Mwassa v. Presbyterian Homes and Services (PHS)

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Paulo K. Mwassa,                   Case No. 19-cv-01511 (SRN/HB)         

          Plaintiff,                                                     

v.                                 MEMORANDUM ORDER AND                  

Presbyterian Homes and Services,                                         

          Defendant.                                                     


Paulo K. Mwassa, 2650 Scotland Ct., Apt. 208, Mounds View, MN 55112, Plaintiff, 
Pro Se.                                                                  

Meggen E. Lindsay and Penelope J. Phillips, Felhaber Larson, 220 S 6th St. Suite 2200, 
Minneapolis, MN, for Defendant.                                          


SUSAN RICHARD NELSON, United States District Judge                        
    This matter is before the Court on Defendant’s Motion for Summary Judgment 
[Doc. No. 91] and Plaintiff’s Motion in Opposition to Defendant’s Motion for Summary 
Judgment [Doc. No. 97]. Based on a review of the files, submissions, and proceedings 
herein, and for the reasons set forth below, the Court GRANTS Defendant’s motion, and 
DENIES Plaintiff’s motion.                                                
I.   BACKGROUND                                                           
    A.   Parties                                                         
    Defendant Presbyterian Homes and Services (“PHS”) is the operator of Waverly 
Gardens, a senior living community located in North Oaks, Minnesota. (Nelson Decl. [Doc. 
No. 94-2] ¶ 3.)                                                           
    Plaintiff Paulo Mwassa (“Mwassa”) is a resident of Minnesota, and is a black man 
of Ugandan descent. (Compl. [Doc. No. 1] ¶ 10.) He worked as a Trained Medication 

Assistant and Resident Assistant at Waverly Gardens until his termination on June 12, 
2018. (Nelson Decl. ¶¶ 4; 17.) During his tenure at Waverly Gardens, Mwassa received 
favorable performance evaluations, and his file contained no corrective actions or coworker 
complaints. (Lindsay Decl. [Doc. No. 94], Ex. A (Pl.’s Performance Summary); Prigge 
Decl. [Doc. No. 94-3] ¶ 6.) In his position, he provided care to residents who are considered 
vulnerable adults under the Minnesota Vulnerable Adults Act, 

, 

subds. 6, 21.                                                             
    B.   Mwassa’s Alleged April 4, 2018 letter to Waverly Gardens Care Center 
         Administrator Alana Nelson Regarding Racial Discrimination      
    Mwassa  contends  that  he  wrote  a  letter  to  Waverly  Gardens  Care  Center 
Administrator Alana Nelson (“Nelson”) on April 4, 2018, alleging that he was the victim 
of racial discrimination by a floor supervisor, Terry Beach (“Beach”). (Pl.’s Decl. [Doc. 
No. 101] 1, Ex. 5 (April. 4, 2018 Mwassa Letter).) Several months prior to writing the letter, 
Mwassa  alleges  that  he  shared  his  concerns  regarding  racial  discrimination  in  the 

workplace with a colleague, Jean Alexis (“Alexis”), who worked as a Certified Nursing 
Assistant at PHS, and who is black. (Pl.’s Decl., Ex. 4, (Alexis Decl.) at 1.) On April 4, 



1 Plaintiff’s Exhibits 1–85 are found at docket number 101, exhibits 86–115 are found at 
docket number 102. The declaration found at docket number 101 refers to both sets of 
exhibits.                                                                 
2018, Mwassa alleges that he told Alexis about the letter he had written to Beach. (Id. at 
2.)                                                                       

    In the letter, Mwassa alleges that Beach treated him differently from coworkers who 
were  not  black.  (Id.,  Ex.  5  (April.  4,  2018  Mwassa  Letter).)  He  alleges  that  Beach 
discriminated against him when she (1) told him to go back to Africa; (2) called him lazy; 
and (3) talked to a resident about how black employees at PHS are “not good,” and that 
they are “ugly, rude, mean and rough.” (Id.) Mwassa also alleges that Beach encouraged a 
resident to falsely accuse black employees of abuse and neglect. (Id.) Finally, Mwassa 

alleges that he confronted Beach about their last conversation, and that she apologized to 
him. (Id.)                                                                
    Mwassa testified that he wrote the letter on a computer at his local public library 
because his own computer had broken down, and he did not save an electronic version of 
the letter—choosing instead to print two or three copies of the letter. (Mwassa Dep. [Doc. 

No. 94-1] at 107–108, 150.) He has since discarded his computer, although he does not 
recall how he disposed of it. (Id. at 150.)                               
    Mwassa claims that he placed a copy of the letter in the folder outside Nelson’s 
office and later discussed his concerns with Nelson after she received the letter. (Id. at 111; 
Pl.’s Opp’n Mem. [Doc. No. 99] at 5.) Nelson, however, has no recollection or record of 

receiving or seeing such a letter. (Nelson Decl. ¶¶ 5–6.)  Nelson contends that at no point 
during Mwassa’s employment did he ever make a verbal or written report of discrimination 
to her. (Id.)                                                             
    C.   April 19, 2018 Vulnerable Adult Report                          
    On April 19, 2018, PHS submitted an incident report to the Minnesota Department 
of Health regarding the alleged mistreatment of a resident at Waverly Gardens. (Lindsay 

Decl., Ex. B (Vulnerable Adult Report); Prigge Decl. ¶ 6.) The resident alleged that a “dark 
colored, clean cut man touched him inappropriately while changing [the resident’s] briefs.” 
(Lindsay Decl., Ex. B (Vulnerable Adult Report) at 2.) The only nurse on duty who fit the 
description was Mwassa, and pursuant to policy, PHS immediately placed him on paid 
administrative  leave  while  it investigated  the allegation.  (Prigge  Decl.  ¶ 6.)  Mwassa 

contends that the resident in question was the same resident whom Beach had earlier 
encouraged to file a false report of abuse and neglect. (Pl.’s Opp’n Mem. at 7.) Following 
the investigation of the alleged abuse, the report was found to be unsubstantiated and 
Mwassa returned to work without any loss of pay. (Prigge Decl. ¶ 6.)      
    Mwassa further alleges that Nelson admitted that he was placed on leave because of 

racial profiling, and apologized for “racially targeting” Mwassa when she found out that 
the report was unsubstantiated. (Compl. ¶ 14; Pl.’s Decl., Ex. 114 [Doc. No. 102] (Pl.’s 
Interrog. Answers) at 9.)                                                 
    D.   June 7, 2018 “Spy Pen” Incident                                 
    At 4:45 a.m. on the morning of June 7, 2018, a female resident assistant (“RA”) at 
PHS discovered a video recording device that was designed to look like a pen in one of the 

staff bathrooms (the “spy pen”). (Lindsay Decl., Ex. C (Description of Incident) at 1.) The 
device was taped in such a way that it pointed at the toilet. (Id.) The RA cut the tape holding 
the pen and noticed it was hot to the touch. (Id.) This made her suspect that it was not a 
normal pen, and that it had been “running/recording” for “quite some time.” (Id.) She left 
some of the tape under the sink, hoping to later see who went into the bathroom to remove 

the tape. (Id.) She then exited the bathroom, and brought the spy pen to a desk where she 
inspected it. (Id. at 1–2.) Upon closer inspection, the RA noticed a “glare that look[ed] like 
a camera lens.” (Id. at 1–2.)                                             
    The RA contends that when Mwassa saw her inspecting the device, she shared with 
him her suspicion that it was a “spy pen.” (Id. at 2.) When Mwassa asked to see it, the RA 
refused and asked him to wait while she continued to remove the tape. (Id.) When she 

removed more tape, the RA saw a possible power button and a USB port, leading her to 
believe it was a video camera. (Id.) Mwassa then took the device, saying, “This can’t be a 
spy pen. There’s no such thing.” (Id.) Mwassa alleges that he asked her to plug the device 
into her personal laptop, but the RA refused. (Id., Ex. M (Police Interview) at 4.)  
    Mwassa asserts that he then took the spy pen to a training room, which contained 

several computers, in order to view the contents of the USB drive. (Id. at 5.) He claims that 
he could not determine where to plug in the USB port, and he was also doubtful the USB 
would work, as it appeared loose. (Id. at 5,17.) The RA estimated Mwassa was gone for 
10-15 minutes, and when he returned, he claimed there was nothing on the USB drive. (Id., 
Ex. C (Description of Incident) at 2.) He then handed the spy pen back to the RA, who 

found that it felt lighter, as if the internal mechanism had been removed. (Id.) She also 
noticed that the USB port was broken and disconnected from the device. (Id.) Mwassa 
contests this, and claims he returned the spy pen in its original condition, having simply 
removed tape that had added structure and weight to the device. (Id., Ex. M (Police 
Interview) at 20–21.)                                                     

    The RA contends that after Mwassa returned with the device, he discouraged her 
from turning it over to management. (Id., Ex. C (Description of Incident) at 2.) She 
disagreed and gave the pen to the shift supervisor, reporting how she had found it. (Id.) 
The two of them went to the bathroom where the RA had initially discovered the device. 
(Id.,  Ex.  D  (Handwritten  Incident  Description).)  The  remaining  tape  had  since  been 
removed, but the supervisor touched the pipe where it had been affixed and noted that it 

felt sticky. (Id.) Mwassa denies having entered the bathroom to remove the tape. (Id., Ex. 
M (Police Interview) at 23.) When the RA and shift supervisor returned to the work area, 
they both filed incident reports. (Id., Ex. D (Handwritten Incident Description); 

 Ex. C 
(Description of Incident) at 3.)                                          
    E.   Mwassa’s Alleged June 7, 2018 letter to Human Resources Manager 
         Tricia Prigge                                                   
    Mwassa contends that he sent a letter alleging that he was a victim of racial 
discrimination in the work place and a hostile work environment to Human Resources 

Manager Tricia Prigge (“Prigge”) on June 7, 2018. (Pl.’s Decl., Ex. 6 (June 7, 2018 Letter).) 
In the letter, Mwassa detailed three specific examples of alleged racial discrimination by 
Beach: (1) she imitated his voice and accent over the “radio talkies;” (2) she accused 
Mwassa of hiding while he was in a resident’s room; and (3) she made the statement, “I 
don’t know why Management hired Africans, all you guys do is [] hide from work.” (Id.) 

In the letter, Mwassa also expressed concern that Nelson was targeting him after his April 
4, 2018 letter, and stated his belief that she was “singling [him] out” and trying to find an 
excuse to fire him. (Id.)                                                 

    Mwassa testified that he typed this letter at a computer at the public library. (Mwassa 
Dep. at 114.) There is no electronic record of this letter, and Mwassa alleged he mailed a 
paper copy to Prigge shortly after he was placed on administrative leave. (Id.)  
    Conversely, Prigge testified that she did not receive this letter. (Prigge Decl. ¶ 3–4.) 
She further testified that she never received a verbal or written report of discrimination 
from Mwassa. (Id. ¶ 3.)                                                   

    F.   The Investigation of the Spy Pen Incident                       
    Nelson contacted Mwassa at 3:00 p.m. on June 7, 2018 to advise him that he had 
been placed on administrative leave pending an investigation of the spy pen incident. 
(Lindsay Decl., Ex. E (Nelson June 7, 2018 Note).) She also contacted the police about the 
incident. (Id., Ex. G (Incident Report).)                                 

    During  the  investigation,  Nelson  reviewed  video  surveillance  cameras  and 
discovered that Mwassa entered the bathroom in which the RA discovered the spy pen six 
times between 1:59 a.m. and 4:00 a.m. on June 7, 2018. (Lindsay Decl., Ex. I (Timeline of 
Surveillance Footage); 

 Ex. J (Notice of Termination).) The first time Mwassa entered 
the bathroom, his hand was in his front pocket, and he remained in the bathroom for seven 

minutes. (Id., Ex. I (Timeline of Surveillance Footage).) The RA had informed Mwassa 
that she planned to take a break during this approximate time period. (Id., Ex. H (Nelson 
Email).) Mwassa’s next five trips to the bathroom were only 20-30 seconds long. (Id., Ex. 
I (Timeline of Surveillance Footage).) Mwassa explained his frequent use of that particular 
bathroom by pointing out the other bathroom in the area was out of paper towels, and that 
as an RA he was required to wash his hands many times during his shift. (Id., Ex. M (Police 

Interview) at 25.)                                                        
    Mwassa was interviewed a few days later, on June 11, 2018, by Ramsey County 
Sheriff’s Deputy Joshua Adams, as well as Nelson and Prigge. (Id., Ex. L (Case Notes).) 
During the interview, Mwassa was asked questions about the spy pen incident, and he was 
shown the video footage collected by PHS. (See 

 Ex. M (Police Interview).) He denied 
placing the spy pen in the bathroom, denied the spy pen belonged to him, and denied 

tampering with the device beyond attempting to plug it into several computers. (Id. 3–5, 
16–7, 21.) However, Nelson and Prigge concluded that Mwassa provided inconsistent and 
evasive answers during the interview. (Id., Ex. J (Notice of Termination) at 1.) Specifically, 
when the officer first asked Mwassa if he had ever purchased a spy pen like the one found, 
Mwassa answered “no, never,” but when the officer asked him if a review of Mwassa’s 

bank records and other personal accounts would confirm this, he admitted that he had 
“purchased one, but not like that one.” (Id., Ex. M (Police Interview) at 7.)  
    Mwassa alleges that during this interview Prigge asked Mwassa “to stop accusing 
[Nelson and Prigge] of bias and unfair treatment.” (Id., Ex. 113 (RFAs) at 9.) He also 
alleges  that  Nelson  said,  “black  people  are  criminal  in  nature”  to  Prigge  during  the 

investigation. (Compl. ¶ 17; Pl.’s Decl., Ex. 114 (Pl.’s Interrog. Answers) at 9.) However, 
the transcript provided by Defendant does not contain any comments by Prigge, Nelson, or 
Mwassa about discrimination or unfair treatment. (See Lindsay Decl., Ex. M (Police 
Interview).) Instead, while Mwassa is recorded as saying the RA who found the spy pen 
“set him up,” (id. at 19), he also acknowledged that he had been “good friends” with the 
RA prior to this incident. (Id. at 31.)                                   

