Quinn v. St. Louis County

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 10-3332
___________

Ellen Quinn, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
St. Louis County, a municipal *
corporation, *
*
Appellee. *
___________

Submitted: May 12, 2011
Filed: September 6, 2011
___________

Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
___________

SHEPHERD, Circuit Judge.

Ellen Quinn sued her employer, St. Louis County, under the Minnesota Human
Rights Act (MHRA), Minn. Stat. §§ 363A.01-.43, and the Family Medical Leave Act
(FMLA), 29 U.S.C. §§ 2601-54, and asserted other state common law claims
including breach of employment contract. Quinn appeals the dismissal of her breach
of contract claim with prejudice, the denials of her motions for leave to amend her
complaint, the denial of her motion for reconsideration, and the adverse grant of
summary judgment on her MHRA and FMLA claims by the district court.1 We
affirm.

I.

In February 2007, Quinn, a St. Louis County employee, reported that she had
been sexually harassed by Steve Raukar, a County Commissioner. The County
launched an investigation into the charges. Quinn and the County eventually
negotiated a settlement agreement in which Quinn released the County from any legal
liability in exchange for the County’s assurance that it would not terminate her other
than for just cause for seven years.

After Quinn complained of sexual harassment, she experienced stress, anxiety,
and depression. She took FMLA leave from May 14, 2007, to August 10, 2007, on
the advice of her physician. When Quinn returned to work, several incidents occurred
that led Quinn to believe the County was retaliating against her for reporting sexual
harassment. County employees accused her of lying about the sexual harassment, her
office was moved, and after she painted her office a custom color it was immediately
repainted white. In addition, Quinn testified that she was excluded from attending
out-of-state marketing meetings and workshops and from changing the County’s video
and sound systems, even though she was involved with these tasks in the past. Quinn
also recounted that throughout the fall of 2007, several County Commissioners were
quoted in the local media as challenging the veracity of her sexual harassment
complaint.

In early 2008, the County hired Alan Mitchell, the attorney who had represented
Commissioner Raukar during the investigation into Quinn’s charges of sexual

1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.

-2-
harrassment, as County Administrator and Quinn’s boss. Soon after, Quinn visited
her doctor because she felt anxious and depressed about working with Mitchell.
Quinn recalled that during a meeting, Mitchell called her a “problem employee,”
stated that they did not “need to go out for dinner or for drinks or on a date to get
along,” and instructed her to “work hard.” Quinn requested that the Deputy County
Administrator be her supervisor rather than Mitchell, but Mitchell refused.

Over the next few months, Mitchell accused Quinn of tardiness in turning in a
project that she had turned in on time, yelled at her in front of her coworkers during
a meeting, indicated that she might not be granted FMLA leave if she requested it, and
warned her in writing to report to work on time every day and obtain advance
approval for any absence.

In March 2008, Quinn’s anxiety and depression had increased to the point that
her doctor advised that she take leave from work. Quinn asked for and received an
adjusted work schedule of three days per week. Quinn stopped reporting for work in
early April 2008, using sick leave until May 14, when she was eligible for FMLA
leave. In August 2008, Mitchell informed Quinn that her FMLA leave had expired
and requested that she obtain an independent medical examination to confirm her need
for full-time, non-FMLA leave. In September 2008, an independent physician
confirmed that Quinn was unable to work for the County, and Mitchell authorized
Quinn’s use of her remaining sick leave. In December 2008, Mitchell received a letter
from Quinn’s doctor stating that she would never be able to return to work for the
County.

In May 2009, Quinn sued the County, asserting claims for MHRA reprisal
discrimination, FMLA interference, FMLA retaliation, breach of contract, and other

-3-
claims.2 The County moved to dismiss Quinn’s claim for breach of her employment
contract under Federal Rule of Civil Procedure 12(b)(6). Quinn responded, asking the
court to either deny the motion to dismiss on the merits or allow Quinn leave to amend
her complaint. The district court denied leave to amend and granted the County’s
motion, finding that both Quinn’s original complaint and her first proposed amended
complaint failed to state a claim for breach of her employment contract, and
dismissing Quinn’s claim with prejudice. Quinn moved for leave to amend her
complaint a second time, which the district court denied. Quinn then moved for
reconsideration, requesting that the court either allow her to amend her complaint or
amend its order dismissing her claim without prejudice, which the district court
denied. The County moved for summary judgment on Quinn’s MHRA and FMLA
claims. The district court granted the County’s motion.

