United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2489
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Helen Fu and Steven Fu, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Ebonie Owens; Medcor, Inc., dba *
Medcor-Target Clinic and Clinic *
Practice Management, PC; Target *
Corporation, dba Medcor-Target *
Clinic and Clinic Practice *
Management, PC, *
*
Appellees. *
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Submitted: May 12, 2010
Filed: October 6, 2010
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Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.
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SMITH, Circuit Judge.
Helen Fu and Ebonie Owens both worked for the Medcor clinic in the
Knollwood, Minnesota Target retail store. One day Owens physically attacked Fu
causing several injuries. Medcor terminated Owens. Fu applied for benefits under the
Minnesota Workers' Compensation Act (WCA). After initially paying some benefits,
Medcor's insurance carrier denied the claim, contending that the injuries were the
result of an intentional act. Subsequently, Fu and her husband, Steven, sued Medcor
in state court under several common-law theories and brought one federal claim under
the Americans with Disabilities Act (ADA). The district court1 granted summary
judgment on all claims and the Fus appeal. We affirm.
I. Background
Medcor is a management company that provides management and personnel
services for in-store medical clinics. Medcor contracted with Target to provide these
services to certain Target-owned clinics in Minnesota, including the Knollwood
Target. Owens and Fu both worked for the Medcor clinic in the Knollwood Target.
One day Owens attacked Fu, and Medcor subsequently terminated Owens. Fu applied
for benefits under the WCA, but after initially paying benefits, Medcor's insurance
carrier denied the claim, determining that the injuries were the result of an intentional
act.
Subsequently, Fu and her husband sued Medcor in state court under
common-law theories of assault, battery, false imprisonment, intentional and negligent
infliction of emotional distress, negligent hiring, supervision, and retention, and loss
of consortium. Fu also alleged claims against Medcor for disability discrimination
under the ADA and the Minnesota Human Rights Act, violation of Minnesota
Whistleblower's Act, wrongful termination, breach of contract, and defamation.
Because the state court complaint alleged a disability discrimination claim arising
under the ADA, Medcor removed the action to Minnesota federal district court.
Medcor subsequently brought a motion for summary judgment that the district court
granted. The district court dismissed the tort-based injury claims pursuant to the
1
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
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exclusivity provision of the WCA.2 The district court also dismissed the remaining
claims for disability discrimination, whistleblower violations, breach of contract, and
defamation. The district court further ruled that Target and Medcor were not engaged
in a joint enterprise. Finally, the district court held that Neka Swinney's affidavit,
offered by the Fus after the close of discovery, was not properly disclosed and could
not provide a basis to defeat Medcor's summary judgment motion.
II. Discussion
A. Common Law Claims and the WCA
On appeal, the Fus argue that their common law claims are excepted from the
exclusivity provisions of the WCA.3 Specifically, the Fus contend that their assault
and battery claim is noncompensable under the WCA pursuant to McGowan v. Our
Savior's Lutheran Church, where the court stated that certain assault cases "are
2
The Minnesota Workers' Compensation Act provides in pertinent part:
Every employer is liable for compensation according to the provisions
of this chapter and is liable to pay compensation in every case of
personal injury or death of an employee arising out of and in the course
of employment without regard to the question of negligence. The burden
of proof of these facts is upon the employee.
Minn. Stat. § 176.021, Subdivision 1.
"The liability of an employer prescribed by this chapter is exclusive . . . ."
Minn. Stat. § 176.031.
"Personal injury does not include an injury caused by the act of a third person
or fellow employee intended to injure the employee because of personal reasons, and
not directed against the employee as an employee, or because of the employment."
Minn. Stat. § 176.011, Subdivision 16.
3
The Fus do not appeal the dismissal of the remainder of their claims.
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noncompensable under the [WCA] because the assailant was motivated by personal
animosity toward his victim, arising from circumstances wholly unconnected with the
employment[.]" 527 N.W.2d 830, 834 (Minn. 1995). The Fus argue that Owens's
attack on Mrs. Fu was based on racial animus and thus wholly unconnected with Fu's
employment. Accordingly, the Fus submit that the district court erred in dismissing
this claim based upon the exclusivity provision of the WCA.