    Nelson and Prigge then interviewed the RA, and reviewed her written statement. 
(Id., Ex. O (Nelson June 12, 2018 Note) at 1.) The RA reiterated that when she found the 
spy pen it did not appear broken or “loose,” as Mwassa claimed. (Id. at 3.) She also reported 
that Mwassa appeared “nervous” or “scared” during their conversation. (Id. at 4.)  
    Following  the  June  11,  2018  interviews,  PHS  decided  to  terminate  Mwassa’s 
employment. Prigge called Mwassa on June 12, 2018 to notify him of PHS’s decision, and 

to read the Notice of Termination to him.  (Id., Ex. J (Notice of Termination).) The 
termination notice explained that PHS was terminating Mwassa’s employment because it 
had “lost confidence in [Mwassa’s] ability to maintain its standards and Code of Conduct.” 
(Id.)  In  particular,  PHS  noted  inconsistencies  between  Mwassa’s  June  11  interview 
statements and “other employees’ statements (spy pen having missing pieces, tape no 

longer attached to the toilet, usage of the bathroom, changing your answer as to whether or 
not you’ve ever purchased a camera like the one found).” (Id. at 2.)      
    After his termination, on July 3, 2018, Mwassa was also charged via complaint in 
state court with a gross misdemeanor for interference with privacy under 

. (Id., Ex. P (Summons and Compl.).) On August 8, 2018, the charge was dismissed 

for lack of probable cause, and on January 3, 2019 the record of Mwassa’s criminal charge 
was expunged. (Id., Ex. Q (Dismissal of Compl.); Pl.’s Decl., Ex. 11 (Order Sealing 
Record); 

 Exs. 15–17 (Letters Confirming Expungement).)               
    G.   Mwassa’s Alleged June 11, 2018 letter to PHS CEO Dan Lindh      
    After the conclusion of the investigatory interview on June 11, 2018, Mwassa 
contends that he wrote a third letter complaining about discrimination, this time to PHS’s 

CEO, Dan Lindh. (Pl.’s Decl., Ex. 7 (June 11, 2018 Letter).)              
    Mwassa testified that he wrote this letter immediately after the June 11 interview 
with Prigge, Nelson, and Deputy Adams. (Mwassa Dep. at 116.) He alleges that he wrote 
this letter at the Maplewood library, as his usual library was closed, and he then mailed it 
to Lindh. (Id. at 116–17.) Neither party submitted evidence showing that Lindh ever 

received this letter.                                                     
    H.   Mwassa’s EEOC Charge                                            
    On  September  8,  2018,  Mwassa  filed  a  charge  with  the  EEOC,  alleging 
discrimination based on race, national origin, and retaliation. (Lindsay Decl., Ex. S (EEOC 
Compl.).) In the charge, he contended he was “subjected to different term[s] and conditions 
of employment” and a “hostile work environment where [he] was falsely accused of 

[wrongdoing].”  (Id.)  Mwassa  also  claimed  that  he  had  been  “racially  profiled,”  and 
“subjected to investigations and discipline.” (Id.) He stated that he had “internally reported 
discrimination on more than one occasion” but was subject to discriminatory retaliation 
“for participating in protected activity in violation of Title VII of the Civil Rights Act.” 
(Id.)                                                                     

    In the intake interview associated with the charge, Mwassa was asked if he had 
reported discrimination to his employer, and he answered that he had reported it to Nelson, 
verbally, in April of 2018. (Id., Ex. T (Intake Notes) at 2.) He denied having filed any 
written discrimination complaints. (Id.) Subsequently, however, in a letter to the EEOC 
dated December 4, 2018, Mwassa stated that that he had written the April 4, 2018 and June 

7, 2018 letters to PHS staff alleging discrimination, but did not mention the June 11, 2018 
letter to Lindh. (Id., Ex. U (Pl.’s Response to EEOC).)                   
    The EEOC dismissed Mwassa’s charge on March 15, 2019, and issued him a right 
to sue letter. (Id., Ex. V (Right to Sue Letter).)                        
    I.   The Lawsuit                                                     
    On June 7, 2019, Mwassa filed suit against PHS, alleging violations of Title VII of 

the Civil Rights Act. 42 U.S.C. §§ 2000e, et seq. Mwassa is self-represented and used a 
form complaint for employment discrimination lawsuits, alleging discrimination based on 
race and national origin. Under the clause describing the nature of his case, Mwassa 
checked the following boxes indicating the type of conduct at issue: “Termination of [his] 
employment,” “Failure to promote,” “Terms and conditions of employment differ from 

those  of  similar  employees,”  “Retaliation,”  “Harassment,”  “Racial  Profiling,” 
“Defamation,” and “Malicious Prosecution or Abuse of Process.” (Compl. ¶ 8.) PHS now 
moves for summary judgment on all of Mwassa’s claims.                     
II.  DISCUSSION                                                           
    A court may grant a party summary judgment if there are no disputed issues of 
material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. 

Civ. P. 56(a). The burden of establishing the nonexistence of any genuine issue of material 
fact is on the moving party. Celotex Corp. v. Catrett, 

 (1986). A party 
opposing summary judgment “‘must set forth specific facts showing that there is a genuine 
issue for trial,’ and ‘must present affirmative evidence in order to defeat a properly 
supported motion for summary judgment.’” Ingrassia v. Schafer, 

 (8th 

Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 

, 256–57 (1986)).  
    A dispute of fact is “genuine” if “a factfinder could reasonably determine the issue 
in the non-moving party’s favor.” Zayed v. Associated Bank, N.A., 

 (8th 
Cir. 2019) (citing Anderson, 

). A factfinder’s determination of an issue is 
only  reasonable  if  “it  is  based  on  ‘sufficient  probative  evidence’  and  not  on  ‘mere 
speculation, conjecture, or fantasy.’” 

 (citing Williams v. Mannis, 

 (8th 

Cir. 2018)). This circuit has also held that a properly supported motion for summary 
judgment cannot be defeated with only self-serving affidavits. Meeks v. Dept. of Human 
Services, 

 (8th Cir. 2018) (citing Conolly v. Clark, 

 
(8th Cir. 2006)).                                                         
    A.   Title VII                                                       

         1.   Applicable Law                                             
    Pursuant to Title VII of the Civil Rights Act of 1964, it is an “unlawful employment 
practice” for an employer to, among other things, “discharge any individual, or otherwise 
to discriminate against any individual with respect to his compensation, terms, conditions, 
or privileges of employment, because of such individual’s race, color, religion, sex, or 
national  origin.”  42  U.S.C.  §  2000e-2(a)(1)  (2012).  Absent  “direct  evidence  of 

discrimination,” the Court analyzes Title VII discrimination claims under “the burden-
shifting framework of McDonnell Douglas Corp. v. Green, 

, 802–03 (1973).” 
Stone v. McGraw Hill Fin., Inc., 

 (8th Cir. 2017) (internal quotations 
omitted); see also Watson v. McDonough, 

 (8th Cir. 2021) (“Where, as 
here, the plaintiff has not presented direct evidence to support [his] Title VII claims, we 

apply the burden-shifting framework established in McDonnell Douglas.”).  
    Title VII also prohibits “retaliation on account of an employee having opposed, 
complained of, or sought remedies for, unlawful workplace discrimination.” Univ. of Tex. 
Sw. Med. Ctr. v. Nassar, 

 (2013) (citing 42 U.S.C. § 2000e-3(a) (2012) 
(“It shall be an unlawful employment practice for an employer to discriminate against any 
of his employees . . . because he has opposed any practice made an unlawful employment 

practice by this subchapter, or because he has made a charge . . . under this subchapter.”)). 
To establish a prima facie case of retaliation, Mwassa must show that “(1) [he] engaged in 
protected conduct, (2) [he] suffered a materially adverse employment act, and (3) the 
adverse act was causally linked to the protected conduct.” Bunch v. Univ. of Ark. Bd. of 
Tr., 

 (8th Cir. 2017). “Title VII retaliation claims must be proved 

according to traditional principles of but-for causation,” which requires proof that “the 
unlawful retaliation would not have occurred in the absence of the alleged wrongful action 
or actions of the employer.” Nassar, 

.                     
         2.   Allegations of Racial and National Origin Discrimination   
              a.   Allegations of Direct Evidence of Racial and National 
                   Origin Discrimination.                                
    Mwassa  contends  that  there  is  direct  evidence  of  racial  and  national  origin 
discrimination in the record. (Pl.’s Opp’n Mem. at 20.) Direct evidence of racial and 
national origin discrimination is evidence showing “a specific link between the alleged 
discriminatory animus and the challenged decision, sufficient to support a finding by a 
reasonable  fact  finder  that  an  illegitimate  criterion  actually  motivated  the  adverse 

employment action.” Torgerson v. City of Rochester, 

 (8th Cir. 2011) 
(citations omitted). In this context, “direct” refers to the causal strength of the proof, not 
whether it is “circumstantial” evidence. 

                              
    Specifically, Mwassa asserts that the record contains direct evidence of racially 
discriminatory statements made by Beach, Nelson, and Prigge. (Pl.’s Mem. at 39.) He cites 
to a comment Nelson made to Prigge that “black people are criminal in nature,”  comments 

by Beach to the effect of, “I don’t know why Management hired Africans, all you guys do 
is [] hide from work,” and Beach’s mockery of Mwassa’s voice on the “walkies.” (Pl.’s 
Decl., Ex. 6 (June 7, 2018 Letter); 

 Ex. 114 (Pl.’s Interrog. Answers) at 9.) The Court 
finds no reference to a specific discriminatory remark uttered by Prigge in Mwassa’s 
complaint, exhibits or memorandum.                                        

    However,  as  to  any  allegedly  discriminatory  statements  made  by  Beach, 
importantly,  Mwassa  fails  to  point  to  evidence  in  the  record  that  Beach  was  a 
decisionmaker with respect to his termination. “[N]ot every prejudiced remark made at 
work supports an inference of illegal employment discrimination,” and the Court must 
“carefully distinguished between comments which demonstrate a discriminatory animus in 

the  decisional  process  .  .  .  from  stray  remarks  in  the  workplace,  statements  by 
nondecisionmakers, or statements by decisionmakers unrelated to the decisional process.” 
see Arraleh v. County of Ramsey, 

 (8th Cir. 2006) (remark by a county 
employee with no hiring authority, that hiring plaintiff would be “like raising terrorist 
kids,” was not direct evidence of employment discrimination because record contained no 
evidence the employee influenced the hiring decision). Thus, even assuming that Beach 

made statements that were discriminatory and were motivated by racial animus, there is no 
evidence  in  the  record  that  Beach  influenced  the  decision  to  terminate  Mwassa’s 
employment, and no evidence that she had such authority. Instead, it was Nelson and Prigge 
who  terminated  Mwassa,  after  confirmation  from  PHS’s  Regional  Human  Resources 
Manager, Elizabeth West. (Pl.’s Decl., Ex. 83 (Emails regarding Mwassa’s Termination).) 
Therefore,  Beach’s  comments  are  not  direct  evidence  of  employment  discrimination 

because Mwassa shows no link between Beach’s allegedly discriminatory statements and 
PHS’s decision to terminate his employment.                               
     For Nelson’s remark to be considered direct evidence of racial or national origin 
discrimination in the decision to terminate Mwassa, the remark “must show a specific link 
between a discriminatory bias and the adverse employment action, sufficient to support a 

finding by a reasonable fact-finder that the bias motivated the action.” Torgerson, 

. Compare Simmons v. New Pub. Sch. Dist. No. Eight, 

, 1213–14 (8th 
Cir. 2001) (holding that a school board president’s statements that “a woman can’t handle 
[the administrator’s] job” and that the employee was “a woman in a man’s job” are direct 
evidence of sex discrimination when the board voted not to renew the administrator’s 

contract), with Arraleh, 

 (holding that a comment by a director with hiring 
authority that “black people are expected to leave their blackness behind” was not direct 
evidence without some context to show a link between the comment and the decision not 
to hire the employee).                                                    
    Although Mwassa alleges that Nelson uttered the phrase, “black people are criminal 
in nature”—a fact that Nelson denies and that is not corroborated by any other evidence in 

the record, (Compl. at ¶ 17; Pl.’s Decl., Ex. 114 (Pl.’s Interrog. Answers at 9))—even if 
true, this alleged isolated remark, without more, is not sufficient to show a “specific link 
between a discriminatory bias and the adverse employment action, sufficient to support a 
finding by a reasonable fact-finder that the bias motivated the action.” Torgerson, 

 (holding a comment by a member of the hiring committee that a successful 
applicant was “a big guy and that he’d make a good firefighter” was not direct evidence of 

gender discrimination against unsuccessful female applicant).             
              b.   Allegations of Indirect Evidence of Racial and National 
                   Origin Discrimination: The Analysis under McDonnell   
                   Douglas                                               
    The Court turns now to the McDonnell Douglas burden-shifting analysis. Under this 
framework, the plaintiff bears the initial burden of establishing a prima facie case of 
discrimination by showing that “[1] he is a member of a protected class . . . [2] he met [his 
employer’s]  legitimate  employment  expectations,”  [3]  “he  suffered  an  adverse 
employment action, and [4] the circumstances give rise to an inference of discrimination 
based on” race, national origin, or religion. Grant v. City of Blytheville, 

 
(8th Cir. 2016). If the plaintiff establishes a prima facie case, the burden shifts to the 

employer  “to  ‘articulate  a  legitimate,  nondiscriminatory  reason’  for  the  adverse 
employment action.” Stone, 

 (citations omitted). If the employer does so, 
“‘[t]he burden then shifts back to [the plaintiff] to prove that the proffered reason is pretext 
for discrimination.’” 

 (citations omitted). At all times, however, the plaintiff retains the 
“ultimate burden of proof and persuasion.” 

                            

    PHS does not dispute that Mwassa is a member of a protected class, nor that he met 
PHS’s legitimate employment expectations (Def.’s Mem. at 20–21; Lindsay Decl., Ex. A 
(Pl.’s Performance Summary).) In addition, PHS does not dispute that Mwassa suffered at 
least one adverse employment action—his termination. (Def.’s Reply [Doc. No. 109] at 6.) 
Consequently, the only issues in dispute are whether Mwassa suffered more than one 
adverse  employment  action,  and  whether  the  evidence  gives  rise  to  an  inference  of 

discrimination based on race or national origin.                          
                (i)  Alleged Adverse Employment Actions                  
    Mwassa  claims  that  he  experienced  several  adverse  employment  actions. 
Specifically, he alleges that he was passed over for a promotion, placed on administrative 
leave, subjected to unwarranted investigations, and was ultimately terminated. (Pl.’s Opp’n 

Mem. at 33.)                                                              
    An adverse employment action is a “material employment disadvantage, such as a 
change in salary, benefits, or responsibilities.” Singletary v. Missouri Dep’t of Corr., 891 
(8th Cir. 2005) (holding that an administrative leave pending an investigation, was not an 
adverse employment action); Jones v. Fitzgerald, 

, 714–15 (8th Cir. 2002) 

(holding that two warranted internal investigations of the plaintiff where she was not 
disciplined or threatened with discipline, caused her “no material disadvantage in a term or 
condition  of  employment,”  and  therefore  were  not  adverse  employment  actions); 
Pulczinski v. Trinity Structural Towers, Inc., 

, 1007–08 (8th Cir. 2012) 
(finding the suspension of an employee with pay while the employer investigated the 
employee’s absence from work was not an adverse employment action).       

    PHS contends that Mwassa is precluded from arguing that being passed over for a 
promotion or enduring allegedly unwarranted investigations were adverse employment 
actions because he failed to raise them in his EEOC complaint. (Def.’s Reply at 5.) 
Additionally, PHS contends that because placement on paid leave is not legally considered 
an adverse employment action, Mwassa’s claim in that regard fails. Thus, PHS argues that 
only Mwassa’s termination can constitute an adverse employment action. (Id. 5–6.)  

    The Court finds that Mwassa waived any claim he may have had that he was passed 
over for a promotion because of racial animus or national origin discrimination because he 
failed  to  allege  it  in  his  EEOC  complaint.  A  Title  VII  plaintiff  must  exhaust  his 
administrative remedies for each claim before bringing suit in federal court. Cottrill v. 
MFA, Inc., 

 (8th Cir. 2006). Once the EEOC provides a plaintiff with a 

right to sue letter, the plaintiff is limited to seeking relief for discrimination “that grows 
out of or is like or reasonably related to the substance of the allegations in the administrative 
charge.” 

 This ensures that the defendant is given appropriate notice of all claims the 
plaintiff  has,  and  gives  appropriate  deference  to  the  EEOC’s  “investigatory  and 
conciliatory role.” 

