This opinion will be unpublished and

may not be cited except as provided by

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







Kelly S. Miles,





DDF, Inc., f/k/a UCC Total Home d/b/a

DirectBuy of Minneapolis,




Filed May 11, 2004

Affirmed in part, reversed in part, and remanded

Huspeni, Judge*



Hennepin County District Court

File No. EM 02-020129



James H. Kaster, Adam A. Gillette, Jennifer A. Kitchak, Nichols Kaster & Anderson, PLLP, 4644 IDS Center, 80 South 8th Street, Minneapolis, MN 55402 (for appellant)


Christopher J. Harristhal, Larkin Hoffman Daly & Lindgren, Ltd., 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Minneapolis, MN 55431 (for respondent)




            Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


After being discharged from her employment, appellant commenced an action pursuant to the Minnesota Human Rights Act (MHRA) against respondent, her former employer, claiming that her supervisor, who was also the co-owner of her employer, conditioned her employment and benefits on her participation in a sexual relationship with him.  In challenging the district court’s grant of summary judgment to respondent, appellant argues that there are genuine issues of material fact that preclude summary judgment.  Because we conclude that there is a genuine issue of material fact on appellant’s sexual harassment claim, but none on her gender discrimination or reprisal claims, we affirm in part, reverse in part, and remand. 


            AppellantKelly S. Miles began employment in sales at respondent DDF, Inc. in July 2001.  DDF is a private wholesale showroom that sells, among other things, building, furnishing, and remodeling products.  DDF is wholly owned by Darryn and Dana Fossand, a married couple, who operate the franchise together.  Darryn Fossand, the President of DDF, was Miles’s supervisor.  Dana Fossand holds the positions of treasurer and secretary of the company.

About January 2002, Darryn Fossand (Fossand) began expressing a sexual attraction to Miles by touching and kissing her at work, making comments about oral sex, and suggesting that they be alone together.  Miles testified in her deposition that she initially expressed objection to the advances by pulling away from the first kiss, saying “No, . . . I can’t do this, . . . you’re married.”  She stated that she “hated it,” complied only because she believed her job was contingent upon sex with her boss, and testified that when Fossand began mentioning to her that he wanted the two to have sex, she knew they would do so in order for her to keep her job.  Miles also testified that Fossand indicated that if she refused to follow his signals for her to leave work and meet him at a hotel, she could not continue to work at DDF.  Miles complied, stating that she believed her job depended on compliance.  Miles later testified, however, that Fossand never told her that she would be discharged if she refused to book the hotel for them.  Miles also admitted to kissing Fossand before he ever threatened that she would lose her job for refusing to have sex with him, but did so because she didn’t want him to get mad and fire her.

By March 2002, Miles began making hotel room reservations, planning to have sex with Fossand.  On the first of these occasions, she used gift certificates for the room, and also purchased drinks for the two.  Miles’s deposition testimony regarding the couple’s first sexual encounter is not consistent.  She stated that she physically pushed Fossand away, but later stated that although she twice said “no,” she never physically attempted to stop Fossand.  Miles explained that at a later time she engaged in oral sex with Fossand because she did not want to have sexual intercourse with him again.  The second time the two met at a hotel, Miles made the arrangements, paid for the room, and was naked when Fossand arrived.  Miles believed she had oral sex and intercourse with Fossand more than ten times during their relationship. 

Miles does not dispute that for a period of time, the relationship was acceptable to her.  Fossand began to distribute more and better sales leads to Miles.  She spoke of her relationship with Fossand to friends and coworkers, giving explicit details of their sexual encounters and asking them not to repeat her confidences to others.  The relationship included purchasing gifts for one another, and meeting with Fossand’s children for a movie and a meal.  The couple discussed marriage and the possibility of running DDF together.  Miles never complained to DDF supervisory personnel about any problems with Fossand’s attentions, although at least one supervisor was available to be consulted.  Miles never sought other employment, but stated that if she had wanted to end her employment at DDF she could not have found another job paying as much as she made there.  

