Suzanne M. Donnelly, Appellant, vs. Independent School District 199, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002)

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1774

 

 

Suzanne M. Donnelly,

Appellant,

 

vs.

 

Independent School District 199,

Respondent.

 

 

Filed August 10, 2004 Affirmed Parker, Judge*

 

 

Dakota County District Court

File No. C2-02-9073

 

 

Sonja Dunnwald Peterson, Dunnwald & Peterson, P.A., 1150E Grain Exchange Building, 412 South Fourth Street, Minneapolis, MN 55415 (for appellant)

 

Stephen G. Andersen, Sonya J. Guggemos, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondent)

 

            Considered and decided by Anderson, Presiding Judge; Peterson, Judge; and Parker, Judge.

U N P U B L I S H E D  O P I N I O N

 

PARKER, Judge

 

Appellant argues that the district court erred in granting judgment in favor of respondent and dismissing her MHRA sexual harassment and reprisal discrimination claims, and that genuine issues of material fact precluded summary judgment on her assault claim.  Because the district court did not err in its application of law to the MHRA claims and there are no genuine issues of material fact as to the assault claim, we affirm.

D E C I S I O N

1.         MHRA Sexual Harassment Claim

Appellant Suzanne Donnelly argues that the district court erred in concluding that she failed to present evidence sufficient to establish a prima facie case under the Minnesota Human Rights Act (MHRA) for her sexual harassment claim against respondent Independent School District 199.  An appeal from a district court's judgment on claims brought under the MHRA involves statutory interpretation and is a question of law subject to de novo review.  Hince v. O'Keefe, 632 N.W.2d 577, 582 (Minn. 2001).  The MHRA provides that it is an unfair discriminatory practice for an employer "to discriminate against a person with respect to hiring, tenure, compensation, . . . or privileges of employment" on the basis of sex.  Minn. Stat. § 363 A. 08, subd. 2(c) (Supp. 2003).  Sexual harassment is a form of sex discrimination prohibited under the MHRA.  Minn. Stat. § 363 A. 03, subd. 13 (Supp. 2003); Bersie v. Zycad Corp., 399 N.W.2d 141, 145 (Minn. App. 1987). 

Sexual harassment

includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when . . . that conduct or communication has the purpose or effect of substantially interfering with an individual's employment, . . . or creating an intimidating, hostile or offensive employment . . . environment.

 

Minn. Stat. § 363 A. 03, subd. 43 (Supp. 2003).  To establish a prima facie case of sexual harassment based on hostile work environment, a plaintiff must show (1) the conduct is unwelcome, (2) the conduct consists of "sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature," (3) the conduct is sufficiently pervasive so as to substantially interfere with the plaintiff's employment or to create a hostile, intimidating or offensive work environment, and (4) "that the employer knows or should know of the existence of the harassment and fails to take timely and appropriate action."  Minn. Stat. § 363 A. 03, subd. 43; Cummings v. Koehnen, 568 N.W.2d 418, 424 (Minn. 1997).  This is a high threshold.  Id.

The MHRA does not require that a plaintiff must always show the conduct was motivated by an actual interest in sexual activity with the plaintiff; rather, "sexual harassment can include any verbal or physical conduct or communication of a sexual nature that has the effect of substantially interfering with the plaintiff's employment or of creating a hostile work environment."  Id. (citation and quotation omitted).  But an employer does not have to maintain a pristine work environment. Bougie v. Sibley Manor, Inc., 504 N.W.2d 493, 499 (Minn. App. 1993).

The parties do not dispute that Donnelly worked with Cathy Kimble, cook manager, and Terry Tait, head custodian, and that Kimble and Tait had an extra-marital affair.   The record supports the district court's finding that Donnelly

never complained to [respondent] that Kimble and Tait were engaging in inappropriate conduct in her presence or otherwise subjecting [Donnelly] to unwelcome communication of a sexual nature.  [Donnelly] reported that Kimble and Tait were involved in an affair, were spending too much time together and that [Donnelly] was forced to do much of Kimble's work because Kimble was spending time with Tait.  There is no evidence that [Donnelly] ever complained that the affair was offensive to [Donnelly] and there was no basis for [respondent] to conclude that [Donnelly's] complaints about having to do Kimble's work involved sexual harassment.  [Donnelly's] complaint was focused on [Donnelly] having to do Kimble's work because Kimble was spending time with Tait, not on any sexual conduct or other inappropriate conduct by Kimble and Tait.