On appeal, Quinn raises several issues with respect to the district court’s rulings
related to her breach of employment contract claim, and she challenges the district
court’s adverse grant of summary judgment.

II.

Quinn attempts to revive her breach of employment contract claim on several
grounds: (1) her original complaint sufficiently stated a claim under Federal Rule of
Civil Procedure 12(b)(6), and the district court required her complaint to include facts
beyond that required by Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); (2) in the
alternative, the district court should have dismissed her claim without prejudice rather
than with prejudice; (3) the district court abused its discretion in denying her first and
second motions to amend her complaint; and (4) the district court abused its discretion
in denying her motion for reconsideration.

2
Quinn also sued for disability discrimination under the MHRA, defamation,
intentional infliction of emotional distress, and negligent infliction of emotional
distress. Quinn does not appeal the dismissal of these claims.

-4-
 We do not reach the merits of Quinn’s arguments because any error with respect
to the dismissal of Quinn’s breach of employment contract claim was harmless. See
Fed. R. Civ. P. 61 (requiring all errors and defects that “do not affect any party’s
substantial rights” to be disregarded). In order to establish breach of employment
contract in Minnesota, an employee must show that she was discharged from
employment. Pribil v. Archdiocese of St. Paul & Minneapolis, 533 N.W.2d 410, 412
(Minn. App. 1995). If the employee was not actually discharged—as here, where
Quinn resigned from her employment with the County—the employee may meet the
element by showing constructive discharge, which occurs when the employer creates
intolerable working conditions with the intent of forcing the employee to quit. Id.

In addition to being an element of Quinn’s breach of employment contract
claim, constructive discharge was also one of Quinn’s theories of recovery on her
MHRA reprisal claim. See Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410,
418 (8th Cir. 2010) (acknowledging constructive discharge as a theory of recovery for
retaliation). As discussed in detail infra, Quinn failed to generate a genuine issue of
fact as to constructive discharge in the context of her MHRA reprisal claim. See infra
III(A) at 9-10. Discovery revealed that no genuine issue of fact exists as to whether
the County constructively discharged Quinn, and as such, even if Quinn’s breach of
employment contract claim had survived the County’s motion to dismiss, it would not
have survived summary judgment. Accordingly, any error that occurred at the motion
to dismiss stage was harmless in the unusual circumstances of this case, and we affirm
the dismissal. See Fed. R. Civ. P. 61; Wright v. Miller, 96 F.3d 1445 (5th Cir. 1996)
(unpublished per curiam) (holding that error in dismissing claim under 12(b)(6)
harmless because summary judgment was appropriate on all claims); cf. Gibb v. Scott,
958 F.2d 814, 816-17 (8th Cir. 1992) (district court’s failure to convert 12(b)(6)
motion to summary judgment motion when considering matters outside pleadings may
be harmless when record supports summary judgment), and Toxgon Corp. v. BNFL,
Inc., 312 F.3d 1379, 1382-83 (Fed. Cir. 2002) (suggesting that treating error in
dismissing claim on 12(b)(6) as harmless is appropriate because a 12(b)(6) motion can

-5-
be converted to summary judgment motion under federal rules). But see Rose v.
Hartford Underwriters Ins. Co., 203 F.3d 417, 420-21 (6th Cir. 2000) (rejecting
argument that district court’s error in denying leave to amend was harmless because
it would have granted summary judgment on claim eventually based on the later
developed record).

III.

Quinn also challenges the district court’s grant of summary judgment
dismissing her MHRA reprisal claim and her FMLA interference and retaliation
claims. We review the district court’s grant of summary judgment de novo, taking the
facts in the light most favorable to the nonmoving party and drawing all reasonable
inferences in the nonmoving party’s favor. Fercello v. Cnty. of Ramsey, 612 F.3d
1069, 1077 (8th Cir. 2010). “Where there is no dispute of material fact and reasonable
fact finders could not find in favor of the nonmoving party, summary judgment is
appropriate.” Id. We may affirm the district court’s ruling for any reason that the
record supports. Wilson v. Spain, 209 F.3d 713, 716 (8th Cir. 2000).

