Barbara Burns v. AON Corp.

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No. 95-2854
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Barbara R. Burns, *
*
Appellant, *
*
v. *
*
Aon Corporation, a corporation *
chartered in Delaware, with *
corporate headquarters at *
Chicago, Illinois; Frank B. *
Hall & Company, Inc., a wholly *
owned subsidiary of Reliance *
Group Holdings, plc, a * Appeal from the United States
corporation chartered in * District Court for the
Delaware, with corporate offices* District of Minnesota.
at Briarcliff Manor, New York; *
Rollins Hudig Hall, its * [UNPUBLISHED]
affiliates and subsidiaries, *
including Rollins Hudig Hall of *
MN a successor in interest to *
Frank B. Hall and Co. of MN, *
Inc.; David J. Duddleston, *
Esq., individually, and in his *
capacity as agent of Frank B. *
Hall and Co. of MN, Inc., *
*
Appellees. *

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Submitted: April 5, 1996

Filed: April 23, 1996
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Before FAGG, HENLEY, and BOWMAN, Circuit Judges.
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PER CURIAM.
 Barbara R. Burns appeals the judgment entered by the District Court1
after it dismissed some defendants and granted summary judgment to the
remaining defendants in Burns's action alleging violations of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1994); the
Minnesota Humans Right Act (MHRA), Minn. Stat. Ann. §§ 363.01 to 363.20
(West 1991 & Supp. 1996); and Minnesota common law. We affirm.

Burns was formerly employed by Frank B. Hall & Company of Minnesota
(FBH-MN), for whom she sold insurance. Burns named as corporate defendants
Frank B. Hall and Company (FBH), of which FBH-MN was formerly a wholly
owned subsidiary; Rollins Hudig Hall of Minnesota (RHH-MN), successor in
interest to FBH-MN; Rollins Hudig Hall (RHH), of which RHH-MN is a wholly-
owned subsidiary; and Aon Corporation, parent corporation of FBH and RHH.

Burns alleged that in 1991 she was sexually harassed by a male
employee of FBH-MN. She also alleged that, immediately after she reported
the harassment, FBH-MN senior management personnel placed her on probation
for unsubstantiated performance problems, and that defendant Donald S.
Schneider, Senior Vice President of Human Resources for FBH, told her she
would be fired if she did not sign a settlement agreement. In June 1991,
Burns--with the advice of counsel--signed the settlement agreement, in
which the parties agreed to the terms of Burns's severance and further
agreed that Burns released all claims against FBH-MN and its successors.
The settlement agreement also required that the parties keep the terms of
the agreement and the totality of their employment relationship
confidential.

1
The Honorable James M. Rosenbaum, United States District
Judge for the District of Minnesota, adopting the reports and
recommendations of the Honorable Franklin L. Noel, United States
Magistrate Judge for the District of Minnesota.

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 According to Burns, FBH-MN subsequently breached the terms of the
settlement agreement by disparaging her within the business community, by
falsely representing her employment with FBH-MN, and by interfering with
her efforts to become re-employed. She alleged that her termination and
FBH-MN's subsequent conduct violated Title VII and the MHRA, and that a
FBH-MN employee defamed her during a deposition. Burns further alleged
that defendant David D. Duddleston, an attorney for FBH-MN, attempted to
prevent her from exercising her rights under the MHRA by telling her she
would be sued if she pursued any of the released claims, and that
Duddleston defamed her during statements to a judge. She also alleged
claims of promissory estoppel and interference with prospective business
relations.

The District Court dismissed defendant Duddleston and granted the
corporate defendants summary judgment. The Court subsequently dismissed
defendant Schneider, the only remaining defendant, because Burns had failed
to serve him within 120 days of filing her complaint. On appeal, Burns
argues that summary judgment was not proper as to the corporate defendants,
and that Schneider should not have been dismissed. She further claims that
the District Court's decisions were influenced by judicial bias.

We review de novo the grant of summary judgment, applying the same
standard as the District Court. Demming v. Housing and Redevelopment
Auth., 66 F.3d 950, 953 (8th Cir. 1995). We conclude the District Court
properly granted the corporate defendants summary judgment.

First, with regard to Burns's discriminatory discharge claims, Aon,
RHH, and FBH were not proper Title VII or MHRA defendants, because they
were not Burns's employer. See 42 U.S.C. § 2000e-2 (1994); Minn. Stat.
Ann. § 363.03 (West Supp. 1996). Burns failed to present evidence that
overcame the "strong presumption that a

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parent company is not the employer of its subsidiary's employees." See
Frank v. U.S. West, Inc., 3 F.3d 1357, 1362 (10th Cir. 1993).

