This opinion will be unpublished and

may not be cited except as provided by

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






Richard Soukup,





Graco, Inc.,




Filed May 13, 2003


Randall, Judge


Hennepin County District Court

File No. 01-3981



Aldo J. Terrazas, Reinhardt and Anderson, E-1000 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for appellant)


Thomas E. Marshall, Jackson Lewis LLP, 150 Fifth Street Towers, Suite 2800, 150 South Fifth Street, Minneapolis, MN 55402 (for respondent)



            Considered and decided by Wright, Presiding Judge, Randall, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Richard Soukup challenges the district court’s grant of summary judgment to his former employer, Graco, Inc., on various claims of gender discrimination and sexual harassment.  Appellant argues that he presented enough evidence to create a genuine and substantial question of material fact on each of his claims.  We affirm.


            Appellant Richard Soukup began his employment with respondent Graco in 1962.  Through the years, he occupied various positions, including 12 years as a management-level supervisor, although he was a non-supervisory employee at the time of his termination in 2000.

            In October 1995, Soukup attended a party for employees with at least 25 years of service with Graco.  At the party was another longtime employee, Charlene Vincent (Vincent), with whom Soukup had been familiar and friendly for several years.  The night of the party, however, some unpleasant exchange occurred between them.  Although they had very different memories of the circumstances, Vincent complained to supervisors that Soukup had said or done something to offend her.  Angry, Soukup requested a full investigation.  Supervisors spoke to Vincent, Soukup, and another employee who apparently witnessed the occurrence.  Because the employees reported such different events, supervisors ordered them to have no unnecessary contact with each other, but chose not to discipline either employee.

            After 1995, Soukup took great pains to avoid not only unnecessary contact with Vincent, but any contact at all.  Vincent later reported that whenever she approached Soukup, even unintentionally, he made a scene or called her names.  For his part, Soukup claimed that he received countless hang-up calls at his workstation, after which Vincent would walk by smiling intently at him.

            In December 1999, Vincent was asked by supervisors to calibrate an instrument in Soukup’s station.  Due to the tension between her and Soukup, Vincent asked a male employee to accompany her.  When they approached Soukup’s station, Soukup began shouting at Vincent to stay away from him, raising his arms in the air.  Vincent left crying and reported the incident to supervisors as sexual harassment.  An investigation followed, during which Soukup expressed his frustration at the fact that no investigation was done into Vincent’s behavior.  He claimed that Vincent deliberately came near him, smiled at him, and made hang-up calls to his station.  Soukup’s supervisor, Joe Murphy, offered to arrange to trace any calls made to Soukup’s station, but Soukup did not take advantage of this opportunity.

            On February 25, 2000, Soukup became involved in an argument with another employee.  During this argument, some soda splashed onto Soukup’s clothes.  Accusing his coworker of doing it on purpose, Soukup insisted that they meet with their respective supervisors.  In the meeting, Soukup became increasingly frustrated and argumentative because he felt the supervisors were straying from the facts of the incident and picking on him.  When the other employee’s supervisor made a statement Soukup did not like, he told the supervisor to “bite me.”  He later apologized to his own supervisor, Joe Murphy, but did not apologize directly to the man to whom the statement was made. On March 6, Soukup received a warning for insubordination.

            Sometime in March 2000, Soukup hired an attorney to investigate what he claimed were Graco’s discriminatory actions against him.  During the five years between the first problem with Vincent and the present time, Soukup had suffered a schedule change and a reduction in overtime hours that consequently affected his earnings.  His attorney directed a letter to Graco, ordering that it cease the discriminatory actions against him.  That same month, Soukup met with supervisors to discuss the outcome of the investigation into the incident with Vincent the preceding December.  Soukup was asked to watch a video and read some literature about harassment, and was asked if he had anything else he wanted the company to investigate.  He told the company that it should contact his attorney, and no further actions were taken in the matter.

            The relationship between Soukup and his supervisor, Joe Murphy, continued to deteriorate.  Soukup felt he was being picked on and singled out, and began bringing a tape recorder to work and demanding that Murphy allow him to record any conversations they had.  These tapes were never produced during discovery.  Soukup said he thought they had been lost.  Every time Murphy had a disagreement with Soukup about productivity or job requirements, he added a note to Soukup’s personnel file. 

            Finally, on May 5, 2000, Murphy and several other employees approached Soukup’s station to ask about production scheduling and the order in which jobs were to be finished.  Soukup became angry and embarrassed, and walked away from the conversation.  When Murphy ordered him to return, Soukup ignored the command and kept walking.  A few days later, Murphy issued a warning for insubordination.  Because it was Soukup’s second warning in less than six months, Graco terminated him.  