A. MHRA Retaliation

Under the MHRA, employers may not retaliate against employees for reporting
sexual harassment. See Minn. Stat. § 363A.15.3 In order to establish a prima facie
case of retaliation under the MHRA,4 an employee must show that (1) she engaged in
protected conduct, (2) she suffered a materially adverse employment action, and (3)

3
In interpreting the MHRA, we apply Title VII standards. See Fercello v. Cnty.
of Ramsey, 612 F.3d 1069, 1074 n.2 (8th Cir. 2010); see also Bahr v. Capella Univ.,
788 N.W.2d 76, 83 (Minn. 2010) (stating that Minnesota courts “apply law developed
in federal cases arising under Title VII” in construing the MHRA).
4
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

-6-
a causal connection exists between the materially adverse employment action and the
protected conduct. Fercello, 612 F.3d at 1077-78. The County moved for summary
judgment in part5 based on Quinn’s failure to establish an issue of fact on whether she
suffered a materially adverse employment action.

An employee suffers a materially adverse employment action in the context of
a MHRA retaliation claim when the employer engages in conduct that would dissuade
a reasonable employee from making a discrimination claim. Devin v. Schwan’s Home
Serv., Inc., 491 F.3d 778, 787-89 (8th Cir. 2007), abrogated on other grounds by
Torgerson v. City of Rochester, 643 F.3d 1031, 1042-43, 1058 (8th Cir. 2011) (en
banc). The materially adverse employment action element may be met by an
employer’s single act “that produces a material employment disadvantage,” such as
termination, a cut in pay or benefits, or a change that undermines an employee’s future
career prospects. Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1016 (8th Cir.
1999). The element may also be met by the “cumulative effect” of an employer’s
alleged retaliatory conduct, if the acts, considered in the aggregate, would dissuade
a reasonable employee from reporting discrimination. Fercello, 612 F.3d at 1083-84;
Devin, 491 F.3d at 787-88. Similarly, the materially adverse employment action
element may be met by a series of acts by the employer that, considered collectively,
amount to constructive discharge. See Helton v. Southland Racing Corp., 600 F.3d
954, 961 (8th Cir. 2010).

After carefully reviewing Quinn’s response to the County’s motion for
summary judgment, we conclude that Quinn did not adequately explain to the district
court why the disputed facts she listed were material to her theory that the County’s
actions, either individually or in the aggregate, would have dissuaded a reasonable

5
The County also moved for summary judgment on the basis that Quinn’s claim
was barred by the one-year statute of limitations for reprisal claims, see Minn. Stat.
§ 363A.28, subd. 3, and the district court agreed. Because we affirm on other
grounds, we do not reach the statute of limitations issue.

-7-
employee from reporting sexual harassment. A party cannot defeat a summary
judgment motion by asserting “the mere existence of some alleged factual dispute
between the parties”; the party must assert that there is a “genuine issue of material
fact.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); see also
Fed. R. Civ. P. 56(a). In order to show that disputed facts are material, the party
opposing summary judgment must cite to the relevant substantive law in identifying
“facts that might affect the outcome of the suit.” Anderson, 477 U.S. at 248. The
nonmoving party must then categorize the factual disputes in relation to the legal
elements of her claim. Id.; Rodgers v. City of Des Moines, 435 F.3d 904, 908 (8th
Cir. 2006).

In order to survive the County’s motion for summary judgment, Quinn needed
to explain the legal significance of her factual allegations beyond mere conclusory
statements importing the appropriate terms of art. Doe ex rel Thomas v. Tsai, 2011
WL 3300686, at *3 (8th Cir. Aug. 3, 2011); Holland v. Sam’s Club, 487 F.3d 641, 644
n.5 (8th Cir. 2007). Quinn failed to provide meaningful legal analysis explaining
how, under the applicable law, the disputed facts might prove Quinn’s MHRA reprisal
claim at trial. Rodgers, 435 F.3d at 908. Specifically, Quinn did not argue that the
County’s actions, either individually or in the aggregate, would have dissuaded a
reasonable employee from reporting sexual harassment. See Devin, 491 F.3d at 787-
88 (providing reasonable employee standard). Instead, Quinn’s responsive motion
merely recounted her factual allegations and declared them “reprisal.” See Rodgers,
435 F.3d at 908 (conclusory statements insufficient to establish material question of
fact).

