STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0396
Nicole LaPoint,
Appellant,
vs.
Family Orthodontics, P. A.,
Respondent.
Filed December 14, 2015
Reversed and remanded
Kirk, Judge
Hennepin County District Court
File No. 27-CV-13-18122
Steven Andrew Smith, Bonnie M. Smith, Nichols Kaster, PLLP, Minneapolis, Minnesota
(for appellant)
Marshall H. Tanick, Teresa J. Ayling, Hellmuth & Johnson, PLLC, Edina, Minnesota (for
respondent)
Considered and decided by Kirk, Presiding Judge; Schellhas, Judge; and Johnson,
Judge.
SYLLABUS
A prospective employee directly proved that an employer unlawfully
discriminated against her on the basis of sex, where, inter alia, the employer repeatedly
articulated two reasons for rescinding the prospective employee’s job offer: (1) her
failure to disclose her pregnancy at the job interview and (2) the length of her desired
maternity leave.
OPINION
KIRK, Judge
In this appeal from judgment following a court trial of a pregnancy-discrimination
claim under the Minnesota Human Rights Act, a prospective employee asserts that the
district court erred by determining that she failed to prove her claim. Because we
conclude that, as a matter of law, the prospective employee directly proved her claim by a
preponderance of the evidence, we reverse and remand for a determination of damages.
FACTS
Respondent Family Orthodontics, P.A. (Family Orthodontics) is owned and
operated by Dr. Angela Ross, D.M.D., a practicing orthodontist with nine employees.
Appellant Nicole LaPoint is an orthodontic assistant with approximately seven years of
experience in the dentistry and orthodontics profession.
In early 2013, Family Orthodontics had a job opening for an orthodontic assistant.
At that time, Family Orthodontics had a policy, drafted by Dr. Ross, that a maternity
leave “of up to 6 weeks may be granted.” Upon learning of LaPoint’s interest in the job
from a current employee, Dr. Ross called LaPoint about the position on March 17.
LaPoint confirmed her interest in the position and sent Dr. Ross her resume.
On March 22, Dr. Ross interviewed LaPoint. The interview went well. The topic
of pregnancy was not raised by either party. On the afternoon of March 24, Dr. Ross left
LaPoint a voicemail offering her the job, along with LaPoint’s requested hourly wage and
vacation time. LaPoint called Dr. Ross and accepted the position that evening,
2
confirming a start date of April 8. She also informed Dr. Ross that she was pregnant and
due to deliver in October 2013.
After congratulating LaPoint on her pregnancy, Dr. Ross asked whether she
planned to return to work after the baby was born. LaPoint assured Dr. Ross that she
intended to do so and that she had already arranged daycare. Dr. Ross then asked
LaPoint how much maternity leave she had taken for her first child. LaPoint responded
that she had taken 12 weeks. Dr. Ross expressed doubt that her practice could handle the
disruption of a 12-week leave. She informed LaPoint that her maternity-leave policy was
six weeks, and mentioned that several employees had taken leaves of that length.
LaPoint said that she would consider taking a shorter leave. At trial, a copy of LaPoint’s
resume was admitted into evidence. Dr. Ross made the following handwritten notes on
the resume upon learning of her pregnancy: “Due 10/13! Pregnant?!”
The next morning, Dr. Ross left LaPoint a voicemail stating that she was “not
going to offer [her] the job just yet” due to two concerns: LaPoint’s failure to disclose her
pregnancy during the job interview, and the length of LaPoint’s desired maternity leave
disrupting the practice. Dr. Ross asked for “a few more days” to ensure that she was
“comfortable with all this stuff.” If LaPoint had “answers to those two concerns,” Dr.
Ross asked LaPoint to call her.
3
The same day that she left this voicemail, Dr. Ross made handwritten notes on
LaPoint’s resume identifying two reasons for rescinding LaPoint’s job offer.1 Under the
heading “3/25/13 8:15 a.m. MST,” she wrote: “L/M [rescinding] offer & told her needed
a few more days. 2 concerns: (1) why didn’t she tell me in the interview? (2) will 3 mos
maternity be too disruptive? Most took 6 wks[.]” Later that day, Family Orthodontics
reposted its ad for the position on Craigslist.
