And neither APMG nor MPR disputes that Tong was qualified for her position.  But because Tong resigned, to satisfy the third element, she must show that she was constructively discharged. 

An employee is constructively discharged when an employer forces her to quit by deliberately making the employee's working conditions intolerable.  Navarre v. S. Wash. County Sch., 652 N.W.2d 9, 32 (Minn. 2002).  The employer must act "with the intention of forcing the employee to quit."  Id. (quotation omitted).  A plaintiff can prove such intent by showing that her resignation was a reasonably foreseeable consequence of her employer's discrimination.  Pribil v. Archdiocese of St. Paul & Minneapolis, 533 N.W.2d 410, 412 (Minn. App. 1995).  A constructive discharge occurs only when a reasonable person would find her working conditions intolerable.  Id.  A job transfer that allows the employee to retain the same title, work, pay, and benefits is insufficient to establish intolerable conditions.  Gartman v. Gencorp, Inc., 120 F.3d 127, 130 (8th Cir. 1997) (analyzing a claim of constructive discharge based on gender discrimination under Title VII).  And an employee is not constructively discharged if the "employee quits without giving her employer a reasonable chance to work out the problem."  Bergstrom-Ek v. Best Oil Co., 153 F.3d 851, 858 (8th Cir. 1998) (analyzing a pregnancy-discrimination claim under the MHRA).

Tong argues that the following facts show that she was constructively discharged: (1) she was transferred to a department that was managed by the chief financial officer, who "clearly" had interpersonal issues with Tong; (2) the vice president of human resources called her "petty" for asking what her responsibilities would be after her job transfer; (3) her "principal responsibilities" were reassigned "to junior analysts while she [was] on [maternity] leave"; (4) she was given a "simplistic job" after returning from her leave; and (5) after her resignation, the vice president of human resources told her that people were glad she was leaving and that she was offensive. 

Accepting the facts that Tong alleges as true, they do not establish intolerable working conditions, and more importantly, none of these facts allows an inference that any of the actions was taken because of Tong's pregnancy.  Tong's job was transferred to APMG's finance division, and APMG's chief financial officer told her that her job title and duties would not change.  Tong admits that her pay rate did not change and does not claim that her benefits changed as a result of the transfer of her job.  Any changes that occurred were the result of Tong's decision to work only 24 hours per week after returning from maternity leave.  There is no evidence that APMG would not have allowed Tong to work 40 hours per week after her leave or that APMG or MPR wanted Tong to quit.  Instead, the evidence shows that APMG accommodated Tong's requested post-leave work schedule so that it could retain her as an employee.  In addition, because Tong did not tell either APMG or MPR that she believed she was being discriminated against because of her pregnancy, Tong did not give APMG or MPR an opportunity to address the issue before she resigned. 

Because Tong is unable to show that APMG or MPR deliberately made Tong's working conditions intolerable intending to force her resignation, Tong is unable to establish that she was constructively discharged.  We conclude, therefore, that Tong has not established a prima facie case of pregnancy discrimination.

Tong argues that the district court erred by applying the wrong legal standard in assessing whether she had established a prima facie case of pregnancy discrimination.  Although it appears that the district court applied the test appropriate for a claim of reprisal discrimination to Tong's pregnancy-discrimination claim, the error is harmless because the district court's conclusion that Tong failed to establish that she was constructively discharged is sound and is dispositive of her pregnancy-discrimination claim.  Tong's proposed alternative test for establishing a prima facie case of pregnancy discrimination does not require a showing of circumstances that give rise to an inference of discrimination and has no basis in Minnesota law.

The district court did not err by granting summary judgment on Tong's pregnancy-discrimination claim.

II.

Tong also appeals from the district court's grant of summary judgment on Tong's claim of reprisal discrimination.  Tong claims that APMG and MPR retaliated against her for complaining about pay inequities based on gender by transferring her job and diminishing her job duties and by refusing to hire her as an independent contractor.  The MHRA provides that it is an "unfair discriminatory practice" for an employer to "intentionally engage in any reprisal" against a person because that person opposed the employer's alleged discriminatory practices.  Minn. Stat. § 363A.15(1) (2004).  Specifically, "reprisal" includes "any form of intimidation, retaliation, or harassment."  Id.  It is reprisal for an employer to "refuse to hire the individual; depart from any customary employment practice; transfer or assign the individual to a lesser position in terms of wages, hours, job classification, job security, or other employment status; or inform another employer that the individual has engaged in [protected] activities."  Id.

