UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

___________________________________

Case Type: Employment

Christopher Modtland, for

Case File No.: 04-3051

himself and all others

similarly situated,

Plaintiff, v.

AMENDED COMPLAINT AND DEMAND FOR A JURY TRIAL

Mills Fleet Farm, Inc.,

Defendant. ___________________________________

Plaintiff, through his attorneys, NEATON, PUKLICH & KLASSEN, 601 Carlson

Parkway, Suite 620, Minnetonka, Minnesota 55305, and JOHN A. KLASSEN, P.A., 700 Lumber

Exchange, 10 South Fifth Street, Minneapolis, Minnesota 55402 states and alleges for his

Complaint as follows:

NATURE OF CLAIMS

1. This is a class action for damages, declaratory and injunctive relief arising under 42

U.S.C. § 1981 (“Section 1981”). Plaintiff seeks further relief for himself and members of the

classes pursuant to the Minnesota Human Rights Act, Minn. Stat. § 363.03 et seq. (“MHRA”)

and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (“Title VII”).

Moreover, this action is to enforce the rights of plaintiff and members of the classes to be free

from arbitrary and capricious treatment, and from discrimination on the basis of race, color,

and/or gender in employment, as guaranteed by Section 1981, Title VII and the MHRA.

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Defendant has maintained patterns, practices, policies, customs and usages which are unlawful and which discriminate against plaintiff and members of the classes that he represents because of their race, color, and/or gender with respect to terms and conditions of employment and hiring.
JURISDICTION AND VENUE 2. This Court has original jurisdiction to consider plaintiff’s claims under, and jurisdiction thereof is conferred on this Court by virtue of, 28 U.S.C. §§ 1331 and 1367, 42 U.S.C. § 1981 and 42 U.S.C. §2000e et seq. Jurisdiction to grant injunctive and declaratory equitable relief, as well as damages, is invoked pursuant to 42 U.S.C. § 1981 and 42 U.S.C. §2000e et seq. The unlawful acts and practices alleged herein were committed in the State of Minnesota.
CLASS ACTION ALLEGATIONS 3. Plaintiff brings this action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure on his own behalf and on behalf of all other persons similarly situated. The members of the classes, which, upon information and belief number at least 100 members, are too numerous to be joined in one action. The classes are composed of (1) persons who applied to defendant for employment and were subjected to psychological testing prior to any offer of employment, conditional or otherwise; (2) persons who applied to defendant for employment, were required to undergo psychological testing prior to any offer of employment, and for whom defendant requested information pertaining to the person’s race, color and gender; and (3) persons who applied to defendant for employment, were required to undergo psychological testing prior to any offer of employment, and for whom defendant then provided information on the applicant’s race, color and/or gender to the psychological testing firm in connection with the testing.
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4. Plaintiff and class members were subjected to disparate treatment in hiring and other beneficial conditions of employment on the basis of race, color, and gender.
5. Plaintiff’s attorneys are qualified employment law litigators and generally able, with significant and relevant experience in civil rights employment discrimination claims, including class action litigation. For these reasons, the plaintiff will fairly and adequately protect the interests of the class members in this action for damages, declaratory and injunctive relief.
6. Plaintiff’s claims are typical of the claims of the other members of the classes. 7. The questions of law common to the above-described class are whether or not the hiring and placement practices of the defendant deprived and deprives members of the classes of civil rights secured to them by the laws of the United States (Section 1981 and Title VII) and the State of Minnesota (MHRA) by denying them the rights, privileges and conditions of employment granted to similarly situated and similarly non-protected class persons, and by subjecting each of them to unlawful application and hiring practices. 8. The defendant has failed to take remedial and corrective action to stop the discriminatory and unlawful treatment afforded the members of the classes, despite notice and knowledge of the discriminatory conduct perpetrated by it. Thus, injunctive and declaratory relief with respect to the classes as a whole is appropriate.
PARTIES 9. Plaintiff is an individual resident of the State of Minnesota. 10. Defendant is, upon information and belief, a Minnesota Corporation having its principal place of business at 512 Laurel Street, Brainerd, Minnesota. Defendant conducts business throughout the State of Minnesota.
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ADMINISTRATIVE PROCEEDINGS 11. On or about December 26, 2001, within 365 days of the MHRA violations of which he complains, plaintiff timely filed charges of employment discrimination against the defendant with the Minnesota Department of Human Rights (“MDHR”). These charges were cross-filed with the United States Equal Employment Opportunity Commission (“EEOC”). 12. Plaintiff’s charge was docketed by the MDHR on December 31, 2001 and assigned case number 38556. After investigating plaintiff’s complaint, the MDHR, on September 18, 2002, issued a finding that “probable cause exists to believe that an unfair discriminatory practice was committed.” On April 22, 2003 the MDHR issued an amended probable cause determination, finding: “Evidence establishes probable cause, that in this case the Charging Party was required to undertake a psychological examination without first being made a conditional job of employment [sic] offer, in violation of the Human Rights Act. In addition, there is Probable Cause to believe the Respondent or its agents requested information that pertains to race or gender of job applicants and that this information was made available to the psychological consulting firm. Collection of such information prior to employment is a violation of the Minnesota Human Rights Act.” 13. On May 27, 2004, plaintiff received notice from the MDHR that his charge had been dismissed. Plaintiff brings this claim within 45 days of receipt of this dismissal notice; therefore, plaintiff’s claims based on violations of the Minnesota Human Rights Act are timely and appropriate. The EEOC issued a Notice of Right to Sue in this charge on or about July 9, 2004.