The only non-conclusory explanation we glean from Quinn’s motion as to why
the County’s acts, either individually or in the aggregate, would have dissuaded a
reasonable employee from reporting sexual harassment is the assertion that Quinn felt
harassed. But the standard is objective—whether the employer’s actions would have
dissuaded a reasonable employee from reporting illegal conduct. Quinn’s subjective

-8-
views are legally inconsequential. Fercello, 612 F.3d at 1081. Quinn simply did not
frame her argument before the district court using the appropriate, objective standard.6

Quinn also alleged that the County’s actions amounted to constructive discharge
in attempting to establish a materially adverse action. See Helton, 600 F.3d at 961.
In support of her constructive discharge theory, Quinn cited applicable law and
employed meaningful analysis. To prove constructive discharge, “a plaintiff must
show (1) a reasonable person in [her] situation would find the working conditions
intolerable, and (2) the employer intended to force [her] to quit.” Fercello, 612 F.3d
at 1083 (quoting Carpenter v. Con-Way Cent. Express, Inc., 481 F.3d 611, 616 (8th
Cir. 2007)). A plaintiff may satisfy the intent requirement through evidence that her
resignation was a reasonably foreseeable consequence of the employer’s actions. Id.
Quinn argued that a reasonable juror could conclude from the disputed facts she listed
that her working conditions were intolerable and that the County intended to force her
to quit.

Although Quinn used the appropriate legal standard to attempt to establish a
material question of fact, no reasonable juror could conclude from the record facts that
the County intended to force Quinn to quit or that her resignation was a reasonably
foreseeable consequence of the County’s actions. To the contrary, the County
attempted to accommodate Quinn’s illness by adjusting her work schedule and
allowing her to take time off to recover. See Fercello, 612 F.3d at 1083 (granting time
off and accommodation of work schedule show intent to maintain employment
relationship); Devin, 491 F.3d at 790 (offering to discuss plaintiff’s options in order
to retain plaintiff as employee undercuts constructive discharge claim). In addition,
after Quinn took full-time leave, the County consistently encouraged Quinn to return
to work. For example, in a letter from the County to Quinn, the County wrote, “While

6
To the extent Quinn raises additional arguments on appeal, she waived these
arguments by failing to present them to the district court. Holland v. Sam’s Club, 487
F.3d 641, 644 (8th Cir. 2007).

-9-
we want you to return to work healthy, we do want you to return to work. You have
been a valued employee of St. Louis County and we have critical public information
work which needs to be done. We will continue to work with you to find a schedule
that would accommodate your needs and also fulfill the County’s requirements for
your job performance.” App’x at 96. Similarly, in an email from Mitchell to Quinn,
he wrote, “I must reiterate that the clear desire of St. Louis County is to have you back
at your job performing the service that you were originally hired for.” Id. at 101. The
record indicates that the County intended to maintain an employment relationship with
Quinn, and no reasonable factfinder could conclude that the County intended to force
Quinn to quit. See Anda v. Wickes Furniture Co., 517 F.3d 526, 534 (8th Cir. 2008)
(holding that plaintiff failed to generate issue of fact on employer’s intent to force
resignation when employer expresses desire for plaintiff to return to work).
Accordingly, Quinn’s constructive discharge theory fails as a matter of law.

Finally, we reject Quinn’s perfunctory invitation to reverse because the district
court ignored facts and inappropriately resolved issues of fact. Quinn’s brief lists
various facts that the district court allegedly ignored, asserts that the district court
resolved certain issues of fact in the County’s favor, and concludes that a genuine
issue of material fact exists. But Quinn neither explains why the facts to which she
refers are material, Tsai, 2011 WL 3300686 at *3, nor categorizes the factual disputes
in relation to the legal elements of her claim, Anderson, 477 U.S. at 247-48.

Because Quinn failed to generate an issue of fact as to whether she suffered a
materially adverse employment action, summary judgment was appropriate as to
Quinn’s MHRA retaliation claim.