We review de novo a grant of summary judgment. Summary judgment
is proper if, after viewing the evidence and drawing all reasonable
inferences in the light most favorable to the nonmovant, no genuine issue
of material fact exists and the movant is entitled to judgment as a matter
of law.
Libel v. Adventure Lands of Am., Inc., 482 F.3d 1028, 1033 (8th Cir. 2007).
The Minnesota cases that have addressed the exclusivity exception have framed
the issue in the following terms:
[T]he central question is not whether the employee was injured merely
while at his or her employment, but whether the injury occurred because
the employee was at the job "in touch with associations and conditions
inseparable from it."
Stengel v. E. Side Beverage, 690 N.W.2d 380, 386 (Minn. Ct. App. 2004) (quoting
Johnson v. Ramsey County, 424 N.W.2d 800, 805 (Minn. Ct. App. 1988)) (emphasis
added). In Stengel, the plaintiff brought suit alleging various common law claims
including "common-law assault and battery, intentional infliction of emotional
distress, and numerous other claims." Id. at 381–82.
The alleged conduct which formed the basis for [plaintiff]'s claims
include[d] a co-worker sticking his finger in between the buttons of
[plaintiff]'s blouse, between her breasts, and moving his finger back and
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forth while saying "ding, ding, ding . . ."; another co-worker shoving his
hand up her leg saying, "Oh, dead man's curve, I'd like to get some of
that," and then grabbing [plaintiff] and reaching for her vagina; her
supervisor leaning his body against hers and kissing her; and various
other co-workers grabbing her buttocks, grabbing and snapping her bra,
and slapping her backside with a rolled up sign.
Id. at 382. The court in Stengel concluded that "a genuine issue of material fact
exist[ed] as to whether the alleged acts were directed against [plaintiff] for personal
reasons or as an employee." Id. at 386–87. Accordingly, the court held that summary
judgment was inappropriate for the plaintiff's assault and battery claim. Id.
Contrastingly, in McGowan the plaintiff commenced a negligence action
"seeking damages for injuries she sustained as a result of being raped while working
as director of [a] homeless shelter . . . ." 527 N.W.2d at 831. The Minnesota supreme
court stated:
It is . . . clear that McGowan's employment was a causal factor
contributing to her being raped. At the time she was raped, McGowan
was the shelter's director and had never had any contact with her
assailant outside the workplace. Further, the assault occurred during
working hours, in her office, while she was directly engaged in the
performance of her work duties. Based on these facts, we cannot say that
the rape arose from circumstances unrelated to McGowan's employment.
Id. at 834. Accordingly, the court held "McGowan's injuries are covered under the
[WCA] because they resulted from an assault arising solely out of McGowan's
activities as an employee." Id.
The Fus' case is analogous to McGowan. First, when Owens assaulted Fu she
had never had any contact with Owens outside of the workplace. Second, the assault
occurred during working hours, at the clinic, while Fu performed her work duties.
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Furthermore, although the record reflects that Owens may have harbored racial animus
toward Fu, it also reflects that Owens disliked Fu for specific, work-related reasons
such as Fu reporting Owens's allegedly inferior job performance to clinic supervisors.
In fact, Fu reported to supervisors that Owens was not assisting with computer
problems at the clinic on the very day of the attack.
Furthermore, the Fus' case is distinguishable from Stengel. In Stengel, nothing
indicated that the various assaults were in any way work-related. The Stengel court
stated that "courts must examine cases on their individual facts to determine whether
the employee's job function was somehow related to the injury. If it is not, then the
assault exception applies and the employee's common-law claim is not barred by the
Workers' Compensation Act." 690 N.W.2d at 386 (emphasis added). In this case,
"[b]ased on these facts, we cannot say that the [assault] arose from circumstances
unrelated to [Fu's] employment." McGowan, 527 N.W.2d at 834. Accordingly, in
answering Stengel's "central question," we hold that Fu's "injury occurred because
[she] was at the job in touch with associations and conditions inseparable from it." 690
N.W.2d at 386 (internal quotations and citation omitted).