Assuming RHH-MN, as FBH-MN's successor in interest, was a proper
Title VII or MHRA defendant, RHH-MN was nevertheless entitled to summary
judgment on Burns's claims of discriminatory discharge, because she
released these claims in the settlement agreement. We do not consider
Burns's argument raised for the first time on appeal that the settlement
agreement was voidable. See Dorothy J. v. Little Rock Sch. Dist., 7 F.3d
729, 734 (8th Cir. 1993). While the District Court did not expressly
address Burns's allegations that FBH-MN breached the settlement agreement,
summary judgment was proper as to this claim because Burns failed to allege
or provide evidence of the specific conduct constituting a breach.
Although the settlement agreement did not release FBH-MN from
liability for claims arising after the agreement was signed, see Minn.
Stat. Ann. § 363.031 (West 1991) (prohibiting prospective waiver), summary
judgment was also proper as to Burns's reprisal claim under the MHRA,
because Burns failed to allege or provide evidence of the specific acts of
reprisal or when they occurred. See Minn. Stat. Ann. § 363.03 subd. 7(2)
(West Supp. 1996). To the extent this claim could be interpreted as a
Title VII retaliation claim, see 42 U.S.C. § 2000e-3 (1994), summary
judgment was proper because Title VII does not provide former employees a
cause of action against their former employers for post-employment
retaliation. See Robinson v. Shell Oil Co., 70 F.3d 325, 329-31 (4th Cir.
1995), petition for cert. filed, 64 U.S.L.W. 3605 (U.S. Feb. 27, 1996) (No.
95-1376).

Summary judgment was also proper as to the defamation claim for the
deposition statements of an FBH-MN employee during a deposition in an
unrelated case, because statements made during a deposition are absolutely
privileged. Cf. LeBaron v. Minnesota Bd. of Pub. Defense, 499 N.W.2d 39,
41 (Minn. Ct. App. 1993) (holding

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"the employer has an absolute privilege to defame the employee due to legal
compulsion"). Finally, we agree with the District Court that Burns's vague
and conclusory allegations failed to state a claim of promissory estoppel
or interference with prospective business relations. See Ruzicka v. Conde
Nast Publications, Inc., 999 F.2d 1319, 1320 (8th Cir. 1993) (discussing
elements of promissory estoppel under Minnesota law); Hough Transit, Ltd.
v. National Farmers Org., 472 N.W.2d 358, 361 (Minn. Ct. App. 1991)
(analyzing elements of tortious interference).

As to defendant Schneider, we conclude the District Court did not
abuse its discretion in dismissing Burns's claims for failure to serve a
summons and complaint within the time requirements of Federal Rule of Civil
Procedure 4(m). See Edwards v. Edwards, 754 F.2d 298, 299 (8th Cir. 1985)
(per curiam). Burns's argument that an attorney of a corporate defendant
was an agent of Schneider is without merit, see Nelson v. Swift, 271 F.2d
504, 505 (D.C. Cir. 1959) (per curiam), and Burns failed to show good cause
to excuse her failure to serve Schneider.

As to defendant Duddleston, Burns did not address Duddleston's
dismissal in her main brief. See Falco Lime, Inc. v. Tide Towing Co., 29
F.3d 362, 367 n.6 (8th Cir. 1994). In any event, the District Court
correctly dismissed Burns's MHRA claims against Duddleston as time-barred,
and her defamation claim against him because the alleged statements made
during an unrelated legal proceeding were not actionable. See Minn. Stat.
Ann. § 363.06(3) (West 1991) (one year MHRA statute of limitations);
McGovern v. Cargill, Inc., 463 N.W.2d 556, 557 (Minn. Ct. App. 1990)
(stating statements made in court proceedings are absolutely privileged).

We conclude all of Burns's post-appeal motions are without merit.
As to Burns's motion to disqualify Judge Rosenbaum and petition for a writ
of mandamus, Burns has not substantiated her claim of judicial bias. Cf.
Nerison v. Solem, 715 F.2d 415, 416-17

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(8th Cir. 1983) (stating affidavit asserting judge was familiar with party
and his prior legal proceedings does not automatically or inferentially
establish judicial bias; claim must be factually substantiated), cert.
denied, 464 U.S. 1072, and cert. denied, 465 U.S. 1026 (1984).

Accordingly, we affirm the judgment of the District Court and deny
all pending post-appeal motions, as well as Burns's petition for a writ of
mandamus.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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