Isis Naguib v. Trimark Hotel Corporation , 903 F.3d 806 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-1560
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Isis Naguib
lllllllllllllllllllllPlaintiff - Appellant
v.
Trimark Hotel Corporation, a Texas corporation; M&C Hotel Interest Inc., a
Delaware corporation, doing business as Millennium Hotel & Resorts
lllllllllllllllllllllDefendants - Appellees
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Employee Lawyers Association of the Upper Midwest
lllllllllllllllllllllAmicus on Behalf of Appellant(s)
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: February 14, 2018
Filed: September 11, 2018
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Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.*
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*
Chief Judge Smith and Judge Colloton file this opinion pursuant to 8th Cir.
Rule 47E.
SMITH, Chief Judge.
Isis Naguib was fired from her job as Executive Housekeeper at Millennium
Hotel (“Millennium”) in Minneapolis, a Trimark Hotel Corporation (“Trimark”)
property, after an internal wage and hour investigation revealed that the housekeeping
department had been rounding employee hours down. The hotel claims Naguib
instituted the practice and benefitted from it because she received an annual bonus for
decreasing payroll costs. Naguib contends that she was fired because of her age, as
retaliation for her truthful deposition testimony in previous litigation, for taking
protected leave, and for opposing discriminatory practices. The district court1 granted
summary judgment to Trimark on all counts because it found that Millennium had
legitimate, non-discriminatory reasons for its adverse employment action. Naguib
appeals, and we affirm.
I. Background
Naguib ran the housekeeping department at Millennium from 1977 until she
was fired in 2014. In that role she oversaw roughly 50 housekeepers and managed
payroll for the department. Housekeepers at Millennium typically worked eight-hour
shifts. Any time worked in excess of eight hours qualified as overtime, during which
employees were entitled to a higher wage rate. Millennium tracked its employee hours
using a punch clock system. However, Naguib also required housekeepers to
handwrite their hours on a sign-in sheet. Some housekeepers would later report that
Naguib had told them they were not allowed to list any overtime hours on the
handwritten sheet; they were directed to write in eight-hour shifts rather than the
same hours reflected in the punch clock system. Naguib then manually overrode
punch clock times and entered the shifts reflected on the handwritten sheets. Naguib’s
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
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contract with Millennium included an annual one percent bonus tied to minimizing
employee payroll.
Naguib’s discrimination and retaliation claims are based on a series of
incidents that occurred over roughly three years. First, she testified in a 2011
deposition that Millennium used the “Freeman” cleaning standard despite being told
by Millennium’s General Manager, Robert Rivers, that the hotel did not use that
standard, which she considered to be untruthful. Millennium ended up settling that
lawsuit for $20 million. It is unclear if Naguib’s testimony played any role in that
settlement, but Naguib claims it is one reason that she was eventually fired. Second,
in April 2013 Rivers sent an e-mail to his replacement, new General Manager Katie
Neufeld, asking whether she was “taking control” of Naguib. J.A. at 105. Third, in
June 2014 Neufeld said to Naguib, “you’ll probably never retire, we’ll be carrying
you out . . . in a box.” Id. at 83. Fourth, Neufeld allegedly asked Naguib to tell her
Muslim employees to get notes from their mosques saying they could wear head
scarves to work. Neufeld denies this ever happened, and company policy
accommodated religious attire at all times.
Fifth, Naguib had consistently been allowed to roll over her vacation hours
from one year to another throughout her tenure at Millennium despite a hotel policy
to the contrary. On June 4, 2014, Naguib requested to carry roughly 80 hours past her
July 1 deadline. Millennium told Naguib that she could use the hours before
December 31 of that year. After Naguib declined to select vacation days to use her
hours, Millennium assigned her days off starting on October 21. She claims this was
retaliation for a separate discrimination complaint filed by her son Omar, a hotel
employee. Finally, on October 30, 2014, Naguib requested Family and Medical Leave
Act (FMLA) leave due to hypertension. Millennium granted the request but
suspended and fired her shortly thereafter.