ALLEGATIONS COMMON TO ALL CLAIMS 14. Plaintiff is an African-American male. On July 30, 2001 plaintiff applied for a position with the defendant at its Lakeville, Minnesota location. Plaintiff, like the members of the classes interviewed for the position and, following the interview, defendant asked plaintiff to take a psychological employment test. Plaintiff and the members of the classes agreed to take the
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“test” and was thereafter administered the “Reid Report” (herein after “Reid Report” or “test”). At no time prior to plaintiff and the members of the classes taking the Reid Report did defendant make a conditional offer of employment to plaintiff or the members of the classes. In fact, defendant never conditionally or otherwise offered plaintiff or the members of the classes employment.
15. The Reid Report administered by the defendant to plaintiff and the members of the classes requires the individual taking the test to furnish information concerning, among other information, information that pertains to the individual’s race, color and gender.
16. Plaintiff and the members of the classes took the Reid Report and, based solely on the purported results and/or analysis of the test, defendant refused to hire plaintiff.
17. At the time plaintiff applied for employment with defendant, plaintiff was aware that an objectively lesser-qualified Caucasian individual applied for and subsequently received employment with defendant. After obtaining this information, plaintiff contacted defendant concerning the status of his application. In response, defendant replied that it was reviewing plaintiff’s application. Plaintiff further inquired into whether defendant had any positions open and was told “not really.” Upon information and belief, this was not a true statement because defendant continued to hire individuals at its Lakeville, Minnesota location shortly after this conversation and defendant continued to advertise in the newspaper for open positions.
18. Upon information and belief, the defendant has continued to utilize and rely on the Reid Report in connection with its hiring decisions, including those involving the members of the classes. Defendant has admitted that if an individual applicant is judged “not recommended” based on the results of the Reid Report, defendant will not hire the applicant. Defendant has failed to
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take remedial and corrective action to stop this practice, despite receiving notice that this practice violates the Minnesota Human Rights Act. Thus, injunctive relief is appropriate.
STATEMENT OF CLAIM 19. Plaintiff alleges that the defendant maintains a pattern and practice of discrimination in employment on the basis of race, color, and/or gender. As part of that pattern and practice, by way of example and without limitation, the defendant engaged in the following unlawful conduct: (a) Requiring plaintiff and members of the classes, as employment applicants, to take a
pre-employment test referred to as the Reid Report without first offering a conditional offer of employment; (b) Requiring the plaintiff and members of the classes to provide race, color and gender data in connection with the Reid Report and the job application process; (c) Failure to hire plaintiff and members of the classes for employment while, during the same time period, offering objectively less qualified Caucasian job applicants employment; (d) Failure to maintain a hiring policy based on objective job-related criteria that are uniformly applied to Caucasians and non-Caucasians alike; and 20. The polices and practices described above are part of a pattern and practice of unlawful employment practices and race, color, and gender discrimination utilized by the defendant and constitute violations of federal and State law.
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COUNT I RACE, COLOR, AND GENDER DISCRIMINATION IN VIOLATION OF THE
MINNESOTA HUMAN RIGHTS ACT 21. Plaintiff realleges the foregoing paragraphs as though fully set forth herein.
Violation of Minnesota Statute Section 363.03, Subd. 1(4) 22. The Minnesota Human Rights Act provides at §363.03, subd. 1(4) that unless specifically excepted by statute it is an illegal, discriminatory employment practice for an employer, employment agency or labor organization, before a person is employed by the employer or admitted to membership in the labor organization, to require or request the person to furnish information that pertains to race, color and/or gender. This prohibition includes pre-employment information sought or obtained by means of employment application form, job interview, physical exam/health history or third-party sources. 23. Defendant was, at all relevant times herein, an “employer” as that term is defined by the Minnesota Human Rights Act. 24. Defendant required and/or requested plaintiff and members of the classes submit to a psychological examination without first being made a conditional offer of employment. Defendant’s actions violate the Minnesota Human Rights Act. 25. Defendant required and/or requested plaintiff and members of the classes provide information relating to race, color, and/or gender prior to offering plaintiff and members of the class employment. The collection of such information prior to offering plaintiff and the members of the classes employment or a conditional offer of employment violates the Minnesota Human Rights Act.
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Disparate Treatment on the Basis of Race and Color 26. Defendant discriminated against plaintiff and members of the classes on the basis of race and color with respect to hiring. 27. Defendant’s policies, procedures and actions in: (1) obtaining race and color data from job applicants; (2) supplying that information to the psychological consulting firm that “interprets” the required psychological examination (the “Reid Report”) administered by defendant to job applicants and; (3) utilizing a “not recommended” result from the Reid Report as the sole criteria in determining whether to hire individuals adversely affected plaintiff and members of the classes because of race and color. 28. This conduct of defendant constitutes an unfair discriminatory practice, and it has violated the rights of plaintiff and members of the classes under the Minnesota Human Rights Act. 29. Plaintiff and members of the classes are non-Caucasian minorities. Plaintiff applied for employment with defendant. At the time plaintiff and members of the classes applied for employment with defendant, non-minority individuals applied for employment with defendant. 30. During the relevant time period herein, members of the classes applied for employment with defendant. Objectively lesser qualified non-minority individual(s) applied for and subsequently received employment with defendant. Defendant did not offer plaintiff and members of the classes employment. 31. Defendant’s decision to not offer plaintiff and members of the classes employment was based, in part, on plaintiff’s and members of the classes’s race and color. Such actions constitute a violation of the Minnesota Human Rights Act. 32. As a direct and proximate result of the unfair discriminatory practices of defendant, plaintiff and members of the classes have suffered and continue to suffer lost earnings and