On the afternoon of March 25, LaPoint e-mailed Dr. Ross, explaining that she had
not yet disclosed her pregnancy to her family and that she informed Dr. Ross as a “loyal
employee who has the office’s best interest at heart.” LaPoint “reiterat[ed her] plans” to
continue working after her baby’s birth, and expressed excitement about a “long-term
career” with Family Orthodontics. She also wrote that she “strongly hope[d]” that Dr.
Ross would “rethink [the] withdrawal of the job.” Dr. Ross replied to LaPoint’s e-mail
the next day, listing the same “two concerns” motivating her decision to rescind the job
offer. Dr. Ross promised to “be in touch” when she returned from vacation. LaPoint
e-mailed Dr. Ross the next day, stating that she “look[ed] forward to speaking with” her
upon her return from vacation “to clarify the two points [Dr. Ross] made.”
1
We refer to rescission of a job offer rather than of a job because, despite LaPoint’s
acceptance of the offer, the record does not indicate that there was a contract of
employment. See Grouse v. Grp. Health Plan, Inc., 306 N.W.2d 114, 116 (Minn. 1981)
(holding that contract of employment did not exist between pharmacist and health clinic,
despite pharmacist’s acceptance of clinic’s offer of employment, where pharmacist had
not commenced work and both had power to terminate agreement at will).
4
Dr. Ross did not contact LaPoint again. On May 20, 2013, Dr. Ross hired a non-
pregnant, former Family Orthodontics intern and recent graduate to fill the orthodontic
assistant position, at the urging of her dental assistants.
At trial, Family Orthodontics presented evidence that other employees had taken
leaves related to childbirth of six weeks or less, and that such leaves created difficulties
for the clinic. It also presented evidence that two employees were visibly pregnant when
they were hired in 2000 and 2008, and that the employee hired in 2008 did not return to
work after her maternity leave. Family Orthodontics argued that Dr. Ross withdrew the
job offer due to her concern about the difficulties the clinic would experience if LaPoint
took more than six weeks of maternity leave, not due to LaPoint’s pregnancy.
Following trial, the district court concluded that LaPoint failed to prove her claim.
It found that “Dr. Ross credibly testified that she was not upset about [LaPoint]’s
pregnancy but questioned why [LaPoint] did not bring it up initially so they could discuss
leave of absence issues at that time. Her concern was the length of the leave sought by
[LaPoint] on the practice.” It further found that Dr. Ross and three of her employees
“credibly testified as to the disruption a lengthy leave of absence would cause the clinic.”
Consistent with Family Orthodontics’s arguments, the district court described the
disruption as Dr. Ross’s “overriding concern.”
LaPoint brought a motion for judgment as a matter of law (JMOL), amended
findings, and a new trial, which the district court denied in its entirety. She appeals.
5
ISSUE
Did the district court err by concluding that LaPoint failed to prove that Family
Orthodontics unlawfully discriminated against her based upon her pregnancy?
ANALYSIS
“[W]e review the district court’s factual findings for clear error. That is, we
examine the record to see if there is reasonable evidence” supporting the court’s findings.
Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790, 797 (Minn. 2013) (quotations and
citations omitted). “[D]ue regard shall be given to the opportunity of the [district] court
to judge the credibility of the witnesses.” Minn. R. Civ. P. 52.01. We review issues of
law de novo. LaMont v. Indep. Sch. Dist. No. 728, 814 N.W.2d 14, 18 (Minn. 2012).
The Minnesota Human Rights Act (MHRA) prohibits an employer from
discriminating against a person with respect to hiring on the basis of sex. Minn. Stat.
§ 363A.08, subd. 2 (2014). “Sex” is expressly defined to include “pregnancy, childbirth,
and disabilities related to pregnancy or childbirth.” Minn. Stat. § 363A.03, subd. 42
(2014). It is also an unlawful, unfair employment practice for an employer to “require or
request” that a job applicant “furnish information that pertains to . . . sex . . . .” Minn.
Stat. § 363A.08, subd. 4(a)(1) (2014). MHRA claims must be proved by a preponderance
of the evidence. Ridler v. Olivia Pub. Sch. Sys. No. 653, 432 N.W.2d 777, 783 (Minn.