B. FMLA Interference

Quinn alleges that the district court erred in granting summary judgment in
favor of the County on her FMLA interference claim because the court failed to

-10-
adequately analyze her claim. Specifically, Quinn argues that the district court did not
consider the fact that the County discouraged her from taking FMLA leave and
refused her requests before approving them.

Under the FMLA, employers are prohibited from interfering with, restraining,
or denying an employee’s exercise or attempted exercise of any right contained in the
FMLA. 29 U.S.C. § 2615(a)(1). Quinn is right that FMLA interference includes “not
only refusing to authorize FMLA leave, but discouraging an employee from using
such leave,” as well as “manipulation by a covered employer to avoid responsibilities
under [the] FMLA.” 29 C.F.R. § 825.220(b). However, the employee must also show
that the employer denied the employee entitlements under the FMLA. Wisbey v. City
of Lincoln, Neb., 612 F.3d 667, 675 (8th Cir. 2010), abrogated on other grounds by
Torgerson, 643 F.3d at 1042-43, 1058. Quinn does not contest the district court’s
finding that she received the full twelve weeks of FMLA leave to which she was
entitled each year she requested it. See 29 U.S.C. § 2612(a)(1) (providing that eligible
employees are entitled to twelve weeks of medical leave each year). Accordingly,
summary judgment was properly granted on Quinn’s FMLA interference claim.

C. FMLA Retaliation

Quinn also argues that the district court erred in granting summary judgment
in favor of the County on her FMLA retaliation claim. An employer may not retaliate
against an employee for exercising her FMLA rights. 29 U.S.C. § 2615(a)(2).7 “To

7
Because the County does not challenge it, we accept Quinn’s characterization
of her contention that the County “retaliated against her for the exercise of [her
FMLA] rights” as a FMLA retaliation claim under 29 U.S.C. § 2615(a)(2), Opposition
Motion at 37. We note, however, that we have previously indicated that when an
employee claims she suffered an adverse employment action because she exercised
her rights under the FMLA, the claim may be more appropriately analyzed under 29
U.S.C. § 2615(a)(1), than under 29 U.S.C. § 2615(a)(2). See, e.g., Scobey v. Nucor
Steel-Ark., 580 F.3d 781, 790 n.9 (8th Cir. 2009) (“Under the statute, retaliation for

-11-
establish a prima facie case of FMLA retaliation, an employee must show that she
engaged in activity protected under the Act, that she suffered an adverse employment
action by the employer, and that a causal connection existed between the employee’s
action and the adverse employment action.” Darby v. Bratch, 287 F.3d 673, 679 (8th
Cir. 2002).

Quinn failed to generate an issue of fact as to whether she suffered an adverse
employment action. The only adverse employment action Quinn asserted in the
context of her FMLA retaliation claim was constructive discharge,8 which, as we have
explained, the record does not support. See supra III(A) at 9-10.9 Accordingly,
summary judgment was properly granted on Quinn’s FMLA retaliation claim.

exercising one’s FMLA rights appears to be just one aspect of what is meant by
‘interference,’ not a separate claim.” (citing Phillips v. Matthews, 547 F.3d 905, 913-
15 (8th Cir. 2008) (Colloton, J., concurring))).
8
Quinn makes additional arguments in support of an adverse employment action
on appeal, but she waived these arguments by not presenting them to the district court.
Holland, 487 F.3d at 644.
9
Every circuit that has addressed the issue has held that the “materially adverse”
standard for Title VII retaliation claims, Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 57 (2006), applies to FMLA retaliation claims. See, e.g., Cole v. Illinois,
562 F.3d 812, 816 (7th Cir. 2009) (requiring an adverse action giving rise to an FMLA
retaliation claim to be “materially adverse,” which means any action that would
dissuade a reasonable employee from exercising her rights under the FMLA);
McArdle v. Dell Prods., L.P., 293 F. App’x 331, 337 (5th Cir. 2008) (unpublished per
curiam) (holding that Burlington Northern applies to retaliation claims under the
FMLA; DiCampli v. Korman Cmtys., 257 F. App’x 497, 501 (3d Cir. 2007)
(unpublished) (applying Burlington Northern to FMLA retaliation claim); Metzler v.
Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 n.2 (10th Cir. 2006) (same).

-12-
 IV.

For the foregoing reasons, we affirm the district court.
______________________________

-13-