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benefits, lost earning capacity, embarrassment, humiliation, emotional distress and other damages in an amount in excess of $75,000.
COUNT II RACE AND COLOR DISCRIMINATION IN VIOLATION OF 42 U.S.C. § 1981
33. Plaintiff realleges the foregoing paragraphs as though fully set forth herein. Disparate Treatment on the Basis of Race and Color
34. Defendant discriminated against plaintiff and members of the classes on the basis of race and color with respect to hiring.
35. Defendant’s policies, procedures and actions in: (1) obtaining race and color data from job applicants; (2) supplying that information to the psychological consulting firm that “interprets” the required psychological examination (the “Reid Report”) administered by defendant to job applicants and; (3) utilizing a “not recommended” result from the Reid Report as the sole criteria in determining whether to hire individuals adversely affected plaintiff and members of the classes because of race and color.
36. This conduct of defendant constitutes an unfair discriminatory practice, and it has violated the rights of plaintiff and members of the classes under Section 1981.
37. Plaintiff and members of the classes are non-Caucasian minorities. Plaintiff applied for employment with defendant. At the time plaintiff and members of the classes applied for employment with defendant, non-minority individuals applied for employment with defendant.
38. During the relevant time period herein, non-Caucasian members of the classes applied for employment with defendant. Objectively lesser qualified non-minority individual(s) applied for and subsequently received employment with defendant. Defendant did not offer plaintiff and members of the classes employment.
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39. Defendant’s decision to not offer plaintiff and members of the classes employment was based, in part, on plaintiff’s and members of the classes’s race and color. Such actions constitute a violation of Section 1981.
40. As a direct and proximate result of the unfair discriminatory practices of defendant, plaintiff and members of the classes have suffered and continue to suffer lost earnings and benefits, lost earning capacity, embarrassment, humiliation, emotional distress and other damages in an amount in excess of $75,000.
COUNT III RACE, COLOR, AND GENDER DISCRIMINATION IN VIOLATION OF TITLE VII
41. Plaintiff realleges the foregoing paragraphs as though fully set forth herein. 42. Defendant, by its action(s) as set forth herein, discriminated against plaintiff and members of the classes on the basis of race, color and/or gender with respect to hiring. 43. Defendant’s policies, procedures and actions in: (1) obtaining race, color and/or gender data from job applicants; (2) supplying that information to the psychological consulting firm that “interprets” the required psychological examination (the “Reid Report”) administered by defendant to job applicants and; (3) utilizing a “not recommended” result from the Reid Report as the sole criteria in determining whether to hire individuals adversely affected plaintiff and members of the classes because of race, color and/or gender. 44. The conduct of defendant as alleged herein constitutes unfair discriminatory practice(s), and such practice(s) has violated the rights of plaintiff and members of the classes under Title VII, 42 U.S.C. §2000e et seq. 45. As a direct and proximate result of the unfair discriminatory practices of defendant, plaintiff and members of the classes have suffered and continue to suffer lost earnings and
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benefits, lost earning capacity, embarrassment, humiliation, emotional distress and other damages in an amount in excess of $75,000.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests: WHEREFORE, plaintiffs and members of the classes respectfully pray: A. That the Court rule this matter is properly maintained as a class action. B. That the practices of defendant complained of herein be adjudged, decreed and declared to be violative of the rights secured to plaintiff and members of the classes by the Minnesota Human Rights Act, Title VII and Section 1981 of the Civil Rights Act of 1991. C. That a permanent mandatory injunction be issued requiring that defendant adopt practices in conformity with the requirements of the Minnesota Human Rights Act, Title VII and Section 1981 of the Civil Rights Act of 1991. D. That a permanent prohibitory injunction be issued prohibiting defendant from engaging in the practices complained of herein. E. That plaintiff and members of the classes be awarded compensatory damages in an amount to be established at trial. F. That plaintiff and members of the classes be awarded punitive damages in an amount to be established at trial. G. For an entry of an Order enjoining defendant and its officers, agents and employees from subjecting plaintiff and members of the classes to differential treatment and from any retaliation for prior actions, or for bringing this action.
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H. That the Court retain jurisdiction until such time as it is satisfied that defendant has remedied the practices complained of herein and is determined to be in full compliance with the law.
I. That the Court order defendant to pay counsel for the plaintiff and the members of the classes their reasonable attorneys’ fees and the costs and expenses of this action.
J. That plaintiff and members of the classes be awarded such other and further legal and equitable relief as may be found appropriate, just and/or equitable, including without limitation back pay, front pay, lost earning capacity, out-of pocket expenses, and expert fees.
JURY DEMAND Plaintiff and members of the classes hereby demand a trial by jury of all issues triable of right by a jury.
NEATON, PUKLICH & KLASSEN

