Veronica Thomas, Appellant, vs. Coleman Enterprises, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-99-1327

 

Veronica Thomas,

Appellant,

 

vs.

 

Coleman Enterprises,

Respondent.

 

Filed April 18, 2000

Affirmed

Kalitowski, Judge

 

Ramsey County District Court

File No. C1984072

 

Celeste E. Culberth, Leslie L. Lienemann, 8400 Lyndale Avenue South, Suite 7, Bloomington, MN  55420 (for appellant)

 

Joan M. Quade, Malcolm P. Terry, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Blvd., Minneapolis, MN  55433 (for respondent)

 

            Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Veronica Thomas challenges the district court's order granting summary judgment to her former employer, respondent Coleman Enterprises, on her claim for sexual orientation discrimination and reprisal in violation of the Minnesota Human Rights Act, Minn. Stat. § 363.03 (1998).  Appellant contends the district court erred by (1) determining that there were no genuine issues of material fact; (2) determining that appellant failed to properly raise a claim of sexual orientation harassment; (3) granting summary judgment on appellant's claim of sexual orientation discrimination; (4) granting summary judgment on appellant's reprisal claim; and (5) denying appellant's motions to compel production of documents.  We affirm.

FACTS

 

            Appellant Veronica Thomas was hired as a sales representative/telemarketer for respondent Coleman Enterprises in early May 1996.  The parties do not dispute that appellant's attendance and work performance were initially good.  By August 1996, she was raised to the highest level of compensation respondent offers, a $1,800 guaranteed base monthly salary plus a $6 commission for every sale in excess of her minimum quota of 310 sales.   Respondent offered two lower compensation levels:  a $1,400 base salary with a quota of 275 sales and a commissions-only plan for employees who are unable to achieve minimum sales quotas or do not want to work a regular full-time schedule.  Sometime during appellant's employment, respondent's sales manager, Denise Pettit, instituted a policy under which employees who failed to make the monthly quotas at their respective salary levels were, at Pettit's discretion, dropped to the next lowest pay level.  There was evidence offered that prior to appellant's termination, Pettit had dropped some employees' salary levels for failure to make their quotas.

            Appellant was involved in a car accident in October 1996 and during the ensuing months, her attendance and sales performance suffered.  Appellant did not meet her sales quotas in October 1996, November 1996, February 1997, or March 1997. 

            In late October or early November 1996, appellant disclosed her sexual orientation to respondent's payroll supervisor, Michaele Miller.  Shortly thereafter, in November 1996, appellant attended an after-hours social gathering with co-employees.  During the evening, they discussed stopping at a local bar known to cater to gay and lesbian clientele.  Pettit refused to go, stating that lesbians were "freaks" and she would not want a lesbian hitting on her.  Appellant claims these remarks offended her and caused her enormous anxiety and fear.  

            In early 1997, Miller asked appellant in Pettit's presence whether she was "still going out with Theresa," the name of appellant's former partner. Although there is no evidence that Pettit acknowledged, heard or in any way reacted to Miller's remark, appellant was upset at what she perceived to be Miller's disclosure of her sexual orientation to Pettit.

            Appellant's employment record reflects that she received a verbal warning for failure to make her sales quota for February 1997.  Sometime in February, Pettit rearranged the sales staff's seating assignments leaving appellant relatively isolated with empty desks next to her.  The record indicates Pettit had a practice of changing employee seating due to low productivity, but would normally rearrange the seating of the entire sales floor.

            In mid-February 1997, appellant had a conversation with Pettit in which they discussed a male employee who had been suspended for sexual harassment of a female employee named Jennifer.  Pettit remarked that Jennifer "is probably a lesbian, she probably doesn't like to sleep with men.  She is a freak."  Later that day appellant lodged a complaint with Miller concerning Pettit's remarks.  She asked Miller to report the comment to respondent's president and owner, Dan Coleman, without disclosing appellant's identity.  Miller spoke with Coleman about the matter, and he in turn admonished Pettit not to say "lesbian" on the sales floor because someone had been offended.

            Appellant missed several days of work in March 1997 following a second automobile accident.  A day or two after her return, Pettit informed appellant that pursuant to the policy she had instituted, appellant was being demoted to a lower salary level for failure to meet her sales quota in March.

            Appellant indicated that she did not want to go to the $1,400 level, and Pettit stated she would place appellant on the commissions-only pay scale.  Pettit does not recall the specific details of the conversation, but testified that while the normal policy was to drop an employee from the $1,800 to $1,400 level, some employees preferred to go from $1,800 directly to commissions only.