The McDonnell Douglas test applies to retaliation claims.  Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983); see also Hoover v. Norwest Private Mortg. Banking, 632 N.W.2d 534, 548 (Minn. 2001) (stating that a "reprisal claim is analyzed under the McDonnell Douglas burden-shifting test").  To establish a prima facie case of reprisal, a plaintiff must show: "(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two."  Hoover, 632 N.W.2d at 548 (quoting Hubbard, 330 N.W.2d at 444).

Tong argues that her oral complaint of pay inequity to McTaggart during her March 2002 review was statutorily protected conduct.  Statutorily protected activities include "opposing ongoing discriminatory treatment."  Smith v. DataCard Corp., 9 F. Supp. 2d 1067, 1080 (D. Minn. 1998) (analyzing a claim of reprisal discrimination under the MHRA) (quotation omitted).  But oral complaints and letters to management alleging nothing more than unfair treatment are not statutorily protected activity.  Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 327 (Minn. 1995) (noting that plaintiff failed to make a specific accusation of age discrimination before filing her MHRA claim).  Here, Tong alleges that she told her direct supervisor during her annual review that at least two of the three male managers whom Tong considered to be her peers were paid $10,000 annually more than she was.  But in her deposition, Tong acknowledges that, during her review, she did not state that she believed she was getting paid less than other managers because she was female or that other managers were getting paid more because they were male.  Tong's statement regarding pay inequity is not a specific complaint of gender discrimination and, therefore, was not statutorily protected activity.  But even if we assume that it were, Tong has not established that she suffered an adverse employment action.

Tong argues that the transfer of her job from MPR to APMG's finance division was an adverse employment action.  An adverse employment action is one that "materially alters the terms or conditions of the plaintiff's employment."  Ludwig v. Nw. Airlines, Inc., 98 F. Supp. 2d 1057, 1069 (D. Minn. 2000) (analyzing a claim of retaliation discrimination under the MHRA) (quotation omitted).  A job transfer with "no difference … in wages, benefits, workload or duties" is not an adverse employment action.  Minneapolis Police Dep't v. Minneapolis Comm'n on Civil Rights, 425 N.W.2d 235, 240 (Minn. 1988).  Mere inconvenience or unhappiness on the job does not establish an adverse employment action.  Ludwig, 98 F. Supp. 2d at 1069.  Denial of a request for an assignment to a different supervisor is not an adverse employment action.  Id. at 1070.  Here, the transfer of Tong's job, which resulted in assignment to a different supervisor, but which did not cause a change in her job title, duties, pay, or benefits, was not an adverse employment action.  Because Tong does not establish the first two elements of a prima facie case of reprisal discrimination, we need not review the third element. 

Because Tong's employment relationship with APMG and MPR did not entitle her to work for APMG or MPR on a contract basis and because the MHRA does not apply to independent contractors, we decline to determine whether Tong's complaint in her letter of resignation that she was transferred "in response to [her] complaints of unequal pay compared to [her] male peers" was statutorily protected activity or whether APMG's subsequent refusal to allow Tong to be hired as an independent contractor was an adverse employment action.  See Hanson v. Friends of Minn. Sinfonia, 181 F. Supp. 2d 1003, 1006 (D. Minn. 2002) ("[T]he Minnesota Human Rights Act do[es] not apply to non-employees, therefore independent contractors are excluded from its coverage."), aff'd, 322 F.3d 486 (8th Cir. 2003).

Because Tong failed to establish a prima facie case of reprisal discrimination, the district court did not err by granting summary judgment on that claim.

III.

Tong also appeals from the grant of summary judgment on her claim that APMG and MPR aided and abetted one another in discriminating against her.  The MHRA provides that it is an "unfair discriminatory practice" for a person to intentionally aid or abet another to engage in any discrimination prohibited by the MHRA.  Minn. Stat. § 363A.14(1) (2004).  Under the MHRA, an underlying discrimination claim is a prerequisite to a claim of aiding and abetting discrimination.  See id. Because Tong failed to establish either of her claims that APMG or MPR engaged in pregnancy discrimination or reprisal discrimination, her claim of aiding and abetting discrimination also fails.  Therefore, the district court did not err by granting summary judgment on that claim.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.