B. Swinney's Affidavit
Next, the Fus argue that the district court abused its discretion in excluding
Swinney's affidavit. The Fus contend that there is nothing on the record that indicates
that Mrs. Fu engaged in bad faith in concealing Swinney's existence.
Although the record indicates that the Fus did not engage in bad faith in
concealing Swinney, the Fus have not provided an excuse for untimely disclosing the
Swinney affidavit. Federal Rule of Civil Procedure 37(c)(1) provides in relevant part:
If a party fails to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.
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Federal Rule of Civil Procedure 26(a)(3) provides in pertinent part:
(A) In General. In addition to the disclosures required by Rule 26(a)(1)
and (2), a party must provide to the other parties and promptly file the
following information about the evidence that it may present at trial
other than solely for impeachment:
(iii) an identification of each document or other exhibit, including
summaries of other evidence—separately identifying those items
the party expects to offer and those it may offer if the need arises.
The Fus have not provided substantial justification for failing to timely disclose
Swinney's affidavit nor have they demonstrated that such failure is harmless. See Fed.
R. Civ. P. 37(c)(1).
Furthermore, the district court did consider the Swinney affidavit, noting that
"even if plaintiffs could use Ms. Swinney's testimony, however, that testimony at most
shows that Owens did not like Fu." Accordingly, Fu was not prejudiced by the
exclusion of the Swinney affidavit because the district court actually considered it but
found it immaterial.
C. Joint Enterprise
Finally, the Fus argue that they demonstrated a material fact issue as to whether
Target and Medcor were engaged in a joint enterprise thereby making Target jointly
liable for Mrs. Fu's injuries. The Fus also contend that the district court's analysis
erroneously conflates the concepts of joint venture and joint enterprise.
We disagree and affirm. In Murphy v. Keating, the Minnesota supreme court
stated:
There are two elements customarily required by the courts to establish
joint enterprise, namely, (1) a mutual undertaking for a common purpose,
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and (2) a right to some voice in the direction and control of the means
used to carry out the common purpose. This is well illustrated in
Cunningham v. City of Thief River Falls, 84 Minn. 21, 27, 86 N.W. 763,
765 [(1901)]; "Parties cannot be said to be engaged in a joint enterprise,
within the meaning of the law of negligence, unless there be a
community of interest in the objects or purposes of the undertaking, and
an equal right to direct and govern the movements and conduct of each
other with respect thereto. Each must have some voice and right to be
heard in its control and management."
283 N.W. 389, 392 (Minn. 1939). The agreement between Target and Medcor
expressly provided that Medcor was operating independently from Target, that neither
Medcor nor its employees were "employees, joint ventures, partners, contractors, or
lessees of Target or employees leased to Target," and that Medcor had "sole control
over the manner, means and methods by which Medcor and Medcor's employees
. . . perform services" under the agreement. The agreement also expressly provided
that Medcor alone had sole control over its employees, stating that Medcor alone was
responsible for "selecting, hiring, training, supervising and terminating" the
employees it used to provide clinic services. Based on this contractual language, we
hold that the district court did not err in concluding that Target and Medcor were not
engaged in a joint enterprise under Minnesota law. See Murphy, 283 N.W. at 392;
Weber by Sanft v. Goetzke, 371 N.W.2d 611, 616 (Minn. Ct. App. 1985) ("The right
to legal control means that all involved in the undertaking must have a joint or mutual
right to direct the agency used to carry out the common purpose. . . . By its terms
'legal control' implies an enforceable right to control the movements of another.").
Because we hold that Target and Medcor were not engaged in a joint enterprise we
need not address the Fus' contention that the district court erroneously conflated the
concepts of joint venture and joint enterprise.
III. Conclusion
We affirm.
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