This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Charlotte Myers,


State of Minnesota,

Filed January 4, 2000
Affirmed in part and reversed in part
Willis, Judge
Dissenting, Short, Judge

Dodge County District Court
File No. CX97221

William L. French, 627 Woodhaven Ct. N.E., P.O. Box 6323, Rochester, MN 55903 (for appellant)

Mike Hatch, Attorney General, Timothy D. Webb, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Short, Presiding Judge, Willis, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Charlotte Myers challenges the judgment of the district court granting respondent's motion to dismiss and motion for summary judgment on her claims of sexual harassment and reprisal discrimination in violation of the Minnesota Human Rights Act. We affirm in part and reverse in part.


In May 1995, appellant was hired by the Minnesota Department of Transportation (MnDOT) as a temporary summer laborer in Dodge Center. Appellant alleges that during her employment she was repeatedly sexually harassed. Appellant resigned from her position on October 2, 1995, due to the alleged sexual harassment, and on October 25, 1995, she filed a discrimination report with respondent.

Appellant was again hired by MnDOT to work in Ada, where she was employed from December 27, 1995, until MnDOT terminated her employment on February 28, 1996, while she was on disability leave for irritable-bowel syndrome, which her doctor attributed to job stress. Appellant admits that she never told anyone in MnDOT's Ada facility about her sexual-harassment complaint in Dodge Center. And Terry Sorenson, appellant's supervisor in Ada, testified that he did not know of any such complaint by appellant until just before his deposition in this matter. Sorenson testified that appellant was terminated for poor performance. Appellant claims that she was terminated in retaliation for filing the discrimination report in Dodge Center.

In April 1997, appellant filed a lawsuit against respondent, alleging sexual harassment, retaliatory discharge, and failure to accommodate her disability of irritable-bowel syndrome. During the course of this lawsuit, respondent served a set of interrogatories on appellant, which she did not answer. The district court ordered appellant to answer the interrogatories fully; appellant served answers to the interrogatories within the time specified by the court. But respondent moved for summary judgment and, alternatively, for dismissal of appellant's case for her alleged failure to comply with the district court's discovery order. The district court deemed appellant's answers incomplete, found her omissions were in bad faith, and dismissed her lawsuit for failure to comply with the court's order. In addition, the district court granted summary judgment on appellant's claims of harassment, reprisal, and failure to make a reasonable accommodation. This appeal followed.[1]


I. Summary Judgment on Appellant's Sexual Harassment Claim

On appeal from summary judgment we must determine if there are 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). The evidence must be viewed in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). It is well established that "Minnesota courts look to principles and interpretations of federal Title VII cases when construing the MHRA." Costilla v. State, 571 N.W.2d 587, 591 (Minn. App. 1997), review denied (Minn. Jan. 28, 1998).

To survive summary judgment, appellant must show a prima facie case of harassment by proving the "`bare essentials' of discrimination or harassment, merely `sufficient' evidence to create the inference of unequal treatment." Bersie v. Zycad Corp., 399 N.W.2d 141, 145 (Minn. App. 1987) (quoting Danz v. Jones, 263 N.W.2d 395, 399-400 (Minn. 1978)). The elements for a prima facie case of hostile- environment sexual harassment are: (1) the employee belongs to a protected group, (2) the employee was subjected to unwelcome sexual harassment, (3) the harassment was based on sex, (4) the harassment affected a term, condition, or privilege of employment, and (5) the employer knew or should have known of the harassment and failed to take timely and appropriate remedial action. Costilla, 571 N.W.2d at 595; see Minn. Stat. § 363.01, subd. 41 (1998). Appellant challenges the district court's conclusion that she failed to prove the second and fifth elements of her prima facie case.

A. Whether Appellant Was Subjected to Unwelcome Sexual Advances

The district court concluded that appellant's prima facie case was flawed because she presented no evidence suggesting that the harassment she experienced was unwelcome. In its memorandum, the district court made only the following finding on this issue:

[t]he evidence shows that [appellant] herself frequently used profanities and engaged in vulgar behavior. There is no indication that the alleged conduct was unwelcome and offensive. In fact, it seems that plaintiff engaged in similar acts which she now claims were harassing to her.

Conduct is unwelcome where "the employee did not solicit or incite it, and the employee regarded the conduct as undesirable or offensive." Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559, 565 (8th Cir. 1992) (citation omitted). Women's "use of foul language or sexual innuendo in a consensual setting does not waive [their] legal protections against unwelcome harassment." Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 963 (8th Cir. 1993) (citations and quotation omitted); Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 883 (D. Minn. 1993). While the record reflects that appellant engaged in some vulgar behavior, the evidence also establishes that the harassment directed at appellant was unwelcome. Appellant testified that she made repeated oral complaints, reacted negatively to co-workers who harassed her, and resigned due to sexual harassment.