Eventually Miles decided that her relationship with Fossand was no longer acceptable to her.  She stated in her deposition:

For the first month and a half of this I hated it.  And then I accepted it because it was my job.  Then I got to the point where I couldn’t take it any more.  I couldn’t deal with it.  So there was a good period in there when I thought I could deal with it.  And if I wanted the job, I could stay and handle it.  And then it got bad again when I couldn’t take it any more.


On or about July 2, 2003, Miles told Fossand that she could not continue their relationship and that she did not want to lose her job.  Fossand indicated that he could not continue to have her work at DDF without continuing the affair.  The following day Fossand disclosed to his wife that he was having an affair.  When he subsequently identified Miles, Dana Fossand ordered him to immediately fire her.  He did.

Dana Fossand testified in her deposition that it was she who made the decision to fire Miles, and that Fossand himself objected to the firing because Miles had children and would have no means of making a living.

The district court, in granting DDF’s motion for summary judgment on all counts, stated that Miles’s allegations that she was threatened with job loss was not credible, that no reasonable jury could conclude that Miles engaged in a sexual relationship with Fossand to keep her job, and that her participation in and solicitation of the sexual relationship precluded a finding that the relationship was unwelcome.  The district court further explained that there was no evidence that Miles’s discharge resulted from a discriminatory act based on her gender and that Miles’s reprisal claim failed because there was no connection between her discharge and her decision to terminate her relation with Fossand.  This appeal followed.


On appeal from summary judgment, this court must examine 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.  Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997).  The 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).  A motion for summary judgment shall be granted “when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.”  Minn. R. Civ. P. 56.03. 

[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.


DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).[1]  No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  Id. at 69(alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)). 

Miles contends the district court erred in granting summary judgment to respondent when an issue of fact existed regarding her sexual harassment, gender discrimination, and reprisal claims brought under the Minnesota Human Rights Act (MHRA), Minn. Stat. §§ 363A.01-.41 (Supp. 2003).[2]  We address each of these claims in turn.

1.         MHRA Quid Pro Quo Sexual Harassment Claim

Under the MHRA, sexual discrimination includes sexual harassment.  Minn. Stat. § 363A.03, subd. 13.[3]  Minnesota courts use the McDonnell-Douglas framework to determine whether a violation of the MHRA has occurred.  Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 441 (Minn. 1983) (adopting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)).  The employee has the initial burden of establishing a prima facie case of discrimination.  Id. at 442.  To establish a prima facie case of sexual harassment, a claimant must show by a preponderance of the evidence that: (1) she is a member of a protected class; (2) she was subject to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; (3) the harassment was based on sex; and (4) her submission to the unwelcome advances was an express or implied condition for receiving job benefits or her refusal to submit resulted in a tangible job detriment.  Benassi v. Back & Neck Pain Clinic, Inc., 629 N.W.2d 475, 480-81 (Minn. App. 2001), review denied (Minn. Sept. 11, 2001). 

In Meritor Savings Bank v. Vinson, 477 U.S. 57, 60, 106 S. Ct. 2399, 2402 (1986), the U.S. Supreme Court addressed a sexual harassment claim very similar to the one here.  The claimant in Meritor testified in the district court that

during her probationary period as a teller-trainee, Taylor treated her in a fatherly way and made no sexual advances.  Shortly thereafter, however, he invited her out to dinner and, during the course of the meal, suggested that they go to a motel to have sexual relations.  At first she refused, but out of what she described as fear of losing her job she eventually agreed. . . . [B]ecause she was afraid of Taylor she never reported his harassment to any of his supervisors and never attempted to use the bank’s complaint procedure.


Id. at 60-61, 106 S. Ct. at 2404. 

After trial on the merits, the district court determined that the claimant was not a victim of sexual harassment.  Id. at 61, 106 S. Ct. at 2402-03.  The Court of Appeals for the District of Columbia reversed, and the United States Supreme Court affirmed, noting that “[T]he fact that sex-related conduct was ‘voluntary,’ in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII.  The gravamen of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome.’”  Id. at 68, 106 S. Ct. at 2406.