Dated this __12__ day of October, 2004.

By:

s/Michael L. Puklich

Michael L. Puklich (#0250661)

601 Carlson Parkway, Suite 620

Minnetonka, Minnesota 55305

(952) 258-8444

JOHN A. KLASSEN, P.A. John A. Klassen (#24434X) 700 Lumber Exchange 10 South Fifth Street Minneapolis, Minnesota 55402 (612) 204-4533

Attorneys for Plaintiff and Class Members

ACKNOWLEDGMENT

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The undersigned hereby acknowledges that costs, disbursements and reasonable attorney and witness fees may be awarded pursuant to Minn. Stat. § 549.21, Subd. 2 to the party against whom the allegations in this pleading are asserted.
___s/Michael L. Puklich_____________________ Michael L. Puklich
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 Modtland v. Mills Fleet Farm, Inc., Not Reported in F.Supp.2d (2004)
2004 WL 2730100 Only the Westlaw citation is currently available.
United States District Court, D. Minnesota.
Christopher MODTLAND, for himself and all other similarly situated, Plaintiffs, v.
MILLS FLEET FARM, INC., Defendant.
No. Civ.04–3051 PAM/RLE. | Nov. 28, 2004.
Attorneys and Law Firms
John A Klassen, John A Klassen, PA, Mpls, MN, Michael L Puklich, Neaton Puklich & Klassen, Minnetonka, MN, for Plaintiff.
Christopher J Harristhal, Dayle Nolan, Larkin Hoffman Daly & Lindgren, Bloomington, MN, for Defendant.
Opinion
MEMORANDUM AND ORDER
MAGNUSON, J.
*1 This matter is before the Court on Defendant’s Motion for Summary Judgment.1 For the reasons that follow, the Motion is denied.
BACKGROUND This is a putative class action filed by Plaintiff Christopher Modtland, filed on behalf of him and all other similarly situated individuals who sought employment at Defendant Mills Fleet Farm, Inc. (“Mills Fleet Farm”). On July 24, 2001, Modtland applied for a job at Mills Fleet Farm in Lakeville, Minnesota. Like all other applicants, he was required to complete the “Reid Report.” The Reid Report, designed by Pearson Reid London House (“Reid”), is an assessment that “measures tastes, preferences, attitudes, habits, behaviors, and personality traits.” (Arnold Aff. ¶ 3.) When an applicant completes the Reid Report, it is transmitted to Reid to be scored. Based on the applicant’s responses to the questions, the applicant is rated as “recommended,” “recommended with qualifications,” or “not recommended.” Modtland received a “not recommended” rating, and pursuant to Mills Fleet Farm company policy, was denied employment. (See Mills Aff. ¶ 13, Ex. E.)
Prior to January 22, 2002, the Reid Report required that the Mills Fleet Farm employee who was administering the assessment note the applicant’s race and gender. (Id. ¶ 7.) Mills Fleet Farm submits that this information was used solely to assess whether any disparate impact resulted from the use of the test. (Arnold Aff. ¶ 20.) On January 22, 2002, Mills Fleet Farm stopped requiring that its interviewing employees note the race and gender of the applicant. (Mills Aff. ¶ 8.)
Because Mills Fleet Farm failed to hire him, Modtland filed a charge of discrimination based on race with the Minnesota Department of Human Rights (“MDHR”) on December 27, 2001. (Harristhal Aff. Ex. A.) This charge was cross-filed with the Equal Employment Opportunity Commission (“EEOC”) on January 25, 2002. (Id. Ex. B.) On September 18, 2002, the MDHR issued its finding “that probable cause exists to believe that an unfair discriminatory practice was committed.” (Id. Ex. C.) Specifically, this finding pertained to Mills Fleet Farm’s practice of noting an applicant’s race and gender in the Reid Report. (Id.) The MDHR further concluded, however, that Modtland’s race was not a “discernible, discriminatory and causative factor” in Mills Fleet Farm’s employment decision. (Id.)
On April 22, 2003, the MDHR amended this finding. (Id. Ex. D.) The MDHR upheld the underlying probable cause
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Modtland v. Mills Fleet Farm, Inc., Not Reported in F.Supp.2d (2004)
determination, opining that the pre-offer Reid Report and the practice of noting an applicant’s race and gender was not in compliance with the MHRA. The MDHR then concluded that probable cause existed to show that Modtland was “discriminatorily denied employment due to [Mills Fleet Farm’s] hiring process.” (Id.)
On May 14, 2004, the MDHR concluded that “additional use of the [MDHR’s] limited litigation resources on this case would not serve public policy and is therefore not warranted.” (Id. Ex. E.) Nonetheless, it issued Modtland a notice of his right to sue and expressly acknowledged that its dismissal of the charge “does not relate to the merits” of its previous probable cause determinations. (Id.)