B. Whether Respondent Knew of the Harassment and Took Timely and Appropriate Action

The district court concluded that appellant was unable to establish a prima facie case of sexual harassment. The district court found that even if appellant could make a showing of harassment, she could not show that respondent was aware of it but failed to take timely and appropriate action. But the record does not support this conclusion. Appellant testified that she complained to her supervisors, Jim Johnson and Dale Fleming, about sexual harassment, but no effective measures were taken in response to her complaints.

Respondent argues that the district court properly disregarded the statements in appellant's affidavit because they contradicted her prior deposition testimony.[2] See generally Banbury v. Omnitrition, Int'l, Inc., 533 N.W.2d 876, 881 (Minn. App. 1995) (holding that affidavit contradicting prior sworn testimony does not create issue of material fact sufficient to defeat a summary judgment motion). But even if the district court disregarded certain statements in appellant's affidavit that contradict her deposition testimony, appellant's affidavit and deposition testimony create a genuine issue of material fact as to whether Johnson and Fleming knew about the harassment but failed to take timely and appropriate remedial action.

1. Knowledge

Appellant testified that she reported the following incidents: (1) shortly after appellant started work, Terry Picha, a co-employee, asked her if she needed "some vaseline or hair around that," referring to a slot on a sign trailer into which they were putting signs; (2) a few days later, Picha grabbed the sides of appellant's head with both of his hands and forcibly pulled her head to his groin while she was squatting down to hook a chain on the sign trailer; (3) appellant reported Picha's assault on her and asked Fleming if she could be transferred, but he refused ; (4) while she was in a truck eating lunch with Picha and two male laborers, Picha displayed a photograph of a nude woman from a pornographic magazine and made vulgar comments to her; (5) Duane Tesch, a co-employee, twice walked into the unisex bathroom, which had no lock, as appellant occupied the stall, and proceeded to use the urinal; (6) Tesch grabbed appellant's thigh while they were driving to lunch; (7) Dennis Distad, a co-employee, told her several times that "women should stay home where they belong," and he often told her what to do even though he was not her supervisor; (8) on October 2, 1995, the day of her resignation, Distad told her that if she made any more complaints about him she "had better find a hole to hide in." In addition to her own testimony, appellant offered the deposition testimony of co-employee DeWayne Cotten. Cotten testified that management knew of the vulgar language directed at Myers and of the presence of pornographic magazines in the workplace.

The district court also found that

[o]n the few incidents which plaintiff did report to her supervisor, remedial action was taken to cure any perceived harassment. A lock was installed on the bathroom door at [appellant's] request and action was taken after [appellant] reported that she was shown pornographic pictures at work. As to any other incidents, the evidence shows that [appellant] did not report them, even though she was aware of MnDOT's sexual harassment policy and the necessity of reporting.

But the statute does not require a report, it only requires a showing of knowledge of the harassment by the employer. Minn. Stat. § 363.01, subd. 41(3). An employer may be found to have knowledge or imputed knowledge of harassment when an employee communicates the problem to her supervisor. See Kay v. Peter Motor Co., 483 N.W.2d 481, 484 (Minn. App. 1992). Appellant testified that she repeatedly made oral reports to Johnson and Fleming. While respondent denies having received most of appellant's oral reports, the district court must accept as true the view of the evidence most favorable to the nonmoving party and may not "simply accept as true the testimony of interested witnesses where that testimony is challenged by the party against whom summary judgment was granted." Singh v. State Farm Mut. Auto. Ins. Co., 523 N.W.2d 348, 350 (Minn. App. 1994). Material issues of fact exist on this issue.