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Naguib claims that any or all of these incidents led to her firing or indicate an
animus that motivated her firing. Millennium tells a different story. During Naguib’s
mandatory vacation days and subsequent FMLA leave in October 2014, David
Simmons filled in as head of housekeeping at Millennium. He personally observed
timekeeping irregularities and flagged them for management. For example, he
observed that housekeepers routinely punched out after their scheduled work hours
and then wrote in a lower hour total on their sign-in sheet. When Simmons asked
them about this practice, they told him that Naguib had told them they were not
allowed to list overtime hours. Millennium investigated the wage and hour issue with
housekeeping and throughout the rest of the hotel. During the investigation, multiple
employees reported that Naguib had told them not to list overtime hours. The
investigation also revealed that housekeeping had by far the most punch time edits
of any Millennium department. Naguib claims that management essentially condoned
that practice for years. Simmons also discovered that one housekeeping employee was
regularly sewing hotel linens at home after eight-hour workdays and not receiving
overtime pay.
On November 7, 2014, the day Naguib returned from FMLA leave, Millennium
suspended her pending completion of its investigation. Millennium fired Naguib on
November 19 as a result of its investigation. Millennium disciplined three other
managers for timekeeping edits but did not fire anyone else. The hotel then
compensated its employees for the unpaid overtime hours.
Naguib sued Millennium, claiming the hotel discriminated against her because
of her age and retaliated against her because of her deposition testimony, because she
opposed discrimination, and because she took protected leave. The district court
granted summary judgment in Millennium’s favor on all counts, concluding that
Millennium had a legitimate, non-retaliatory or discriminatory reason for firing
Naguib that was not pretextual. Naguib appeals.
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II. Discussion
“[W]e review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the nonmoving party.” Brunsting v. Lutsen
Mountains Corp., 601 F.3d 813, 820 (8th Cir. 2010) (citation omitted). We will affirm
if “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Naguib brought two claims for retaliation based on her refusal to testify that
Millennium did not follow the Freeman cleaning standards in a 2011 deposition: one
under the Minnesota Whistleblower Act (MWA) and one under the common law. On
both claims, Minnesota employers are prohibited from punishing employees for
“refus[ing] an employer’s order to perform an action that the employee has an
objective basis in fact to believe violates any . . . law or rule or regulation” if the
employee informs the employer that the order is being refused for that reason. Minn.
Stat. § 181.932, subd. 1(3); see also Phipps v. Clark Oil & Ref. Corp., 408 N.W.2d
569, 571 (Minn. 1987) (agreeing that “common law . . . protects those fired for their
refusal to violate the law” (citations omitted)). Naguib also brought two retaliation
claims based upon her opposition to discrimination under the Minnesota Human
Rights Act (MHRA). The MHRA forbids employers from retaliating when an
employee opposes a practice forbidden by the MHRA. Minn Stat. § 363A.15. The
MHRA generally prohibits discrimination based upon, among other things, race, sex,
age, and disability. Id. at § 363A.08.
In our circuit, these retaliation claims may be proved by either direct evidence
or under the McDonnell-Douglas burden-shifting framework. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973); Wood v. SatCom Mktg., LLC, 705 F.3d
823, 828 (8th Cir. 2013). Direct evidence shows a “specific link” between the alleged
animus and the termination sufficient to support a substantially strong inference that
the employer acted based upon that animus. See Wagner v. Gallup, Inc., 788 F.3d
877, 884–85 (8th Cir. 2015). “Direct evidence does not include statements by
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decisionmakers that are facially and contextually neutral.” Torgersen v. City of
Rochester, 643 F.3d 1031, 1045 (8th Cir. 2011) (citation omitted). To establish a
prima facie retaliation claim under McDonnell Douglas, a plaintiff must show “(1)
she engaged in protected conduct, (2) she was subjected to an adverse employment
action, and (3) there was a causal connection between the protected conduct and the
adverse action.” Wood, 705 F.3d at 829 (citation omitted). If the plaintiff establishes
a prima facie case, “the burden shifts to the employer to articulate a legitimate, non-
retaliatory reason for the action.” Id. (citation omitted). If the employer does so, the
burden shifts back to the plaintiff to demonstrate that the stated reason is pretextual.
Id. “[T]o prove pretext in a retaliation case, the plaintiff ‘must both discredit [the]
asserted reason for the [adverse action] and show the circumstances permit drawing
a reasonable inference that the real reason for [the adverse action] was retaliation.’”
Pedersen v. Bio-Med. Applications of Minn., 775 F.3d 1049, 1055 (8th Cir. 2015)
(second, third, and fourth alterations in original) (citation omitted).