            Appellant terminated her employment on March 28, 1997, and stated in her written resignation letter that Pettit had treated her unfairly because of her sexual orientation.  She subsequently brought this claim for sexual orientation discrimination and reprisal.  The district court granted summary judgment for respondents on all of appellant's claims. 

D E C I S I O N

 

Summary judgment is appropriate when the record shows that there is no genuine issue as to any material fact and that one party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  To survive a motion for summary judgment, the nonmoving party "may not rest upon the mere averments or denials of [its] pleadings but must present specific facts showing that there is a genuine issue for trial."  Minn. R. Civ. P. 56.05.

On appeal, this court must view the evidence in the light most favorable to the party against whom judgment was granted and must accept as true the factual allegations made by that party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).    A court is not required to draw unreasonable inferences in order to save the nonmoving party.  City of Savage v. Varey, 358 N.W.2d 102, 105 (Minn. App. 1984), review denied (Minn.  Feb. 27, 1985).  This court will affirm a grant of summary judgment if it can be sustained on any ground.  Winkler v. Magnuson, 539 N.W.2d 821, 828 (Minn. App. 1995), review denied (Minn. Feb. 13, 1996).

I.

            Appellant argues that the district court erred by making credibility determinations and weighing facts when it granted summary judgment to respondent.  On a motion for summary judgment, the district court must not weigh the evidence or decide issues of fact; rather, its function is solely to determine whether genuine factual issues exist.  DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997).  But when determining whether a genuine issue of material fact for trial exists, the court is not required to ignore its conclusion that a particular piece of evidence may have no probative value, such that reasonable persons could not draw different conclusions from the evidence presented.  Id. at 71.

            Appellant first argues that the court erred by refusing to consider evidence of the anti-lesbian remark that Pettit made during the November 1996, after-hours social gathering.  We disagree.  Appellant presented no evidence that the gathering was a company-sponsored event.  An employer is not legally responsible for its employees' social activities outside the workplace.  Oslin v. State, 543 N.W.2d 408, 413 (Minn. App. 1996), review denied (Minn. Apr. 1, 1996).  Moreover, as the district court noted, the comment was not specifically directed at appellant and it predated Pettit's alleged awareness of appellant's sexual orientation.

            Appellant next argues that the district court improperly weighed evidence and made credibility determinations when it refused to consider certain comments that Pettit and Coleman allegedly made in the presence of Miller.  We disagree.  Appellant cannot base factual allegations on secondhand reports she received from Miller.  Neither party was able to locate Miller during this proceeding and appellant has offered no additional evidence to corroborate Miller's allegations.  Pettit and Coleman both deny making the comments that appellant claims Miller attributed to them.

            Contrary to appellant's assertion, the district court's decision did not involve credibility determinations.  Appellant's testimony concerning reports that Miller made to her about things that Pettit and Coleman said or did, but which appellant never heard or saw, is double hearsay. "Evidence offered to support or defeat a motion for summary judgment must be such evidence as would be admissible at trial."  Hopkins by LaFontaine v. Empire Fire & Marine Ins. Co., 474 N.W.2d 209, 212 (Minn. App. 1991) (citing Murphy v. Country House, Inc., 307 Minn. 344, 349, 240 N.W.2d 507, 511 (1976) (holding hearsay statements in an affidavit insufficient to create factual issue that would bar summary judgment motion)).   We reject appellant's suggestion, made for the first time in her reply brief, that these secondhand reports may fall under various exceptions to the hearsay rule.  Issues not raised or argued in appellant's brief cannot be advanced in a reply brief.  McIntire v. State, Minn. Hous. Fin. Agency, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990).  The court properly refused to consider appellant's allegations based on inadmissible evidence.

II.

            The district court refused to consider appellant's claim of sexual orientation harassment because her complaint failed to expressly plead or provide sufficient notice of the grounds upon which she based the claim.  See Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997) (noting primary function of notice pleading is to give adverse party notice of theory on which claims are based).  Appellant argues that her complaint adequately asserted that harassment was one of the ways in which respondent discriminated against her in the terms and conditions of her employment.