2. Remedial Action

The district court concluded that because a lock was installed on the bathroom and because "action was taken" after Picha showed plaintiff a pornographic magazine, she could not show that respondent failed to take "remedial action." It is not enough, however, that remedial action is taken; the action must be "timely and appropriate." Minn. Stat. § 363.01, subd. 41(3). Once an employer knows of hostile-environment harassment, the employer must take prompt remedial action reasonably calculated to end the harassment. Barrett v. Omaha Nat'l Bank, 726 F.2d 424, 427 (8th Cir. 1984); Fore v. Health Dimensions, Inc., 509 N.W.2d 557, 561 (Minn. App. 1993). Appellant testified that she began reporting harassment shortly after her employment began in May 1995 and that she continued to make reports until she resigned in October 1995. Based on appellant's testimony, the action taken by respondent did not end the reported harassment. The sufficiency of an employer's remedial response depends on the circumstances of each case, including the gravity of the harassment at issue. See Fore, 509 N.W.2d at 561. An employer's mere expression of disapproval is not sufficient to meet its remedial obligations. The employer must impose some discipline on the harasser and the discipline must be progressive for repeated violations. See Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1327 (8th Cir. 1994); McNabb v. Cub Foods, 352 N.W.2d 378, 384 (Minn. 1984). Appellant testified that while Johnson often said he would "talk" to the harassers, she is not aware of any discipline imposed on any of the individuals whom she reported. And respondents offered no evidence of any such discipline. The record amply demonstrates that appellant established a prima facie case of harassment, which must be submitted to the trier of fact.

II. Summary Judgment on Appellant's Reprisal Claim

Appellant claims that she was terminated from her employment in Ada because of the sexual-harassment complaint she filed against MnDOT in Dodge Center. To establish a prima facie case of reprisal, appellant must establish that: (1) she engaged in statutorily-protected conduct, (2) the employer took adverse employment action against the employee, and (3) a causal connection exists between the protected conduct and the employer's action. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444 (Minn. 1983). 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.

The district court found that appellant engaged in protected activity by filing the sexual-harassment complaint and that appellant suffered adverse employment action because she was terminated. But the court concluded that she failed to establish a prima facie case of reprisal because she could not establish a causal connection between the filing of her complaint and her termination.

Appellant admits that she did not tell anyone in Ada about her prior sexual- harassment complaint. And appellant's supervisor in Ada testified that he was not aware of her prior employment with MnDOT. Appellant cannot show that anyone in Ada was aware of the complaint that she filed in Dodge Center. And respondent has presented evidence that plaintiff was terminated due to poor job performance.

The only direct evidence of causation presented by appellant is a comment that she overheard, shortly after she started work in Ada, that she was "not going to be around long." Even if taken as true, this statement does not establish that appellant was terminated because of the complaint filed in Dodge Center. Moreover, the record shows that appellant was hired by MnDOT, Ada, two months after she filed a sexual- harassment complaint with MnDOT, Dodge Center, and she was terminated four months after she filed the complaint. Under the circumstances, a causal connection has not been established and cannot be inferred. We affirm summary judgment on appellant's reprisal claim.

III. Dismissal of Appellant's Case

On May 29, 1997, respondent served interrogatories on appellant. Appellant did not respond, and on July 29, 1997, respondent moved the court to compel answers. The district court granted respondent's motion and ordered appellant to provide "complete answers" by October 1, 1997. Appellant served answers to the interrogatories on September 30, 1997, but the district court deemed the answers "extremely incomplete." Respondent's investigation and deposition of appellant revealed that appellant failed to disclose several previous employers, including some who terminated appellant's employment. Appellant also failed to mention other lawsuits in which she was involved. The district court attributed the omissions to bad faith and dismissed appellant's action pursuant to Minn. R. Civ. P. 37.02(b)(3). Appellant argues that the district court abused its discretion by dismissing her case.

Rule 37.02 authorizes the imposition of sanctions, including dismissal, for failure to comply with a discovery order. Minn. R. Civ. P. 37.02(b)(3). The district court's dismissal of an action on procedural grounds will be reversed on appeal only if it is shown that the district court abused its discretion. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1984). Two competing policies must be considered when determining whether to grant a motion to dismiss on procedural grounds. On the one hand,

a broad measure of discretion must be left to trial judges to enforce calendar rules, to prevent unnecessary and inexcusable delays, and to promote the public interest in keeping court dockets free of stale claims.

Firoved v. General Motors Corp., 277 Minn. 278, 284, 152 N.W.2d 364, 369 (1967). On the other hand,

an order of dismissal on procedural grounds runs counter to the primary objective of the law to dispose of cases on the merits. Since a dismissal with prejudice operates as an adjudication on the merits, it is the most punitive sanction which can be imposed for noncompliance with the rules or order of the court * * * . It should therefore be granted only under exceptional circumstances. The primary factor to be considered in determining whether to grant a dismissal with or without prejudice is the prejudicial effect of the order upon the parties to the action, although under extraordinary circumstances a dismissal with prejudice might be justified even though no prejudice to defendant is shown. Obviously, the prejudice to the plaintiff of such a dismissal is certain and usually permanent.

