This opinion will be unpublished and

may not be cited except as provided by

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







Joan C. Mercure,





West Publishing Corp., d/b/a West Group,




Filed December 30, 2003


Robert H. Schumacher, Judge


Dakota County District Court

File No. C9029149


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


Susan E. Ellingstad, Rachel C. Delich, Lockridge Grindal Nauen P.L.L.P., 100 Washington Avenue South, Suite 2200, Minneapolis, MN 55401 (respondent)


            Considered and decided by Schumacher, 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


            Joan C. Mercure appeals from summary judgment in favor of respondent West Publishing Corporation, d/b/a West Group, arguing there are genuine issues of material fact as to whether she was discriminated against because of her gender, the district court applied the law incorrectly to her reprisal claims, and the district court erred in finding the statements at issue were either constitutionally protected opinion or not actionable because West had a qualified privilege.  We affirm.


Mercure worked for West from 1989 until August 2002.  In 1999, she was promoted to manager of media services.  Media services was one of three departments within the marketing relations area.  Mercure's immediate supervisor was the director of marketing relations, Tim Blevins.  In 2000, the marketing relations group underwent significant upheaval.  Blevins was transferred to another position, but the director of marketing relations position was not filled. 

In early 2000, Mercure and Blevins proposed that West create a director of media services position.  West did not create the position.  At the same time, Mercure applied for the vacated director of marketing relations position; that position was never filled. 

In March 2001, West hired David Campbell as its vice president of brand management and marketing services, and at that point he became Mercure's immediate supervisor.  In October 2001, Campbell informed Mercure he would no longer be in charge of the media services department; rather, the department would be reporting to Tom Hall.  Mercure told Campbell this could cause problems because employees who reported to her stated they might leave if they had to report to Hall. 

On October 31, 2001, Mercure, Campbell, and a human resources representative met to discuss the transfer of the media services department.  According to Mercure, Campbell began yelling at her from the beginning of the meeting, his body language was very intimidating, the yelling continued throughout the entire meeting, and he refused to give her a break when she requested one.     

            A few days later, Mercure complained to human resources that Campbell treated women differently, made sexist comments, failed to spend enough time with her, and failed to promote her to the director of media services.  Human resource representatives investigated Mercure's complaints.  Human resources interviewed Campbell and several employees, determined Campbell had a habit of using profanity, and reprimanded him.  But it concluded his actions had not created a hostile work environment. 

            In November 2001, Mercure raised concerns that she was not adequately compensated for her duties.  At the suggestion of human resources, Mercure described what she believed her job duties to be so that a market analysis could be completed. Hall, Mercure's supervisor at that time, edited her job description, removing many of the responsibilities Mercure believed made her a de facto director.  Based on the final version of the job description, Mercure was not given a raise.   

At this same time, Mercure again submitted a proposal for the creation of and a promotion to the position of director of media services.  Human resources asked Campbell to respond to the proposal.  Campbell recommended the position "didn't make sense to create nor fill."  The position was not created.

            In February 2002, Mercure filed a charge of sex and reprisal discrimination against West with the Equal Employment Opportunities Commission.  In June 2002, Mercure withdrew her complaint and filed suit in the Dakota County District Court, asserting claims of gender and reprisal discrimination, intentional infliction of emotion distress, and defamation.  In June 2003, the district court granted summary judgment in favor of West and dismissed all of Mercure's claims. 


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 application 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 nonmoving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  But the burden still rests on the nonmoving party to present evidence sufficiently probative of all the claim's essential elements to allow reasonable minds to reach different conclusions.  DHL, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). 

1.         Mercure argues the district court erred in granting summary judgment on her gender discrimination claim because there are genuine issues of material fact concerning her "supervisor's harassing behavior and his refusal to consider her for promotion were gender motivated."   

The Minnesota Human Rights Act (MHRA) provides that it is an unfair employment practice "[f]or an employer, because of . . . sex . . . to discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment."  Minn. Stat. § 363.03, subd. 1(2), (c) (2002).  Discrimination based on sex includes sexual harassment.  Minn. Stat. § 363.01, subd. 14 (2002).  The MHRA provides:

"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:

 . . . .


(3)       that conduct or communication has the purpose or effect of . . . creating an intimidating, hostile, or offensive employment . . . environment.


