Michael John Dines, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent.

 STATE OF MINNESOTA 
 IN COURT OF APPEALS
 C8-99-132
 C0-99-755

Stormy Harmon, for herself and
on behalf of A.H., S.H. and F.B.,
Respondents,

vs.

Reynold and Patricia Mattson,
Appellants.

 Filed November 23, 1999
 Affirmed in part, reversed in part
 Toussaint, Chief Judge

Hennepin County District Court
File No. 9618507

Melissa A. Hortman, Gregory Dean Luce, Luce & Hortman, 602 Flour Exchange Building, 310 Fourth Avenue South, Minneapolis, MN 55415 (for respondents)

Kay Nord Hunt, 1800 IDS Center, 80 South 8th Street, Minneapolis, MN 55402; and

William M. Dickel, 300 Anchor Bank Building, 1055 Wayzata Blvd. East, Wayzata, MN 55391-11866 (for appellants)

Considered and decided by Toussaint, Chief Judge, Crippen, Judge and Forsberg, Judge[*].

 U N P U B L I S H E D   O P I N I O N

 TOUSSAINT, Chief Judge

Appellants Reynold and Patricia Mattson, appeal from an order denying judgment notwithstanding the verdict (JNOV) or a new trial on respondent Stormy Harmon and her children A.H., S.H. and F.B's claims of race discrimination, gender discrimination, discrimination based on public assistance, and intentional infliction of emotional distress. They also appeal the trial court's grant of Harmon's motion to add a punitive damages claim and its award of punitive damages there under. Respondents Harmon, and her children appeal from an order reducing the damage amount awarded to the children and granting appellants motion for JNOV on respondents Harmon's claim of disability discrimination.

Because we conclude that the trial court did not err in: (1) denying JNOV on the race discrimination claim; (2) granting JNOV on the disability discrimination claim; and (3) reducing the damages awarded to Harmon's children, we affirm in part. Because the trial court erred in submitting the punitive damages to the jury claim and in denying JNOV on the claims of: (1) gender discrimination; (2) discrimination based on public assistance; and (3) intentional infliction of emotional distress, we reverse in part.

 FACTS

On April 4, 1995, Harmon entered into a written month to month lease with Mattson. Because Harmon and her three daughters receive public assistance with their rent through the federal Section 8 Program, Mattson entered into a housing assistance payments contract with the Minneapolis Public Housing Authority (MPHA) that same day. The total rent agreed to in the lease was $650, but the MPHA paid $208 of Harmon's rent, and she paid $442. The lease provided that Harmon was responsible for maintaining the yard, removing snow from the sidewalks and driveway, and was prohibited from nailing into the plaster. On her rental application, respondent wrote that she was a SSI recipient.

Harmon began experiencing problems with the furnace the first night she moved into the house. She brought this to the attention of Mattson and requested that the repairs be made. On May 28, 1995, Minnegasco inspected the furnace and determined that light levels of carbon monoxide were being emitted. Minnegasco red tagged it and shut it off. Harmon claims that the repairs were not made. She then called the Minneapolis Department of Housing Inspection on May 30, 1995. The inspector ordered that a licensed contractor repair the furnace and that other repairs be made by June 15, 1995.

On June 1, 1995, Mattson asked Harmon to apply for energy assistance so that she could obtain a free furnace. She refused to do so because she thought that she might have to apply for energy assistance in the future if she were to buy a home. Harmon testified that after she refused to apply for energy assistance Mattson did not take her repair calls. Mattson contends that Harmon would not let him in to make the repairs in order to comply with the June 15, 1995 deadline.

The furnace problems continued through the fall of 1995 and into the early months of 1996. Harmon claims that Mattson would not make repairs on time, while he argues that he was unable to enter the unit to make the repairs. On October 3, 1996, a technician for Minnegasco determined that the furnace could no longer be repaired and it needed to be replaced. The house was condemned. Harmon and her children moved in with friends and into hotels due to the condemnation. The new furnace was installed on October 17, 1996, and the condemnation was lifted on October 18, 1996.

Several incidents took place between Harmon and Mattson that gave rise to her discrimination claims against him. Harmon caught Mattson peeping through her window on one occasion. She claims that he would rub against her and entered the apartment at late hours to make repairs. She also claims that he was constantly on the premises, usually 10-12 hours a day. Harmon recalls being called a "bitch," "goofy," "crazy," "idiot," and a "nigger" by Mattson. When Harmon's daughters were playing on the grass outside the house, Mattson allegedly chased them and called them "niggers." During one incident, Harmon's brother and friends were in her house when Mattson came to make repairs. Her brother testified that Mattson told his wife, who was accompanying him, to go upstairs and check the thermostat. Harmon requested that she first be asked and Mattson told her to shut up and was about to call her a "nigger" when her brother interjected. After this incident she filed for and was granted a restraining order against Mattson. Although the record shows that the daughters were in the house when the incident took place, it is unclear whether they were actually present when Mattson was about to call Harmon a "nigger."