            Soukup filed suit against Graco, claiming gender discrimination, sexual harassment, hostile work environment, reprisal, breach of contract, and negligent supervision.  After extensive discovery, Graco moved for summary judgment on all claims.  Soukup voluntarily dismissed his breach of contract and negligence claims, but wished to proceed to trial on his claims of gender discrimination, sexual harassment, hostile work environment, and reprisal.  Soukup also filed a late affidavit detailing how Graco dealt with the sexual harassment claims of women employees. 

            After a hearing held February 22, 2002, the district court granted Graco’s motion for summary judgment in its entirety.  In the order issued May 21, 2002, the district court explained that Soukup had failed to create genuine issues of material fact on his claims; that he had failed to show that Vincent’s behavior toward him was of a sexual nature; and that he had not complained of conduct prohibited by the Minnesota Human Rights Act, making his reprisal claim meritless.  This appeal followed.



            On an appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its interpretation of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court views the evidence in the light most favorable to the party against whom summary judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

            In applying rule 56, the district court must determine whether the nonmoving party has presented, based on affidavits, depositions, pleadings, and other submissions, a genuine issue of material fact for trial.  Minn. R. Civ. P. 56.03.  Summary judgment should not be granted if reasonable minds could draw different conclusions from the evidence.  DHL, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).  But, the burden falls on the nonmoving party to present evidence sufficiently probative to an essential element of the claim to allow reasonable minds to reach different conclusions.  Id. at 71. 

            Appellant claims that the district court impermissibly adopted respondent’s version of the facts, ignored his version, and incorrectly granted summary judgment against him.  We examine the claims individually.

A.        Gender discrimination claim

            In gender discrimination claims under the Minnesota Human Rights Act (MHRA), the Minnesota courts have adopted the McDonnell Douglas burden-shifting analysis devised by the United States Supreme Court for use in Title VII cases.  Sigurdson v. Isanti County, 386 N.W.2d 715, 719 (Minn. 1986) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)).  This test has four elements, which may be modified slightly to fit the needs of a particular case.  The plaintiff must show that: (1) he is a member of a protected class; (2) he was qualified for his position; (3) he was subjected to an adverse employment action; and (4) he was treated differently from similarly situated members of the opposite sex.  LaCroix v. Sears, Roebuck & Co., 240 F.3d 688, 693 (8th Cir. 2001).

            Here, it is not disputed that appellant is a member of a protected class and was qualified for his position.   The issue is whether he suffered an adverse employment action that a similarly situated woman would not have suffered.  The adverse action appellant complains of is that his sexual harassment complaint against Vincent was taken less seriously than Vincent’s complaint against him, or the sexual harassment complaints of other female employees, creating an unpleasant work environment and reducing the value of his earnings. 

            The district court examined the evidence presented by both parties, and determined that appellant had failed to present sufficient evidence to create a material question of fact as to whether respondent treated his harassment complaint against Vincent differently than it would have had appellant been a woman.  Appellant was given the opportunity to investigate the hang-up calls, but did not do so, and when human resources personnel offered to investigate on his behalf, he directed them to his attorney but did not take advantage of the offer.  The 1995 incident was investigated by the company, and neither appellant nor Vincent was disciplined or otherwise censured.  After the December 1999 incident, the company attempted to investigate and offered appellant the chance to participate.  Again, appellant was not disciplined for his behavior, only warned and asked to review the company’s sexual-harassment policies.  This evidence shows that appellant was not denied an investigation as he claims.  We find nothing in the record to suggest that appellant was treated any differently than a woman in his position would have been.  Deposition testimony showed that the company attempted to find a solution to the problems appellant had with Vincent.  Appellant’s primary evidence that he suffered gender discrimination is his own perception.  To survive summary judgment, a plaintiff must show evidence that supports his claim, and that evidence must consist of more than “mere speculation, conjecture or fantasy.”  Gregory v. Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992) (quotation omitted).  Appellant failed to create a genuine issue of material fact as to whether he was subjected to an adverse employment action or was treated differently than a similarly situated female employee.

B.        Sexual harassment/hostile work environment claim

            Under the MHRA, sexual harassment includes “sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature,” which has the purpose or effect of “substantially interfering with an individual’s employment.”  Minn. Stat. § 363.01, subd. 41 (2002).  To support a claim of sexual harassment or hostile work environment against an employer, the plaintiff must show: (1) that the conduct was unwelcome; (2) that the harassment was based on sex; (3) that the conduct was pervasive enough to create an abusive working environment; and (4) that there is some basis for imputing knowledge or liability to the employer.  Johns v. Harborage I, Ltd., 585 N.W.2d 853, 861 (Minn. App. 1998). 