 As Mwassa did not allege that PHS failed to promote him in his 

initial complaint, or any of the subsequent letters he sent to the EEOC, he cannot rely on it 
as a basis for alleging an adverse employment action here.                
    Mwassa did briefly raise concerns with “baseless investigations” in his EEOC 
complaint, likely in reference to PHS’s investigation into a reported case of abuse on April 
19, 2018, and its investigation of the June 7, 2018 spy pen incident. (Lindsay Decl., Ex. S 
(EEOC Compl.).) However, the Eighth Circuit has found that “unwanted investigations” 

that are “predicated on complaints . . . do not rise to the level of an adverse employment 
action.” Singletary, 423 F.3d at 892 n. 5. Because PHS’s June 7th, 2018 report was 
predicated on the report by the RA who found the spy pen, and the April 19, 2018 
investigation was predicated on a resident’s report of abuse by a nurse matching Mwassa’s 
description, neither were adverse employment actions taken by PHS. (Lindsay Decl., Ex. 
B (Vulnerable Adult Report).).                                            

    Likewise,  this  circuit  has  found  that  a  paid  administrative  leave  pending  an 
investigation is not an adverse employment action. Singletary, 423 F.3d at 892 n. 5 (holding  
that that an administrative leave during which the plaintiff maintained his pay, grade, and 
benefits, and after which plaintiff was restored to original position, was not an adverse 
employment  action).  Mwassa  was  placed  on  paid  administrative  leave  while  PHS 

investigated a complaint of abuse, as required by PHS policy. (Lindsay Decl., Ex. B 
(Vulnerable Adult Report); Prigge Decl. ¶ 6.) This administrative leave was not a material 
employment  disadvantage,  as  Mwassa  retained  his  pay  and  benefits,  and  he  was 
immediately returned to his previous position once PHS determined the complaint was 
unsubstantiated. (Prigge Decl. ¶ 6.)                                      

    Accordingly, only Mwassa’s termination constitutes an adverse employment action.  
                (ii)  Evidence of an Inference of Discrimination         
    The Court will assume, without deciding, that there is evidence in the record that 
could give rise to an inference of racial and national origin discrimination. Accordingly, 
the  Court  proceeds  to  analyze  the  remaining  McDonnell  Douglas  factors  on  the 
assumption that Mwassa has established a prima facie case of racial discrimination. See 

Smith v. United Parcel Serv., 

 (8th Cir. 2016) (“We presume for 
purposes of analysis that [Plaintiff] has satisfied [the prima facie case] requirement.”); 
Gibson v. Am. Greetings Corp., 

 (8th Cir. 2012) (assuming that plaintiffs 
established a prima facie case of race discrimination and affirming grant of summary 
judgment because there was insufficient evidence that employer's actions were pretext for 
discrimination).                                                         

              c.   PHS’s Proffered Reason for Mwassa’s Termination       
    If the Court assumes that Mwassa has made a prima facie case of race and national 
origin  discrimination,  the  burden  then  shifts  to  PHS  “to  ‘articulate  a  legitimate, 
nondiscriminatory reason’ for the adverse employment action.”  Stone, 

 
(citations omitted). “In determining whether an employer had a legitimate reason for firing 

an employee, a court considers not whether ‘the employee actually engaged in the conduct 
for which he was terminated, but whether the employer in good faith believed that the 
employee was guilty of the conduct justifying discharge.’” King v. Minnesota Guardian 
Ad Litem Board, No. 19-cv-2108 (NEB/TNL), 

, at *7 (D. Minn. May 6, 
2021)  (finding  an  employer  had  articulated  a  non-pretextual  reason  for  plaintiff’s 

termination  when  the  employer  noted  that,  based  on  an  in-depth  investigation  into 
plaintiff’s conduct, the employer had lost trust and confidence in plaintiff’s ability to 
complete his work, and manage his staff) (citing McCullough v. Univ. of Ark. for Med. Sci., 

, 861–62 (8th Cir. 2009)).                                    
    PHS contends that it terminated Mwassa because it lost confidence in his ability to 
be forthright during an investigation. Mwassa’s termination notice explained that this loss 

of  confidence  was  based  on  “the  inconsistencies  between  [Nelson  and  Prigge’s] 
conversation with [Mwassa] on 6/11/2018 vs. the video camera footage [PHS] reviewed 
and  other  employee  statements.”  (Lindsay  Decl.,  Ex.  J  (Notice  of  Termination).) 
Specifically, it noted details such as the fact that the spy pen had missing pieces, tape had 
been  removed  from  the  toilet,  Mwassa  had  used  the  bathroom  six  times  in  the 
approximately two hours before the RA discovered the pen, and Mwassa had provided 

inconsistent answers about whether he had ever purchased such a recording device. (Id.)  
The  Court  finds  that  PHS,  in  detailing  concerns  with  Mwassa’s  conduct  during  its 
investigation, has proffered a non-discriminatory reason for Mwassa’s termination. 
              d.   Pretext                                               
    Because PHS has provided a legitimate, nondiscriminatory reason for terminating 

Mwassa based on the spy pen incident, the burden shifts back to Mwassa to show that 
PHS’s reason was a mere pretext for discrimination based on race or national origin. See 
Hunt v. Neb. Pub. Power Dist., 

 (8th Cir. 2002). At all times, however, 
the plaintiff retains the “ultimate burden of proof and persuasion.” Stone, 

. 
This burden is heavier than the showing required to establish a prima facie case: “[a]n 

employee’s attempt to prove pretext or actual discrimination requires more substantial 
evidence . . . because unlike evidence establishing the prima facie case, evidence of pretext 
and discrimination is viewed in light of the employer’s justification.” Sprenger v. Fed. 
Home Loan Bank of Des Moines, 

 (8th Cir. 2001) (citations omitted).  
    “A plaintiff may show pretext, among other ways, by showing that an employer (1) 
failed to follow its own policies, (2) treated similarly-situated employees in a disparate 

manner, or (3) shifted its explanation of the employment decision.” Gibson, 670 F.3d at 
853–54 (citing Lake v. Yellow Transp., Inc., 

 (8th Cir. 2010)). The Eighth 
Circuit has described two routes for raising a genuine issue of material fact in dispute as to 
pretext. 

 “First, a plaintiff may succeed indirectly by showing the proffered explanation 
has no basis in fact. Second, a plaintiff can directly persuade the court that a prohibited 
reason more likely motivated the employer.” 

                           

    Mwassa  argues  that  PHS  treated  white  employees  more  favorably  than  black 
employees, and contends “no action was taken on Terry Beach, no matter how [many 
complaints] PHS received [] about her.” (Pl.’s Opp’n Mem. at 44–45.) Mwassa also relies 
on unsupported assertions that PHS provided false information to the police investigating 
the spy pen incident. (Pl.’s Opp’n Mem. at 38.) In response, PHS urges the Court to review 

the depth of its investigation into Mwassa’s conduct, including the evidence that it gathered 
before it decided to terminate Mwassa. (Def.’s Mem. at 23.)               
                (i) Alleged Disparate Treatment of Similarly Situated    
                   Employees                                             
    In order for Mwassa to raise a genuine issue of material fact in dispute as to whether 
PHS’s proffered reason was pretextual, he must identify evidence in the record of the  
disparate treatment of a similarly situated employee. Chappell v. Bilco Co., 

 (8th Cir. 2012) (finding comparators must be “similarly situated in all relevant 

respects”). This is a rigorous standard and similarly situated employees must have the same 
position, responsibilities, and work location. Riser v. Target Corp., 

 (8th 
Cir. 2006) (holding employees were not similarly situated when their duties varied, they 

had different responsibilities, and they worked different shifts).        
    Mwassa alleges that PHS engaged in disparate treatment with respect to Beach, and 
alleges that “no action was taken” on complaints against her. (Pl.’s Opp’n Mem. at 44–45.) 
Beach was a floor supervisor, while Mwassa was a Resident Assistant — they did not have 
the same position nor the same job responsibilities, and were therefore not similarly 
situated employees. The Eighth Circuit also requires plaintiffs to provide evidence that 

comparators have engaged in similar conduct, and were disciplined in different ways. 
Chappell, 

 (finding a plaintiff had not pointed to evidence showing 
employees had committed the “same offense” or how they were disciplined, thus there was 
no evidence that employees were similarly situated). Mwassa accused Beach of making 
racist and discriminatory comments to Mwassa and other employees of color, whereas PHS 

lost trust and confidence in Mwassa during the investigation of a possible crime. These 
offenses are not similar, and thus Beach and Mwassa were not similarly situated in all 
respects.                                                                 
    Mwassa’s additional claim that “white employees were treated far more favorably” 
than black employees does not meet the standard of “specific, tangible evidence” that is 

required for a claim of disparate treatment. Rinchuso v. Brookshire Grocery Co., 

 (8th Cir. 2019) (citing Rose-Maston v. NME Hosps., Inc., 

, 1109 
n.4 (8th Cir. 1998) (finding “bald assertions of favoritism” and allegations that “white 
employees received promotions for which they were not qualified” were insufficient to 
raise a genuine issue of material fact in dispute regarding disparate treatment)). 

                (ii)  Allegation That Proffered Reason For Termination   
                     Had No Basis in Fact                                
    Mwassa also alleges that PHS’s proffered reason was not based in fact because the 
investigation into the spy pen was a sham. (Pl.’s Opp’n Mem. at 38.) In analyzing whether 
PHS’s investigation and findings were a sufficient basis for Mwassa’s termination, “[t]he 
proper inquiry is not whether [PHS] was factually correct in [its investigatory findings],” 
but rather whether it “honestly believed that” Mwassa engaged in the conduct at issue. 
Johnson v. AT&T Corp., 

 (8th Cir. 2005) (holding an employer’s 
investigation into a threatening phone call was sufficient when coworkers identified the 

caller as an employee based on his voice, even though the employer did not have “solid 
proof” of the caller’s identity).                                         
    The record establishes that Mwassa entered the bathroom where the spy pen was 
found while he knew his coworker was on break, and he stayed there for seven minutes. 
(Lindsay  Decl.,  Ex.  I  (Timeline  of  Surveillance  Footage);  

  Ex.  J  (Notice  of 

Termination).) He then reentered that same bathroom five more times in a two-hour span, 
staying for only 20-30 seconds each time. (Id., Ex. I (Timeline of Surveillance Footage); 

  Ex.  J  (Notice  of  Termination).)  Additionally,  Mwassa  originally  denied  having 
purchased a spy pen, but later hedged his answer, stating that he had purchased one, but it 
was unlike the device that was found. (Id., Ex. M (Police Interview) at 7.) The RA who 

found the device testified that after Mwassa took it from her in an alleged effort to view 
any recordings, he returned it to her in an altered state, with the USB port broken. (Id., Ex. 
C (Description of Incident) at 2.) She also testified that Mwassa appeared “nervous” and 

“scared” during their interactions regarding the device. (Id.; 

 Ex. O (Nelson June 12, 
2018 Note) at 4.)                                                         
    Contrary to Mwassa’s assertions, there is simply no evidence in the record that 
would  permit  a  reasonable  jury  to  find  that  PHS  terminated  Mwassa  because  of 
discriminatory animus. Kiel v. Select Artificials, Inc., 

 (8th Cir. 1999) 
(finding a plaintiff who was terminated for insubordination was not able to establish pretext 

when he engaged in “abusive, derogatory conduct towards his employer”). In fact, the 
evidence overwhelmingly indicates the opposite. These facts show that PHS conducted in 
an-depth  investigation  into  the  spy  pen  incident,  and  then  articulated  a  legitimate, 
nondiscriminatory, non-pretextual reason to terminate Mwassa based on this investigation. 
Accordingly, Mwassa’s allegations of race and national origin discrimination fail for lack 

of evidence of a triable issue of fact as to pretext.                     
         3.   Retaliation/Reprisal Claims                                
    The Court now turns to Mwassa’s retaliation and reprisal claims. As discussed 
above, to survive summary judgment on those claims, Mwassa must establish a prima facie 
case of retaliation by showing that “(1) [he] engaged in protected conduct, (2) [he] suffered 

a materially adverse employment act, and (3) the adverse act was causally linked to the 
protected conduct.” Bunch, 

.                              
    The causation element must be proved “according to traditional principles of but-
for causation,” which requires proof that “the unlawful retaliation would not have occurred 
in the absence of the alleged wrongful action or actions of the employer.” Nassar, 

. Temporal proximity alone is generally “insufficient to demonstrate a genuine issue 

of material fact as to whether conduct was retaliatory.” Bunch, 

 (citing 
Kiel, 

). If a plaintiff establishes a prima facie case of retaliation, the burden 
shifts to the defendant to proffer a nondiscriminatory reason for the adverse employment 
action. Hunt, 

. If the defendant does so, the burden shifts back to the 
plaintiff to show that the defendant’s proffered reason was pretextual. 

 

              a.   Mwassa’s Alleged Protected Conduct                    
    PHS argues that Mwassa fails to proffer evidence that he engaged in any protected 
conduct. (Def.’s Mem. at 26.) Mwassa, however, contends that the letters he claims to have 
sent to Prigge and Nelson, as well as his alleged meetings with them, are in fact protected 
conduct. For purposes of evaluating this claim, the Court will assume, without deciding, 
that Mwassa engaged in protected conduct.                                 

              b.   Causation                                             
    To establish a prima facie claim of retaliation or reprisal, Mwassa must identify 
evidence in the record that raises a genuine issue of material fact as to causation—that is, 
that his protected conduct was a “but-for cause” of his termination. Donathan v. Oakley 
Grain, Inc., 

 (8th Cir. 2017) (“The plaintiff's ultimate burden in a Title 
VII retaliation case is to prove an impermissible retaliatory motive was the ‘but-for cause’ 

of the adverse employment action.”) (citation omitted).                   
    PHS argues that Mwassa has failed to identify any such evidence of causation in the 
record. It argues that PHS had already begun its investigation into the spy pen incident 
when Mwassa sent his June 7th, 2018 letter to Prigge and his June 11th, 2018 letter to 
Lindh, so neither letter can be the basis of a retaliation claim. Further, PHS argues that the 

length of time between Mwassa’s April 4th, 2018 letter to Nelson and his subsequent 
conversation with Nelson are too far temporally removed from his termination to be the 
basis of a claim. The Court agrees. Neither the evidence in the record, nor the timeline in 
this case raise a genuine issue of material fact in dispute on the issue of causation. 
    As a threshold matter, Mwassa has not presented evidence that PHS received the 
letters he allegedly sent. The only evidence that the letters were delivered is his own 

declaration, which stands in conflict with his own earlier statements. (Compare Lindsay 
Decl., Ex. S (EEOC Compl.); 

 Ex. T (Intake Notes) (containing Mwassa’s original 
allegation that he did not submit any written complaints of discrimination during his EEOC 
intake interview) with, Pl.’s Decl., Ex. 1 (Mwassa Decl.) (declaring he sent the April 4, 
2018 letter to Nelson, and discussed the letter with her, and that he sent the June 11, 2018 

letter to Prigge, and discussed the letter with her).) Such a self-serving declaration is 
insufficient to raise a triable issue of fact. St. Hilaire v. Minco Products, Inc., 

, 1008 n.11 (D. Minn. 2003) (finding a plaintiff in a disability discrimination case 
could not “avoid summary judgment by raising issues of material fact through self-serving 
affidavits and memoranda that directly contradict his sworn deposition testimony without 

so much as an explanation for the contradictions”). Without identifying evidence in the 
record that Prigge or other decision makers received his letters, and were aware of his 
protected conduct, Mwassa cannot establish causation. Robinson v. Potter, 

 (8th Cir. 2006) (finding the plaintiff was unable to “show causation because [no 
decision-makers] knew about her pending EEOC complaint”).                 

     Even  if  the  Court  assumes  Prigge  and  Lindh  received  Mwassa’s  letters,  this 
protected activity occurred only after his supervisors had begun to investigate the spy pen 
incident. “Evidence of an employer’s concerns about an employee’s performance before 
the employee’s protected activity undercuts a finding of causation.” Kasper v. Federated 
Mut. Ins. Co., 

 (8th Cir. 2005). And “post-hoc complaints [do] not without 
more raise a retaliation bar to the proposed discipline because ‘the anti-discrimination 

statutes do not insulate an employee from discipline for violating the employer’s rules or 
disrupting the workplace.’ Indeed, complaining of discrimination in response to a charge 
of workplace misconduct is an abuse of the anti-retaliation remedy.” Griffith v. City of Des 
Moines, 

 (8th Cir. 2004) (internal citations omitted) (holding complaints 
of discrimination after an employee received notice of a disciplinary hearing did not 

support an inference of retaliatory motive).                              
    Even if the Court considers only the April 4, 2018 letter allegedly sent to Nelson 
before the final investigation, the timeline still does not support an inference of causation. 
Mwassa  relies  on  the  temporal  proximity  between  his  April  4,  2018  letter  and  his 
termination two months later to establish causation. But “[t]he cases that accept mere 

temporal proximity between an employer’s knowledge of protected activity and an adverse 
employment action as sufficient evidence of causality to establish a prima facie case 
uniformly hold that the temporal proximity must be very close.” Clark Cty. Sch. Dist. v. 
Breeden, 

 (internal quotation marks omitted). For instance, when a 
woman was discharged 13 days after her family leave started, the Eighth Circuit found that 
the temporal proximity was “barely” enough to establish causation. Smith v. Allen Health 

Sys., Inc., 

, 833 (8th Cir. 2002); see also Sprenger v. Fed. Home Loan Bank 
of Des Moines, 

, 1113–14 (8th Cir. 2001) (noting that a “matter of weeks” 
between a protected activity and an adverse employment action was sufficient to infer 
causation). But see Kipp v. Mo. Highway & Transp. Comm’n, 

 (8th Cir. 
2002) (noting that a two-month interval between the employee’s termination and her 
retaliation complaint, by itself, was not enough to establish a causal connection as a matter 

of law); and Smith v. Fairview Ridges Hosp., 

 (8th Cir. 2010) (finding 
an interval of one month too long to infer causation). The Court finds that here, the two-
month gap  between  the  April  4,  2018  letter  to  Nelson  and  Mwassa’s termination  is 
insufficient to infer causation.                                          
    Accordingly, Mwassa’s allegations of retaliation and reprisal fail because of a lack 

of a triable issue of fact as to causation.                               
         4.   Alleged Hostile Work Environment                           
              a.   The Law                                               
    To survive summary judgment, Mwassa must identify sufficient evidence in the 
record to raise a triable issue of material fact with respect to all elements of his hostile work 
environment claim, i.e., (1) that he is a member of a protected group; (2) he was subject to 

unwelcome harassment based on race or national origin (3) the harassment was because of 
membership in the protected group; (4) the harassment affected a term, condition, or 
privilege of employment; (5) PHS knew or should have known of the harassment; and (6) 
PHS failed to take proper action. Elmahdi v. Marriott Hotel Services, Inc., 

 (8th Cir. 2003); Peterson v. Scott Cnty., 

, 523–24 (8th Cir. 2005). 