The relationship between Harmon and Reynold Mattson reached a volatile stage on October 28, 1996. Mattson claims that he was raking leaves and Robert Efram, who helped with maintenance chores, was going to remove the condemnation sign that was on the door. However, the locked screen door was preventing him from removing the sign. Efram testified that he thought he could get in without destroying the lock, but instead, the lock fell off. Harmon argues that it was Mattson who broke off the lock. She testified that Mattson pounded on her door for 45 minutes. Although there was no contact between her and Mattson, she claims to have been scared for her life at the time. She started to cry and hyperventilate.

On December 16, 1996, Harmon and her daughters filed a claim in Hennepin County, alleging race discrimination in housing, gender discrimination in housing, disability discrimination in housing, discrimination based on public assistance, and intentional infliction of emotional distress. The trial court granted respondent's petition to add punitive damages to their claim. The advisory jury found Mattson liable under all claims and awarded Harmon and her children compensatory damages, out-of-pocket costs and punitive damages. The total damages for these claims, as determined by the advisory jury, is unclear. The damages awarded to the children arose from two claims, race discrimination and discrimination based on public assistance. Because there was insufficient evidence to support the damages awarded for each child, the trial court determined that the advisory jury's damage award to the children was excessive and reduced it. F.B's compensatory damages were reduced from $30,000 to $1,000 and her punitive damages were reduced from $17,000 to $1,500. S.H.'s compensatory damages were reduced from $30,000 to $1,500 and her punitive damages were reduced from $17,000 to $4,000. A.H.'s compensatory damages were reduced from $30,000 to $1,500 and the punitive damages were reduced from $17,000 to $4,000. The trial court also granted Mattson's motion for JNOV on the disability discrimination claim, further reducing Harmon's damage award.

 D E C I S I O N

 I.

Race Discrimination in Housing

Harmon argued at trial that Mattson discriminated against her because she is black. On appeal, Mattsons argue that Harmon failed to establish a prima facie case of race discrimination. They claim that Harmon has not presented any evidence that: (1) she was denied rights or services because of her race or that terms of her contract were less favorable; (2) non-blacks were treated more favorably; (3) untimely repairs were motivated by race; and (4) whites similarly situated were treated better. However, a prima facie case of discrimination is not met only by meeting all three prongs of the McDonnell-Douglas test. When a plaintiff presents direct evidence of discriminatory intent, it is not necessary to use the McDonnell-Douglas analysis. Diez v. Minnesota Min. & Mfg., 564 N.W.2d 575, 579 (Minn. App. 1997), review denied (Minn. Aug. 21, 1997) (citation omitted). Racial slurs can be direct evidence of discrimination. See Wilson v. City of Aliceville, 779 F.2d 631, 634 (11th Cir. 1986) (citation omitted) (holding that a racial slur made by a person in charge of making employee evaluation and suggestions for hiring constitutes direct evidence of discrimination)).

Harmon claims that Mattson has referred to her and her children as "niggers." Mattson's use of racial epithets is direct evidence of race discrimination. Therefore, Harmon did not have to meet the McDonnell-Douglas test.

Here, there is evidence of Mattson's use of racial epithets, tending to show that his relationship with Harmon was fueled by racial tensions. The record shows that while Harmon's daughters were playing outside the house, Mattson chased them with a stick, calling them "niggers." Both Harmon and her brother testified that while making repairs at her house, Mattson got into an argument with Harmon and was about to call her a "nigger" when her brother stopped him. After this incident, Harmon filed for and was granted a restraining order against her landlord.

However, Mattson did not appear to use racial slurs when addressing his white tenant, Valerie Kay Bronson. Bronson, who rents a home from Mattson in Andover, testified that he never insulted her or her husband. Although pursuant to the lease her husband made most repairs, when called, Mattson was prompt about making the repairs.

In contrast, there is evidence that Mattson was not as diligent in making repairs for Harmon. The record shows that since the day she moved into the house, Harmon had problems with the furnace. Although Mattson would eventually fix the furnace, these repairs were temporary, and shortly thereafter the furnace would develop new problems. This process continued until the furnace could no longer be repaired and the house was condemned, forcing the Harmon family to move into hotels and with friends. Harmon had to call the housing inspector on numerous occasions and was the subject of several unsuccessful unlawful detainer actions initiated by Mattson. In addition to these problems, the record shows that Mattson's presence in the home during the day was excessive and when he was not in the house, he was around the premises. Harmon also testified that she caught him peeping through the windows on one occasion.

The living conditions that Harmon was subjected to, when considered in conjunction with Mattson's use of racial epithets while on her rental property, and other evidence on the record, led the advisory jury to conclude that Mattson discriminated against Harmon based on her race. The trial court did not err in denying respondent's motion for JNOV and we affirm.