Minn. Stat. § 363.01, subd. 41 (2002).   Accordingly, Mercure must either show that she was denied employment opportunities because of her gender or that she was sexually harassed.

Mercure's first basis for gender discrimination is that West subjected her to a hostile work environment citing Campbell's "hostile" conduct toward her at the October 2001 meeting.   She contends she "did not need to present proof that the harassment was sexual in nature."  But hostile work environment arises in the context of the statute defining sexual harassment.  See id.; Bersie v. Zycad Corp., 399 N.W.2d 141, 146 (Minn. App. 1987) (stating one of general elements of prima facie case of harassment is "[w]as the employee subject to unwelcome sexual harassment?").  The MHRA's definition of sexual harassment clearly requires proof that the conduct or communication at issue was sexual in nature.   Minn. Stat. § 363.01, subd. 41.  Here, the record is void of any evidence of communication or conduct by Campbell or any other West employee towards Mercure that was sexual in nature.  The district court properly dismissed Mercure's claim of discrimination based on a hostile work environment.

            Mercure also argues there are genuine issues of material fact whether West's refusal to promote her to a director was the result of gender discrimination.  The specific elements of gender discrimination vary, depending on the particular fact situation.  Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986).  But generally, to establish a prima facie case of discrimination based on denied employment opportunities, the individual claiming discrimination must show he or she (1) is a member of a protected group; (2) sought and qualified for opportunities that the employer was making available to others; (3) despite qualifications, was denied the opportunities; and (4) the opportunities then remained available or were given to other persons with the individual's qualifications.  Id.  It is undisputed Mercure is a member of a protected class based on her sex.  See Minn. Stat. § 363.03, subd. 1(2) (including sex in protected class).

            Mercure must present sufficiently probative evidence that would allow reasonable people to believe the position was ever made available to anyone.  She presented no evidence, however, that the position was ever posted or anyone was ever interviewed for it.  Instead, the record shows that Mercure acted of her own volition in seeking the director position; she was never told the company was looking to fill the position.  We conclude summary judgment dismissing Mercure's gender discrimination claim was proper because she failed to present any sufficiently probative evidence of an essential element of gender discrimination.  See DHL, Inc., 566 N.W.2d at 71.

  2.       Mercure also argues the district court erred as a matter of law in requiring her to prove a "materially significant disadvantage" to defeat summary judgment of her reprisal claim under the MHRA.  Mercure contends this language arises out of federal case law that is not applicable to cases arising under the MHRA because the federal Civil Rights Act (Title VII) has different language.  Statutory interpretation is a question of law, which we review de novo.  Brookfield Trade Ctr. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

  In Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 623 (Minn. 1988), the supreme court stated, "As the result of the substantial similarities existing between Title VII and [the MHRA], we have frequently applied principles which have evolved in the adjudication of claims under the federal act."  As part of an employee's prima facie case of retaliation under Title VII, federal courts require an employee claiming retaliation to establish that the terms or conditions of his or her employment were materially altered.  Manning v. Metro. Life Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997).  This requirement that an employee suffer "materially adverse employment action" does not arise from the language of 42 U.S.C. § 2000e-3(a) (2000), but rather is inferred from Title VII's basic prohibition against employment discrimination under 42 U.S.C. § 2000e-2(a)(1)-(2) (2000).  Manning, 127 F.3d at 692.  Section 2000e-2(a) provides:

It shall be an unlawful employment practice for an employer—


(1)       to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2)       to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.


42 U.S.C. § 2000e-2(a).  Because Title VII's definition of employment discrimination is substantially similar to the MHRA's definition of employment discrimination, we conclude Title VII's principle that a claim of employer retaliation requires the employee to establish he or she suffered a materially adverse employment action applies to a claim of retaliation under the MHRA.

On appeal, Mercure has provided no argument or legal authority showing that the alleged retaliatory conduct "materially altered" the terms or conditions of employment.  Consequently, we conclude she has waived this issue.  See Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987) (stating, "assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection" (quoting Louden v. Louden, 221 Minn. 338, 339, 22 N.W.2d 164, 166 (1946))).   

3.         Mercure also challenges the district court's dismissal of her defamation claim.  The district court concluded that all the alleged defamatory statements related to Mercure's performance and were made on a proper occasion and thus protected by the qualified privilege, and her allegations against David Campbell, primarily that he yelled at her during one meeting, are insufficient to create a material question of fact on the issue of malice. 