    “Harassment which is severe and pervasive is deemed to affect a term, condition, or 
privilege  of  employment.”  Elmahdi,  

.  When  determining  whether 
harassment is sufficiently severe and pervasive to support a hostile work environment 
claim, courts consider the totality of the circumstances, “including the ‘frequency of the 
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or 
a mere offensive utterance; and whether it unreasonably interferes with an employee’s 

work performance.’” Clark Cty. Sch. Dist., 532 U.S. at 270–271.           
    The standard for demonstrating a hostile work environment under Title VII is 
“demanding,” and the statute is not intended to “create a general civility code.” Guimaraes 
v. SuperValu, Inc., No. 10-cv-366 (RHK/JSM), 

, at *9 (D. Minn. Dec. 
8, 2010), aff'd, 

 (8th Cir. 2012); see Abdel-Ghani v. Target Corp., 

  (8th  Cir.  2017)  (per  curiam)  (affirming  summary  judgment  on 
plaintiff’s hostile work environment claims when employees called plaintiff names like 
“camel jockey, Muslim, Arab, terrorist, and sand [n-word]” approximately ten times in a 
two-month period); O'Brien v. Dept. of Agric., 

 (8th Cir. 2008) (affirming 
summary judgment on plaintiffs’ hostile work environment claim despite  evidence that 

plaintiffs’ supervisor embarrassed, isolated, and ostracized them, scrutinized and criticized 
their work, and increased their work load after the claimants engaged in protected activity); 
Martin v. Missouri, 

 (8th Cir. 2006) (affirming summary judgment 
on  plaintiff’s  hostile  work  environment  claim  despite  her  allegations  that  coworkers 
commented they “were tired of seeing all the black faces on the bulletin board” during 
Black History Month; someone falsely reported that plaintiff pushed her, and that someone 

had “keyed” plaintiff’s car in the office parking lot and stuck a nail in her tire); Bainbridge 
v. Loffredo Gardens, Inc., 

 (8th Cir. 2004) (affirming summary 
judgment despite plaintiff's claim that he overheard offensive racial epithets, about once a 
month, over the course of two years). “Conduct that is merely rude, abrasive, unkind, or 
insensitive  does  not  come  within  the  scope  of  the  law,”  instead,  a  “a  hostile  work 
environment exists only where the conduct complained of is extreme in nature and not 

merely rude or unpleasant.” Guimaraes, 

, at *9–10 (citation and internal 
quotations omitted).                                                      
              b.   Parties’ Positions                                    
    Mwassa primarily points to evidence in the record of racist comments and “constant 
surveillance” as evidence in support of his hostile work environment claim. (Pl.’s Opp’n 

Mem. at 28–29.) Specifically, he points to Nelson’s comment that, “black people are 
criminal in nature,” during the investigation of the spy pen incident, and that Beach 
“subjected [him] to racist and offensive comments,” harassed him over the two-way radios 
by mocking his accent, and used racial epithets when referring to Africa. (Id. at 28–29; 
Pl.’s Decl., Ex. 114 (Pl.’s Interrog. Answers) at 9.) He relies on the alleged letters to Nelson 

and Prigge to show that PHS was aware of the hostile work environment. (Pl.’s Decl., Ex. 
5 (April. 4, 2018 Mwassa Letter); 

 Ex. 6 (June 7, 2018 Letter).) Mwassa further contends 
that PHS had a discriminatory surveillance policy, and that “whenever minority employees, 
including Plaintiff, were accused of wrong doing, PHS would view security Surveillance 
in order to find a way to tie them to wrong doing.” (Pl.’s Opp’n Mem. at 30–31.)  

    Again, PHS does not contest that Mwassa is a member of a protected class, nor that 
Beach’s alleged comments, if proven true, would constitute harassment based on Mwassa’s 
race and national origin, because of Mwassa’s membership in a protected group. (Def.’s 
Mem at 37.) Instead, PHS argues that the harassment was not sufficiently severe and 
pervasive under the law, and that PHS was never made aware of the harassment. (Id. at 37, 
39.)                                                                      

              c.   Analysis                                              
    The  Court  finds  that  even  if  true,  the  alleged  conduct  of  PHS  staff  was  not 
sufficiently severe and pervasive under the law to constitute a hostile work environment. 
Mwassa fails to point to any evidence in the record of the alleged pervasiveness of Beach’s 
racist comments to corroborate his allegation that they were made on a daily basis. (Pl.’s 

Opp’n Mem. at 29.)  He only cites to Alexis’s declaration, which is inadmissible hearsay. 
(Pl.’s Decl., Ex. 4 (Alexis Decl.);) Fed. R. Evid. 802. There is simply no evidence in the 
record  of  conduct  so  pervasive  that  it  affected  a  term,  condition,  or  privilege  of 
employment. Brunsting v. Lutsen Mountains Corp., 

 (8th Cir. 2010) 
(“[I]nadmissible hearsay evidence cannot be used to defeat summary judgment.”).  

    While certainly morally repugnant if true, the alleged comments in this case did “not 
constitute a steady barrage of opprobrious racial comment[s]” sufficient to support a hostile 
work claim. Elmahdi, 

 (affirming summary judgment despite plaintiff's 
assertion that he had been called “boy” and “black boy” on a few occasions over a period 
of years); Elnashar v. Speedway SuperAmerica, LLC, No. 02-cv-4133 (JNE/JSM), 

, at *9 (D. Minn. Sept. 22, 2005) (affirming summary judgment on plaintiff’s 

hostile work environment claim despite allegations that plaintiff’s supervisor has asked 
him “whether he had a harem and whether he “rode camels around everywhere in Egypt” 
as those comments were “isolated incidents that [did] not reach the level of actionable 
harassment”), aff'd, 

 (8th Cir. 2007).                       
    Moreover, Mwassa must show that PHS was aware of or should have been aware 
of the hostile work environment. See Davis v. Minneapolis Pub. Schools, No. 10-cv-2638 

(DWF/JJK), 

, at *10 (D. Minn. Oct. 13, 2011), R&R adopted,  

 (D. Minn. Dec. 8, 2011) (“Plaintiff's self-serving testimony that MPS should have 
known about the alleged incidents is insufficient to withstand summary judgment [on his 
hostile work environment claim].”) Beyond his own self-serving allegations, there is no 
evidence  in  the  record  that  PHS  knew  or  should  have  known  about  a  hostile  work 

environment. 2  Thus, Mwassa has not identified a question of triable issue as to whether 
PHS knew or should have known there was a hostile work environment.       


2 Mwassa contends that there is likely evidence that PHS was on notice of the hostile work 
environment through reviewing Beach’s work file, and that PHS obstructed his access to 
this file and depositions that could have revealed this information. (Def.’s Opp’n Mem. at 
34–35.) However, PHS properly disclosed to Mwassa that it had no records of “written 
complaints or grievances made by employees of Defendant (PHS)[, including Mwassa,] 
about Terry Beach’s discriminatory conduct.” (Lindsay Second Decl. [Doc. No. 110], Ex. 
X (Def.’s RFP and Interrog.) at 12; 

.) Additionally, Mwassa was unable to depose 
PHS  employees  not  because  of  PHS’s  conduct,  but  because  he  sought  to  conduct 
depositions after the close of discovery, in violation of the court’s scheduling order. (Pl.’s 
Decl., Ex. 107 (Notice of Deposition).)                                   
    Accordingly,  Mwassa’s  hostile  workplace  harassment  claim  fails  for  lack  of 
evidence of a triable issue of fact.                                      

    B.   Defamation                                                      
         1.   The Law                                                    
    Under Minnesota common law, to prevail on a defamation claim, a plaintiff must 
establish that the defendant made “(a) a false and defamatory statement about the plaintiff; 
(b)  in  [an]  unprivileged  publication  to  a  third  party;  (c)  that  harmed  the  plaintiff’s 
reputation in the community.” Maethner v. Someplace Safe, Inc., 

 
(Minn. 2019) (citing Weinberger v. Maplewood Review, 

 (Minn. 

2003)). Minnesota law requires defamation claims to be pleaded with specificity and to 
include “who made the defamatory statements, to whom they were made, and where.” 
Walker v. Wanner Engr., Inc., 

 (D. Minn. 2012). 
    Both  absolute  and  qualified  privileges  may  defeat  a  defamation  claim.  “A 
defamatory statement is covered by qualified privilege if made in good faith and upon a 

proper occasion, from a proper motive, and . . . based upon reasonable or probable cause.” 

 (citations omitted).                                                  
    However, a privilege may be overcome if the plaintiff shows that the statement was 
made with malice. 

 (citing Bahr v. Boise Cascade Corp., 

 (Minn. 


Mwassa additionally contends that PHS’s discriminatory use of surveillance creates a 
hostile  work  environment.  (Pl.’s  Opp’n  Mem.  at  30–31.) However,  Mwassa  has  not 
identified  any  evidence  in  the  record  that  indicates  PHS  is  using  this  footage  in 
discriminatory ways.                                                      
2009)). To prove malice, defendant must establish that the statement was made out of  “ill 
will and improper motives, or causelessly and wantonly for the purpose of injuring the 

plaintiff.” 

 (quoting Stuempges v. Parke, Davis & Co., 

 (Minn. 
1980)).                                                                   
         2.   Analysis                                                   
    Mwassa alleges that PHS defamed him by summoning officers to investigate the 
spy pen incident. PHS responds that Mwassa has not only failed to plead defamation with 
the specificity required by Minnesota law, its allegedly defamatory communications were 

protected by a qualified privilege. (Def.’s Mem. at 40.)                  
    The Court finds that Nelson and Prigge’s report to the police about the spy pen 
incident was qualifiedly privileged. PHS reported the spy pen incident to police, because 
they believed the placement of the recording device constituted a crime. (Nelson Decl. at 
3); Walker, 

 (finding an employer’s statement to police that an 

employee had stolen from the company was qualifiedly privileged and not defamatory 
when a “reasonable investigation” into the theft was conducted). Mwassa has pointed to no 
evidence in the record that PHS’s report was malicious, and therefore, this report cannot 
support a defamation claim.                                               
    C.   Malicious Prosecution                                           
         1.   The Law                                                    
    Mwassa’s claim of malicious prosecution stems from the June 7, 2018 spy pen 

incident, and the criminal investigation that followed. Malicious prosecution claims are 
generally disfavored under Minnesota law and thus are “carefully circumscribed.” Bahr v. 
Cty. of Martin, 

, 979–80 (D. Minn. 1991) (quoting Lundberg v. Scoggins, 

 (Minn. 1983)). Public policy favors prosecutions undertaken in good 

faith. See Lundberg, 

. “Under Minnesota law, the tort of malicious 
prosecution  includes  four  elements.  The  plaintiff  must  prove  that:  (1)  the  defendant 
initiated criminal proceedings (2) without probable cause and (3) with malice, and (4) the 
proceedings terminated in the plaintiff’s favor.” Young v. Klass, 

 
(D. Minn. 2011).                                                          
    Malice is a state of mind that must be proven as a fact. Allen v. Osco Drug, Inc., 

 (Minn. 1978) (quoting Hanowitz v. Great N. Ry. Co., 

 
(Minn. 1913)). “[M]alice may be, but need not be, inferred from lack of probable cause.” 
Id. at 645. Government officials might lack the probable cause necessary to arrest and 
charge an individual, but not have the malicious state of mind necessary to sustain a claim 
for malicious prosecution. See Hanowitz, 

 (“Want of probable cause may 

exist without malice.”). A “mere belief that [an action] was sought with malicious intent is 
insufficient to establish the existence of a genuine dispute of material fact.” Duham v. Roer, 

 (Minn. Ct. App. 2006).                                
         2.   Analysis                                                   
    In his Complaint, Mwassa alleges that PHS “racially profiled [him] and got law 

enforcement  involve[d]  in  a  baseless  investigation.”  (Compl.  ¶  17.)  Mwassa  further 
contends that “PHS procured [Mwassa’s] charges by providing false oral, videos, images 
and documentary evidence implicating [Mwassa] in a sex crime” (Pl.’s Opp’n Mem. at 50.)  
    PHS responds that it simply contacted law enforcement to report a suspected crime, 
and that there is no evidence of any malicious intent on the part of law enforcement in the 

record. (Id.)                                                             
    Mwassa  identifies  no  evidence  in  the  record  in  support  of  his  allegations  of 
malicious prosecution. Instead, the evidence demonstrates that PHS made a credible report 
of suspected criminal activity that had occurred on its premises. 

; 
(Lindsay  Decl.,  Ex.  P  (Summons  and  Compl.);  

  Ex.  I  (Timeline  of  Surveillance 
Footage);  

  Ex.  C  (Description  of  Incident);  

  Ex.  J  (Notice  of  Termination).) 