Consistent with the rationale of Meritor, we believe the proper inquiry in this case is whether Miles’s conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation was voluntary.  Id.  The question of whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact.  Id.; see also Kresko v. Rulli, 432 N.W.2d 764, 771 (Minn. App. 1988) (affirming trial court’s determination after trial on merits that there was no sexual harassment based on plaintiff’s conduct indicating that her supervisor’s advances were welcome), review denied (Minn. Jan. 31, 1989).

Miles challenges the district court’s conclusion that she “welcomed the personal, sexual relationship with” Fossand, and argues that the court made improper credibility determinations and ignored Miles’s testimony regarding the unwelcome nature of Fossand’s advances.  There is merit to Miles’s argument.

The district court prefaced its findings of fact with the statement, “The following facts are either undisputed or are taken from the Plaintiff’s deposition and are therefore stated with all reasonable inferences drawn in favor of the Plaintiff.”  The findings of the district court referenced Miles’s arrangement for and payment of a hotel room, her purchase of drinks, her nakedness, her communications to friends and coworkers about her relationship with Fossand, the lack of a threat of discharge if sex was refused, and the lack of complaint to any supervisor regarding Fossand’s attentions.  Among its conclusions of law, the district court stated that “although [Miles] has alleged that she was threatened with job loss if she declined the relationship with Mr. Fossand, the allegation is not credible. . . . The evidence as a whole so overwhelmingly preponderates in favor of DDF, Inc. as to leave no doubt as to the factual truth.”

Absent from the district court’s findings and conclusions, however, is considerable deposition testimony of Miles that Fossand’s overtures were initially unwelcome, that she pulled away from the first kiss, that Fossand threatened her by telling her “nobody can find out about this or you will be fired,” that she objected to Fossand inappropriately touching and kissing her, that she said “no” before they had intercourse, rolled over, and pushed him away, and that she initially “hated it” and she only stayed because she wanted to keep her job.

We conclude that in granting summary judgment to DDF on Miles’s sexual harassment claim the district court inappropriately made credibility determinations.  See Powell v. Anderson, 660 N.W.2d 107, 122 (Minn. 2003) (holding district court’s credibility determinations unauthorized in summary judgment).  While we recognize that MHRA claims are tried to the court without a jury, that does not weaken the principle that credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are functions properly assigned to the finder of fact after trial.  The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in her favor.  Williams v. Curtis, 501 N.W.2d 653, 656 (Minn. App. 1993), review denied (Minn. Aug. 6, 1993).  Evaluation of recollection, powers of observation, and truthfulness normally should be reserved for a jury, absent total incredibility.  Hasan v. McDonald’s Corp., 377 N.W.2d 472, 475 (Minn. App. 1985). 

DDF argues that summary judgment was proper because Miles’s deposition was without credibility.  While Miles’s deposition testimony does contain some inconsistencies, the circumstances of this case, including the uncontested early sexual overtures, and the roles of Fossand and Miles as employer and employee, supervisor and subordinate, and the obvious power disparity those roles entailed, at least suggest legitimate reasons for those inconsistencies.  Miles’s testimony regarding the unwelcomeness of Fossand’s initial attentions and her understanding that her acquiescence was a condition of her continued employment are not totally incredible.  Instead, we conclude that the deposition testimony raises an issue of material fact for trial.

In concluding that the claim of sexual harassment must be remanded for trial, we decline to comment on the strength of that claim, and note that the fact

that it is unlikely [a party] will prevail [at] trial . . . is not a sufficient basis for refusing [that party] his day in court with respect to issues which are not shown to be sham, frivolous, or so unsubstantial that it would obviously be futile to try them.


Whisler v. Findeisen, 280 Minn. 454, 456, 160 N.W.2d 153, 155 (1968).  We are confident that inconsistencies and weaknesses in Miles’s claim will be pursued vigorously on cross-examination at trial, and the credibility of all witnesses will be weighed, as it should be, by the trier of fact. 

