Kpou v. Supervalu, Inc.

Background

Meapeh Kpou and Nyaquoi Nyayolo worked at Supervalu’s distribution center in Hopkins, Minnesota. Both were Black employees of West African descent and immigrants from Liberia. They alleged that coworkers subjected them to race- and national-origin-based harassment and retaliation. Their claims arose under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and the Minnesota Human Rights Act. They also alleged that Supervalu negligently retained and supervised coworkers under Minnesota common law.

Kpou identified seventeen discrete incidents, along with continuing harassment. The incidents included racial slurs and death threats in notes, threats and physical conduct involving heavy equipment, threats of physical violence, and harassment after Kpou reported a coworker who was later terminated. Nyayolo identified incidents involving coworkers who allegedly used or reacted negatively to seniority disputes, including an incident in which a coworker dragged him with a forklift and caused a shoulder injury. Supervalu investigated and disciplined some employees, but the parties disputed whether Supervalu’s responses were prompt and effective.

Legal standard

The court considered Supervalu’s motion under the summary-judgment standard. Summary judgment is proper when there is no genuine dispute about an important fact and the moving party is entitled to judgment as a matter of law. The court viewed the evidence in the light most favorable to Kpou and Nyayolo, who opposed the motion.

For coworker harassment claims, a plaintiff generally must show membership in a protected class, unwelcome harassment, a connection between the harassment and the protected class, an effect on a term or condition of employment, and that the employer knew or should have known of the harassment but failed to respond promptly and effectively. Retaliation claims require protected conduct, a materially adverse action, and a causal connection between them. The court recognized that retaliation may be based on a hostile work environment, including coworker harassment that an employer leaves unchecked.

Discriminatory-harassment claims

The court denied summary judgment on Kpou’s discriminatory-harassment claim in Count 1. It concluded that a reasonable jury could connect several incidents to Kpou’s race or national origin, including conduct by Walters, Bialucha, Dykhoff, Turner, and Anderson. The court also considered the incidents collectively, including racial threats, death threats, physical threats involving machinery, daily insults, and the close physical proximity between Kpou and his coworkers. It held that a reasonable jury could find the conduct objectively hostile and sufficiently severe or pervasive.

The court also found a factual dispute about whether Supervalu took proper remedial action regarding Kpou’s complaints. Although Supervalu responded appropriately to many incidents, the court identified evidence that it did not respond to Bialucha’s comments, did not adequately investigate or discipline Dykhoff or Turner, and did not investigate the Walters threat for more than a year. The court also found factual disputes about whether Supervalu’s training and other preventive measures were effective.

The court granted summary judgment on Nyayolo’s discriminatory-harassment claims in Counts 1, 3, and 5. The Clifford incident had a sufficient connection to race or national origin for purposes of the claim, but Supervalu responded promptly, investigated, and terminated Clifford six days later. The court held that Nyayolo’s other potentially relevant incidents did not support the claims: the evidence did not connect the Sermons incident to a protected status, and the isolated Pat incident was not sufficiently severe to create a hostile work environment.

Retaliatory-harassment claims

The court denied summary judgment on Kpou’s retaliatory-harassment claim in Count 2. It held that retaliation based on coworker harassment is legally possible and that a reasonable jury could find the frequency, physical nature, and proximity of the harassment sufficient to dissuade a reasonable worker from reporting discrimination. The court also found evidence from which a jury could conclude that Supervalu’s management allowed the harassment to continue unchecked.

The court granted summary judgment on Nyayolo’s retaliatory-harassment claim in Count 2 because the plaintiffs presented no evidence that Nyayolo was retaliated against for complaining about the Clifford, Sermons, Nick, or Pat incidents.

Negligent-retention claims

The court granted summary judgment on both plaintiffs’ negligent-retention claims in Count 7. Under Minnesota law, negligent retention requires an employer’s direct liability for an employee’s intentional tort, and an intentional tort is an essential element. The court concluded that the plaintiffs had not identified specific incidents or shown that this required element was present. They also did not identify anyone involved in Nyayolo’s negligent-retention claim.

Negligent-supervision claims

The court granted summary judgment on Kpou’s negligent-supervision claims in Count 8 as they related to Schmitz, Hazen, and Anderson. The court held that the evidence did not show Supervalu could have foreseen Schmitz’s forklift incident, Hazen’s alleged conduct after the threatening notes, or Anderson’s later misconduct in light of Supervalu’s responses to Anderson’s earlier reported incidents.

The court denied summary judgment on Kpou’s Count 8 negligent-supervision claim as it related to Bialucha. A reasonable jury could find that Supervalu knew or should have known Bialucha was aggressive and might engage in injurious conduct, based on Bialucha’s comments and involvement in the events surrounding the Schmitz forklift incident.

The court granted summary judgment on Nyayolo’s Count 8 negligent-supervision claims. It rejected the argument that Schmitz’s 2015 conduct made Clifford’s 2017 conduct foreseeable.

Disposition

The court ordered that Supervalu’s motion for summary judgment was granted in part and denied in part. Summary judgment was denied on Kpou’s Counts 1 and 2 and on Count 8 as it related to Bialucha. Summary judgment was granted on Kpou’s Counts 5, 6, and 7 and on Count 8 as it related to Schmitz, Hazen, and Anderson. Those specified claims were dismissed with prejudice as to Kpou. Summary judgment was granted on Nyayolo’s Counts 1 through 8, and the action was dismissed with prejudice as to Nyayolo. Judge Joan N. Ericksen signed the order.