This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).








Lucy Murnane,





Aitkin County,




Filed August 14, 2001

Reversed and remanded

Parker, Judge*



Aitkin County District Court

File No. CX98612



Gregg M. Corwin, Jennifer J. Duchscherer, Gregg M. Corwin & Associates Law Office, P.C., 508 East Parkdale Plaza Building, 1660 South Highway 100, St. Louis Park, MN 55416 (for appellant)


James R. Andreen, Erstad & Riemer, P.A., 1000 Northland Plaza, 3800 West 80th Street, Minneapolis, MN 55431 (for respondent)


            Considered and decided by Toussaint, Chief Judge, Schumacher, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N



In this age discrimination action, appellant Lucy Murnane sued her former employer, respondent Aitkin County, alleging a hostile work environment and constructive discharge.  The district court granted summary judgment for respondent. Because appellant produced sufficient evidence to create genuine issues of material fact on her claim of age discrimination, we reverse.


 On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court misapplied the lawState by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Summary judgment is appropriate when a plaintiff fails to establish a prima facie case of age discrimination.  Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 326 (Minn. 1995).  But summary judgment is not intended as a substitute for trial and does not operate to deny a litigant an opportunity to present facts.  Vieths v. Thorp Finance Co., 305 Minn. 522, 525, 232 N.W.2d 776, 778 (1975).

            Appellant’s age discrimination claim is brought under the Minnesota Human Rights Act, Minn. Stat. § 363.03 (1998) (MHRA).  The complaint alleges that respondent, primarily appellant’s immediate supervisor, created a hostile work environment that ultimately resulted in appellant’s constructive discharge.  It is an unfair employment practice under the MHRA for an employer, except when based on a bona fide occupational qualification, to discriminate against a person because of age with respect to terms, upgrading, conditions, or privileges of employment.  Id. § 363.03, subd. 1(2)(c); see Dietrich, 536 N.W.2d at 323 (following McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)).

            To establish a hostile work environment, the appellant must show:

(1) she belongs to a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on [age]; (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 proper remedial action.


Callanan v. Runyun, 75 F.3d 1293, 1296 (8th Cir. 1996) (quotation omitted).  In this case, the only undisputed material fact is that appellant is a member of a protected group.  The facts demonstrating the remaining elements are sharply contested.

            Considering the evidence in the light most favorable to appellant, Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993), we conclude that the district court erroneously granted summary judgment to respondent.  First, the district court improperly found that the date of appellant’s first complaint was undisputed.  The court found it to be November 1995, while appellant claims it was March 1995—a disputed fact material to the issue of whether the employer knew or should have known of the discrimination and took timely and proper remedial action.  Second, the district court determined that “[n]o ageist remarks” were ever made by respondent.  To the contrary, appellant alleges in her affidavit that her supervisor repeatedly told her that she wanted to remove “older” people in the department and specifically stated that they had to be careful because one employee was “in a protected age group.”  Appellant states she observed older employees targeted and mistreated by the supervisor while younger employees received preferential treatment.  In light of the supervisor’s conduct, her comments and actions directed at appellant, such as calling her “stupid” and stating she had a “learning disability,” questioning her ability to read, raise the issue of whether age discrimination occurred.  Third, appellant observed new, younger nurses replacing the older nurses.  She testified that she personally lost her office, hours, and duties to a younger nurse.

“A constructive discharge occurs when an employee resigns in order to escape intolerable working conditions caused by illegal discrimination.”  Continental Can Co. v. State, 297 N.W.2d 241, 251 (Minn. 1980) (citations omitted).  The intolerable working conditions must have been created by the employer “with the intention of forcing the employee to quit.”  Pribil v. Archdiocese of St. Paul & Minneapolis, 533 N.W.2d 410, 412 (Minn. App. 1995) (quotation omitted).

            Again, the parties dispute the facts underlying appellant’s working conditions.  Appellant observed the mistreatment of other, older co-employees who eventually left respondent’s employment.  She produced facts to establish that her working conditions changed dramatically, culminating in her resignation.  She also provided evidence that a younger nurse replacement received the more secure duties previously performed well by appellant, while appellant was reassigned to duties that were not funded and were, hence, less secure employment.  In short, there were sufficient facts in the record to raise genuine issues regarding whether appellant’s working conditions led to her constructive discharge.

Appellant also contends that the district court abused discretion by refusing to consider supporting depositions that were submitted after the summary judgment hearing, but almost three months before the court granted summary judgment.  We agree.  The record indicates that appellant’s counsel referred to the depositions in his moving papers, which were timely filed with the court and available at the summary judgment hearing.  His failure to timely file the depositions themselves with the court was apparently inadvertent and prejudiced no one.  Furthermore, the record clearly reflects that appellant’s counsel was struggling with personal problems throughout the litigation. Under these circumstances, it was an abuse of discretion to hold appellant responsible for the conduct of her attorney and to refuse to consider appellant’s depositions.

            Reversed and remanded.

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