            We find distinguishable the caselaw cited by DDF to support its argument that it was appropriate for the district court to weigh inconsistencies in Miles’s deposition and rule in accordance with that weighing.  In Marathon Ashland Petroleum, LLC v. Int’l Bhd. of Teamsters, 300 F.3d 945 (8th Cir. 2002), summary judgment was appropriate because deposition testimony of a witness after a break was a “sudden and unexplained revision” to create an issue where none had existed before.  Id. at 951.  The situation here was not comparable to that in Marathon

Further, while we recognize that a nonmovant should not be permitted to create issues of credibility to survive summary judgment by contradicting earlier testimony, the evidence in this case is a single deposition.  There is a qualitative distinction between inconsistencies in a single deposition and a case in which a nonmovant seeks to create a triable issue by subsequently submitting an affidavit contradicting earlier deposition testimony.  See Am. Airlines, Inc. v. KLM Royal Dutch Airlines, Inc., 114 F.3d 108, 111 (8th Cir. 1997); Oreck v. Harvey Homes, Inc., 602 N.W.2d 424, 429 (Minn. App. 1999), review denied (Minn. Jan. 25, 2000); Banbury v. Omnitrition Int’l Inc., 533 N.W.2d 876, 881 (Minn. App. 1995). 

Finally, while courts also reject the attempt of a plaintiff to avoid summary judgment by proffering testimony from another person that contradicts the plaintiff’s own testimony, that principle has no application here.  See Marathon, 300 F.3d at 951.  We are cited to no case, nor has our independent research revealed any, holding that inconsistencies in a deponent’s testimony creates sufficient lack of credibility to justify granting summary judgment against that deponent.

Granting to Miles, as we must, the benefit of all reasonable inferences, we conclude that she has presented sufficient probative evidence regarding the unwelcomeness of Fossand’s advances and her belief that those advances were an express or implied condition of employment “to permit reasonable persons to draw different conclusions.”  DLH, 566 N.W.2d at 71.  Therefore, we reverse the district court’s grant of summary judgment on the claim of sexual harassment and remand for trial on the merits. 

2.         MHRA Gender Discrimination Claim

Under the MHRA, except when based on a bona fide occupational qualification, it is an unfair employment practice for an employer “because of . . . sex . . . to discharge an employee; or [to] discriminate against a person with respect to hiring tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment.”  Minn. Stat. § 363A.08, subd. 2.  There are two basic types of gender discrimination, disparate treatment and disparate impact.  Sigurdson v. Isanti County, 386 N.W.2d 715, 719 n.1 (Minn. 1986).  Both types require a showing that the plaintiff has been discriminated against because of sex.  Id.  Miles does not specifically address either of these types of gender discrimination in her brief.  She cites only a sexual harassment case[4] to support her gender discrimination claim, and fails to otherwise establish that she suffered discrimination because of sex.  The district court properly concluded that Miles was discharged by Dana Fossand due to her conduct, not because of her gender.  Therefore, summary judgment was properly granted in favor of DDF on this claim.

3.         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, . . . or owner . . . to intentionally engage in any reprisal against any person because that person[] . . . [o]pposed a practice forbidden under this chapter . . . .”  Minn. Stat. § 363A.15.  A reprisal includes any form of intimidation, retaliation, or harassment.  Id.  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. at 101-02.

Miles argues that the district court erred in concluding that because no causal connection existed between Miles’s cessation of her sexual relationship with Fossand and her termination from employment, she failed to establish a prima facie case of reprisal under the MHRA.  Miles argues that evidence of Fossand’s retaliatory motive for informing Dana Fossand of the affair creates an inference that refusal to have sex was sufficiently related to her termination, and raises a genuine issue of material fact regarding causation. 

            Although appellate courts view the evidence in the light most favorable to the party against whom judgment was granted, summary judgment is appropriate against a party who fails to establish the existence of an element essential to its case.  Benassi, 629 N.W.2d at 481.  Causation is generally a question of fact for the jury, however, it becomes a question of law where different minds can reasonably arrive at only one result.  Paidar v. Hughes, 615 N.W.2d 276, 281 (Minn. 2000).  An employee may demonstrate a causal connection “by evidence of circumstances that justify an inference of retaliatory motive.”  Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 327 (Minn. 1995) (quotation omitted).