*2 On June 28, 2004, Modtland filed this lawsuit, claiming that Mills Fleet Farm engaged in discriminatory hiring practices2 in violation of (1) the Minnesota Human Rights Act (“MHRA”), Minn.Stat. § 363A.01 et seq.;3 (2) 42 U.S.C. § 1981; and (3) Title VII, 42 U.S.C. § 2000e et seq. (See Am. Compl.) On September 24, 2004, the parties met and conferred pursuant to Fed.R.Civ.P. 26(f). One week later, Mills Fleet Farm filed this Motion for Summary Judgment.
Mills Fleet Farm first challenges whether Modtland exhausted his administrative remedies and whether the allegations in the Amended Complaint sufficiently state a claim upon which relief can be granted. It also contends that the Reid Report and the notation about an applicant’s race do not violate either federal or state law. Alternatively, Mills Fleet Farm submits that information about an applicant’s race was used for lawful purposes, and that all applicants were treated the same way. Finally, Mills Fleet Farm submits that a legitimate, nondiscriminatory reasons supported its decision to not hire Modtland. Modtland seeks a continuance pursuant to Fed.R.Civ.P. 56(f). He further argues that a genuine issue of material fact exists on his claims, precluding summary judgment.
DISCUSSION
A. Sufficiency of the Allegations
1. Disparate Impact Mills Fleet Farm first disputes the sufficiency of the allegations in the Amended Complaint. It argues that Modtland’s claims are premised only on the theory of disparate treatment, and that any claim premised on disparate impact should be dismissed. Particularly, Mills Fleet Farm contends that Modtland’s administrative charge of discrimination only referenced a disparate treatment claim, and therefore he failed to exhaust his administrative remedies on his disparate impact claims.
Modtland filed his charge of discrimination with the MDHR, which cross-filed with the EEOC. The allegations in the charge of discrimination asserted that Modtland believed that he was denied employment because of his race. (Harristhal Aff. Ex. A.) Modtland asserted that Mills Fleet Farm hired a friend of his who was white and less qualified for the position. (Id.) Modtland asserts that when he followed up with Mills Fleet Farm following the application process, Mills Fleet Farm told him that there were no available positions. (Id.) However, according to Modtland, Mills Fleet Farm was still seeking employees in local newspapers. (Id.) Mills Fleet Farm insists that this one page charge only asserts a discrimination claim premised on disparate treatment.
However, the Court is not limited to the charge, but rather may examine the entire administrative record. See Montgomery v. Indep. Sch. Dist. No. 709, 109 F.Supp.2d 1081, 1100 (D.Minn.2000) (Tunheim, J.) (charge of discrimination filed with MDHR only constituted a “limited portion” of the administrative file, and court was permitted to evaluate all parts of the administrative record). Although Modtland plainly alleges that he was not hired because of his race, the MDHR evaluated his claim from both a disparate treatment and disparate impact analysis. Indeed, the MDHR considered both whether Modtland’s race was an “attributable factor” in the hiring process, and whether Mills Fleet Farm’s hiring process itself “discriminatorily denied” Modtland employment. (See Harristhal Aff. Exs. C–D.) Thus, the Court disagrees with Mills Fleet Farm and finds that Modtland sufficiently exhausted his administrative remedies on his disparate impact discrimination claim.
*3 Mills Fleet Farm further argues that the Amended Complaint makes no reference to disparate impact claims. The Court disagrees. The Amended Complaint alleges that Mills Fleet Farm engaged in discriminatory hiring practices, in violation of the MHRA, Title VII and 42 U.S.C. § 1981. Although the Amended Complaint references “disparate treatment” claims under the MHRA, the underlying allegations of this claim articulate a discrimination claim premised both on disparate impact and disparate treatment. (See Am. Com pl. ¶¶ 27–31.) Indeed, the allegations assert that the hiring practices “adversely affected” Modtland because of his race, and that “lesser qualified non-minority individual(s) applied for and subsequently received employment.” Similarly, Modtland’s Title VII allegations articulate a claim premised on disparate impact. (See Am. Compl.
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Modtland v. Mills Fleet Farm, Inc., Not Reported in F.Supp.2d (2004)
¶ 43.) Thus, the Court declines to dismiss Modtland’s disparate impact claims. Examining the Amended Complaint, Modtland sufficiently alleges that Mills Fleet Farm’s hiring practices are discriminatory in nature and that Mills Fleet Farm failed to hire Modtland because of his race. (Id. ¶ 19.)

