Alma Allen Webb, Appellant, vs. Xcel Energy, Inc., Respondent.

Alma Allen Webb, Appellant, vs. Xcel Energy, Inc., Respondent. A06-562, Court of Appeals Unpublished, May 15, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-562

 

 

Alma Allen Webb,

Appellant,

 

vs.

 

Xcel Energy, Inc.,

Respondent.

 

 

Filed May 15, 2007

Affirmed

Lansing, Judge

 

 

Hennepin County District Court

File No. 27-CV-04-013868

 

 

Larry E. Reed, Law Office of Larry E. Reed, 2000 Plymouth Avenue North, Minneapolis, MN 55411 (for appellant)

 

Melissa Raphan, Nicole Haaning, Dorsey & Whitney LLP, 50 South Sixth Street, Suite 1500, Minneapolis, MN  55402 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            The district court granted summary judgment dismissing Alma Webb's nine claims relating to the termination of her employment at Xcel Energy.  On appeal, Webb challenges the dismissal of three of her claims:  reprisal under the Minnesota Human Rights Act, whistleblower retaliation under Minn. Stat. § 181.932 (2006), and negligent supervision and retention.  Because the facts, taken in the light most favorable to Webb, fail to establish elements essential to each of the three claims, we affirm the district court's summary judgment. 

F A C T S

            Alma Webb began working at Xcel Energy in 1991 and transferred into a position in the Air Quality Work Group in 1998.  While working in that department, Webb became entangled in a series of negative incidents with Tamara Hopwood who worked in the same building and was employed by Xcel's security contractor.  One of the early incidents occurred in the women's restroom at Xcel in September 2003.  Webb apparently saw Hopwood with her underwear exposed while Hopwood was either inside a restroom stall with the door unlatched or outside the stall.  In September or October 2003 she also saw Hopwood in a public area at Xcel applying lotion to her legs.  In addition, Hopwood several times complimented Webb on her clothing. 

            Webb was offended by these encounters and, in mid-October 2003, confronted Hopwood.  Webb later reported Hopwood's activities to Linda Merchant, an Xcel employee who was the manager of the security service.  Merchant, in turn, reported Webb's comments to Hopwood's supervisor.  In her report to Merchant, Webb said that she thought Hopwood's conduct was inappropriate and unladylike. 

            On November 18, 2003, Webb bumped into Hopwood in a lobby area adjacent to the elevators.  A number of witnesses described Webb's forward movement toward Hopwood as an intentional act.  As a result, Webb was placed on a "decision-making leave" for one day.  In the one-day leave the employee must decide whether the employee wants to continue working at the company.  After returning from the leave, Webb decided that she wanted to continue employment and agreed to act professionally, to comply with Xcel's policies and practices, and to follow a number of other conditions.

            When Webb was placed on the one-day leave, her attorney wrote to Xcel and requested an "investigation of her sexual harassment and hostile work environment complaints."  In December 2003, Xcel conducted an investigation into Webb's claims and found insufficient evidence to conclude that sexual harassment had occurred. 

            Between February and April 2004, Webb sent a number of e-mails that provided details on each of her encounters with Hopwood.  These e-mails described incidents in which Webb saw Hopwood in the building where they both worked. 

            On April 15, 2004, Webb confronted Merchant about Hopwood, complaining that Hopwood was loitering in the hallway and talking unnecessarily to Merchant and others.  Merchant reported that Webb was yelling and disrespectful, and Xcel decided to investigate the incident.  Webb refused to participate in the investigation and was placed on suspension.  Xcel terminated her employment on April 23, 2004.

            Webb sued Xcel Energy in August 2004 for sexual harassment; race discrimination; breach of contract; whistleblower retaliation; aiding and abetting sexual harassment; negligent infliction of emotional distress; intentional infliction of emotional distress; Minnesota Human Rights Act reprisal; and negligent supervision, training, and retention.   

            After extensive discovery, the district court, in June 2005, granted Xcel's motion for summary judgment on six of Webb's claims.  The district court gave Webb additional time to produce evidence on her MHRA-reprisal, whistleblower-retaliation, and negligent-supervision-and-retention claims.  In January 2006, the district court granted summary judgment on these last three claims.  Webb appeals the summary judgment on her claims of MHRA reprisal, whistleblower retaliation, and negligent supervision and retention.

D E C I S I O N

            On appeal from summary judgment, we review the record to determine "whether there are any genuine issues of material fact and whether a party is entitled to judgment as a matter of law."  In re Collier, 726 N.W.2d 799, 803 (Minn. 2007).  We view the evidence in the light most favorable to the party against whom judgment was granted, but if the nonmoving party fails to raise a material issue of fact on any element necessary to establish its case, summary judgment is appropriate.  Gradjelick v. Hance, 646 N.W.2d 225, 231 (Minn. 2002).  A genuine issue of material fact exists if the evidence would "permit reasonable persons to draw different conclusions."  Id.  No genuine issue of material fact exists if the evidence "merely creates a metaphysical doubt as to a factual issue."  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

I

            The Minnesota Human Rights Act (MHRA) prohibits reprisal against an employee who has opposed or filed a complaint about an unfair, discriminatory practice.  Minn. Stat. § 363 A. 15 (2006).  A plaintiff may establish reprisal either by offering direct evidence of reprisal or by establishing an inference of reprisal under the McDonnell-Douglas burden-shifting framework.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)).  Under the burden-shifting framework, a plaintiff must first establish a prima facie case of retaliation, which consists of (1) statutorily-protected conduct by the employee, (2) adverse employment action, and (3) a causal connection between the protected conduct and the adverse action.  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 548 (Minn. 2001).