App. 1988).
LaPoint asserts her discrimination claim under a disparate-treatment theory, which
requires her to prove that her pregnancy “actually motivated” Family Orthodontics’s
6
decision to rescind the job offer. Goins v. West Group, 635 N.W.2d 717, 722 (Minn.
2001); see also Anderson v. Hunter, Keith, Marshall & Co., Inc., 417 N.W.2d 619, 624
(Minn. 1988) (holding that the protected trait must be “a substantial causative factor”).
Family Orthodontics argues that this standard requires pregnancy to be the “but for”
reason for its conduct, i.e., that it would not have made the same decision absent
pregnancy discrimination. However, that standard for “mixed motive” cases was rejected
by the Minnesota Supreme Court in Anderson, which explained that:
[I]ts adoption for use in disparate treatment cases would
defeat the broad remedial purposes of the Minnesota Human
Rights Act by permitting employers, definitionally guilty of
prohibited employment discrimination, to avoid all liability
for the discrimination provided they can prove that other
legitimate reasons may coincidentally exist that could have
justified the [employment decision].
Anderson, 417 N.W.2d at 626.2 Anderson holds that, “even if an employer has a
legitimate reason for the [employment decision], a plaintiff may nevertheless prevail if an
illegitimate reason ‘more likely than not’ motivated the [] decision.” McGrath v. TCF
2
Following Anderson, the United States Supreme Court held in Price Waterhouse v.
Hopkins, 490 U.S. 228, 242, 109 S. Ct. 1775, 1786 (1989), that, in Title VII cases, even if
the employee demonstrates that an employer considered an impermissible factor, the
employer may avoid liability by showing it would have made the same decision even
without consideration of that factor. The Civil Rights Act of 1991 modified the Price
Waterhouse analysis by providing that, in “mixed motive” cases, liability occurs if
discrimination was a motivating factor in the employer’s decision, even if the employer
was also motivated by a legitimate, nondiscriminatory reason. 42 U.S.C. § 2000e-2(m)
(2012). If the employer can demonstrate that it would have made the same decision even
if it had not considered the impermissible factor, however, the employee’s remedies are
limited to injunctive and declaratory relief and, in appropriate cases, reasonable attorney
fees and costs. 42 U.S.C. § 2000e-5(g)(2)(B) (2012). The Price Waterhouse analysis has
not been applied to the MHRA.
7
Bank Sav., FSB, 509 N.W.2d 365, 366 (Minn. 1993) (quoting Anderson, 417 N.W.2d at
627).
There are two methods of proving an employment-discrimination claim asserting
disparate treatment: the direct-evidence method and the burden-shifting analysis first
articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817 (1973). See, e.g., Goins, 635 N.W.2d at 722-24 (contrasting
two methods of proof). Because LaPoint presented direct evidence of discrimination, it is
not necessary to apply the McDonnell Douglas analysis. Diez v. Minn. Mining & Mfg.,
564 N.W.2d 575, 579 (Minn. App. 1997), review denied (Minn. Aug. 21, 1997); see
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 112, 105 S. Ct. 613, 617 (1985).
Cases decided under the direct-evidence framework for proving a disparate-
treatment claim are “adjudicated based on the strength of affirmative evidence of
discriminatory motive.” Friend v. Gopher Co., 771 N.W.2d 33, 38 (Minn. App. 2009).
A plaintiff may prove a claim under this “direct method” through either direct or
circumstantial evidence, or a combination of the two. Id. at 40 (noting that “Minnesota
law makes no distinction between circumstantial and direct evidence as to degree of
proof required.”) (quotation omitted); see Desert Palace, Inc. v. Costa, 539 U.S. 90, 98-
101, 123 S. Ct. 2148, 2153-55 (2003) (holding that circumstantial evidence can support a
mixed-motive, disparate-treatment claim under Title VII).
“Direct evidence of an employer’s discriminatory motive shows that the
employer’s discrimination was purposeful, intentional, or overt.” Goins, 635 N.W.2d at
8
722. Stated differently, “[d]irect evidence is evidence showing a specific link between
the alleged discriminatory animus and the challenged decision, sufficient to support a
finding by a reasonable fact finder that an illegitimate criterion actually motivated the
adverse employment action.” Ramlet v. E.F. Johnson Co., 507 F.3d 1149, 1152 (8th Cir.