 II.

Gender Discrimination in Housing

Harmon argues that Mattson discriminated against her in housing because she was a woman. She claims that his acts created a hostile environment. The three-part burden-shifting scheme for discrimination claims established in McDonnell-Douglas and adopted by the supreme court in Danz v. Jones, 263 N.W.2d 395, 398-99 (Minn. 1978), is applicable here:

1. The plaintiff has the initial burden of proving a prima facie case of discrimination;
2. If the plaintiff establishes a prima facie case, the burden shifts to the defendant to present evidence of some legitimate non-discriminatory reason for its actions; and
3. If the defendant meets this burden, the plaintiff then has the opportunity to show that the defendant's presumptively valid reasons are in fact a pretext obscuring discrimination.

McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 1824-26. Under the FHA a person is guilty of gender discrimination "[b]y treating one gender less favorably (disparate treatment) or by sexual harassment." Honce v. Vigil, 1 F3rd 1085, 1088 (10th Cir. 1993). Sexual harassment in housing can be proven under quid pro quo harassment and hostile environment harassment. Id. at 1089.

At trial, Harmon argued, and the advisory jury found that Mattson was guilty of sexual harassment based on creating a hostile environment. Harmon provides insufficient evidence to support her claim that Mattson's acts created a hostile environment and therefore, she fails to meet the first prong of the McDonnell-Douglas test. Harmon claims that Mattson peeked through her window, rubbed against her while in the stairway, called her "bitch," and was constantly at her house, making repairs late at night. She estimated that Mattson was in the house 10-12 hours a day and when he was not in the house, he was around the premises. However, peeping through the window and calling her a "bitch," without more, is not sufficient to create a hostile environment. Moreover, Harmon has failed to demonstrate how Mattson's excessive presence in the house or around the premises created a hostile environment. Because Harmon failed to meet the first prong of the McDonnell-Douglas test, she has not established a prima facie case of gender discrimination and the trial court erred in denying appellant's JNOV motion. We reverse and enter JNOV for appellant.

 III.

Discrimination based on Public Assistance

Harmon sued the Mattson for discrimination based on public assistance. Harmon argued that Mattson asked her to apply for energy assistance to purchase a new furnace, and when she refused, he refused to fix the furnace in a timely manner. The advisory jury granted respondent damages on this theory. The Mattson filed a motion for JNOV, which was denied by the trial court. The Mattson argue that Harmons did not establish a prima facie case of discrimination based on public assistance and that therefore, the trial court erred in not granting JNOV. Mattson argues that Harmon provided no evidence that: (1) she failed to receive services or rights because she was receiving public assistance; (2) Mattson retaliated against her for failure to apply for energy assistance; or (3) that other tenants who did not receive public assistance were treated differently.

Although there is no state law that prevents a landlord from asking a tenant on public assistance to apply for energy assistance to purchase a furnace, the record indicates that shortly after Harmon's refusal to apply for energy assistance Mattson was dilatory in making repairs. He failed to meet inspection orders concerning the repair of the furnace and at one point, the apartment was condemned because of the emission of carbon monoxide. Harmon was required to stay at hotels and eat at fast food restaurants. However, this is insufficient evidence to suggest retaliatory behavior.

There is no standard in the law as to what would be sufficient evidence to show discrimination due to public assistance. However, Sylvia Jones, a former tenant, testified that as a previous tenant in Harmon's unit she also had problems with the furnace. In that situation, Mattson was also dilatory in making repairs. Mattson's response concerning the furnace repair requests by the tenants of that unit appeared to be similar. Although Mattson might have been more hesitant in making repairs when Harmon requested them. Harmon has not provided sufficient evidence to suggest that his untimely repairs had anything to do with her decision to not apply for public assistance. Instead, Mattson's relationship with his prior tenant in that same unit indicates that he did not refuse to repair it because Harmon did not apply for emergency assistance, but because he did not want to spend the money. Thus, the trial court erred in not granting JNOV with respect to this claim and we reverse and enter JNOV for appellant.

 IV.

Disability Discrimination

At trial, Harmon argued that she had been discriminated against because of her disability. The advisory jury found Mattson liable for disability discrimination, but the trial court granted Mattson's motion for JNOV with respect to this claim. The Minnesota Human Rights Act provides, that:

"Disability" means any condition or characteristic that renders a person a disabled person. A disabled person is any person who (1) has a physical, sensory, or mental impairment which materially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.