Id. at 283, 152 N.W.2d at 368; Jadwin v. City of Dayton, 379 N.W.2d 194, 196 (Minn. App. 1985) (quoting Housing and Redevelopment Auth. of St. Paul v. Kotlar, 352 N.W.2d 497, 499 (Minn. App. 1984)).

Minnesota case law has established that an order compelling discovery should contain: "(1) a date certain by which compliance is required, and (2) a warning of potential sanctions for non-compliance." Jadwin, 379 N.W.2d at 196 (citing Beal v. Reinerston, 298 Minn. 542, 215 N.W.2d 57 (1974)); Bio-Line, Inc. v. Wilfley, 365 N.W.2d 338 (Minn. App. 1985) (granting writ of prohibition to prevent entry of default judgment where district court dismissed action without warning and did not order a date certain by which party had to submit to deposition), review denied (Minn. July 26, 1985); cf. Kielsa v. St. John's Lutheran Hosp. Assoc., 287 Minn. 187, 177 N.W.2d 420 (1970) (affirming dismissal with prejudice where court warned plaintiff of dismissal as sanction for failure to comply with discovery order); Williams v. Grand Lodge of Freemasonry, 355 N.W.2d 477, 479-80 (Minn. App. 1984) (affirming dismissal of complaint where plaintiff was aware of potential consequences and had been previously warned by district court), review denied (Minn. Dec. 20, 1984). Minnesota case law also emphasizes that the moving party must show prejudice to justify imposition of such a harsh sanction. Jadwin, 379 N.W.2d at 197; Kotlar, 352 N.W.2d at 500 (affirming dismissal where defendant showed both failure by plaintiff to produce documents by court-ordered deadline and prejudice).

In the case before us, the order mandates compliance within a specified time but does not warn of potential sanctions. A clear warning by the district court that dismissal will result if the party does not comply with a discovery order is a significant factor in determining whether such a sanction was appropriate. Sudheimer v. Sudheimer, 372 N.W.2d 792, 795 (Minn. App. 1985) (citations omitted). Here, no such warning was given. And respondent could not show prejudice because, before the close of discovery, it discovered the information it was seeking through its investigation and from appellant during her deposition. We do not condone appellant's actions, but in view of well-established case law, the district court abused its discretion in dismissing appellant's case absent a warning of the sanction to be imposed and absent a showing by respondent of prejudice.

Affirmed in part and reversed in part.


SHORT, Judge (dissenting).

I respectfully dissent. The trial court did not abuse its discretion in dismissing Myers's lawsuit for willful, flagrant, and bad faith noncompliance with a discovery order. See Minn. R. Civ. P. 37.02 (b)(3) (permitting trial court to dismiss action where party fails to obey order to provide discovery); R & L Lumber Co. v. Summit Fidelity & Sur. Co., 284 Minn. 489, 496, 170 N.W.2d 594, 599 (1969) (recognizing rule allows trial court to dismiss party's claim upon willful failure to answer interrogatories); see also Note, The Emerging Deterrence Orientation in the Imposition of Discovery Sanctions, 91 HARV. L. REV. 1033 (1978) (noting Fed. R. Civ. P. 37 provides outright dismissal of claims as sanction to deter disobedience of discovery orders). Rule 37 does not require that the discovery order identify the sanction in order to permit the imposition of a sanction. 1A David F. Herr & Roger S. Haydock, Minnesota Practice § 37.7 (3d ed. 1998). Moreover, making prejudice a condition precedent to the imposition of a sanction prevents the use of sanctions to deter discovery misconduct. Id. § 37.9.

Here, this record demonstrates: (1) the trial court found Myers acted in bad faith and that her answers were "extremely incomplete" and contained material omissions; (2) in response to an interrogatory asking for a list of employers and reasons for separation, Myers failed to disclose four former employers who terminated her for poor job performance, and eight other previous employers; (3) in response to an interrogatory asking for a list of every legal proceeding in which she was a party or witness, Myers failed to disclose three of five lawsuits where she was a party; (4) Myers refused to pay court-ordered costs and attorney fees of $250; and (5) for over one year, Myers failed to supplement those incomplete and misleading answers. Under these circumstances, I cannot say the trial court abused its discretion in dismissing Myers's lawsuit. I would affirm.


[1] Myers did not appeal from the dismissal and grant of summary judgment on her claim that MnDOT failed to make a reasonable accommodation for her disability.

[2] Appellant's deposition was taken on January 6, 1997, and her affidavit is dated October 20, 1998.