2. Minn.Stat. § 363A.08 subd. 4(1) The Amended Complaint specifically alleges that Mills Fleet Farm violated Minn.Stat. § 363A.08 subd. 4(1), which declares that it is an unfair employment practice for an employer, prior to an offer of employment, to “require or request the person to furnish information that pertains to race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, disability, sexual orientation or age.” Mills Fleet Farm submits that because the interviewing employee “observed” the applicant’s race and gender, Mills Fleet Farm did not “require or request” such information. Thus, Mills Fleet Farm argues that this claim must be dismissed.
The Court disagrees. Mills Fleet Farm’s characterization that it “observed” this information does not preclude application of the statute. According to Mills Fleet Farm, prior to January 2002, all employment applicants who qualified were required to take the Reid Report. This Reid Report specifically included a section that required the Mills Fleet Farm employee administrating the assessment to note the applicant’s race and gender. This notation was submitted to Reid along with the applicant’s responses to the Reid Report. Based on the results of the Reid Report, the applicant was either offered or denied employment. Although the applicant did not expressly provide this information, this information was nonetheless required in the Reid Report, which was required for employment consideration. Mills Fleet Farm’s argument that it did not require or request such information is unavailing, and Modtland has sufficiently articulated a claim under Minn.Stat. § 363A.08 subd. 4(1).

B. Fed.R.Civ.P. 56(f) Mills Fleet Farm has moved for summary judgment pursuant to Rule 56. However, the Court notes that this Motion was filed one week after the parties’ Rule 26(f) meeting and before the parties met for a scheduling conference with Magistrate Judge Erickson. Modtland contends that the information it needs to properly defend against this Motion is in the possession of Mills Fleet Farm. The Eighth Circuit has noted that the “[r]elative availability of evidence to the parties is a circumstance to be considered in determining what should be required for making a submissible case.” Spencer v. Kroger, 941 F.2d 699, 704 (8th Cir.1991). The success or failure of Modltand’s claims depends on what discovery will disclose. Although summary judgment can be “an effective device to protect parties from burdensome discovery,” it should not be used to prevent a party from presenting its case. Costello, Porter, Hill, Heisterkamp & Bushnell v. Providers Fid. Life Ins. Co., 958 F.2d 836, 839 (8th Cir.1992). Indeed, the “Supreme Court has been careful to state that the rules regarding the proper opposition to a summary judgment motion apply only after adequate time for discovery has been allowed.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In this case, the Court finds that Modtland has been denied the opportunity to conduct discovery, particularly the discovery of evidence that is in the possession of Mills Fleet Farm. See Anderson v. Liberty Lobby, 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Modtland has submitted a detailed affidavit describing “what specific facts further discovery might unveil,” and thus the Court concludes that Modltand has satisfied his burden under Rule 56(f). (See Klassen 56(f) Aff.); Dulany v. Carnahan, 132 F.3d 1234, 1238 (8th Cir.1997). If, after discovery proceeds and sufficient facts cannot be articulated to support a genuine issue of material fact, then the Court may again entertain Mills Fleet Farm’s Motion for Summary Judgment.

CONCLUSION *4 Accordingly, based on all the files, records and proceedings herein, IT IS HEREBY ORDERED that Defendant Mills Fleet Farm’s Motion for Summary Judgment (Clerk Doc. No. 4) is DENIED.

Footnotes

1

The Court denied the request for oral argument and entertained this Motion on the parties’ submissions.

2

Modtland concedes that his filings with the MDHR and EEOC were based on race discrimination only, and voluntarily withdraws

his claims for gender discrimination. Pls.’ Mem. in Opp’n to Summ. J. at 26 n. 4. Therefore, Modtland’s claims pertain only to race

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Modtland v. Mills Fleet Farm, Inc., Not Reported in F.Supp.2d (2004)

discrimination.

3

The Amended Complaint refers to Minn.Stat. § 363.03 et seq. However, this chapter was recently renumbered and is now

referenced as Minn.Stat. § 363A.01 et seq.