            But as the district court correctly noted, in contrast to a claim of sexual harassment, the Minnesota Human Rights Act (MHRA) does not expressly include a claim for "sexual orientation harassment" as a subset of "sexual orientation discrimination."  Under the MHRA's definitions, "the term ‘discriminate' includes segregate or separate and, for purposes of discrimination based on sex, it includes sexual harassment."  Minn. Stat. § 363.01, subd. 14 (1998) (emphasis added).  Nonetheless, the MHRA's prohibitions on discrimination have been interpreted to include harassment that creates a hostile working environment in contexts other than discrimination based on sex.  See, e.g., Williams v. Metropolitan Waste Control Comm'n, 781 F. Supp. 1424, 1426 (D. Minn. 1992) (applying theory of racial harassment causing a hostile work environment); Hanke v. Safari Hair Adventure, 512 N.W.2d 614, 616-17, 617 n.1 (Minn. App. 1994) (holding sexual orientation harassment constitutes good cause to quit under reemployment insurance statutes; noting that MHRA's prohibition of sexual orientation harassment "evidence[s] legislative concern with vulnerabilities and rights of gays and lesbians").

            Separate from the question of whether Minnesota should recognize a claim for sexual orientation harassment is whether appellant has demonstrated a prima facie case.  To establish a prima facie case under the hostile work environment theory, appellant's burden is to show, among other elements, that she was subjected to unwelcome harassment that "had the purpose or effect of unreasonably interfering with the terms, conditions, or privileges of [her] employment."  Williams, 781 F. Supp. at 1426 (citations omitted).  We conclude that even if appellant's pleadings are sufficient, appellant has not met her burden of establishing a prima facie case of sexual orientation harassment under a hostile work environment theory.

            Whether harassment is sufficiently severe to constitute discrimination must be determined based on the totality of the circumstances, including examination of the "nature, frequency, intensity, location, context, duration, and object or target" of the conduct.  Klink v. Ramsey County by Zacharias, 397 N.W.2d 894, 901 (Minn. App. 1986) (addressing sexual harassment), review denied (Minn. Feb. 13, 1987), abrogated on other grounds by Cummings v. Koehnen, 568 N.W.2d 418 (Minn. 1997).  Pettit's verbal conduct, although objectionable, does not rise to actionable harassment as a matter of law.  Pettit made only two comments about lesbians in appellant's presence.  The first was made during the November 1996 after-work social gathering and is inadmissible.  The second was the February 1997 remark by Pettit regarding Jennifer that prompted appellant's complaint to Miller.  While this remark was insensitive and offensive, it does not constitute actionable harassment, especially since Pettit did not personally direct the remark at appellant.  A hostile work environment claim fails where the discriminatory acts are against others, not against the plaintiff.  Childress v. City of Richmond, Va., 134 F.3d 1205, 1207 (4th Cir. 1998).

            In the context of sexual harassment, not every sexual comment made in the workplace creates an action for sexual harassment, and foul language and vulgar behavior do not rise to the level of sexual harassment.  Cummings, 568 N.W.2d 418 at 424.  The Supreme Court has recently confirmed that in order to justify a sexual harassment action under Title VII, "conduct must be extreme to amount to a change in the terms and conditions of employment."  Faragher v. City of Boca Raton, 524 U.S. 775, ___, 118 S. Ct. 2275, 2284 (1998).  Here, a disparaging, anti-lesbian remark not directed at appellant does not rise to the level of actionable sexual orientation harassment.  We therefore affirm the district court's dismissal of appellant's claim of sexual orientation harassment.

III.

            Under the MHRA, an employer may not discharge or discriminate against an employee with respect to terms and conditions of employment based on sexual orientation.   Minn. Stat. § 363.03, subd. 1(2) (1998).  To determine whether a violation of the MHRA has occurred, Minnesota courts use the three-part McDonnell Douglas burden-shifting framework.  Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 441 (Minn. 1983) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)).  The employee has the initial burden of establishing a prima facie case of discrimination.  Hubbard, 330 N.W.2d at 441 n.12.  The burden then shifts to the employer to articulate a legitimate and nondiscriminatory reason for the adverse employment action.  Id. at 441-42 n.12.  If the employer does so, the burden shifts back to the employee to show that the employer's proffered reason was a pretext for discrimination.  Id. at 442 n.12.  Under the McDonnell Douglas framework, summary judgment is appropriate if an employee fails to present a prima facie case of employment discrimination.  Albertson v. FMC Corp., 437 N.W.2d 113, 116 (Minn. App. 1989).   Summary judgment is also appropriate if a plaintiff, having established a prima facie case of discrimination, fails to provide evidence that the employer's proffered reasons for its employment decision were a pretext for discrimination.  Id. at 116.

            In order to present a prima facie case, appellant must show that:  (1) she is a member of a protected class; (2) she sought and was qualified for opportunities that were available to others; (3) despite her qualifications, she was denied these opportunities; and (4) after the denial, the opportunities remained available or were given to other persons with qualifications equivalent to hers.  Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986).  The crux of a disparate treatment claim is that an employer has treated the employee less favorably than other employees because of an impermissible classification.  Hubbard, 330 N.W.2d at 442.