            The district court granted summary judgment on the MHRA-reprisal claim because Webb failed to establish direct evidence of reprisal or any causal connection between statutorily protected conduct and her termination.  The court concluded that Webb's failure to satisfy the third element of the McDonnell-Douglas requirement prevented a reasonable inference that her employment termination resulted from reprisal.  We reach the same conclusion.

            The record does not provide a basis for Webb's claim that, before she was placed on the one-day leave for decision making, she had engaged in statutorily protected conduct.  Under the MHRA, statutorily protected conduct includes opposing a practice forbidden under the MHRA or filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the MHRA.  Minn. Stat. § 363A.15(1).  In Webb's initial complaint, Webb said that Hopwood (1) did not latch the door in the restroom stall, (2) did not get totally dressed when she left the restroom stall and once had "her shirt pulled up under her chin and her pants unzipped," and (3) put lotion on her legs while in a public workplace area.  Webb's report failed to describe circumstances that constituted sexual harassment.  In her deposition Webb described Hopwood's conduct as "inappropriate" or "unladylike," but denied that she believed Hopwood had a sexual interest in her.  The record supports the district court's determination that Webb's initial complaint was not statutorily protected conduct because she was not opposing a practice forbidden under the MHRA.  Webb characterized the incidents as sexual harassment only after she was placed on the one-day leave for decision making. 

            Under these circumstances, a jury would be unable to conclude that Webb's statutorily protected conduct caused the termination of her employment.  Webb did not make a report that could reasonably be considered statutorily protected conduct until after she had been placed on one-day leave for her physical encounter with Hopwood near the elevators.  Xcel did not terminate Webb until several months after that report and Webb has produced no direct evidence of causation.  Just before Xcel terminated Webb's employment, Xcel initiated an investigation into Webb's confrontational conduct toward Merchant, but Webb refused to participate in the investigation.  On this record, a reasonable person would be unable to conclude that Webb's employment was terminated as a result of statutorily protected conduct.  Instead, a reasonable person would be forced to conclude that Webb was discharged for some other reason, such as failing to participate in a company investigation after being placed on a one-day leave.  Webb has failed to create more than "metaphysical doubt."  Therefore, no genuine issue of material fact exists as to causation and summary judgment was properly granted on the Webb's MHRA reprisal claim.

II

            The district court also properly granted summary judgment on Webb's whistleblower-retaliation claim.  Webb produced no direct evidence of retaliation and she failed to establish a prima facie case of whistleblower retaliation.  A prima facie case of whistleblower retaliation consists of (1) statutorily protected conduct, (2) adverse employment action, and (3) a causal connection between the two.  Gee v. Minn. State Colls. & Univs., 700 N.W.2d 548, 555 (Minn. App. 2005). 

            To make a statutorily protected report under the whistleblower act, the employee must allege "facts that, if proven, would constitute a violation of law or rule adopted pursuant to law."  Abraham v. County of Hennepin, 639 N.W.2d 342, 355 (Minn. 2002).  Webb claims that she engaged in statutorily protected activity because she reported that Hopwood was stalking her.  But Webb's complaints to Xcel did not allege facts that, if proven, would constitute stalking.  Webb reported seeing Hopwood numerous times in and around her office building.  These allegations must be considered in light of the fact that Hopwood and Webb worked in the same building and on the same floor.  In these circumstances, Hopwood's proximity to Webb cannot be characterized as stalking.  In addition, Webb claims that Hopwood asked about her social security number and that Hopwood's action is probative of whistleblower retaliation.  But the record does not indicate that Webb reported this conduct to Xcel.  In any case, Hopwood's inquiry about the social security number does not, on this record, constitute stalking. 

            Webb reported facts that she belatedly characterized as sexual harassment.  But the MHRA exclusivity provision prevents Webb from bringing a separate claim under the whistleblower act that is based on sexual harassment covered by the MHRA.  Williams v. St. Paul Ramsey Med. Ctr., Inc., 551 N.W.2d 483, 485-86 (Minn. 1996).  Therefore, Webb has failed to produce evidence that she engaged in statutorily protected activity under the whistleblower act.  For these reasons, the district court properly granted summary judgment on Webb's whistleblower claim.

III

            Finally, we conclude that summary judgment was also properly granted on Webb's claim of negligent supervision and retention.  To establish a claim for negligent supervision or retention, the plaintiff must show "a threat of physical injury or actual physical injury."  Bruchas v. Preventative Care, Inc., 553 N.W.2d 440, 443 (Minn. App. 1996).  Webb speculates that Hopwood was dangerous because she had been fired from her job as a police officer.  But the record does not indicate why Hopwood left her job as a police officer. 

            In addition, the record does not support Webb's claim that Hopwood was stalking her.  Webb has therefore failed to present any evidence that could lead a reasonable person to conclude that she faced a threat of physical injury or actual physical injury.  Thus, the district court properly granted summary judgment on Webb's claims of negligent supervision and negligent retention.

            Affirmed.

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