Accordingly, Mwassa’s malicious prosecution claim fails.                  
    D.   Abuse of Process                                                
    Mwassa’s final claim is for abuse of process. Under Minnesota law, the elements 
for “a cause of action for abuse of process are the existence of an ulterior purpose and the 
act of using the process to accomplish a result not within the scope of the proceedings in 

which it was issued, whether such result might otherwise be lawfully obtained or not.” Ness 
v. Gurstel Chargo, P.A., 

 (D. Minn. 2013) (holding a formulaic 
recitation of the elements of an abuse of process claim, without factual support of an 
ulterior purpose, failed to state a claim upon which relief could be granted). The Court must 
consider whether legal “process was used to accomplish an unlawful end for which it was 

not designed or intended, or to compel a party to do a collateral act which he is not legally 
required to do.” Dunham v. Roer, 

 (Minn. App. 2006) (“The bare 
allegation that respondent had some greater scheme is insufficient to establish a genuine 
issue of material fact concerning an unlawful end.”) (citing Kittler & Hedelson v. Sheehan 
Properties, Inc., 

 (Minn. 1973)). Mwassa has identified no evidence 
in the record to support his abuse of process claim. Accordingly,  Mwassa’s claim of abuse 

of process fails.                                                         
III.  CONCLUSION                                                          
    Based  on  the  submissions  and  the  entire  file  and  proceedings  herein,  IT  IS 
HEREBY ORDERED that:                                                      
    1.  Defendant PHS’s Motion for Summary Judgment [Doc. No. 91] is GRANTED; 
    2.  Plaintiff Motion in Opposition to Defendant’s Motion for Summary Judgment 
      [Doc. No. 97] is DENIED; and                                       
    3.  Plaintiff  Mwassa’s  Complaint  [Doc.  No.  1]  is  DISMISSED  WITH 
      PREJUDICE.                                                         
LET JUDGMENT BE ENTERED ACCORDINGLY.                                      


Dated: March 4, 2022                 s/Susan Richard Nelson               
                                    SUSAN RICHARD NELSON                 
                                    United States District Judge         

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Paulo K. Mwassa,                   Case No. 19-cv-01511 (SRN/HB)         

          Plaintiff,                                                     

v.                                 MEMORANDUM ORDER AND                  

Presbyterian Homes and Services,                                         

          Defendant.                                                     


Paulo K. Mwassa, 2650 Scotland Ct., Apt. 208, Mounds View, MN 55112, Plaintiff, 
Pro Se.                                                                  

Meggen E. Lindsay and Penelope J. Phillips, Felhaber Larson, 220 S 6th St. Suite 2200, 
Minneapolis, MN, for Defendant.                                          


SUSAN RICHARD NELSON, United States District Judge                        
    This matter is before the Court on Defendant’s Motion for Summary Judgment 
[Doc. No. 91] and Plaintiff’s Motion in Opposition to Defendant’s Motion for Summary 
Judgment [Doc. No. 97]. Based on a review of the files, submissions, and proceedings 
herein, and for the reasons set forth below, the Court GRANTS Defendant’s motion, and 
DENIES Plaintiff’s motion.                                                
I.   BACKGROUND                                                           
    A.   Parties                                                         
    Defendant Presbyterian Homes and Services (“PHS”) is the operator of Waverly 
Gardens, a senior living community located in North Oaks, Minnesota. (Nelson Decl. [Doc. 
No. 94-2] ¶ 3.)                                                           
    Plaintiff Paulo Mwassa (“Mwassa”) is a resident of Minnesota, and is a black man 
of Ugandan descent. (Compl. [Doc. No. 1] ¶ 10.) He worked as a Trained Medication 

Assistant and Resident Assistant at Waverly Gardens until his termination on June 12, 
2018. (Nelson Decl. ¶¶ 4; 17.) During his tenure at Waverly Gardens, Mwassa received 
favorable performance evaluations, and his file contained no corrective actions or coworker 
complaints. (Lindsay Decl. [Doc. No. 94], Ex. A (Pl.’s Performance Summary); Prigge 
Decl. [Doc. No. 94-3] ¶ 6.) In his position, he provided care to residents who are considered 
vulnerable adults under the Minnesota Vulnerable Adults Act, 

, 

subds. 6, 21.                                                             
    B.   Mwassa’s Alleged April 4, 2018 letter to Waverly Gardens Care Center 
         Administrator Alana Nelson Regarding Racial Discrimination      
    Mwassa  contends  that  he  wrote  a  letter  to  Waverly  Gardens  Care  Center 
Administrator Alana Nelson (“Nelson”) on April 4, 2018, alleging that he was the victim 
of racial discrimination by a floor supervisor, Terry Beach (“Beach”). (Pl.’s Decl. [Doc. 
No. 101] 1, Ex. 5 (April. 4, 2018 Mwassa Letter).) Several months prior to writing the letter, 
Mwassa  alleges  that  he  shared  his  concerns  regarding  racial  discrimination  in  the 

workplace with a colleague, Jean Alexis (“Alexis”), who worked as a Certified Nursing 
Assistant at PHS, and who is black. (Pl.’s Decl., Ex. 4, (Alexis Decl.) at 1.) On April 4, 



1 Plaintiff’s Exhibits 1–85 are found at docket number 101, exhibits 86–115 are found at 
docket number 102. The declaration found at docket number 101 refers to both sets of 
exhibits.                                                                 
2018, Mwassa alleges that he told Alexis about the letter he had written to Beach. (Id. at 
2.)                                                                       

    In the letter, Mwassa alleges that Beach treated him differently from coworkers who 
were  not  black.  (Id.,  Ex.  5  (April.  4,  2018  Mwassa  Letter).)  He  alleges  that  Beach 
discriminated against him when she (1) told him to go back to Africa; (2) called him lazy; 
and (3) talked to a resident about how black employees at PHS are “not good,” and that 
they are “ugly, rude, mean and rough.” (Id.) Mwassa also alleges that Beach encouraged a 
resident to falsely accuse black employees of abuse and neglect. (Id.) Finally, Mwassa 

alleges that he confronted Beach about their last conversation, and that she apologized to 
him. (Id.)                                                                
    Mwassa testified that he wrote the letter on a computer at his local public library 
because his own computer had broken down, and he did not save an electronic version of 
the letter—choosing instead to print two or three copies of the letter. (Mwassa Dep. [Doc. 

No. 94-1] at 107–108, 150.) He has since discarded his computer, although he does not 
recall how he disposed of it. (Id. at 150.)                               
    Mwassa claims that he placed a copy of the letter in the folder outside Nelson’s 
office and later discussed his concerns with Nelson after she received the letter. (Id. at 111; 
Pl.’s Opp’n Mem. [Doc. No. 99] at 5.) Nelson, however, has no recollection or record of 

receiving or seeing such a letter. (Nelson Decl. ¶¶ 5–6.)  Nelson contends that at no point 
during Mwassa’s employment did he ever make a verbal or written report of discrimination 
to her. (Id.)                                                             
    C.   April 19, 2018 Vulnerable Adult Report                          
    On April 19, 2018, PHS submitted an incident report to the Minnesota Department 
of Health regarding the alleged mistreatment of a resident at Waverly Gardens. (Lindsay 

Decl., Ex. B (Vulnerable Adult Report); Prigge Decl. ¶ 6.) The resident alleged that a “dark 
colored, clean cut man touched him inappropriately while changing [the resident’s] briefs.” 
(Lindsay Decl., Ex. B (Vulnerable Adult Report) at 2.) The only nurse on duty who fit the 
description was Mwassa, and pursuant to policy, PHS immediately placed him on paid 
administrative  leave  while  it investigated  the allegation.  (Prigge  Decl.  ¶ 6.)  Mwassa 

contends that the resident in question was the same resident whom Beach had earlier 
encouraged to file a false report of abuse and neglect. (Pl.’s Opp’n Mem. at 7.) Following 
the investigation of the alleged abuse, the report was found to be unsubstantiated and 
Mwassa returned to work without any loss of pay. (Prigge Decl. ¶ 6.)      
    Mwassa further alleges that Nelson admitted that he was placed on leave because of 

racial profiling, and apologized for “racially targeting” Mwassa when she found out that 
the report was unsubstantiated. (Compl. ¶ 14; Pl.’s Decl., Ex. 114 [Doc. No. 102] (Pl.’s 
Interrog. Answers) at 9.)                                                 
    D.   June 7, 2018 “Spy Pen” Incident                                 
    At 4:45 a.m. on the morning of June 7, 2018, a female resident assistant (“RA”) at 
PHS discovered a video recording device that was designed to look like a pen in one of the 

staff bathrooms (the “spy pen”). (Lindsay Decl., Ex. C (Description of Incident) at 1.) The 
device was taped in such a way that it pointed at the toilet. (Id.) The RA cut the tape holding 
the pen and noticed it was hot to the touch. (Id.) This made her suspect that it was not a 
normal pen, and that it had been “running/recording” for “quite some time.” (Id.) She left 
some of the tape under the sink, hoping to later see who went into the bathroom to remove 

the tape. (Id.) She then exited the bathroom, and brought the spy pen to a desk where she 
inspected it. (Id. at 1–2.) Upon closer inspection, the RA noticed a “glare that look[ed] like 
a camera lens.” (Id. at 1–2.)                                             
    The RA contends that when Mwassa saw her inspecting the device, she shared with 
him her suspicion that it was a “spy pen.” (Id. at 2.) When Mwassa asked to see it, the RA 
refused and asked him to wait while she continued to remove the tape. (Id.) When she 

removed more tape, the RA saw a possible power button and a USB port, leading her to 
believe it was a video camera. (Id.) Mwassa then took the device, saying, “This can’t be a 
spy pen. There’s no such thing.” (Id.) Mwassa alleges that he asked her to plug the device 
into her personal laptop, but the RA refused. (Id., Ex. M (Police Interview) at 4.)  
    Mwassa asserts that he then took the spy pen to a training room, which contained 

several computers, in order to view the contents of the USB drive. (Id. at 5.) He claims that 
he could not determine where to plug in the USB port, and he was also doubtful the USB 
would work, as it appeared loose. (Id. at 5,17.) The RA estimated Mwassa was gone for 
10-15 minutes, and when he returned, he claimed there was nothing on the USB drive. (Id., 
Ex. C (Description of Incident) at 2.) He then handed the spy pen back to the RA, who 

found that it felt lighter, as if the internal mechanism had been removed. (Id.) She also 
noticed that the USB port was broken and disconnected from the device. (Id.) Mwassa 
contests this, and claims he returned the spy pen in its original condition, having simply 
removed tape that had added structure and weight to the device. (Id., Ex. M (Police 
Interview) at 20–21.)                                                     

    The RA contends that after Mwassa returned with the device, he discouraged her 
from turning it over to management. (Id., Ex. C (Description of Incident) at 2.) She 
disagreed and gave the pen to the shift supervisor, reporting how she had found it. (Id.) 
The two of them went to the bathroom where the RA had initially discovered the device. 
(Id.,  Ex.  D  (Handwritten  Incident  Description).)  The  remaining  tape  had  since  been 
removed, but the supervisor touched the pipe where it had been affixed and noted that it 

felt sticky. (Id.) Mwassa denies having entered the bathroom to remove the tape. (Id., Ex. 
M (Police Interview) at 23.) When the RA and shift supervisor returned to the work area, 
they both filed incident reports. (Id., Ex. D (Handwritten Incident Description); 

 Ex. C 
(Description of Incident) at 3.)                                          
    E.   Mwassa’s Alleged June 7, 2018 letter to Human Resources Manager 
         Tricia Prigge                                                   
    Mwassa contends that he sent a letter alleging that he was a victim of racial 
discrimination in the work place and a hostile work environment to Human Resources 

Manager Tricia Prigge (“Prigge”) on June 7, 2018. (Pl.’s Decl., Ex. 6 (June 7, 2018 Letter).) 
In the letter, Mwassa detailed three specific examples of alleged racial discrimination by 
Beach: (1) she imitated his voice and accent over the “radio talkies;” (2) she accused 
Mwassa of hiding while he was in a resident’s room; and (3) she made the statement, “I 
don’t know why Management hired Africans, all you guys do is [] hide from work.” (Id.) 

In the letter, Mwassa also expressed concern that Nelson was targeting him after his April 
4, 2018 letter, and stated his belief that she was “singling [him] out” and trying to find an 
excuse to fire him. (Id.)                                                 

    Mwassa testified that he typed this letter at a computer at the public library. (Mwassa 
Dep. at 114.) There is no electronic record of this letter, and Mwassa alleged he mailed a 
paper copy to Prigge shortly after he was placed on administrative leave. (Id.)  
    Conversely, Prigge testified that she did not receive this letter. (Prigge Decl. ¶ 3–4.) 
She further testified that she never received a verbal or written report of discrimination 
from Mwassa. (Id. ¶ 3.)                                                   

    F.   The Investigation of the Spy Pen Incident                       
    Nelson contacted Mwassa at 3:00 p.m. on June 7, 2018 to advise him that he had 
been placed on administrative leave pending an investigation of the spy pen incident. 
(Lindsay Decl., Ex. E (Nelson June 7, 2018 Note).) She also contacted the police about the 
incident. (Id., Ex. G (Incident Report).)                                 

    During  the  investigation,  Nelson  reviewed  video  surveillance  cameras  and 
discovered that Mwassa entered the bathroom in which the RA discovered the spy pen six 
times between 1:59 a.m. and 4:00 a.m. on June 7, 2018. (Lindsay Decl., Ex. I (Timeline of 
Surveillance Footage); 

 Ex. J (Notice of Termination).) The first time Mwassa entered 
the bathroom, his hand was in his front pocket, and he remained in the bathroom for seven 

minutes. (Id., Ex. I (Timeline of Surveillance Footage).) The RA had informed Mwassa 
that she planned to take a break during this approximate time period. (Id., Ex. H (Nelson 
Email).) Mwassa’s next five trips to the bathroom were only 20-30 seconds long. (Id., Ex. 
I (Timeline of Surveillance Footage).) Mwassa explained his frequent use of that particular 
bathroom by pointing out the other bathroom in the area was out of paper towels, and that 
as an RA he was required to wash his hands many times during his shift. (Id., Ex. M (Police 

Interview) at 25.)                                                        
    Mwassa was interviewed a few days later, on June 11, 2018, by Ramsey County 
Sheriff’s Deputy Joshua Adams, as well as Nelson and Prigge. (Id., Ex. L (Case Notes).) 
During the interview, Mwassa was asked questions about the spy pen incident, and he was 
shown the video footage collected by PHS. (See 

 Ex. M (Police Interview).) He denied 
placing the spy pen in the bathroom, denied the spy pen belonged to him, and denied 

tampering with the device beyond attempting to plug it into several computers. (Id. 3–5, 
16–7, 21.) However, Nelson and Prigge concluded that Mwassa provided inconsistent and 
evasive answers during the interview. (Id., Ex. J (Notice of Termination) at 1.) Specifically, 
when the officer first asked Mwassa if he had ever purchased a spy pen like the one found, 
Mwassa answered “no, never,” but when the officer asked him if a review of Mwassa’s 

bank records and other personal accounts would confirm this, he admitted that he had 
“purchased one, but not like that one.” (Id., Ex. M (Police Interview) at 7.)  
    Mwassa alleges that during this interview Prigge asked Mwassa “to stop accusing 
[Nelson and Prigge] of bias and unfair treatment.” (Id., Ex. 113 (RFAs) at 9.) He also 
alleges  that  Nelson  said,  “black  people  are  criminal  in  nature”  to  Prigge  during  the 

investigation. (Compl. ¶ 17; Pl.’s Decl., Ex. 114 (Pl.’s Interrog. Answers) at 9.) However, 
the transcript provided by Defendant does not contain any comments by Prigge, Nelson, or 
Mwassa about discrimination or unfair treatment. (See Lindsay Decl., Ex. M (Police 
Interview).) Instead, while Mwassa is recorded as saying the RA who found the spy pen 
“set him up,” (id. at 19), he also acknowledged that he had been “good friends” with the 
RA prior to this incident. (Id. at 31.)                                   