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 5DIV, CLOSED, T7
U.S. District Court U.S.District Court Minnesota (DMN) CIVIL DOCKET FOR CASE #: 0:04−cv−03051−PAM−RLE

Modtland v. Mills Fleet Farm, Inc. Assigned to: Senior Judge Paul A. Magnuson Referred to: Chief Mag. Judge Raymond L. Erickson Cause: 42:1981 Job Discrimination (Race)
Plaintiff

Date Filed: 06/25/2004 Date Terminated: 03/01/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Christopher Modtland for himself and all others similarly situated

represented by John A Klassen John A Klassen, PA 10 S 5th St Ste 700 Mpls, MN 55402 612−204−4533 Fax: 612−204−4534 Email: jaklaw@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael L Puklich Neaton &Puklich, P.L.L.P 7975 Stone Creek Dr Ste 120 Chanhassen, MN 55317 952−258−8444 Fax: 952−258−9988 Email: mic@neatonpuklich.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Mills Fleet Farm, Inc.

represented by Christopher J Harristhal Larkin Hoffman Daly &Lindgren Ltd 7900 Xerxes Ave S Ste 1500 Mpls, MN 55431−1194 952−896−3312 Fax: 952−842−1710 Email: charristhal@larkinhoffman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dayle Nolan Larkin Hoffman Daly &Lindgren Ltd 7900 Xerxes Ave S Ste 1500 Mpls, MN 55431−1194 952−835−3800 Fax: 952−842−1725 Email: dnolan@larkinhoffman.com ATTORNEY TO BE NOTICED

Date Filed # 06/25/2004

Docket Text
1 COMPLAINT against Mills Fleet Farm, Inc. (Filing fee $ 150.receipt no. 432006) 5th Spec/Ind. civ. Rights Assigned to Judge Paul A. Magnuson/ referred to Magistrate Judge Raymond L. Erickson; 5:04UL114. 11pgs, filed by Christopher Modtland. (Attachments: # 1 Civil Cover Sheet)(JMH) (Entered: 06/28/2004)

06/25/2004 07/22/2004 09/10/2004
10/01/2004 10/01/2004 10/01/2004 10/01/2004 10/01/2004 10/01/2004
10/01/2004
10/07/2004 10/08/2004 10/13/2004 10/13/2004 10/13/2004 10/18/2004 10/22/2004
10/28/2004 10/28/2004

Summons Issued as to Mills Fleet Farm, Inc.. (JMH) (Entered: 06/30/2004)
2 ANSWER to Complaint by Mills Fleet Farm, Inc.. (Attachments: # 1 Affidavit of Service)(Nolan, Dayle) (Entered: 07/22/2004)
3 PRETRIAL NOTICE AND ORDER Pretrial Conference set for 10/18/2004 10:15 AM in In Chambers Hearing before Magistrate Judge Raymond L Erickson. Signed by Magigstrate Judge Raymond L Erickson on 9/10/04. (Attachments: # 1 Consent Form)(JLB) (Entered: 09/10/2004)
4 MOTION for Summary Judgment by Mills Fleet Farm, Inc.. (Nolan, Dayle) (Entered: 10/01/2004)
5 NOTICE of Hearing on Motion 4 MOTION for Summary Judgment: Motion Hearing set for 11/17/2004 09:00 AM in St Paul − Courtroom 1 before Senior Judge Paul A Magnuson. (Nolan, Dayle) (Entered: 10/01/2004)
6 MEMORANDUM in Support re 4 MOTION for Summary Judgment filed by Mills Fleet Farm, Inc.. (Nolan, Dayle) (Entered: 10/01/2004)
7 AFFIDAVIT of David W. Arnold in SUPPORT OF 4 MOTION for Summary Judgment filed by Mills Fleet Farm, Inc.. (Attachments: # 1 Exhibit A and B)(Nolan, Dayle) (Entered: 10/01/2004)
8 AFFIDAVIT of Stewart C. Mills, III in SUPPORT OF 4 MOTION for Summary Judgment filed by Mills Fleet Farm, Inc.. (Attachments: # 1 Exhibit A through G)(Nolan, Dayle) (Entered: 10/01/2004)
9 AFFIDAVIT of Christopher J. Harristhal in SUPPORT OF 4 MOTION for Summary Judgment filed by Mills Fleet Farm, Inc.. (Attachments: # 1 Exhibit A through G# 2 Exhibit H through J# 3 Exhibit K# 4 Exhibit L)(Nolan, Dayle) (Entered: 10/01/2004)
10 CERTIFICATE OF SERVICE by Mills Fleet Farm, Inc. re 4 MOTION for Summary Judgment, 5 Notice of Hearing on Motion, 6 Memorandum in Support of Motion, 7 Affidavit in Support of Motion, 8 Affidavit in Support of Motion, 9 Affidavit in Support of Motion (Nolan, Dayle) (Entered: 10/01/2004)
11 STIPULATION TO AMEND COMPLAINT by Christopher Modtland. (Puklich, Michael) (Entered: 10/07/2004)
12 ORDER FOR LEAVE TO FILE AND SERVE AMENDED COMPLAINT re 11 Stipulation filed by Christopher Modtland. Signed by Magistrate Judge Raymond L Erickson on 10/8/04. (JLB) (Entered: 10/08/2004)
13 AMENDED COMPLAINT with Jury Demand against Mills Fleet Farm, Inc., filed by Christopher Modtland. (Attachments: # 1 Certificate of Service)(Puklich, Michael) (Entered: 10/13/2004)
14 STATEMENT OF CASE as to Mills Fleet Farm, Inc.. (Attachments: # 1 Certificate of Service)(Harristhal, Christopher) (Entered: 10/13/2004)
15 STATEMENT OF CASE as to Christopher Modtland. (Attachments: # 1)(Puklich, Michael) (Entered: 10/13/2004)
16 Minute Entry for proceedings held before Magistrate Judge Raymond L Erickson : Initial Pretrial Conference held on 10/18/2004. (JLB) (Entered: 10/20/2004)
17 PRETRIAL ORDER: Amended Pleadings due by 11/1/2004. Discovery due by 7/1/2005. Joinder of Parties due by 11/1/2004. Motions (non−disp) due 8/1/2005. Motions (disp) due by 9/1/2005. Ready for trial due by 9/1/2005. Signed by Magistrate Judge Raymond L Erickson on 10/22/04. (JLB) (Entered: 10/22/2004)
18 MEMORANDUM in Opposition re 4 MOTION for Summary Judgment filed by Christopher Modtland. (Puklich, Michael) (Entered: 10/28/2004)
19 AFFIDAVIT of Tessa Kasanowski in OPPOSITION TO 4 MOTION for Summary Judgment filed by Christopher Modtland. (Puklich, Michael) (Entered: 10/28/2004)