We conclude that no material fact question exists on the issue of reprisal.  Miles concedes that it was Dana Fossand who decided to terminate her employment.  The basis of that termination was that Miles was having an affair with Dana Fossand’s husband and business partner.  Surely, Miles’s discharge was occasioned by a motive that had nothing to do with reprisal or retaliation against Miles for engaging in statutorily protected conduct.  Further, it strains credulity to conclude that Miles’s termination, which was conceded to be at the behest of Dana Fossand, resulted from Miles’s refusal to continue her sexual relationship with Dana Fossand’s husband.  And even if this court were to assume that Fossand himself had a retaliatory motive, the evidence, the testimony, and the invocation of common sense leads to the inevitable conclusion that it was Dana Fossand’s decision to terminate Miles, and that Dana Fossand’s motive was clearly beyond the reach of the MHRA.  Our review of the record convinces us that Fossand actively opposed Miles’s termination and voiced concern about her future ability to provide support for herself and her children.  His involvement in the termination of Miles was limited only to his communication to her of Dana Fossand’s decision.

            Miles argues that the timing of her employment termination, occurring the day after she ended the sexual relationship, indicates that the two are causally connected.  Temporal proximity alone, however, is insufficient to establish a causal connection.  See Nelson v. J.C. Penney Co., 75 F.3d 343, 346 (8th Cir. 1996) (mere coincidence of timing does not raise inference of causation), cert. denied, 519 U.S. 813, 117 S. Ct. 61 (1996).

Viewing the evidence in the light most favorable to Miles and drawing all reasonable inferences in her favor, the evidence does not support her argument that Fossand had an unlawful motive, which is imputed to Dana Fossand and DDF.  See Lacks v. Ferguson Reorganized Sch. Dist. R-2, 147 F.3d 718, 725 (8th Cir. 1998) (stating that where the decisionmaker made an independent determination as to whether the plaintiff should be terminated and did not serve as merely a conduit for the desires of those unlawful motives, then the “cat’s paw” theory must fail), cert. denied, 526 U.S. 1012, 119 S. Ct. 1158 (1999).  Surely, Dana Fossand was no conduit in this matter.

            The district court properly concluded that Miles failed to produce sufficient probative evidence to create a genuine issue of material fact for a rational trier of fact to find that her ceasing of the sexual relationship with Fossand caused her termination from employment.  Accordingly, Miles’s retaliation claim fails and the district court properly granted summary judgment in favor of DDF.[5]

Affirmed in part, reversed in part, and remanded. 




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

[1]  The district court here used the “reasonable jury” standard applicable to directed verdict motions.  In DLH, the court recognized the differences between summary judgment and directed verdicts, but declined to explicitly hold that the standards mirror each other.  566 N.W.2d at 69-70.   

[2]  The Minnesota Human Rights Act was recodified and renumbered in 2003. 

[3]  “Sexual harassment,” as defined in the MHRA,


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:

(1) submission to that conduct or communication is made a term or condition, either explicitly or implicitly, of obtaining employment, . . .;

(2) submission to or rejection of that conduct or communication by an individual is used as a factor in decisions affecting that individual’s employment, . . .; or

(3) 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. § 363A.03, subd. 43.

[4] In re Application for Discipline of Peters, 428 N.W. 2d 375 (Minn. 1988).

[5] While we affirm the summary judgment on Miles’s gender and reprisal claims, we are remanding her sexual harassment claim for trial on the merits.  In that context, we note the following language in the parties’ appellate briefs:  DDF states in its respondent’s brief that Miles


so discredited her own testimony that she cannot create a genuine issue of fact and the district court properly found that no reasonable jury could return a verdict in her favor.  No purpose would have been served by having the trial court hold a bench trial and come to the same conclusion.


Miles states in her reply brief:


[Miles] agrees that the district court made clear that it would find for [DDF] in a bench trial.  Therefore, [Miles] requests that if this Court determines summary judgment was inappropriate, it remand this case with instructions that it be assigned to a different judge.


Recognizing that sexual harassment claims are tried to the court without a jury, we give credence to the conclusions reached by both parties, and direct reassignment of this matter to a district court judge other than the judge who ruled on the summary judgment motion.