    Nelson and Prigge then interviewed the RA, and reviewed her written statement. 
(Id., Ex. O (Nelson June 12, 2018 Note) at 1.) The RA reiterated that when she found the 
spy pen it did not appear broken or “loose,” as Mwassa claimed. (Id. at 3.) She also reported 
that Mwassa appeared “nervous” or “scared” during their conversation. (Id. at 4.)  
    Following  the  June  11,  2018  interviews,  PHS  decided  to  terminate  Mwassa’s 
employment. Prigge called Mwassa on June 12, 2018 to notify him of PHS’s decision, and 

to read the Notice of Termination to him.  (Id., Ex. J (Notice of Termination).) The 
termination notice explained that PHS was terminating Mwassa’s employment because it 
had “lost confidence in [Mwassa’s] ability to maintain its standards and Code of Conduct.” 
(Id.)  In  particular,  PHS  noted  inconsistencies  between  Mwassa’s  June  11  interview 
statements and “other employees’ statements (spy pen having missing pieces, tape no 

longer attached to the toilet, usage of the bathroom, changing your answer as to whether or 
not you’ve ever purchased a camera like the one found).” (Id. at 2.)      
    After his termination, on July 3, 2018, Mwassa was also charged via complaint in 
state court with a gross misdemeanor for interference with privacy under 

. (Id., Ex. P (Summons and Compl.).) On August 8, 2018, the charge was dismissed 

for lack of probable cause, and on January 3, 2019 the record of Mwassa’s criminal charge 
was expunged. (Id., Ex. Q (Dismissal of Compl.); Pl.’s Decl., Ex. 11 (Order Sealing 
Record); 

 Exs. 15–17 (Letters Confirming Expungement).)               
    G.   Mwassa’s Alleged June 11, 2018 letter to PHS CEO Dan Lindh      
    After the conclusion of the investigatory interview on June 11, 2018, Mwassa 
contends that he wrote a third letter complaining about discrimination, this time to PHS’s 

CEO, Dan Lindh. (Pl.’s Decl., Ex. 7 (June 11, 2018 Letter).)              
    Mwassa testified that he wrote this letter immediately after the June 11 interview 
with Prigge, Nelson, and Deputy Adams. (Mwassa Dep. at 116.) He alleges that he wrote 
this letter at the Maplewood library, as his usual library was closed, and he then mailed it 
to Lindh. (Id. at 116–17.) Neither party submitted evidence showing that Lindh ever 

received this letter.                                                     
    H.   Mwassa’s EEOC Charge                                            
    On  September  8,  2018,  Mwassa  filed  a  charge  with  the  EEOC,  alleging 
discrimination based on race, national origin, and retaliation. (Lindsay Decl., Ex. S (EEOC 
Compl.).) In the charge, he contended he was “subjected to different term[s] and conditions 
of employment” and a “hostile work environment where [he] was falsely accused of 

[wrongdoing].”  (Id.)  Mwassa  also  claimed  that  he  had  been  “racially  profiled,”  and 
“subjected to investigations and discipline.” (Id.) He stated that he had “internally reported 
discrimination on more than one occasion” but was subject to discriminatory retaliation 
“for participating in protected activity in violation of Title VII of the Civil Rights Act.” 
(Id.)                                                                     

    In the intake interview associated with the charge, Mwassa was asked if he had 
reported discrimination to his employer, and he answered that he had reported it to Nelson, 
verbally, in April of 2018. (Id., Ex. T (Intake Notes) at 2.) He denied having filed any 
written discrimination complaints. (Id.) Subsequently, however, in a letter to the EEOC 
dated December 4, 2018, Mwassa stated that that he had written the April 4, 2018 and June 

7, 2018 letters to PHS staff alleging discrimination, but did not mention the June 11, 2018 
letter to Lindh. (Id., Ex. U (Pl.’s Response to EEOC).)                   
    The EEOC dismissed Mwassa’s charge on March 15, 2019, and issued him a right 
to sue letter. (Id., Ex. V (Right to Sue Letter).)                        
    I.   The Lawsuit                                                     
    On June 7, 2019, Mwassa filed suit against PHS, alleging violations of Title VII of 

the Civil Rights Act. 42 U.S.C. §§ 2000e, et seq. Mwassa is self-represented and used a 
form complaint for employment discrimination lawsuits, alleging discrimination based on 
race and national origin. Under the clause describing the nature of his case, Mwassa 
checked the following boxes indicating the type of conduct at issue: “Termination of [his] 
employment,” “Failure to promote,” “Terms and conditions of employment differ from 

those  of  similar  employees,”  “Retaliation,”  “Harassment,”  “Racial  Profiling,” 
“Defamation,” and “Malicious Prosecution or Abuse of Process.” (Compl. ¶ 8.) PHS now 
moves for summary judgment on all of Mwassa’s claims.                     
II.  DISCUSSION                                                           
    A court may grant a party summary judgment if there are no disputed issues of 
material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. 

Civ. P. 56(a). The burden of establishing the nonexistence of any genuine issue of material 
fact is on the moving party. Celotex Corp. v. Catrett, 

 (1986). A party 
opposing summary judgment “‘must set forth specific facts showing that there is a genuine 
issue for trial,’ and ‘must present affirmative evidence in order to defeat a properly 
supported motion for summary judgment.’” Ingrassia v. Schafer, 

 (8th 

Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 

, 256–57 (1986)).  
    A dispute of fact is “genuine” if “a factfinder could reasonably determine the issue 
in the non-moving party’s favor.” Zayed v. Associated Bank, N.A., 

 (8th 
Cir. 2019) (citing Anderson, 

). A factfinder’s determination of an issue is 
only  reasonable  if  “it  is  based  on  ‘sufficient  probative  evidence’  and  not  on  ‘mere 
speculation, conjecture, or fantasy.’” 

 (citing Williams v. Mannis, 

 (8th 

Cir. 2018)). This circuit has also held that a properly supported motion for summary 
judgment cannot be defeated with only self-serving affidavits. Meeks v. Dept. of Human 
Services, 

 (8th Cir. 2018) (citing Conolly v. Clark, 

 
(8th Cir. 2006)).                                                         
    A.   Title VII                                                       

         1.   Applicable Law                                             
    Pursuant to Title VII of the Civil Rights Act of 1964, it is an “unlawful employment 
practice” for an employer to, among other things, “discharge any individual, or otherwise 
to discriminate against any individual with respect to his compensation, terms, conditions, 
or privileges of employment, because of such individual’s race, color, religion, sex, or 
national  origin.”  42  U.S.C.  §  2000e-2(a)(1)  (2012).  Absent  “direct  evidence  of 

discrimination,” the Court analyzes Title VII discrimination claims under “the burden-
shifting framework of McDonnell Douglas Corp. v. Green, 

, 802–03 (1973).” 
Stone v. McGraw Hill Fin., Inc., 

 (8th Cir. 2017) (internal quotations 
omitted); see also Watson v. McDonough, 

 (8th Cir. 2021) (“Where, as 
here, the plaintiff has not presented direct evidence to support [his] Title VII claims, we 

apply the burden-shifting framework established in McDonnell Douglas.”).  
    Title VII also prohibits “retaliation on account of an employee having opposed, 
complained of, or sought remedies for, unlawful workplace discrimination.” Univ. of Tex. 
Sw. Med. Ctr. v. Nassar, 

 (2013) (citing 42 U.S.C. § 2000e-3(a) (2012) 
(“It shall be an unlawful employment practice for an employer to discriminate against any 
of his employees . . . because he has opposed any practice made an unlawful employment 

practice by this subchapter, or because he has made a charge . . . under this subchapter.”)). 
To establish a prima facie case of retaliation, Mwassa must show that “(1) [he] engaged in 
protected conduct, (2) [he] suffered a materially adverse employment act, and (3) the 
adverse act was causally linked to the protected conduct.” Bunch v. Univ. of Ark. Bd. of 
Tr., 

 (8th Cir. 2017). “Title VII retaliation claims must be proved 

according to traditional principles of but-for causation,” which requires proof that “the 
unlawful retaliation would not have occurred in the absence of the alleged wrongful action 
or actions of the employer.” Nassar, 

.                     
         2.   Allegations of Racial and National Origin Discrimination   
              a.   Allegations of Direct Evidence of Racial and National 
                   Origin Discrimination.                                
    Mwassa  contends  that  there  is  direct  evidence  of  racial  and  national  origin 
discrimination in the record. (Pl.’s Opp’n Mem. at 20.) Direct evidence of racial and 
national origin discrimination is evidence showing “a specific link between the alleged 
discriminatory animus and the challenged decision, sufficient to support a finding by a 
reasonable  fact  finder  that  an  illegitimate  criterion  actually  motivated  the  adverse 

employment action.” Torgerson v. City of Rochester, 

 (8th Cir. 2011) 
(citations omitted). In this context, “direct” refers to the causal strength of the proof, not 
whether it is “circumstantial” evidence. 

                              
    Specifically, Mwassa asserts that the record contains direct evidence of racially 
discriminatory statements made by Beach, Nelson, and Prigge. (Pl.’s Mem. at 39.) He cites 
to a comment Nelson made to Prigge that “black people are criminal in nature,”  comments 

by Beach to the effect of, “I don’t know why Management hired Africans, all you guys do 
is [] hide from work,” and Beach’s mockery of Mwassa’s voice on the “walkies.” (Pl.’s 
Decl., Ex. 6 (June 7, 2018 Letter); 

 Ex. 114 (Pl.’s Interrog. Answers) at 9.) The Court 
finds no reference to a specific discriminatory remark uttered by Prigge in Mwassa’s 
complaint, exhibits or memorandum.                                        

    However,  as  to  any  allegedly  discriminatory  statements  made  by  Beach, 
importantly,  Mwassa  fails  to  point  to  evidence  in  the  record  that  Beach  was  a 
decisionmaker with respect to his termination. “[N]ot every prejudiced remark made at 
work supports an inference of illegal employment discrimination,” and the Court must 
“carefully distinguished between comments which demonstrate a discriminatory animus in 

the  decisional  process  .  .  .  from  stray  remarks  in  the  workplace,  statements  by 
nondecisionmakers, or statements by decisionmakers unrelated to the decisional process.” 
see Arraleh v. County of Ramsey, 

 (8th Cir. 2006) (remark by a county 
employee with no hiring authority, that hiring plaintiff would be “like raising terrorist 
kids,” was not direct evidence of employment discrimination because record contained no 
evidence the employee influenced the hiring decision). Thus, even assuming that Beach 

made statements that were discriminatory and were motivated by racial animus, there is no 
evidence  in  the  record  that  Beach  influenced  the  decision  to  terminate  Mwassa’s 
employment, and no evidence that she had such authority. Instead, it was Nelson and Prigge 
who  terminated  Mwassa,  after  confirmation  from  PHS’s  Regional  Human  Resources 
Manager, Elizabeth West. (Pl.’s Decl., Ex. 83 (Emails regarding Mwassa’s Termination).) 
Therefore,  Beach’s  comments  are  not  direct  evidence  of  employment  discrimination 

because Mwassa shows no link between Beach’s allegedly discriminatory statements and 
PHS’s decision to terminate his employment.                               
     For Nelson’s remark to be considered direct evidence of racial or national origin 
discrimination in the decision to terminate Mwassa, the remark “must show a specific link 
between a discriminatory bias and the adverse employment action, sufficient to support a 

finding by a reasonable fact-finder that the bias motivated the action.” Torgerson, 

. Compare Simmons v. New Pub. Sch. Dist. No. Eight, 

, 1213–14 (8th 
Cir. 2001) (holding that a school board president’s statements that “a woman can’t handle 
[the administrator’s] job” and that the employee was “a woman in a man’s job” are direct 
evidence of sex discrimination when the board voted not to renew the administrator’s 

contract), with Arraleh, 

 (holding that a comment by a director with hiring 
authority that “black people are expected to leave their blackness behind” was not direct 
evidence without some context to show a link between the comment and the decision not 
to hire the employee).                                                    
    Although Mwassa alleges that Nelson uttered the phrase, “black people are criminal 
in nature”—a fact that Nelson denies and that is not corroborated by any other evidence in 

the record, (Compl. at ¶ 17; Pl.’s Decl., Ex. 114 (Pl.’s Interrog. Answers at 9))—even if 
true, this alleged isolated remark, without more, is not sufficient to show a “specific link 
between a discriminatory bias and the adverse employment action, sufficient to support a 
finding by a reasonable fact-finder that the bias motivated the action.” Torgerson, 

 (holding a comment by a member of the hiring committee that a successful 
applicant was “a big guy and that he’d make a good firefighter” was not direct evidence of 

gender discrimination against unsuccessful female applicant).             
              b.   Allegations of Indirect Evidence of Racial and National 
                   Origin Discrimination: The Analysis under McDonnell   
                   Douglas                                               
    The Court turns now to the McDonnell Douglas burden-shifting analysis. Under this 
framework, the plaintiff bears the initial burden of establishing a prima facie case of 
discrimination by showing that “[1] he is a member of a protected class . . . [2] he met [his 
employer’s]  legitimate  employment  expectations,”  [3]  “he  suffered  an  adverse 
employment action, and [4] the circumstances give rise to an inference of discrimination 
based on” race, national origin, or religion. Grant v. City of Blytheville, 

 
(8th Cir. 2016). If the plaintiff establishes a prima facie case, the burden shifts to the 

employer  “to  ‘articulate  a  legitimate,  nondiscriminatory  reason’  for  the  adverse 
employment action.” Stone, 

 (citations omitted). If the employer does so, 
“‘[t]he burden then shifts back to [the plaintiff] to prove that the proffered reason is pretext 
for discrimination.’” 

 (citations omitted). At all times, however, the plaintiff retains the 
“ultimate burden of proof and persuasion.” 

                            

    PHS does not dispute that Mwassa is a member of a protected class, nor that he met 
PHS’s legitimate employment expectations (Def.’s Mem. at 20–21; Lindsay Decl., Ex. A 
(Pl.’s Performance Summary).) In addition, PHS does not dispute that Mwassa suffered at 
least one adverse employment action—his termination. (Def.’s Reply [Doc. No. 109] at 6.) 
Consequently, the only issues in dispute are whether Mwassa suffered more than one 
adverse  employment  action,  and  whether  the  evidence  gives  rise  to  an  inference  of 

discrimination based on race or national origin.                          
                (i)  Alleged Adverse Employment Actions                  
    Mwassa  claims  that  he  experienced  several  adverse  employment  actions. 
Specifically, he alleges that he was passed over for a promotion, placed on administrative 
leave, subjected to unwarranted investigations, and was ultimately terminated. (Pl.’s Opp’n 

Mem. at 33.)                                                              
    An adverse employment action is a “material employment disadvantage, such as a 
change in salary, benefits, or responsibilities.” Singletary v. Missouri Dep’t of Corr., 891 
(8th Cir. 2005) (holding that an administrative leave pending an investigation, was not an 
adverse employment action); Jones v. Fitzgerald, 

, 714–15 (8th Cir. 2002) 

(holding that two warranted internal investigations of the plaintiff where she was not 
disciplined or threatened with discipline, caused her “no material disadvantage in a term or 
condition  of  employment,”  and  therefore  were  not  adverse  employment  actions); 
Pulczinski v. Trinity Structural Towers, Inc., 

, 1007–08 (8th Cir. 2012) 
(finding the suspension of an employee with pay while the employer investigated the 
employee’s absence from work was not an adverse employment action).       

    PHS contends that Mwassa is precluded from arguing that being passed over for a 
promotion or enduring allegedly unwarranted investigations were adverse employment 
actions because he failed to raise them in his EEOC complaint. (Def.’s Reply at 5.) 
Additionally, PHS contends that because placement on paid leave is not legally considered 
an adverse employment action, Mwassa’s claim in that regard fails. Thus, PHS argues that 
only Mwassa’s termination can constitute an adverse employment action. (Id. 5–6.)  

    The Court finds that Mwassa waived any claim he may have had that he was passed 
over for a promotion because of racial animus or national origin discrimination because he 
failed  to  allege  it  in  his  EEOC  complaint.  A  Title  VII  plaintiff  must  exhaust  his 
administrative remedies for each claim before bringing suit in federal court. Cottrill v. 
MFA, Inc., 

 (8th Cir. 2006). Once the EEOC provides a plaintiff with a 

right to sue letter, the plaintiff is limited to seeking relief for discrimination “that grows 
out of or is like or reasonably related to the substance of the allegations in the administrative 
charge.” 

 This ensures that the defendant is given appropriate notice of all claims the 
plaintiff  has,  and  gives  appropriate  deference  to  the  EEOC’s  “investigatory  and 
conciliatory role.” 