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11/04/2004 11/08/2004 11/08/2004 11/08/2004 11/08/2004
11/11/2004 11/29/2004 12/22/2004 02/14/2005 02/18/2005 03/01/2005 03/01/2005 03/02/2005

20 AFFIDAVIT of Christopher Modtland in OPPOSITION TO 4 MOTION for Summary Judgment filed by Christopher Modtland. (Attachments: # 1 Exhibit Exhibit A)(Puklich, Michael) (Entered: 10/28/2004)
21 AFFIDAVIT of John A. Klassen in OPPOSITION TO 4 MOTION for Summary Judgment filed by Christopher Modtland. (Puklich, Michael) (Entered: 10/28/2004)
22 AFFIDAVIT of Michael L. Puklich in OPPOSITION TO 4 MOTION for Summary Judgment filed by Christopher Modtland. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Certificate of Service)(Puklich, Michael) (Entered: 10/28/2004)
23 ANSWER to Amended Complaint by Mills Fleet Farm, Inc.. (Attachments: # 1 Affidavit of Service)(Nolan, Dayle) (Entered: 11/04/2004)
24 REPLY re 4 MOTION for Summary Judgment filed by Mills Fleet Farm, Inc.. (Harristhal, Christopher) (Entered: 11/08/2004)
25 AFFIDAVIT of David W. Arnold in SUPPORT OF 4 MOTION for Summary Judgment filed by Mills Fleet Farm, Inc.. (Attachments: # 1 Exhibit AA)(Harristhal, Christopher) (Entered: 11/08/2004)
26 AFFIDAVIT of Stewart C. Mills III in SUPPORT OF 4 MOTION for Summary Judgment filed by Mills Fleet Farm, Inc.. (Attachments: # 1 Exhibit AA to CC)(Harristhal, Christopher) (Entered: 11/08/2004)
27 AFFIDAVIT of Christopher J. Harristhal in SUPPORT OF 4 MOTION for Summary Judgment filed by Mills Fleet Farm, Inc.. (Attachments: # 1 Exhibit AA to FF# 2 Affidavit of Service)(Harristhal, Christopher) (Entered: 11/08/2004)
28 REPORT of Rule 26(f) Planning Meeting by Mills Fleet Farm, Inc.. (Attachments: # 1 Affidavit of Service)(Harristhal, Christopher) (Entered: 11/11/2004)
29 ORDER denying 4 Defendant's Motion for Summary Judgment. Signed by Judge Paul A Magnuson on November 28, 2004. (lmz) (Entered: 11/29/2004)
30 ORDER denying Def's request for permission to file a Motion that Court reconsider its November 28, 2004, Order. Signed by Judge Paul A Magnuson on December 22, 2004. (lmz) (Entered: 12/22/2004)
31 STIPULATION TO AMEND PRETRIAL SCHEDULE by Christopher Modtland. (Attachments: # 1 Certificate of Service)(Puklich, Michael) (Entered: 02/14/2005)
32 ORDER that 31 Stipulation filed by Christopher Modtland is DENIED. Signed by Magistrate Judge Raymond L Erickson on 2/18/05. (JLB) (Entered: 02/18/2005)
33 STIPULATION of Dismissal with Prejudice by Mills Fleet Farm, Inc., Christopher Modtland. (Attachments: # 1 Certificate of Service)(Puklich, Michael) Modified filers on 3/2/2005 (LJD). (Entered: 03/01/2005)
34 ORDER DISMISSING CASE. Signed by Judge Paul A Magnuson on March 1, 2005. (smr) (Entered: 03/01/2005)
35 JUDGMENT. (LJD) (Entered: 03/02/2005)