Naguib has failed to provide direct evidence that she was retaliated against
because of her deposition testimony. The deposition took place in 2011, and Naguib
was fired three years later. The general manager who disagreed with her at the time
was no longer her boss at the time she was fired. There is no more than a speculative
connection between the two events. Naguib has also failed to present direct evidence
that she was retaliated against for opposing a practice forbidden by the MHRA. Her
allegation that Neufeld asked her to obtain notes from Muslim employees so that they
would be allowed to wear head scarves is the only alleged conduct that implicates the
MHRA, and the facts show that the company never instituted that policy, the
company policy allowed for religious attire, and, rather than refusing to carry out
Neufeld’s alleged request, Naguib merely responded by saying she would not ask for
notes until a company policy was officially rolled out. This does not amount to a
“specific link” sufficient to support a strong inference that Naguib’s firing, which
occurred months later, was motivated by her opposition to this hypothetical and
unenforced policy. See Wagner, 788 F.3d at 884–85.
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Without direct evidence, Naguib’s retaliation claims must proceed under the
McDonnell-Douglas burden-shifting framework. Even assuming Naguib can establish
a prima facie case of retaliation under that standard, Millennium has clearly shown
a legitimate non-discriminatory or retaliatory reason for firing her. Millennium’s
internal investigation credibly exposed that Naguib regularly altered employee hours
without using a company-sanctioned form.
The timing of Naguib’s termination supports the notion that it was not
retaliatory. Only when she took vacation in October 2014 did someone else fill her
role, allowing Millennium to discover the time sheet practice Naguib oversaw and the
home sewing conducted by one employee. Within one month, and after a hotel-wide
internal wage and hour investigation, Millennium fired Naguib. The investigation that
resulted in Naguib’s termination also resulted in discipline for three other managers
at Millennium who engaged in similar conduct on a smaller scale. Millennium then
compensated its employees for unpaid overtime discovered in the investigation.
Naguib has not met her burden to demonstrate that Millennium’s stated reasons for
firing her were pretextual because she has not discredited Millennium’s version of
events. See Pedersen, 775 F.3d at 1055. We therefore conclude that the district court
did not err by granting summary judgment on Naguib’s retaliation claims under the
MWA, MHRA, and common law.
Naguib also appeals the district court’s decision to grant summary judgment
to Millennium on her age discrimination claim under the MHRA. The MHRA forbids
an employer from firing or discriminating against an employee because of his or her
age. Minn Stat. § 363A.08, subd. 2. Discrimination claims under the MHRA may be
proved by either direct evidence or under the McDonnell-Douglas burden-shifting
framework. See Wood, 705 F.3d at 828.
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Again, Naguib has not shown a specific link between any age discrimination
and her termination sufficient to support the inference that the discrimination was the
cause of her termination. See Wagner, 788 F.3d at 884–85. She points only to a stray
remark from Neufeld that occurred months before the termination process. Naguib’s
termination followed the wage and hour investigation. Without sufficient direct
evidence, we review Naguib’s discrimination claim under McDonnell Douglas.
Because Naguib has not demonstrated pretext sufficient to overcome Millennium’s
aforementioned legitimate, non-discriminatory or non-retaliatory reason for firing her,
this claim must also fail.
Finally, Naguib appeals the district court’s decision to grant summary judgment
to Millennium on her FMLA retaliation claim. Under the FMLA, an employer may
not interfere with the use of FMLA leave, including by retaliating for the use of leave.
29 U.S.C. § 2615(a)(1). This claim is also reviewed for direct evidence or under
McDonnell Douglas. See, e.g., Massey-Diaz v. Univ. of Iowa Cmty. Med. Servs., Inc.,
826 F.3d 1149, 1160 (8th Cir. 2016).
Naguib has not provided any direct evidence that she was fired because she
took FMLA protected leave. She applied for FMLA leave beginning on October 30,
2014, one day after her temporary replacement flagged wage and hour irregularities
that would eventually lead to the investigation and Naguib’s termination. The results
of that investigation further support the district court’s conclusion that Naguib was
fired for legitimate, non-discriminatory or retaliatory reasons. Because Naguib cannot
demonstrate pretext under McDonnell Douglas, the district court did not err in
granting summary judgment on her FMLA claim either.
III. Conclusion
Accordingly, the judgment of the district court is affirmed.
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