 As Mwassa did not allege that PHS failed to promote him in his 

initial complaint, or any of the subsequent letters he sent to the EEOC, he cannot rely on it 
as a basis for alleging an adverse employment action here.                
    Mwassa did briefly raise concerns with “baseless investigations” in his EEOC 
complaint, likely in reference to PHS’s investigation into a reported case of abuse on April 
19, 2018, and its investigation of the June 7, 2018 spy pen incident. (Lindsay Decl., Ex. S 
(EEOC Compl.).) However, the Eighth Circuit has found that “unwanted investigations” 

that are “predicated on complaints . . . do not rise to the level of an adverse employment 
action.” Singletary, 423 F.3d at 892 n. 5. Because PHS’s June 7th, 2018 report was 
predicated on the report by the RA who found the spy pen, and the April 19, 2018 
investigation was predicated on a resident’s report of abuse by a nurse matching Mwassa’s 
description, neither were adverse employment actions taken by PHS. (Lindsay Decl., Ex. 
B (Vulnerable Adult Report).).                                            

    Likewise,  this  circuit  has  found  that  a  paid  administrative  leave  pending  an 
investigation is not an adverse employment action. Singletary, 423 F.3d at 892 n. 5 (holding  
that that an administrative leave during which the plaintiff maintained his pay, grade, and 
benefits, and after which plaintiff was restored to original position, was not an adverse 
employment  action).  Mwassa  was  placed  on  paid  administrative  leave  while  PHS 

investigated a complaint of abuse, as required by PHS policy. (Lindsay Decl., Ex. B 
(Vulnerable Adult Report); Prigge Decl. ¶ 6.) This administrative leave was not a material 
employment  disadvantage,  as  Mwassa  retained  his  pay  and  benefits,  and  he  was 
immediately returned to his previous position once PHS determined the complaint was 
unsubstantiated. (Prigge Decl. ¶ 6.)                                      

    Accordingly, only Mwassa’s termination constitutes an adverse employment action.  
                (ii)  Evidence of an Inference of Discrimination         
    The Court will assume, without deciding, that there is evidence in the record that 
could give rise to an inference of racial and national origin discrimination. Accordingly, 
the  Court  proceeds  to  analyze  the  remaining  McDonnell  Douglas  factors  on  the 
assumption that Mwassa has established a prima facie case of racial discrimination. See 

Smith v. United Parcel Serv., 

 (8th Cir. 2016) (“We presume for 
purposes of analysis that [Plaintiff] has satisfied [the prima facie case] requirement.”); 
Gibson v. Am. Greetings Corp., 

 (8th Cir. 2012) (assuming that plaintiffs 
established a prima facie case of race discrimination and affirming grant of summary 
judgment because there was insufficient evidence that employer's actions were pretext for 
discrimination).                                                         

              c.   PHS’s Proffered Reason for Mwassa’s Termination       
    If the Court assumes that Mwassa has made a prima facie case of race and national 
origin  discrimination,  the  burden  then  shifts  to  PHS  “to  ‘articulate  a  legitimate, 
nondiscriminatory reason’ for the adverse employment action.”  Stone, 

 
(citations omitted). “In determining whether an employer had a legitimate reason for firing 

an employee, a court considers not whether ‘the employee actually engaged in the conduct 
for which he was terminated, but whether the employer in good faith believed that the 
employee was guilty of the conduct justifying discharge.’” King v. Minnesota Guardian 
Ad Litem Board, No. 19-cv-2108 (NEB/TNL), 

, at *7 (D. Minn. May 6, 
2021)  (finding  an  employer  had  articulated  a  non-pretextual  reason  for  plaintiff’s 

termination  when  the  employer  noted  that,  based  on  an  in-depth  investigation  into 
plaintiff’s conduct, the employer had lost trust and confidence in plaintiff’s ability to 
complete his work, and manage his staff) (citing McCullough v. Univ. of Ark. for Med. Sci., 

, 861–62 (8th Cir. 2009)).                                    
    PHS contends that it terminated Mwassa because it lost confidence in his ability to 
be forthright during an investigation. Mwassa’s termination notice explained that this loss 

of  confidence  was  based  on  “the  inconsistencies  between  [Nelson  and  Prigge’s] 
conversation with [Mwassa] on 6/11/2018 vs. the video camera footage [PHS] reviewed 
and  other  employee  statements.”  (Lindsay  Decl.,  Ex.  J  (Notice  of  Termination).) 
Specifically, it noted details such as the fact that the spy pen had missing pieces, tape had 
been  removed  from  the  toilet,  Mwassa  had  used  the  bathroom  six  times  in  the 
approximately two hours before the RA discovered the pen, and Mwassa had provided 

inconsistent answers about whether he had ever purchased such a recording device. (Id.)  
The  Court  finds  that  PHS,  in  detailing  concerns  with  Mwassa’s  conduct  during  its 
investigation, has proffered a non-discriminatory reason for Mwassa’s termination. 
              d.   Pretext                                               
    Because PHS has provided a legitimate, nondiscriminatory reason for terminating 

Mwassa based on the spy pen incident, the burden shifts back to Mwassa to show that 
PHS’s reason was a mere pretext for discrimination based on race or national origin. See 
Hunt v. Neb. Pub. Power Dist., 

 (8th Cir. 2002). At all times, however, 
the plaintiff retains the “ultimate burden of proof and persuasion.” Stone, 

. 
This burden is heavier than the showing required to establish a prima facie case: “[a]n 

employee’s attempt to prove pretext or actual discrimination requires more substantial 
evidence . . . because unlike evidence establishing the prima facie case, evidence of pretext 
and discrimination is viewed in light of the employer’s justification.” Sprenger v. Fed. 
Home Loan Bank of Des Moines, 

 (8th Cir. 2001) (citations omitted).  
    “A plaintiff may show pretext, among other ways, by showing that an employer (1) 
failed to follow its own policies, (2) treated similarly-situated employees in a disparate 

manner, or (3) shifted its explanation of the employment decision.” Gibson, 670 F.3d at 
853–54 (citing Lake v. Yellow Transp., Inc., 

 (8th Cir. 2010)). The Eighth 
Circuit has described two routes for raising a genuine issue of material fact in dispute as to 
pretext. 

 “First, a plaintiff may succeed indirectly by showing the proffered explanation 
has no basis in fact. Second, a plaintiff can directly persuade the court that a prohibited 
reason more likely motivated the employer.” 

                           

    Mwassa  argues  that  PHS  treated  white  employees  more  favorably  than  black 
employees, and contends “no action was taken on Terry Beach, no matter how [many 
complaints] PHS received [] about her.” (Pl.’s Opp’n Mem. at 44–45.) Mwassa also relies 
on unsupported assertions that PHS provided false information to the police investigating 
the spy pen incident. (Pl.’s Opp’n Mem. at 38.) In response, PHS urges the Court to review 

the depth of its investigation into Mwassa’s conduct, including the evidence that it gathered 
before it decided to terminate Mwassa. (Def.’s Mem. at 23.)               
                (i) Alleged Disparate Treatment of Similarly Situated    
                   Employees                                             
    In order for Mwassa to raise a genuine issue of material fact in dispute as to whether 
PHS’s proffered reason was pretextual, he must identify evidence in the record of the  
disparate treatment of a similarly situated employee. Chappell v. Bilco Co., 

 (8th Cir. 2012) (finding comparators must be “similarly situated in all relevant 

respects”). This is a rigorous standard and similarly situated employees must have the same 
position, responsibilities, and work location. Riser v. Target Corp., 

 (8th 
Cir. 2006) (holding employees were not similarly situated when their duties varied, they 

had different responsibilities, and they worked different shifts).        
    Mwassa alleges that PHS engaged in disparate treatment with respect to Beach, and 
alleges that “no action was taken” on complaints against her. (Pl.’s Opp’n Mem. at 44–45.) 
Beach was a floor supervisor, while Mwassa was a Resident Assistant — they did not have 
the same position nor the same job responsibilities, and were therefore not similarly 
situated employees. The Eighth Circuit also requires plaintiffs to provide evidence that 

comparators have engaged in similar conduct, and were disciplined in different ways. 
Chappell, 

 (finding a plaintiff had not pointed to evidence showing 
employees had committed the “same offense” or how they were disciplined, thus there was 
no evidence that employees were similarly situated). Mwassa accused Beach of making 
racist and discriminatory comments to Mwassa and other employees of color, whereas PHS 

lost trust and confidence in Mwassa during the investigation of a possible crime. These 
offenses are not similar, and thus Beach and Mwassa were not similarly situated in all 
respects.                                                                 
    Mwassa’s additional claim that “white employees were treated far more favorably” 
than black employees does not meet the standard of “specific, tangible evidence” that is 

required for a claim of disparate treatment. Rinchuso v. Brookshire Grocery Co., 

 (8th Cir. 2019) (citing Rose-Maston v. NME Hosps., Inc., 

, 1109 
n.4 (8th Cir. 1998) (finding “bald assertions of favoritism” and allegations that “white 
employees received promotions for which they were not qualified” were insufficient to 
raise a genuine issue of material fact in dispute regarding disparate treatment)). 

                (ii)  Allegation That Proffered Reason For Termination   
                     Had No Basis in Fact                                
    Mwassa also alleges that PHS’s proffered reason was not based in fact because the 
investigation into the spy pen was a sham. (Pl.’s Opp’n Mem. at 38.) In analyzing whether 
PHS’s investigation and findings were a sufficient basis for Mwassa’s termination, “[t]he 
proper inquiry is not whether [PHS] was factually correct in [its investigatory findings],” 
but rather whether it “honestly believed that” Mwassa engaged in the conduct at issue. 
Johnson v. AT&T Corp., 

 (8th Cir. 2005) (holding an employer’s 
investigation into a threatening phone call was sufficient when coworkers identified the 

caller as an employee based on his voice, even though the employer did not have “solid 
proof” of the caller’s identity).                                         
    The record establishes that Mwassa entered the bathroom where the spy pen was 
found while he knew his coworker was on break, and he stayed there for seven minutes. 
(Lindsay  Decl.,  Ex.  I  (Timeline  of  Surveillance  Footage);  

  Ex.  J  (Notice  of 

Termination).) He then reentered that same bathroom five more times in a two-hour span, 
staying for only 20-30 seconds each time. (Id., Ex. I (Timeline of Surveillance Footage); 

  Ex.  J  (Notice  of  Termination).)  Additionally,  Mwassa  originally  denied  having 
purchased a spy pen, but later hedged his answer, stating that he had purchased one, but it 
was unlike the device that was found. (Id., Ex. M (Police Interview) at 7.) The RA who 

found the device testified that after Mwassa took it from her in an alleged effort to view 
any recordings, he returned it to her in an altered state, with the USB port broken. (Id., Ex. 
C (Description of Incident) at 2.) She also testified that Mwassa appeared “nervous” and 

“scared” during their interactions regarding the device. (Id.; 

 Ex. O (Nelson June 12, 
2018 Note) at 4.)                                                         
    Contrary to Mwassa’s assertions, there is simply no evidence in the record that 
would  permit  a  reasonable  jury  to  find  that  PHS  terminated  Mwassa  because  of 
discriminatory animus. Kiel v. Select Artificials, Inc., 

 (8th Cir. 1999) 
(finding a plaintiff who was terminated for insubordination was not able to establish pretext 

when he engaged in “abusive, derogatory conduct towards his employer”). In fact, the 
evidence overwhelmingly indicates the opposite. These facts show that PHS conducted in 
an-depth  investigation  into  the  spy  pen  incident,  and  then  articulated  a  legitimate, 
nondiscriminatory, non-pretextual reason to terminate Mwassa based on this investigation. 
Accordingly, Mwassa’s allegations of race and national origin discrimination fail for lack 

of evidence of a triable issue of fact as to pretext.                     
         3.   Retaliation/Reprisal Claims                                
    The Court now turns to Mwassa’s retaliation and reprisal claims. As discussed 
above, to survive summary judgment on those claims, Mwassa must establish a prima facie 
case of retaliation by showing that “(1) [he] engaged in protected conduct, (2) [he] suffered 

a materially adverse employment act, and (3) the adverse act was causally linked to the 
protected conduct.” Bunch, 

.                              
    The causation element must be proved “according to traditional principles of but-
for causation,” which requires proof that “the unlawful retaliation would not have occurred 
in the absence of the alleged wrongful action or actions of the employer.” Nassar, 

. Temporal proximity alone is generally “insufficient to demonstrate a genuine issue 

of material fact as to whether conduct was retaliatory.” Bunch, 

 (citing 
Kiel, 

). If a plaintiff establishes a prima facie case of retaliation, the burden 
shifts to the defendant to proffer a nondiscriminatory reason for the adverse employment 
action. Hunt, 

. If the defendant does so, the burden shifts back to the 
plaintiff to show that the defendant’s proffered reason was pretextual. 

 

              a.   Mwassa’s Alleged Protected Conduct                    
    PHS argues that Mwassa fails to proffer evidence that he engaged in any protected 
conduct. (Def.’s Mem. at 26.) Mwassa, however, contends that the letters he claims to have 
sent to Prigge and Nelson, as well as his alleged meetings with them, are in fact protected 
conduct. For purposes of evaluating this claim, the Court will assume, without deciding, 
that Mwassa engaged in protected conduct.                                 

              b.   Causation                                             
    To establish a prima facie claim of retaliation or reprisal, Mwassa must identify 
evidence in the record that raises a genuine issue of material fact as to causation—that is, 
that his protected conduct was a “but-for cause” of his termination. Donathan v. Oakley 
Grain, Inc., 

 (8th Cir. 2017) (“The plaintiff's ultimate burden in a Title 
VII retaliation case is to prove an impermissible retaliatory motive was the ‘but-for cause’ 

of the adverse employment action.”) (citation omitted).                   
    PHS argues that Mwassa has failed to identify any such evidence of causation in the 
record. It argues that PHS had already begun its investigation into the spy pen incident 
when Mwassa sent his June 7th, 2018 letter to Prigge and his June 11th, 2018 letter to 
Lindh, so neither letter can be the basis of a retaliation claim. Further, PHS argues that the 

length of time between Mwassa’s April 4th, 2018 letter to Nelson and his subsequent 
conversation with Nelson are too far temporally removed from his termination to be the 
basis of a claim. The Court agrees. Neither the evidence in the record, nor the timeline in 
this case raise a genuine issue of material fact in dispute on the issue of causation. 
    As a threshold matter, Mwassa has not presented evidence that PHS received the 
letters he allegedly sent. The only evidence that the letters were delivered is his own 

declaration, which stands in conflict with his own earlier statements. (Compare Lindsay 
Decl., Ex. S (EEOC Compl.); 

 Ex. T (Intake Notes) (containing Mwassa’s original 
allegation that he did not submit any written complaints of discrimination during his EEOC 
intake interview) with, Pl.’s Decl., Ex. 1 (Mwassa Decl.) (declaring he sent the April 4, 
2018 letter to Nelson, and discussed the letter with her, and that he sent the June 11, 2018 

letter to Prigge, and discussed the letter with her).) Such a self-serving declaration is 
insufficient to raise a triable issue of fact. St. Hilaire v. Minco Products, Inc., 

, 1008 n.11 (D. Minn. 2003) (finding a plaintiff in a disability discrimination case 
could not “avoid summary judgment by raising issues of material fact through self-serving 
affidavits and memoranda that directly contradict his sworn deposition testimony without 

so much as an explanation for the contradictions”). Without identifying evidence in the 
record that Prigge or other decision makers received his letters, and were aware of his 
protected conduct, Mwassa cannot establish causation. Robinson v. Potter, 

 (8th Cir. 2006) (finding the plaintiff was unable to “show causation because [no 
decision-makers] knew about her pending EEOC complaint”).                 

     Even  if  the  Court  assumes  Prigge  and  Lindh  received  Mwassa’s  letters,  this 
protected activity occurred only after his supervisors had begun to investigate the spy pen 
incident. “Evidence of an employer’s concerns about an employee’s performance before 
the employee’s protected activity undercuts a finding of causation.” Kasper v. Federated 
Mut. Ins. Co., 

 (8th Cir. 2005). And “post-hoc complaints [do] not without 
more raise a retaliation bar to the proposed discipline because ‘the anti-discrimination 

statutes do not insulate an employee from discipline for violating the employer’s rules or 
disrupting the workplace.’ Indeed, complaining of discrimination in response to a charge 
of workplace misconduct is an abuse of the anti-retaliation remedy.” Griffith v. City of Des 
Moines, 

 (8th Cir. 2004) (internal citations omitted) (holding complaints 
of discrimination after an employee received notice of a disciplinary hearing did not 

support an inference of retaliatory motive).                              
    Even if the Court considers only the April 4, 2018 letter allegedly sent to Nelson 
before the final investigation, the timeline still does not support an inference of causation. 
Mwassa  relies  on  the  temporal  proximity  between  his  April  4,  2018  letter  and  his 
termination two months later to establish causation. But “[t]he cases that accept mere 

temporal proximity between an employer’s knowledge of protected activity and an adverse 
employment action as sufficient evidence of causality to establish a prima facie case 
uniformly hold that the temporal proximity must be very close.” Clark Cty. Sch. Dist. v. 
Breeden, 

 (internal quotation marks omitted). For instance, when a 
woman was discharged 13 days after her family leave started, the Eighth Circuit found that 
the temporal proximity was “barely” enough to establish causation. Smith v. Allen Health 

Sys., Inc., 

, 833 (8th Cir. 2002); see also Sprenger v. Fed. Home Loan Bank 
of Des Moines, 

, 1113–14 (8th Cir. 2001) (noting that a “matter of weeks” 
between a protected activity and an adverse employment action was sufficient to infer 
causation). But see Kipp v. Mo. Highway & Transp. Comm’n, 

 (8th Cir. 
2002) (noting that a two-month interval between the employee’s termination and her 
retaliation complaint, by itself, was not enough to establish a causal connection as a matter 

of law); and Smith v. Fairview Ridges Hosp., 

 (8th Cir. 2010) (finding 
an interval of one month too long to infer causation). The Court finds that here, the two-
month gap  between  the  April  4,  2018  letter  to  Nelson  and  Mwassa’s termination  is 
insufficient to infer causation.                                          
    Accordingly, Mwassa’s allegations of retaliation and reprisal fail because of a lack 

of a triable issue of fact as to causation.                               
         4.   Alleged Hostile Work Environment                           
              a.   The Law                                               
    To survive summary judgment, Mwassa must identify sufficient evidence in the 
record to raise a triable issue of material fact with respect to all elements of his hostile work 
environment claim, i.e., (1) that he is a member of a protected group; (2) he was subject to 

unwelcome harassment based on race or national origin (3) the harassment was because of 
membership in the protected group; (4) the harassment affected a term, condition, or 
privilege of employment; (5) PHS knew or should have known of the harassment; and (6) 
PHS failed to take proper action. Elmahdi v. Marriott Hotel Services, Inc., 

 (8th Cir. 2003); Peterson v. Scott Cnty., 

, 523–24 (8th Cir. 2005). 