2007) (quotation omitted) (emphasis added). “In this context, whether evidence is direct
depends on its causal strength.” Id. at 1152-53.
Here, there is extensive evidence in the record that Family Orthodontics
discriminated against LaPoint on the basis of her pregnancy in a purposeful, intentional,
and overt manner. See Goins, 635 N.W.2d at 722. On three occasions, Dr. Ross
articulated two reasons for withdrawing the job offer: failure to disclose the pregnancy at
the interview and the disruption of a long maternity leave. This constitutes traditional
direct (as opposed to circumstantial) evidence. The first reason is based at least
substantially upon pregnancy and is illegitimate, as it punishes LaPoint for failing to
disclose a fact about which Family Orthodontics could not lawfully inquire. See Minn.
Stat. § 363A.08, subd. 4(a)(1) (prohibiting an employer from requiring or requesting that
a job applicant provide information pertaining to sex); Minn. Stat. § 363A.04 (2014)
(stating that the MHRA shall be construed liberally for accomplishment of its purposes);
Huisenga v. Opus Corp., 494 N.W.2d 469, 472-74 (Minn. 1992) (barring employer from
using job applicant’s answers collected in violation of the MHRA to defend itself against
workers’ compensation claim). The second reason is very closely related to LaPoint’s
pregnancy, as her anticipated maternity leave was due to her pregnancy. The district
9
court’s findings confirm that the reasons Dr. Ross articulated in her communications with
LaPoint motivated her decision to withdraw the job offer.
In addition, there is ample circumstantial evidence indicating that LaPoint’s
pregnancy motivated Family Orthodontics’s decision to rescind the job offer. See Goins,
635 N.W.2d at 722. For example, Dr. Ross wrote “Pregnant?!” and “Due 10/13!” on
LaPoint’s resume immediately after she disclosed her pregnancy. The last pregnant
woman Family Orthodontics hired did not return to work after childbirth, and, upon
learning of LaPoint’s pregnancy, Dr. Ross asked about LaPoint’s intention to return.
Although LaPoint stated that she would consider taking a shorter leave, Dr. Ross never
offered her the job contingent upon a leave no longer than six weeks or even contacted
her to discuss the issue further.3 Shortly after learning of LaPoint’s pregnancy, Family
Orthodontics reposted the ad for the position. Finally, it ultimately hired a non-pregnant
woman without commensurate experience to fill the position.
Taken as a whole, the evidence and the district court’s findings show a specific
link between LaPoint’s pregnancy and the rescission of the job offer. See Diez, 564
N.W.2d at 579; Ramlet, 507 F.3d at 1152. If the length of the leave was Family
3
Because Family Orthodontics has fewer than 50 employees, it is never required to allow
a 12-week maternity leave under the Family Medical Leave Act (FMLA) of 1993, 29
U.S.C. §§ 2601 to 2654 (2012). See 29 U.S.C. § 2611(4)(A)(i) (limiting “employer” for
purposes of FMLA to those with 50 or more employees); 29 U.S.C. §§ 2612(a)(1)(A),
2615(a) (providing eligible employees up to 12 weeks of unpaid maternity leave and
prohibiting employers from interfering with, restraining, or denying the exercise of or the
attempt to exercise FMLA rights or discharging an individual for opposing any practice
made unlawful by the FMLA).
10
Orthodontics’s sole concern, it could have simply alerted LaPoint to the maternity-leave
policy upon learning of her pregnancy, allowing her to choose whether to accept
employment on those terms. In the face of the robust affirmative evidence, the district
court erred in concluding that LaPoint failed to prove that her pregnancy was a
substantial causative factor in Family Orthodontics’s decision. See Anderson, 417
N.W.2d at 624.
DECISION
Because the district court erred in concluding that LaPoint failed to prove her
pregnancy-discrimination claim, the judgment in favor of Family Orthodontics is
reversed and the matter is remanded for a determination of damages.
Reversed and remanded.
11