            Appellant claims that respondent failed to respond to his complaints about Vincent’s harassment, and that this failure created a hostile work environment and liability under the MHRA.  From the evidence presented, it is clear that appellant considered any contact with Vincent to be unwelcome.  Appellant alleges that Vincent “smiled intently” at him, made hang-up calls to his station, and passed close to his station because she had a sexual interest in him.  But, the evidence that he presented in support of these allegations is purely his own speculation.  The investigation into the 1995 incident did not reveal that Vincent had approached appellant in a sexual way.  Appellant did not accept the opportunity to show that Vincent made any hang-up calls to him.  There is no evidence in the record that Vincent’s conduct was in any way sexual other than appellant’s speculation, which, as we have said, is not enough to create a question of material fact as to this element.  Because there is no evidence that Vincent acted inappropriately toward appellant, her behavior cannot be said to have been so pervasive as to create a hostile work environment. 

            Finally, appellant did not create a question of material fact as to whether there is a basis for imputing liability to his employer, respondent.  Although it appears that appellant did complain about Vincent at some times, and clearly supervisors were aware that some tension existed between the two employees, appellant did not show that he ever made a complaint of sexual harassment against Vincent that was ignored by the company.  When he did complain, efforts were made to investigate.  The record indicates appellant was not helpful in those efforts.  Even viewing the evidence in the light most favorable to appellant, there is no showing of an objectively offensive or abusive environment that a reasonable person would find hostile.  See Harris v. Forklift Sys., Inc., 510 U.S. 171, 114 S. Ct. 367, 370 (1993).   Summary judgment was properly granted on this claim.

C.        MHRA reprisal claim

            Intentionally engaging in reprisal against any person because that person opposed a practice prohibited by the MHRA constitutes illegal discrimination.  Minn. Stat. § 363.03, subd. 7 (2002).  To show that he was subjected to reprisal, the plaintiff must show that: (1) he engaged in statutorily protected conduct; (2) he suffered an adverse employment action; and (3) there was a causal connection between the two.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101-02 (Minn. 1999). 

            Appellant claims that he engaged in statutorily protected conduct by reporting Vincent’s actions to respondent, and that the company initially retaliated against him by failing to investigate the complaint, and the retaliation later escalated to disciplinary actions and then his termination.  The district court explained that because appellant had failed to create a question as to whether sexual harassment had occurred, he could not create a question as to whether his complaints were statutorily protected conduct.  Only if Vincent’s acts had been sexually motivated would appellant’s complaints be protected.  We agree, but even if appellant’s complaint had been statutorily protected, he failed to show any causal connection between his employment woes and his complaints about Vincent.

            As we have explained, appellant did not show that respondent ignored his complaints about Vincent.  And, the evidence presented shows that the adverse employment decisions appellant suffered were the result of his own conduct on the job, rather than his complaints.  Appellant did receive two warnings for insubordination in 2000, which he claims were part of the employer’s plan to set him up for termination as a reprisal for his complaints.  Even viewing the record in the light most favorable to appellant, it is clear that the warnings came after appellant lost his temper while talking to supervisors, first making a rude comment, then walking away from a conversation despite orders to return.  Appellant also lost some overtime hours when his supervisors determined that he would not be allowed to begin work at 3 a.m. as he had been doing.  But, the supervisor’s depositions show that this decision was motivated by a concern that appellant needed access to a supervisor in case problems with other employees arose, not by a desire to punish appellant for his complaints.  Appellant suffered no disciplinary actions regarding his conflict with Vincent.  Even after the December 1999 incident in which he shouted at Vincent in full view of other employees, appellant was not formally disciplined.  Appellant presents only his own allegations that he was set up for termination, or that the employer took any actions against him because he complained about Vincent.  Respondent submitted sufficient evidence to show that appellant was terminated due to his own increasing hostility and deteriorating demeanor. 

            We note that in the memorandum accompanying its order for summary judgment, the district court discusses the law to be applied to employment-discrimination claims and then states: “It is the Court’s considered judgment that plaintiff has failed to establish a prima facie case of unlawful discrimination.”

            Although we affirm the district court’s grant of summary judgment, the district court’s reasoning that a party must establish a prima facie case at the summary judgment stage is overly strict.  The sole question before an appellate court at the summary judgment stage is whether there are any genuine issues of material fact with the evidence viewed in the light most favorable to the nonmoving party.  See Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994).  As we have indicated in our analysis, we affirm because appellant failed to meet this burden.  The district court properly granted respondent summary judgment.