    “Harassment which is severe and pervasive is deemed to affect a term, condition, or 
privilege  of  employment.”  Elmahdi,  

.  When  determining  whether 
harassment is sufficiently severe and pervasive to support a hostile work environment 
claim, courts consider the totality of the circumstances, “including the ‘frequency of the 
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or 
a mere offensive utterance; and whether it unreasonably interferes with an employee’s 

work performance.’” Clark Cty. Sch. Dist., 532 U.S. at 270–271.           
    The standard for demonstrating a hostile work environment under Title VII is 
“demanding,” and the statute is not intended to “create a general civility code.” Guimaraes 
v. SuperValu, Inc., No. 10-cv-366 (RHK/JSM), 

, at *9 (D. Minn. Dec. 
8, 2010), aff'd, 

 (8th Cir. 2012); see Abdel-Ghani v. Target Corp., 

  (8th  Cir.  2017)  (per  curiam)  (affirming  summary  judgment  on 
plaintiff’s hostile work environment claims when employees called plaintiff names like 
“camel jockey, Muslim, Arab, terrorist, and sand [n-word]” approximately ten times in a 
two-month period); O'Brien v. Dept. of Agric., 

 (8th Cir. 2008) (affirming 
summary judgment on plaintiffs’ hostile work environment claim despite  evidence that 

plaintiffs’ supervisor embarrassed, isolated, and ostracized them, scrutinized and criticized 
their work, and increased their work load after the claimants engaged in protected activity); 
Martin v. Missouri, 

 (8th Cir. 2006) (affirming summary judgment 
on  plaintiff’s  hostile  work  environment  claim  despite  her  allegations  that  coworkers 
commented they “were tired of seeing all the black faces on the bulletin board” during 
Black History Month; someone falsely reported that plaintiff pushed her, and that someone 

had “keyed” plaintiff’s car in the office parking lot and stuck a nail in her tire); Bainbridge 
v. Loffredo Gardens, Inc., 

 (8th Cir. 2004) (affirming summary 
judgment despite plaintiff's claim that he overheard offensive racial epithets, about once a 
month, over the course of two years). “Conduct that is merely rude, abrasive, unkind, or 
insensitive  does  not  come  within  the  scope  of  the  law,”  instead,  a  “a  hostile  work 
environment exists only where the conduct complained of is extreme in nature and not 

merely rude or unpleasant.” Guimaraes, 

, at *9–10 (citation and internal 
quotations omitted).                                                      
              b.   Parties’ Positions                                    
    Mwassa primarily points to evidence in the record of racist comments and “constant 
surveillance” as evidence in support of his hostile work environment claim. (Pl.’s Opp’n 

Mem. at 28–29.) Specifically, he points to Nelson’s comment that, “black people are 
criminal in nature,” during the investigation of the spy pen incident, and that Beach 
“subjected [him] to racist and offensive comments,” harassed him over the two-way radios 
by mocking his accent, and used racial epithets when referring to Africa. (Id. at 28–29; 
Pl.’s Decl., Ex. 114 (Pl.’s Interrog. Answers) at 9.) He relies on the alleged letters to Nelson 

and Prigge to show that PHS was aware of the hostile work environment. (Pl.’s Decl., Ex. 
5 (April. 4, 2018 Mwassa Letter); 

 Ex. 6 (June 7, 2018 Letter).) Mwassa further contends 
that PHS had a discriminatory surveillance policy, and that “whenever minority employees, 
including Plaintiff, were accused of wrong doing, PHS would view security Surveillance 
in order to find a way to tie them to wrong doing.” (Pl.’s Opp’n Mem. at 30–31.)  

    Again, PHS does not contest that Mwassa is a member of a protected class, nor that 
Beach’s alleged comments, if proven true, would constitute harassment based on Mwassa’s 
race and national origin, because of Mwassa’s membership in a protected group. (Def.’s 
Mem at 37.) Instead, PHS argues that the harassment was not sufficiently severe and 
pervasive under the law, and that PHS was never made aware of the harassment. (Id. at 37, 
39.)                                                                      

              c.   Analysis                                              
    The  Court  finds  that  even  if  true,  the  alleged  conduct  of  PHS  staff  was  not 
sufficiently severe and pervasive under the law to constitute a hostile work environment. 
Mwassa fails to point to any evidence in the record of the alleged pervasiveness of Beach’s 
racist comments to corroborate his allegation that they were made on a daily basis. (Pl.’s 

Opp’n Mem. at 29.)  He only cites to Alexis’s declaration, which is inadmissible hearsay. 
(Pl.’s Decl., Ex. 4 (Alexis Decl.);) Fed. R. Evid. 802. There is simply no evidence in the 
record  of  conduct  so  pervasive  that  it  affected  a  term,  condition,  or  privilege  of 
employment. Brunsting v. Lutsen Mountains Corp., 

 (8th Cir. 2010) 
(“[I]nadmissible hearsay evidence cannot be used to defeat summary judgment.”).  

    While certainly morally repugnant if true, the alleged comments in this case did “not 
constitute a steady barrage of opprobrious racial comment[s]” sufficient to support a hostile 
work claim. Elmahdi, 

 (affirming summary judgment despite plaintiff's 
assertion that he had been called “boy” and “black boy” on a few occasions over a period 
of years); Elnashar v. Speedway SuperAmerica, LLC, No. 02-cv-4133 (JNE/JSM), 

, at *9 (D. Minn. Sept. 22, 2005) (affirming summary judgment on plaintiff’s 

hostile work environment claim despite allegations that plaintiff’s supervisor has asked 
him “whether he had a harem and whether he “rode camels around everywhere in Egypt” 
as those comments were “isolated incidents that [did] not reach the level of actionable 
harassment”), aff'd, 

 (8th Cir. 2007).                       
    Moreover, Mwassa must show that PHS was aware of or should have been aware 
of the hostile work environment. See Davis v. Minneapolis Pub. Schools, No. 10-cv-2638 

(DWF/JJK), 

, at *10 (D. Minn. Oct. 13, 2011), R&R adopted,  

 (D. Minn. Dec. 8, 2011) (“Plaintiff's self-serving testimony that MPS should have 
known about the alleged incidents is insufficient to withstand summary judgment [on his 
hostile work environment claim].”) Beyond his own self-serving allegations, there is no 
evidence  in  the  record  that  PHS  knew  or  should  have  known  about  a  hostile  work 

environment. 2  Thus, Mwassa has not identified a question of triable issue as to whether 
PHS knew or should have known there was a hostile work environment.       


2 Mwassa contends that there is likely evidence that PHS was on notice of the hostile work 
environment through reviewing Beach’s work file, and that PHS obstructed his access to 
this file and depositions that could have revealed this information. (Def.’s Opp’n Mem. at 
34–35.) However, PHS properly disclosed to Mwassa that it had no records of “written 
complaints or grievances made by employees of Defendant (PHS)[, including Mwassa,] 
about Terry Beach’s discriminatory conduct.” (Lindsay Second Decl. [Doc. No. 110], Ex. 
X (Def.’s RFP and Interrog.) at 12; 

.) Additionally, Mwassa was unable to depose 
PHS  employees  not  because  of  PHS’s  conduct,  but  because  he  sought  to  conduct 
depositions after the close of discovery, in violation of the court’s scheduling order. (Pl.’s 
Decl., Ex. 107 (Notice of Deposition).)                                   
    Accordingly,  Mwassa’s  hostile  workplace  harassment  claim  fails  for  lack  of 
evidence of a triable issue of fact.                                      

    B.   Defamation                                                      
         1.   The Law                                                    
    Under Minnesota common law, to prevail on a defamation claim, a plaintiff must 
establish that the defendant made “(a) a false and defamatory statement about the plaintiff; 
(b)  in  [an]  unprivileged  publication  to  a  third  party;  (c)  that  harmed  the  plaintiff’s 
reputation in the community.” Maethner v. Someplace Safe, Inc., 

 
(Minn. 2019) (citing Weinberger v. Maplewood Review, 

 (Minn. 

2003)). Minnesota law requires defamation claims to be pleaded with specificity and to 
include “who made the defamatory statements, to whom they were made, and where.” 
Walker v. Wanner Engr., Inc., 

 (D. Minn. 2012). 
    Both  absolute  and  qualified  privileges  may  defeat  a  defamation  claim.  “A 
defamatory statement is covered by qualified privilege if made in good faith and upon a 

proper occasion, from a proper motive, and . . . based upon reasonable or probable cause.” 

 (citations omitted).                                                  
    However, a privilege may be overcome if the plaintiff shows that the statement was 
made with malice. 

 (citing Bahr v. Boise Cascade Corp., 

 (Minn. 


Mwassa additionally contends that PHS’s discriminatory use of surveillance creates a 
hostile  work  environment.  (Pl.’s  Opp’n  Mem.  at  30–31.) However,  Mwassa  has  not 
identified  any  evidence  in  the  record  that  indicates  PHS  is  using  this  footage  in 
discriminatory ways.                                                      
2009)). To prove malice, defendant must establish that the statement was made out of  “ill 
will and improper motives, or causelessly and wantonly for the purpose of injuring the 

plaintiff.” 

 (quoting Stuempges v. Parke, Davis & Co., 

 (Minn. 
1980)).                                                                   
         2.   Analysis                                                   
    Mwassa alleges that PHS defamed him by summoning officers to investigate the 
spy pen incident. PHS responds that Mwassa has not only failed to plead defamation with 
the specificity required by Minnesota law, its allegedly defamatory communications were 

protected by a qualified privilege. (Def.’s Mem. at 40.)                  
    The Court finds that Nelson and Prigge’s report to the police about the spy pen 
incident was qualifiedly privileged. PHS reported the spy pen incident to police, because 
they believed the placement of the recording device constituted a crime. (Nelson Decl. at 
3); Walker, 

 (finding an employer’s statement to police that an 

employee had stolen from the company was qualifiedly privileged and not defamatory 
when a “reasonable investigation” into the theft was conducted). Mwassa has pointed to no 
evidence in the record that PHS’s report was malicious, and therefore, this report cannot 
support a defamation claim.                                               
    C.   Malicious Prosecution                                           
         1.   The Law                                                    
    Mwassa’s claim of malicious prosecution stems from the June 7, 2018 spy pen 

incident, and the criminal investigation that followed. Malicious prosecution claims are 
generally disfavored under Minnesota law and thus are “carefully circumscribed.” Bahr v. 
Cty. of Martin, 

, 979–80 (D. Minn. 1991) (quoting Lundberg v. Scoggins, 

 (Minn. 1983)). Public policy favors prosecutions undertaken in good 

faith. See Lundberg, 

. “Under Minnesota law, the tort of malicious 
prosecution  includes  four  elements.  The  plaintiff  must  prove  that:  (1)  the  defendant 
initiated criminal proceedings (2) without probable cause and (3) with malice, and (4) the 
proceedings terminated in the plaintiff’s favor.” Young v. Klass, 

 
(D. Minn. 2011).                                                          
    Malice is a state of mind that must be proven as a fact. Allen v. Osco Drug, Inc., 

 (Minn. 1978) (quoting Hanowitz v. Great N. Ry. Co., 

 
(Minn. 1913)). “[M]alice may be, but need not be, inferred from lack of probable cause.” 
Id. at 645. Government officials might lack the probable cause necessary to arrest and 
charge an individual, but not have the malicious state of mind necessary to sustain a claim 
for malicious prosecution. See Hanowitz, 

 (“Want of probable cause may 

exist without malice.”). A “mere belief that [an action] was sought with malicious intent is 
insufficient to establish the existence of a genuine dispute of material fact.” Duham v. Roer, 

 (Minn. Ct. App. 2006).                                
         2.   Analysis                                                   
    In his Complaint, Mwassa alleges that PHS “racially profiled [him] and got law 

enforcement  involve[d]  in  a  baseless  investigation.”  (Compl.  ¶  17.)  Mwassa  further 
contends that “PHS procured [Mwassa’s] charges by providing false oral, videos, images 
and documentary evidence implicating [Mwassa] in a sex crime” (Pl.’s Opp’n Mem. at 50.)  
    PHS responds that it simply contacted law enforcement to report a suspected crime, 
and that there is no evidence of any malicious intent on the part of law enforcement in the 

record. (Id.)                                                             
    Mwassa  identifies  no  evidence  in  the  record  in  support  of  his  allegations  of 
malicious prosecution. Instead, the evidence demonstrates that PHS made a credible report 
of suspected criminal activity that had occurred on its premises. 

; 
(Lindsay  Decl.,  Ex.  P  (Summons  and  Compl.);  

  Ex.  I  (Timeline  of  Surveillance 
Footage);  

  Ex.  C  (Description  of  Incident);  

  Ex.  J  (Notice  of  Termination).) 

Accordingly, Mwassa’s malicious prosecution claim fails.                  
    D.   Abuse of Process                                                
    Mwassa’s final claim is for abuse of process. Under Minnesota law, the elements 
for “a cause of action for abuse of process are the existence of an ulterior purpose and the 
act of using the process to accomplish a result not within the scope of the proceedings in 

which it was issued, whether such result might otherwise be lawfully obtained or not.” Ness 
v. Gurstel Chargo, P.A., 

 (D. Minn. 2013) (holding a formulaic 
recitation of the elements of an abuse of process claim, without factual support of an 
ulterior purpose, failed to state a claim upon which relief could be granted). The Court must 
consider whether legal “process was used to accomplish an unlawful end for which it was 

not designed or intended, or to compel a party to do a collateral act which he is not legally 
required to do.” Dunham v. Roer, 

 (Minn. App. 2006) (“The bare 
allegation that respondent had some greater scheme is insufficient to establish a genuine 
issue of material fact concerning an unlawful end.”) (citing Kittler & Hedelson v. Sheehan 
Properties, Inc., 

 (Minn. 1973)). Mwassa has identified no evidence 
in the record to support his abuse of process claim. Accordingly,  Mwassa’s claim of abuse 

of process fails.                                                         
III.  CONCLUSION                                                          
    Based  on  the  submissions  and  the  entire  file  and  proceedings  herein,  IT  IS 
HEREBY ORDERED that:                                                      
    1.  Defendant PHS’s Motion for Summary Judgment [Doc. No. 91] is GRANTED; 
    2.  Plaintiff Motion in Opposition to Defendant’s Motion for Summary Judgment 
      [Doc. No. 97] is DENIED; and                                       
    3.  Plaintiff  Mwassa’s  Complaint  [Doc.  No.  1]  is  DISMISSED  WITH 
      PREJUDICE.                                                         
LET JUDGMENT BE ENTERED ACCORDINGLY.                                      


Dated: March 4, 2022                 s/Susan Richard Nelson               
                                    SUSAN RICHARD NELSON                 
                                    United States District Judge