A defamatory statement is not actionable if the comment was privileged and the privilege was not abused.  Lewis v. Equitable Life Assurance Soc'y, 389 N.W.2d 876, 889 (Minn. 1986).  A statement may be privileged if made upon a proper occasion, from a proper motive, and based upon reasonable or probable cause.  Id.  Whether a qualified privilege exists is a question of law.  Id.  Questions of law are reviewed de novo.  Chafoulias v. Peterson, 668 N.W.2d 642, 648-51 (Minn. 2003) (addressing proper standard of review from summary judgment on constitutional privilege afforded statements made regarding public figures) (petition for rehearing granted and remanded to court of appeals for consideration of other issues).

An appellate court may examine the facts supporting the defamatory allegations to determine if the employer had "reasonable or probable grounds for believing in the validity of the statement, even though hindsight might show the statement to be false."  Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 380 (Minn. 1990).  Generally, such probable cause exits when "the evidence showed investigative steps had been taken, including personal questioning of the affected employee in an effort to ascertain the accuracy of statements made about the employee's conduct."  Id. But an appellate court must be mindful that the existence of a privilege is often based on disputed facts, the determination of which is the duty of the fact finder.  Chafoulias, 668 N.W.2d at 649-50.

Mercure claims three statements defamed her: (1) Campbell's claim in her performance review that her leadership and management skills need substantial improvement—in two areas she received a rating of one and two, respectively, out of a possible five; (2) Campbell's statement to her new supervisor "there are some issues about Joan Mercure and HR is working through them"; and (3) Campbell's statement at a meeting in the presence of a human resources representative that she forced her way into his office and did not respect his time constraints.  Because these statements were all made in the context of employment, regarding Mercure's conduct as an employee, and based on a reasonable cause to believe the validity of the statements, we conclude that as a matter of law West had a qualified privilege to make the statements.  See Wirig, 461 N.W.2d at 380.

            Once the employer demonstrates a qualified privilege exists, the employee must prove common law malice to overcome the privilege.  Lewis, 389 N.W.2d at 889.   The question of whether common law malice existed is a question of fact.  Id. at 890.  Common law malice is "actual ill will, or intent to causelessly and wantonly injure the plaintiff."  Karnes v. Milo Beauty & Barber Supply Co., 441 N.W.2d 565, 568 (Minn. App. 1989), review denied (Minn. Aug. 15, 1989); see also Bradley v. Hubbard Broad., Inc., 471 N.W.2d 670, 675 (Minn. App. 1991) (concluding supervisor's unsupported allegations of gross misconduct, that he spread as "office gossip," supported jury determination of common law malice), review denied (Minn. Aug. 2, 1991).

Malice may be shown by extrinsic evidence of personal ill will or by intrinsic evidence, such as the exaggerated language of the statement or the extent of the statement's publication.  Frankson v. Design Space Int'l, 394 N.W.2d 140, 144 (Minn. 1986).  Bare assertions of a possible motive for making the statements, however, are not sufficient to create a genuine issue of fact as to whether the statements were made with common law malice.  See id. at 144-45 (noting with approval another jurisdiction's holding that bare allegations of retaliation do not create jury question regarding malice).

In order to defeat the summary judgment, Mercure must produce evidence, when taken in a light most favorable to her, sufficiently probative for reasonable minds to differ on whether the statements were made with actual ill will or intent to causelessly and wantonly injure her.  Mercure presented evidence Campbell lost his temper and was hostile towards her at the October meeting; however, this does not demonstrate he harbored ill will specifically for her or acted causelessly and wantonly to injure her.  Furthermore, the allegedly defamatory statements were neither so exaggerated nor published to such an extent as to imply they were made with actual ill will or intent to causelessly and wantonly injure her.  See id. at 144 (concluding evidence that allegedly defamatory statement, "failure to increase sales," was published to those involved in decisionmaking process and placed in employee's personnel file was not sufficiently exaggerated or unduly published to sustain finding of common law malice). 

We conclude Mercure has not shown that Campbell's statements were made with common law malice.  Summary judgment dismissing her defamation claim was proper.  Because we conclude West had a qualified privilege to make the statements at issue, we do not consider the level of constitutional protection afforded opinions about private people's private matters.