 

The evidence that the affair was generally suspected by many employees at Salem Hills School and the subject of widespread rumors, does not create an obligation to commence an investigation or compel a conclusion that sexual harassment was involved.

 

Donnelly has the burden to show that the employer knew or should have known of the existence of the harassment and failed to take timely and appropriate action.  But Donnelly reported only her increased workload.  The record does not establish that Donnelly reported information that would show respondent knew sexual harassment was involved.  Nor was the information of Kimble and Tait's affair sufficient to show respondent should have known sexual harassment existed.  The record shows that Donnelly was subject to observable conduct such as Kimble placing her hand inside the leg of Tait's shorts and fondling Tait's genital area, and that Kimble called Donnelly's attention to this.  But such conduct without a report to respondent is insufficient to support an MHRA claim.  In addition, when Donnelly informed respondent on December 12, 2002, that she could no longer work at Salem Hills because of the relationship between Kimble and Tait, respondent initiated a timely investigation and took appropriate remedial action.  We conclude that the district court correctly determined that Donnelly failed to establish a prima facie case in her claim of sexual harassment under the MHRA. 

2.         MHRA Reprisal Claim

The MHRA provides that

[i]t is an unfair discriminatory practice for any individual who participated in the alleged discrimination as a perpetrator, employer, . . . educational institution, . . . or employee or agent thereof to intentionally engage in any reprisal against any person because that person:

 

. . . [H]as filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this chapter.

 

Minn. Stat. § 363A.15(1) (Supp. 2003).  "A reprisal includes, but is not limited to, any form of intimidation, retaliation, or harassment."  Minn. Stat. § 363A.15(2) (Supp. 2003).  MHRA reprisal claims are analyzed under the McDonnell-Douglas burden-shifting test.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).  To establish a prima facie case of reprisal, a plaintiff must show by a preponderance of the evidence that (1) she engaged in statutorily protected conduct, (2) she suffered an adverse employment action, and (3) there existed a causal connection between the two.  Id.  Summary judgment is appropriate against a party who fails to establish the existence of an element essential to its case.  Benassi v. Back & Neck Pain Clinic, Inc., 629 N.W.2d 475, 481 (Minn. App. 2001), review denied (Minn. Sept. 11, 2001).

Because Donnelly complained only of the increased workload and failed to report the underlying cause, she did not engage in statutorily protected conduct, and she fails to establish the existence of an element essential to a claim of reprisal.

3.         Summary Judgment on Assault Claim

Donnelly argues that the district court erred in granting summary judgment in favor of respondent because there are genuine issues of material fact on her assault claim and that ample facts exist to establish her claim against respondent under a theory of respondeat superior.  On appeal from summary judgment, we must examine two questions: whether there are any genuine issues of material fact, and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  An appellate court must view the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

An assault is an unlawful threat to do bodily harm to another with present ability to carry the threat into effect.  Mere words or threats alone do not constitute assault.  When the words or threats are accompanied by a threat of physical violence under conditions indicating present ability to carry out the threat, they cease to be mere words or threats.  The display of force must be such as to cause the plaintiff reasonable apprehension of immediate bodily harm.  Evidence that the party charged exhibited anger, used violent language, and threatened to strike another while in the party's presence under circumstances indicating a present ability to carry out the threats is sufficient to show an assault.

 

Dahlin v. Fraser, 206 Minn. 476, 478, 288 N.W. 851, 852 (1939)(emphasis added).

It is undisputed that on December 12, when Donnelly was in the kitchen with Kimble, Kimble closed the doors and serving window of the kitchen and began to yell at Donnelly telling her "[i]t must be pretty damn bad here if you are applying at Cahill Court," "You are not a friend, you are nothing but a back stabbing bitch," and "I can't believe you would do this to me."  Kimble approached Donnelly in an "aggressive manner," and Donnelly left the building to get away from Kimble and got into her car.  Kimble followed Donnelly out of the building.  Thus, there are no genuine issues of material fact.

Although Donnelly argues that she "reasonab[ly] believed that Kimble was going to hit her or physically hurt her[,]" the record does not support a reasonable belief that the display of force was such as to cause Donnelly a reasonable apprehension of immediate bodily harm.  The facts show that angry language was used and Kimble approached Donnelly in an "aggressive manner," but do not show that there was a threat to strike or a threat to commit bodily harm, and thus, the necessary elements to establish assault are not present.  Because there is no evidence to support a claim of assault, we need not reach the issue of respondent's liability for an assault under a theory of respondeat superior.  We hold that the district court did not err in granting summary judgment on the assault claim.

Affirmed.

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