CASE 0:14-cv-02037-SRN-FLN Document 228 Filed 04/07/17 Page 1 of 2

Jessica L. Roe Attorney 612-351-8305 (D) 612-810-1807 (C) [email protected]

60 South Sixth Street Suite 2670 Minneapolis, MN 55402 612-351-8300 (O) 612-351-8301 (F) www.roelawgroup.com

April 7, 2017 VIA ECF The Honorable Susan Richard Nelson United States District Court 774 Federal Building, 316 N. Robert Street St. Paul, MN 55101 Re:

Jakob Tiarnan Rumble v. Fairview Health Services, et al. Court File No. 14-CV-2037 (SRN/FLN)

Dear Judge Nelson: I am writing in response to the April 6, 2017 letter from Plaintiff’s counsel regarding LaPoint v. Family Orthodontics, P.A., No. A15-0396 [ECF Doc. 227]. Defendant Emergency Physicians Professional Association (“EPPA”) agrees the opinion is relevant to the pending motions in the instant case. Specifically, the Minnesota Supreme Court reaffirmed two of EPPA’s central themes: 1. An MHRA plaintiff faces a rigorous evidentiary burden (“actual motivation”) to establish liability; and 2. General social science, which may influence a need for statutory protection, plays no role in proving discrimination in a particular case. As to liability, LaPoint is illustrative in three respects. First, LaPoint’s facts—i.e., a direct, objective reference to pregnancy in the context of a job offer revocation— represents the type of link expected in a successful discrimination case. See Slip. Op. at 3-7. Neither party disputed the presence of statements directly connecting pregnancy and maternity leave to the rescission of the job offer. Id. In sharp contrast, Mr. Rumble offers no statements from Dr. Steinman objectively connecting Mr. Rumble’s sex, sexual orientation, or gender identity to any alleged adverse medical care. Unlike Ms. LaPoint, who appropriately provided direct evidence linking a specific protected-class status (pregnancy) to a specific adverse action (job offer retraction), Mr. Rumble merely offers subjective impressions to manufacture a false, unsubstantiated correlation between protected classes (e.g., sex, sexual orientation, and/or gender identity) and multiple health care events by multiple individuals. LaPoint precisely demonstrates the type of evidence that is lacking in Mr. Rumble’s case.

CASE 0:14-cv-02037-SRN-FLN Document 228 Filed 04/07/17 Page 2 of 2 Hon. Susan R. Nelson April 7, 2017 Page 2 Second, the Minnesota Supreme Court reiterated the high standard of proof required for a successful MHRA claim. A plaintiff must prove that protected-class status “actually motivated” an adverse action. Slip. Op. at 21 (“Under the appropriate legal standard, LaPoint was required to prove that her pregnancy ‘actually motivated’ Family Orthodontics’ decision not to hire her.”) Applying this standard to the instant case, Mr. Rumble must prove that membership in a protected class actually motivated each claimed adverse discriminatory act. Again, where Ms. LaPoint delivered evidentiary specifics, Mr. Rumble merely depends on subjective impressions. Because Mr. Rumble has failed to establish actual motivation for discrimination, LaPoint supports summary judgment in the instant case. Third, while discriminatory animus is not required in every discrimination context (e.g., an individual who supports pregnancy can still discriminate on the basis of pregnancy), LaPoint confirms that such animus absolutely remains relevant. Slip. Op. at 19-20 (“To be sure, a lack of animus can be relevant to the question of discriminatory motive, because the existence of animus could suggest that discrimination is more likely.”); Id. at 21 (“And although discriminatory animus may be relevant to motivation, LaPoint was not required to prove that Dr. Ross was hostile to LaPoint’s pregnancy in order for her to prevail”). In this case, Mr. Rumble concedes that no discriminatory animus was communicated to him. While a malevolent belief about a protected class is not necessary in every discrimination context (e.g., pregnancy), there is no dispute that the absence of evidence of animus, particularly without other evidence to support the claim, remains a critically important consideration. As to the application of social science to an MHRA claim, the LaPoint opinion also supports EPPA’s position. While Judge Chutich’s dissenting opinion references social science about pregnancy discrimination, she does so to illustrate the wisdom of having statutory pregnancy protection. Slip. Op. at D-4-5. Notably, no member of the Minnesota Supreme Court suggested that generalized social science about negative treatment of members of a protected class is sufficient evidence for an individual plaintiff to prove discrimination. Mr. Rumble, lacking other evidence, asks this Court to rely upon abstract social science to prove that specific individuals, including Dr. Steinman, acted in an unlawful discriminatory manner. LaPoint refutes Mr. Rumble’s position. Thank you for your consideration. Respectfully, ROE LAW GROUP, PLLC /s/ Jessica L. Roe Jessica L. Roe cc:

Counsel of Record (via ECF)