Minn. Stat. § 363.01, subd. 13 (Minn. 1998) (emphasis added). Harmon was learning disabled and received SSI, thereby falling within the definition of "disabled." However, Harmon must also prove that she was discriminated against because of her disability. Lang v. City of Maplewood, 574 N.W.2d 451, 454 (Minn. App. 1998), review denied (Minn. April 14, 1998) (citations omitted). The trial court properly concluded that there was insufficient evidence to support this finding. Harmon contends that Mattson called her names such as "crazy," "goofy," and "idiot." Harmon also argues that Mattson made false statements to her, attempting to take advantage of her limited reasoning skills. As the trial court indicated, the name calling, while cruel, is not enough to prove disability discrimination. Moreover, even assuming that Mattson tried to trick her by lying to her, there is no indication on the record that she was deprived of any services because of her disability. There is insufficient evidence to support a disability discrimination claim. The trial court decision to grant JNOV with respect to this claim is affirmed.

 V.

Intentional Infliction of Emotional Distress

Mattson argues that the trial court erred in not granting their motion for JNOV with respect to their claim of intentional infliction of emotional distress (IIED). A successful IIED claim must satisfy a three-part test. The defendant's conduct must be (1) extreme and outrageous; (2) intentional or reckless; and (3) cause severe emotional distress. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 438-39 (Minn. 1983).

Here, Harmon has failed to demonstrate that Mattson's conduct was sufficiently extreme and outrageous or that her emotional distress was severe enough. Mattson's evidence was that in spite of the restraining order prohibiting him from having any contact with Harmon, he banged on the door for 45 minutes and allegedly broke the lock on her screen door. This evidence, by itself, does not rise to the level of sufficiently extreme and outrageous conduct. In addition, Harmon failed to show that Mattson's action caused severe emotional distress. Harmon describes her emotional distress as crying and hyperventilating. However, in Hubbard the court noted that throwing up, a stomach disorder, skin rash, and high blood pressure did not rise to the level of emotional distress where it was supported merely by appellant's testimony. 330 N.W.2d at 440.

Because Harmon has provided insufficient evidence to show that Mattson's conduct was extreme and outrageous or that her emotional distress was severe, the trial court erred in denying Mattson's motion for JNOV. We reverse and enter JNOV for appellant.

 VII.

Damages

The advisory jury awarded Harmon both compensatory damages and out-of-pocket costs for her race-based, gender-based, and public assistance-based discrimination claims, as well as for intentional infliction of emotional distress. Compensatory damages were also awarded to Harmon's daughters, individually, with respect to the race-based and public assistance-based discrimination claims. The exact amount awarded to all parties by the advisory jury is unclear from the record. However, the trial court determined that there was insufficient evidence to justify the compensatory damages awarded to the children and reduced S.H.'s compensatory damages from $30,000 to $1,500, A.H.'s from $30,000 to $1,500 and F.B.'s from $30,000 to $1,000.

Because this court has decided that there was insufficient evidence to support the claims of gender discrimination in housing, discrimination based on public assistance, and IIED, all damages awarded to Harmon and her daughters under these claims are accordingly reversed. The only claim for which there is sufficient evidence is race discrimination in housing. After adjustments, the compensatory damages awarded by the trial court as to this claim were as follows: Harmon, $60,000, S.H., $750, A.H., $750, and F.B., $500. Harmon was also awarded $18,181 in out-of-pocket cost. However, the record does not support the damages awarded to F.B. Therefore, the total damages for Harmon and her daughters are reduced to $79,681. We therefore reverse the trial court's determination of damages accordingly.

 VII.

Punitive Damages

The trial court granted Harmon's motion to add punitive damages to her claim after she had rested her case. How a party seeks a claim for punitive damages is controlled by statute:

Upon commencement of a civil action, the complaint must not seek punitive damages. After filing suit a party may make a motion to amend the pleadings to claim punitive damages. The motion must allege the applicable legal basis under section 549.02 or other law for awarding punitive damages in the action and must be accompanied by one or more affidavits showing the factual basis for the claim. At the hearing on the motion, if the court finds prima facie evidence in support of the motion, the court shall grant the moving party permission to amend the pleadings to claim punitive damages.

Minn. Stat. § 549.191 (1998) (emphasis added). Harmons failed to submit supporting affidavits when they moved to add punitive damages to their claim and therefore, did not provide the court with the factual basis for their claim. As a result, we reverse the trial court's decision to grant punitive damages to Harmon and her daughters.

VI.

Decrease of Childrens Damages

The advisory jury granted each of Harmon's daughters $30,000 in compensable damages and $17,000 in punitive damages under the race-based and public assistance-based discrimination claims. The trial court significantly reduced each child's damages on the grounds that there was insufficient evidence to support the award and Mattson appeals the decision. This court has decided that there was insufficient evidence to support the claim of discrimination based on public assistance as to any of the parties. Therefore, the trial court did not err in reducing the damages of the children under this claim. As to the claim of race discrimination, we agree with the trial court that there was insufficient evidence on the record to support the excessive damages awarded to the children and we affirm.

  Affirmed in part, reversed in part.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.