            The district court determined that appellant failed to present a prima facie case of discrimination because she was unable to show Pettit treated her differently from other employees due to her sexual orientation.  Specifically, the court concluded that Pettit could not have engaged in discrimination because appellant presented no evidence establishing Pettit was even aware of appellant's sexual orientation.  

            Appellant contends the court erred because the court was required to infer that Miller effectively "outed" appellant to Pettit when she asked whether appellant was "still going out with Theresa."  But the district court refused to make this inference determining that "going out" can imply a broad range of activities that have nothing to do with dating.  We are similarly unconvinced that the inference appellant urges is reasonable.  See Varey, 358 N.W.2d at 105 (stating that court is not required to draw unreasonable inferences to save nonmoving party).  It is largely speculative that Miller's single, isolated comment alerted Pettit to appellant's sexual orientation, especially absent any other evidence suggesting that Pettit suspected as much.  At most, Miller's remark creates only a "metaphysical doubt" about Pettit's knowledge, and that is insufficient to raise a genuine factual issue.   See DLH,  566 N.W.2d at 71.

            Moreover, even if the inference were reasonable, appellant's claim fails.  Respondent offered a legitimate, nondiscriminatory reason for reducing appellant's pay and changing her seating assignment, namely, her inadequate job performance.    Appellant does not dispute that she had unexcused absences and did not make her sales quotas twice in 1996 or in February or March of 1997.  She offers no evidence that suggests respondent's reasons for decreasing her pay were pretextual.  The record reflects that Pettit gave written warnings and reduced the pay of other employees for failure to make quotas.   Appellant admitted she was aware that respondent had a pay reduction policy, although it does not appear to have been in writing prior to appellant's termination.

            Finally, appellant has not identified any employee who was treated differently than she was despite poor performance.  She cites one occasion when Pettit did not reduce the pay of an employee who did not make her monthly quota, but Pettit showed similar leniency to appellant when she failed to make her quota during February 1997.  It was only after appellant failed to make quota for the second month in succession that Pettit reduced appellant's pay.  Although Pettit admits that her application of the pay reduction policy was discretionary, appellant presents no evidence to suggest Pettit's exercise of that discretion was motivated by anti-lesbian animus.  In the absence of any evidence of pretext, the district court did not err in granting summary judgment on appellant's claim of sexual orientation discrimination.

IV.

Appellant contends the district court erred in granting summary judgment on her claim of reprisal.  The MHRA prohibits intentional reprisal against an employee who has engaged in statutorily protected activity, including filing a discrimination complaint.  Minn. Stat. § 363.03, subd. 7 (1998).  To establish a prima case of discriminatory reprisal, appellant must show by a preponderance of the evidence:  (1) she engaged in statutorily protected conduct; (2) respondent engaged in adverse employment action; and (3) a causal connection existed between the two.  Hubbard, 330 N.W.2d at 444.  In circumstances where the employer had knowledge and the adverse action followed closely in time, a causal connection may be established by inference.  Id. at 445.   

Appellant argues that respondent engaged in reprisal by changing her seating arrangement and changing her pay status after she complained to Miller about Pettit's "Jennifer" comment.  We disagree.  Appellant's reprisal claim must fail for the same reason that her discrimination claim fails:  she has offered no evidence to show that Pettit even knew of her sexual orientation, much less that Pettit knew appellant was the complainant and changed her pay status as a result of such knowledge.  Appellant has not established a causal connection between her protected action and her adverse employment action, and has therefore failed to meet her burden of presenting a prima facie case of reprisal.  Moreover, as with appellant's discrimination claim, even if we assume that Pettit knew of appellant's sexual orientation, the reprisal claim fails because appellant has not established that respondent's justification for reducing appellant's pay was a pretext for sexual orientation discrimination.

V.

Finally, appellant argues that the district court abused its discretion in denying her motion to compel respondent's production of additional employee records and for sanctions for spoliation of evidence.  We disagree.  The district court has broad discretion to grant or deny discovery requests.  Connolly v. Commissioner of Pub. Safety, 373 N.W.2d 352, 354 (Minn. App. 1985).  A reviewing court will not overturn the district court's decision absent an abuse of discretion.  Id.  Appellant claims that additional documents must exist, while respondent counters that it has produced everything in its possession and that it has not destroyed records.  The dispute essentially required that the district court make a credibility determination concerning the representations of respondent's counsel that no additional documents exist.   We conclude that nothing in the record indicates the court's denial of appellant's motion based on this credibility determination was an abuse of its broad discretion with respect to discovery matters. 

Affirmed.